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Union of India (Uoi) Vs. C. Baljee and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 44 of 1971
Judge
Reported inAIR1974HP1
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 5(1) and 20; ;Constitution of India - Articles 14, 226 and 245
AppellantUnion of India (Uoi)
RespondentC. Baljee and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate B.B. Vaid, Adv.
DispositionPetition allowed
Cases ReferredAhmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramanand
Excerpt:
- r.s. pathak, c.j.1. the union of india is aggrieved by an order of the district judge, simla. as appellate officer under the public premises (eviction of unauthorised occupants) act, 1958, quashing an order of the estate officer for eviction of the respondent, shri c. baljee.2. the grand hotel. simla, belongs to the government of india. on april 15, 1965. the government executed a lease in favour of messrs bailee in respect of a portion of the grand hotel for three years ending april 14. 1968 on an annual rent of rs. 49,812/- payable monthly. there was a clause in the lease that it could be renewed at the option of the government upon the expiry of the period of three years. on january 9/12, 1968 the government of india wrote to the lessee that it had decided not to renew the lease and.....
Judgment:

R.S. Pathak, C.J.

1. The Union of India is aggrieved by an order of the District Judge, Simla. as Appellate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, quashing an order of the Estate Officer for eviction of the respondent, Shri C. Baljee.

2. The Grand Hotel. Simla, belongs to the Government of India. On April 15, 1965. the Government executed a lease in favour of Messrs Bailee in respect of a portion of the Grand Hotel for three years ending April 14. 1968 on an annual rent of Rs. 49,812/- payable monthly. There was a clause in the lease that it could be renewed at the option of the Government upon the expiry of the period of three years. On January 9/12, 1968 the Government of India wrote to the lessee that it had decided not to renew the lease and that, therefore, vacant possession should be handed over upon its expiry. The lessee served a notice under Section 80 of the Code of Civil Procedure on the Central Government protesting against the direction to vacate the premises and relied upon an alleged assurance that the tenancy would not be terminated. The notice warned that a suit for injunction would be filed in case any attempt was made at eviction or at letting out the premises to another. The Government of India replied on April 3, 1968 denving the alleged assurance and it again called on the lessee to vacate the leased property. It appears that the lessee did not deliver possession but continued to occupy the property. On June 7, 1968. the Estate Officer constituted by the Public Premises (Eviction of Unauthorised Occupants) Act. 1958, issued a notice under Section 4 (1) of that Act. After hearing the parties and considering the evidence adduced by the parties. the Estate Officer made an order dated March 16, 1970 holding that the lessee had failed to prove any authority to continue in occupation of the premises after April 14, 1968. and that the lessee and all other persons concerned were, therefore, in unauthorised occupation of the premises and were liable to eviction according to law. On March 25. 1970, the Estate Officer passed a formal order under Section 5 (1) of the aforesaid Act directing Shri C. Baljee and all other persons in occupation to vacate the premises within 30 days of publication of the order. An appeal was filed by Sihri C. Baljee before the District Judge. Simla, who, by virtue of Section 9 of the Act is constituted an Appellate Officer. The appeal was allowed by an order dated November 10, 1970. on the sole ground that the Act was ultra vires. That appellate order has been challenged by the present writ petition.

3. The Public Premises (Eviction of Unauthorised Occupants) Act. 1958, was enacted by Parliament, as the title shows to provide for the eviction of unauthorised occupants from public premises. Section 5 (1) empowered the Estate Officer, appointed under Section 3 of the Act. to make an order of eviction on finding that a person was in unauthorised occupation of the premises. In the event of the person refusing or failing to comply with the order of eviction the Estate Officer was authorised by Section 5 (2) of the Act to evict that person from and take possession of the public premises and. for that purpose to use such force as would be necessary, Section 7 of the Act empowered the Estate Officer to require such person to pay the arrears of rent payable in respect of the public premises: and also to assess the damages on account of use and occupation of such premises for the period of occupation thereafter. In case such person refused or failed to pay the arrears of rent or the damages the Estate Officer was empowered to issue a certificate to the Collector who would proceed to recover the same as arrears of land revenue.

