Anil K. Sen, J.
1. These two appeals under Clause 15 of the Letters Patent are at the instance of the two petitioners in two Rules. Those were the two Rules obtained on two writ petitions. As the Rules raised a common question as to constitutional validity of the material provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971, they were heard together and were disposed of by a common judgment dated July 31, 1973 by a learned single Judge of this Court. Those Rules were discharged and the writ petitions were dismissed by the learned single Judge and feeling aggrieved by the said decision end the orders dismissing the respective writ petitions, the petitioners have preferred these two appeals.
2. The subject matters of challenge in those writ petitions were the two notices respectively dated 4th July, 1970 (in the case of Sri Krishna Investment & another) and 25th June, 1970 (in the case of Manton & Company Limited and another), both issued by the Estate Officer under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 as amended by Act 40 of 1963 and Act 32 of 1968. The Estate Officer being of opinion on grounds set out in the notices that the petitioners were in unauthorised occupation of the respective Public Premises specified in the respective notices, called upon the petitioners to show cause why an order of eviction in respect of each of the petitioners should not be made. Before there could be any adjudication by the Estate Officer, the petitioners moved this Court with the aforesaid writ petitions challenging the validity of the initiation of the proceedings on the ground that material provisions of the Act are ultra vires the constitution being violative of Article 14 thereof. Inspiration for such a contention was obviously derived from the Special Bench decision of this Court in the case of Rajendra Prasad Singh v. Union of India, 72 Cal WN 787 = (AIR 1963 Cal 560) based as the same was on the decision of the Supreme Court in the case of Northern India Caterers Ltd. v. State of Punjab, : 3SCR399 .
3. Pending the Rules in this Court, the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 was repealed and re-enacted in Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the said Act) and on the provisions of Section 20 thereof the impugned notices are to be deemed to have been issued under Section 4 of the said Act. The material provisions of the said Act were also retrospective having effect from September 16, 1958 (when the earlier Act had come into effect). In the case of Hari Singh v. Military Estate Officer, Delhi, : 1SCR515 the Supreme Court having upheld the constitutional validity of the said Act, the learned single Judge hearing the above Rules overruled the solitary ground of challenge of the impugned notices in the writ petitions and dismissed those writ petitions.
4. In these appeals the petitioner-appellants have raised the same point which had unsuccessfully been raised before the learned single Judge hearing the Writ petitions. According to them Section 5 of the said Act is violative of Article 14 of the Constitution and as such void.
5. Mr. Ghosh, learned Advocate appearing in support of these appeals has contended that the said provision may not be violative of Article 14 of the Constitution on grounds such as those in the case of Northern India Caterers : 3SCR399 (supra) or Rajendra Prasad Singh v. Union of India, : AIR1968Cal560 , but it is so because when Section 5 provides that the Estate Officer may make an order for eviction, the Estate Officer may or may not make an order or make an order against one but not against the other and as such the provision is highly discriminatory. Apart from the fact that there is a fundamental fallacy in this argument of Mr. Ghosh, we are of the opinion that the learned trial Judge is right in his conclusion that such a point is no longer res integra in view of the Supreme Court decision in the case of Hari Singh v. Military Estate Officer, Delhi : 1SCR515 . According to Mr. Ghosh the ground on which he contends the provision to be ultra vires was not raised before or considered by the Supreme Court in the case of Hari Singh and as such that decision cannot conclude the points sought to be raised by him. We are, however, unable to accept such a contention. The Supreme Court held the material provisions of the Act to be intra vires Article 14 of the Constitution and it is not permissible for Mr. Ghosh to contend or suggest that though the provision is ultra vires for reasons suggested by him, the Supreme Court overlooked the said aspect in declaring the provision to be intra vires. In this view we uphold the view taken by the learned trial Judge that the point sought to be raised is concluded by the decision of the Supreme Court in the case of Hari Singh v. Military Estate Officer, Delhi.
6. That apart, as indicated hereinbefore there is a fundamental fallacy in this contention of Mr. Ghosh. We are in agreement with the learned trial Judge that the Act itself has laid down sufficient guideline for exercise of power under the Act and also provides reasonable opportunities for the parties to be affected to make representations and showing cause as to why such an order for eviction should or should not be made against them. The power or the discretion vested in the Estate Officer is not arbitrary. If the Estate Officer exercises his power or discretion in an arbitrary or discriminatory manner such exercise of power or discretion would not be bona fide. But no statute can be struck down only on the ground that powers thereunder when abused would result in discrimination. We must always proceed on the footing that the powers conferred by a statute would be used and not abused. An abuse of powers vested by a statute does not render the source of the power tainted, it only renders such act of abuse liable to be struck down. Section 5 no doubt uses the word 'may' in authorising the Estate Officer to make an order of eviction as such words are always used in all enabling provisions. That section contemplates an adjudication prior to the making of the order and furnishing of a reasonable opportunity of being heard to the party proceeded against. Such adjudication, in our opinion, may in some cases make out reasonable grounds for not making an order of eviction. Therefore on the scheme of things, the statute cannot but only make an enabling provision, as it is made, leaving exercise of such powers to the discretion of the Estate Officer to be exercised only on the guidelines prescribed by the statute. That is explicit when the provision itself Lays down that the Estate Officer is to record his reasons and the orders so made are subject to appeals under Section 9 thereof. It is however incorrect to think--as suggested by Mr. Ghosh --that such a provision authorises any abuse or discriminatory use of the powers thereunder. We therefore find no merit in the only point raised by Mr. Ghosh in these appeals.
7. Incidentally Mr. Ghosh raised a preliminary objection to the hearing of these appeals. Relying on the Presidential proclamation dated June 27, 1975 under Article 359(1) of the Constitution, Mr. Ghosh contended that the present appeals being pending proceedings for enforcement of the appellants' fundamental rights under Article 14, such appeals are liable to be suspended during the period the proclamation remains in force. We do not think such a plea is really bona fide. Having obtained stay of further proceedings of the eviction proceedings under the Act under interim orders obtained in these appeals, it would certainly be to their interest for the appellants to delay hearing of these appeals The objection so raised by Mr. Ghosh is but an endeavour in this respect to delay the hearing of these appeals. But what the proclamation had suspended is any proceedings for enforcement of fundamental rights under Article 14 but when on our findings made hereinbefore no such right of the appellants had at all been infringed, the proceedings now before us cannot be said to be proceedings for enforcement of such rights which are liable to be suspended on the Presidential Proclamation relied on by Mr. Ghosh.
8. Thus all the points raised in these appeals fail and are overruled. On the conclusion as above these appeals fail and are dismissed with costs. Hearing fee is assessed at 5 G. Ms.
A.P. Bhattacharya, J.