I.D. Dua, C.J.
1. This petition under Articles 226 and 227 of the Constitution of India praying for quashing the order of Shri B.S. Grewal, Financial Commissioner, Punjab, dated 17-10-1964 has been referred to a larger Bench by my learned brother Tatachari, J. by his order dated 15-11-1967 because it raises the question of the virus of Section 7 of the Punjab Public Premises and Land (Eviction & Rent Recovery) Act, 1959 (Act Xxxi of 1959) (hereafter called the Act). This section has been challenged on the ground that it is discriminatory and vocative of Article 14 of the Constitution.
2. Stating briefly the facts giving rise to this challenge the petitioner Raja Sahib of Nalagarh claims to have been a proprietor of the land in dispute situated in villages Seri and Ghansot, Tehsil Nalagarh, District Ambala, before the formation of the Patiala and East Punjab States Union, when the State of Nalagarh merged into the said Union. Later the Pepsu Government, by means of a notification dated 16-7-1955 relinquished the said land in favor of the villagers. As a result of this relinquishment, the land vested in the Panchayats of the villages concerned. On 14-6-1958, one Smt. Ram Payart complained to the Tehsildar that the land was still retained in possession by the petitioner and that his cattle were grazing in the lands. After certain reports by the various Tehsildars, the Commissioner made an order for the recovery of Rs. 2,617.50 Paise as lease money from the petitioner. It is averred in the writ petition that the order was made by the Commissioner on 12-10-196I and a review against the same was dismissed on 5-6-1963. The matter Was taken by the petitioner on revision to the Financial Commissioner and the Financial Commissioner reduced the demand to Rs. 2.000/- because he felt that a part of the land at least had been Utilised by the villagers for grazing their cattle.
3. It is in these circumstances that the present writ petition was presented In this Court. It is unnecessary to go minutely into the contents of the writ petition because in 1965, when it was presented to the Punjab High Court, the view which prevailed in that Court was that the Act was constitutional and nto vocative of either Article 14 or Article 19(1)(f) of the Constitution or of the principles of natural justice. This view was taken by a Full Bench of the Punjab High Court in The Northern India Caterers Private Ltd. v. State of Punjab, , which decision was reversed on appeal by the Supreme Court in Northern India Caterers Private Ltd. v. State of Punjab, : 3SCR399 . The majority view of the Supreme Court held Section 5 of the Act to be discriminatory and vocative of Article 14. Because of the reversal of the decision of the Full Bench of the Punjab High Court, in the present writ petition, an application was made for permission to raise the question of the validity of Section 7 of the Act and the permission having been granted, the case has been referred to a larger Bench as stated above.
4. It is nto contested that the only provision under which the Commissioner could have made this demand is S. 7 of the Act, though we must point out that the order of the Commissioner has nto been attached with the writ petition and we have nto had the benefit of looking at that order. The learned counsel appearing at the bar have also nto attempted to make any point on the ground of absence of that order before us.
5. The learned counsel for the petitioner has principally if nto exclusively, relied on the majority view of the Supreme Court in the case of Northern India Caterers Pvt. Ltd. : 3SCR399 and according to him, the grounds which have invalidated Section 5, apply with equal force to S. 7, whereas the learned counsel for the respondent has made a feeble attempt to distinguish Section 7 from Section 5 by making a reference to Rule 7 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Rules, 1959 which reads as under:
7. Assessment of damages -- In assessing damages for unauthorised use and occupation of any public premises, the Collector shall take into consideration the following; matters, namely-
(a) the purpose and the period for which the public premises were in unauthorised occupation;
(b) the nature, size and standard of the accommodation available in such premises;
(c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;
(d) any damage done to the premises during the period of unauthorised occupation;
(e) any other matter relevant for the purpose of assessing the damages.' According to him, this rule provides sufficient guidance to the Collector in assessing damages for unauthorised use and occupation of public premises. He has also contended that Section 9 of the Act provides for an appeal to the Commissioner from an order made by the Collector under Section 7 and these provisions negative any challenge to the assessment of damages under Section 7 on the ground of arbitrariness.
6. We may now turn to the majority view of the Supreme Court decision in the case of Northern India Caterers Pvt, Ltd., : 3SCR399 . Section 5 of the Act, which directly arose for construction, was struck down as vocative of Article 14 of the Constitution. It will be helpful at this stage to read Section 5:
'5. Eviction of unauthorised persons--(11 ' If, after considering the cause If any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the public premises are in unauthorised occupation, the Collector may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein directing that the public premises shall be vacated by all persons who may be in unauthorised occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises or of the estate in which the public premises are situate.
(2) If any person refuses or fails to comply with the order of eviction within thirty days of the date of its publication under Sub-section (1), the Collector or any other officer duly authorised by him in this behalf may evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary:
Provided that in the case of any such person who is nto a Government employee and who has been in continuous occupation of the public premises for a period exceeding three years immediately preceding the date of the publication of the order of eviction the Collector shall not, if an application is made to him in this behalf, evict such person from the public premises within sixty days, of such publication.'