4. In Rajendra Prasad Singh v. Union of India : AIR1968Cal560 , a Full Bench of the Calcutta High Court held that the Act permitted the Government, in the exercise of an unguided discretion, to adopt either of two alternative remedies, one by way of summary eviction under Section 5 (2) of the Act and the other by way of suit in a court of law, and as the former remedy was more drastic and more prejudicial than the latter Section 5 (2) violated Article 14 of the Constitution and was, therefore, ultra vires. In taking that view the Calcutta High Court referred to the law laid down by the Supreme Court in Northern India Caterers (Pvt.) Ltd. v. State of Punjab : [1967]3SCR399 . Subsequently, the validity of Section 7 (2) of the same Act was challenged before a Division Bench of the Delhi High Court in Hukam Chand v. S. D. Arya Civil Ref. No. 168, D/- 29-5-1969 (Delhi) and likewise was held to be ultra vires.

5. On June 17, 1968, the Public Premises (Eviction of Unauthorised Occupants) Amendment Ordinance No. 5 1968 was promulgated. It was replaced by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968, which came into force on August 16, 1968. The principal Act was amended by the insertion of Section 10-E, which provided:

'No civil court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauhorised occupation of any public premises or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or costs awarded to the Central Government under Sub-section (4-A) of Section 9 or any portion of such rent, damages, or costs.'

Thereafter, in P. L. Mehra v. D. R. Khanna : AIR1971Delhi1 , a Full Bench of the Delhi High Court, by maiority, held that the attempt to validate the Act by adding Section 10-E was in-fructuous inasmuch as the amendment was not retrospective and. therefore, it failed to validate the Act which was void from its very inception. The Appellate Officer in the present case appears to have proceeded upon the maiority view taken in that case by the Delhi High Court and on that ground has allowed the appeal.

6. Parliament has since enacted the Public Premises (Eviction of Unauthorised Occupants) Act. 1971. The 1971 Act repeals the 1958 Act and re-enacts the provisions of that Act besides adding Sections 11, 15, 19 and 20. It is noteworthy that the 1971 Act, while it repeals the 1958 Act, has been brought into force retrospectively with effect from the date on which the 1958 Act had come into force, that is. September 16, 1958. Section 11 of the 1971 Act makes it an offence for a person evicted from any public premises to occupy the premises again without authority, Section 15 bars a court from jurisdiction to entertain any suit or proceeding in respect of the eviction of any person in unauthorised occupation of public premises or the recovery of the arrears of rent payable under Section 7 (1) or the damages payable under Section 7 (2) or the costs awarded to the Central Government under Section 9 (5). Section 19 repeals the 1958 Act. Section 20 is a validating provision, and is of some importance.

7. Section 20 of the 1971 Act provides:

'20. Notwithstanding any judgment, decree or order of any court, anything done or any action taken (including rules or orders made, notices issued, eviction ordered or effected, damages assessed. rents or damages or costs recovered and proceedings initiated) or purported to have been done or taken under the Public Premises (Eviction of Unauthorised Occupants) Act. 1958 (hereafter in this section referred to as the 1958-Act) shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of this Act which, under Sub-section (3) of Section 1 shall be deemed to have come into force on the 16th day of September, 1958, and accordingly-

(a) no suit or other legal proceeding shall be maintained or continued in any court for the refund of any rent or damages or costs recovered under the 1958-Act where such refund has been claimed merely on the ground that the said Act has been declared to be unconstitutional and void; and

(b) no court shall enforce a decree or order directing the refund of any rent or damages or costs recovered under the 1958-Act merely on the ground that the said Act has been declared to be unconstitutional and void.'

8. Now, it may be mentioned that in Hari Singh v. The Military Estate Officer : [1973]1SCR515 and M/s. Bhartiya Hotel and others v. Union of India, a contention was raised that Section 5 (1) of the 1958 Act violated Article 14 of the Constitution. While the appeals were pending the aforesaid 1971 Act was enacted, and the Supreme Court was called upon to consider whether the 1971 Act was a constitutionally valid piece of legislation. The Supreme Court observed:

'The validity of the 1971 Act depends on the legislative competence to validate anything done or any action taken or purported to have been done or taken under the 1958 Act. Validation is achieved by enacting that anything done or any action taken or purported to have been done or taken shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. The result is that the 1971 Act is made retrospective with effect from 16th September 1958. Anything done or any action taken under the 1958 Act is to be deemed as valid and effective under the provisions of the 1971 Act. The consequence is that the validity of action done or taken is to be tested with reference to the provisions of the 1971 Act.'

The Supreme Court then referred to State of Mysore v. D. Achiah Chetty : [1969]3SCR55 , in which it had considered the question of legislative competence to remove discrimination by retrospective legislation and had observed :

'..... the legislature has still the competence to put out of action retrospectively one of the procedures leaving only one procedure available namely, the one followed and thus to make disappear the discrimination. In this way the validating Act can get over discrimination.'

The Supreme Court held that a similar position obtained upon the enactment of the 1971 Act. It said:

'The 1958 Act was challenged on the ground that there were two procedures and the choice of either was left to the unguided discretion of the Estate Officer. The 1971 Act does not leave any such discretion to the Estate Officer. Under the 1971 Act there is only one procedure. The deeming provision contained in Section 20 of the 1971 Act validates actions done by virtue of the provisions of the 1971 Act.'

The effect of Section 20, it pointed out, was that any action done under the 1958 Act would be deemed to have been done under the 1971 Act and as there was no vice of discrimination under the 1971 Act it was laid down that the 1971 Act had achieved the object of validating actions under the 1958 Act. Accordingly, the appeals were dismissed.

9. It is contended for the petitioner that upon the view taken by the Supreme Court in the aforesaid appeals it must be held that the order passed by the Estate Officer against Shri C. Baljee must be treated as an order passed under the 1971 Act and. therefore, a constitutionally valid order. Accordingly, it is urged, the order of the Appellate Officer must be held to be incorrect. The contention has force and must be accepted.

10. The 1971 Act came into force with effect from September 16, 1958. It must be deemed to have been in force throughout the period during which proceedings were taken for eviction by the Estate Officer against Messrs Baljee and during the hearing of the appeal by the Appellate Officer. By legal fiction the 1971 Act must be deemed to have been in force at all material times, and the principle is well settled that a legal fiction should be carried to its logical conclusion. Reference may usefully be made here to the classic exposition in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 of the principle involved while giving effect to a legal fiction. Lord Asquith observed :

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ..... The statute says that you must imagine a certain state of affairs; it does not say that having done so. you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

That passage has received the approval of our Supreme Court in State of Bombay v. Pandurang Vinayak : 1953CriLJ1049 and subsequent cases. aS the effect of the retrospective operation of the 1971 Act is to treat the 1971 Act as being in existence when the Estate Officer and the Appellate Officer made their respective orders, those orders must be examined in the light of the provisions of the 1971 Act. In Commr. of Sales Tax v. Bijli Cotton Mills : [1964]7SCR383 , the Supreme Court observed :

'Undoubtedly the Tribunal called upon to decide a taxing dispute must apply the relevant law applicable to a particular transacion to which the problem relates, and that law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the Tribunal seeks to apply to the dispute is amended so as to make the law applicable to the transaction in dispute, it would be found to decide the question in the light of the law so amended. Similarly, when the question has been referred to the High Court and in the meanwhile the law has been amended with retrospective operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provisions, the High Court is giving effect to legislative intent .....Application of the relevant law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice.'

11. It seems, therefore, that the order of eviction passed by the Estate Officer cannot be said to be ultra vires on the ground that the 1958 Act contravenes Article 14 of the Constitution.