Shelat, J. who prepared the majority judgment, expressed their view thus:
'On these considerations, it may be contended that segregation of tenants of public properties and premises from the tenants of private property is based on justifiable reason and that such segregation has a rational nexus with the object and policy of the Act
Assuming that such classification is valid, the complaint of the appellants is that Section 5 of the Act makes discrimination amongst those in occupation of public properties and premises inter se and that such discrimination has no valid basis nor any reasonable nexus with the object of the Act. Under Section 4, if the Collector is of opinion that any person is in unauthorised occupation of any public premises and that he should be evicted, he has to issue a notice calling upon such person to show cause why an order of eviction should nto be made. Under Section 5, if the Collector is satisfied that the public premises are in unauthorised occupation he has- the power to make an order of eviction giving reasons thereforee. The contention is that the Government thus has two remedies open to it, one under the ordinary law and the other a drastic and more prejudicial remedy under the present Act. The words 'the Collector may make an order of eviction' in Section 5 show that the section confers discretion to adopt the procedure under Sections 4 and 5 or not. Section 5 has left it to the discretion of the Collector to make such an order in the case of some of the tenants and nto to make such an order against others. Section 5 thus enables the Collector to discriminate against some by exercising his power under S. 5 and take proceeding by way of a suit against others, both the remedies being simultaneously available to the Government, There can be no doubt that if the Collector were to proceed under Sections 4 and 5 the remedy is drastic for a mere opinion by him that a person is in unauthorised occupation authorises him to issue a show cause notice and his satisfaction under Section 5 is sufficient for him to pass an order of eviction and then to recover under Section 7 rent in arrears and damages which he may assess in respect of such premises as arrears of land revenue. Section 5 does nto lay down any guiding principle or policy under which the Collector has to decide in which cases he should follow one or that other procedure and, thereforee, the choice is entirely left to his arbitrary will. Consequently, Section 5 by conferring such unguided and absolute discretion manifestly violates the right of equality guaranteed by Art. 14.
It is well settled that if a law were to provide for differential treatment for amongst persons similarly situated it violates the equality clause of Art. 14.' The learned Judge, after referring to some of the earlier decisions of the Supreme Court continued:--
'Assuming that persons in occupation of Government properties and premises form a class by themselves as against tenants and occupiers of private owned properties and that such classification is justified on the ground that they require a differential treatment in public interest, those who fall under that classification are entitled to equal treatment among themselves. If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and nto against the rest. A person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic procedure is exercised against him and nto against the others, even though those others are similarly circumstanced. The procedure under Section 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary Court dealing with the ordinary law of the land with the right of appeal, revision etc., as against the person who is proceeded against under Section 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner. There can be no doubt that Section 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under Section 5, that section has lent itself open to the charge of discrimination and as being vocative of Art. 14. In this view, Section 5 must be declared to be void.'
7, This reasoning quite clearly covers Section 7 (2) as well which reads as under:
'(7) ** ** ** (2) 'Where any person ss, or has at any time been, in unauthorised occupa- corporation of any public premises, the Collector may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time as may be specified in the order:
Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should nto be made, and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Collector.' Rule 7, to which our attention has been drawn, does nto seem to us to constitute a sufficiently cogent defense to the challenge based on the reasoning of the majority view of the Supreme Court. It may be pointed out that it is Section 7 of the Act which concerns us in the present case because it is under this sub-section that the Collector is empowered to assess damages on account of use and occupation of public premises by its unauthorised occupants.
8. Even otherwise Section 5 and Section 7 (2) seem to us to be so inextricably inter-connected that once Section 5 is removed from the body of the Act, Section 7 (2) would seem to us to be difficult to operate. Indeed it is dependent on Section 5, under which the Collector has to be satisfied that the public premises are in unauthorised occupation of someone, Assuming, however, that Section 7 (2) is nto dependent on Section 5 and that the finding on the point of unauthorised occupation of public premises arrived at by a competent Court may constitute the basis for the Collector to proceed to assess the damages on account of the use and occupation of such premises the question still remains whether the assessment by the Collector under this section can be upheld as valid. The principles of assessment of damages mentioned in this sub-section are apparently those which are contained in Rule 7 reproduced earlier. But unfortunately, no procedure has been prescribed for the determination of what is essentially a lis requiring judicial determination. The matters which the Collector is enjoined to take into consideration are undoubtedly broadly specified, leaving it open to the officer to take into consideration other relevant matters for the purpose of assessing the damages. The conferment of power on an executive officer to determine what is essentially a lis or a civil dispute requiring adjudication hi the ordinary Republican Courts also seems to be somewhat difficult to uphold. There is no procedure prescribed for the trial of such an important issue and no cogent ground has been brought to our notice justifying such discriminatory provision in the case of those who may be, in unauthorised occupation of public pre-1 mises.
9. Though on this ground also, the impugned order seems to be vulnerable, we would, however, like to confine our conclusions on the ground that in the absence of Section 5, Section 7 (2) cannto operate, because on the second point, we have nto had the privilege of hearing full-fledged arguments.
10. Incidentally, it may be pointed out that a Bench decision of this Court has in C. Ref. 1 of 1968 (Hukam Chand v. S. D. etc.,) decided on 29-5-1968 (Delhi) struck down Section 7 (2) of Public Premises (Eviction of Unauthorised Occupants) Act 32 of 1968 as invalid and the reasoning adopted in that case appears to apply to the present case as well. Section 7 (2) of the Act Is accordingly struck down as invalid,
11. For the foregoing reasons, we allow this writ petition quash the impugned order, but without any order as to costs.
12. Petition allowed.