12. On behalf of the respondent Shri C. Baljee. a number of contentions have been raised.

13. Firstly, it is urged that the writ petition is not maintainable because it has been brought with reference to the 1958 Act and claims reliefs on that basis. It is also pointed out that the grounds taken in the writ petition are those which refer to the 1958 Act. There is no doubt that the writ petition proceeds on grounds and claims reliefs, with reference to the 1958 Act. But it could not be otherwise. It was filed on April 19. 1971, before the 1971 Act had been enacted. As the 1971 Act came into force during the pendency of the writ petition we have permitted the petitioner to support its case on the basis of that Act. As regards the reliefs claimed in the writ petition it will be noticed that the petitioner has already prayed specifically for the quashing of the order dated November 10, 1970 passed by the Appellate Officer. That relief can be claimed even on the basis of the 1971 Act. As regards the grounds on which the writ petition is based, learned counsel for the parties have freely made their submissions with reference to the 1971 Act, and it does not appear that merely because fresh grounds have not been specifically added in the writ petition the respondents have been prejudiced in any manner.

14. The second contention on behalf of the respondent, Shri C. Baljee, is that the 1971 Act cannot apply to the facts of the present case because the transaction had already concluded under the 1958 Act, and the writ petition it is pointed out, is not a continuation of the proceedings taken under the 1958 Act. The submission is that the eviction order passed by the Estate Officer and the appellate order quashing it passed by the Appellate Officer are proceedings which are past and closed and the 1971 Act cannot affect them. We are referred to Indira Sohanlal v. Custodian of Evacuee Property : [1955]2SCR1117 . In that case however. Section 58 (3) of the Administration of Evacuee Property Act, 1950 specifically provided that the repeal of the corresponding Ordinance of 1949 would not affect the previous operation of the Ordinance, and it was subject thereto that anything done or any action taken under that Ordinance was to be deemed to have been done or taken under the Act as if the Act were in force on the day on which such thing was done or action was taken. The Supreme Court referred to that provision when coming to its decision. That decision was followed by the Supreme Court in Dafedar Niranjan Singh v. Custodian Evacuee property. The question in the present case is entirely different. Here there is no provision in the 1971 Act excluding any transaction or proceeding taken under the 1958 Act from the operation of the 1971 Act. On the contrary, it has been made retrospective with effect from September 16, 1958. and the effect of Section 20 is to make anything done or any action taken, or purporting to have been done or taken under the 1958 Act. to be as valid and effective as if it was done or taken under the 1971 Act.

15. Certain passages have been read to us from Craies on Statute Law 5th Edn. pp 368-369 which refer to the presumption against taking away vested rights and from Maxwell On Interpretation of Statutes 11th Edn. pp. 390-391 as regards the effect of repeal of one Act by another. Reliance was also placed on Section 4 in Chapter 8 of the latter which deals with the retrospective operation of statutes. I have carefully considered those passages, and in my opinion, there is nothing there which assists the first respondent in the present case. The 1971 Act is clear in its terms. Section 19 repeals the 1958 Act, Section 1 (3) declares that the 1971 Act shall be deemed to have come into force on September 16, 1958 and Section 20 validates anything done or any action taken or purporting to have been done or taken under the 1958 Act as if it was done or taken under the 1971 Act.

16. It is urged that the order of the Appellate Officer vested a right in the first respondent not to be evicted, and the 1971 Act cannot, therefore, be applied. It is settled law. I think that the legislature can make laws which take away vested rights retrospectively. In Ahmedabad . v. S. G. Mehta. Income-Tax Officer : [1963]48ITR154(SC) , Sarkar J. observed:

'The rule no doubt is that a statute is presumed not to (affect a vested right). But this rule does not apply if the language of the statute indicates an intention to give it a retrospective operation ..... and Hidayatullah J. said:

'Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act. But this rule is not unalterable. The legislature may affect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result.....'

In my opinion, it cannot be disputed that even if the first respondent acquired any vested right not to be evicted that vested right could be taken away by the 1971 Act.

17. It is next contended by the first respondent that it is not open to the legislature to invalidate judgments and orders of competent courts, and we are referred to Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. : [1970]3SCR745 . In that case, the Supreme Court observed :

'On the words used in the Act. it is plain that the legislature attempted to overrule and set aside the decision of this Court. That, in our judgment, is not open to the legislature under our constitutional scheme. It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of the court properly constituted rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the court.'

The observations of the Supreme Court were made because Section 3 (1) of the Madhya Pradesh Act before it had the effect of nullifying an earlier judgment and decree of the Supreme Court by providing that the cesses imposed assessed or collected by the Board in pursuance of the notifications and notices specified in the Schedule would for all purposes be deemed to be. and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times in accordance with that Act. Reliance is also placed on The Municipal Corporation of the City of Ahmedabad v. The New Shorock Spg. and Wvg. Co. Ltd. : [1971]1SCR288 . The Supreme Court in that case followed the view taken in Janapada Sabha, Chhindwara : [1970]3SCR745 (supra). Commenting on the validity of Section 152 A (3) of the Bombay Provincial Municipal Corporation Act 1949 as applied in Gujarat, it observed:

'This is a strange provision, Prima facie that provision appears to command the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. The State of Gujarat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our Constitution have, within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts.....'

In my opinion, the two cases relied on are distinguishable from the present case. The Supreme Court, it will be noted, had not declared Sections 5 and 7 of the 1958 Act to be ultra vires and therefore it cannot be said that there was any declaration of law as is contemplated by Article 141 of the Constitution. Then, neither the High Court nor the Supreme Court had at any time decided whether the first respondent was liable to eviction under the 1958 Act. That dispute was never adjudicated upon between the parties by either courts. There was also no attempt by the legislature in Janapada Sabha (supra) to amend the law and then validate the offending action in the light of the amended law. The present case is one where the law has been amended retrospectively and the question is whether in this writ petition against the order of an inferior authority that order can be sustained in view of the amended law. That the case falls outside the prohibition which the Supreme Court had in mind is borne out by the further observations of the Supreme Court in Janapada Sabha (supra) where in support of its decision in that case it explained:

'This Court in Amalgamated Coalfields Ltd's case. : AIR1964SC1013 held that the cess was not validly imposed and levied because the sanction of the State Government was not obtained at the time of enhancing the rate of levy of tax. That judgment was binding between the parties and also by virtue of Article 141 binding on all Courts in the territory of India. The Legislature could not say that declaration of law was either erroneous, invalid or ineffective either as a precedent or between the parties.'

The aforesaid observations of the Supreme Court in the two cases mentioned above were referred to by Deshpande, J. in P. L. Mehra. : AIR1971Delhi1 (supra), and the first respondent has invited our attention to the observations made there. In my opinion, nothing said there is of any assistance to the first respondent.

18. On behalf of the first respondent reference has also been made to Jairam Singh v. State of Uttar Pradesh : AIR1962All350 . It may be pointed out that the learned Judge of the Allahabad High Court based his decision on the observation that the Governor of Uttar Pradesh did not express in clear terms that the ordinance in question was being given a retrospective effect but indicated indirectly by implication that the Ordinance would have a retrospective effect. As in the present case the 1971 Act is clearly retrospective, I need not enter into the question whether the view expressed by the learned single Judge is right.

19. It is then contended by the first respondent that Section 15 of the 1971 Act. even though read with Section 1 of the Act cannot be construed as validating decrees which have already been passed in suits, and that civil court decrees already passed would not become a nullity. It is pointed out that in Section 20 only certain proceedings have been saved and they are those covered by Clauses (a) and (b) of Section 20. I am unable to appreciate the force of that contention. No such question arises in the case before us. Section 15 bars the jurisdiction of a court to entertain a suit or proceeding in respect of the eviction of a person under the Act or the recovery of arrears of rent or of damages payable under the Act. No relief has been sought by the petitioner in the present case in respect of such a suit or proceeding, and therefore, no question arises of considering the application of Section 15.

20. The first respondent also contends that the writ petition is barred by laches. The impugned order of the Appellate Officer was made on November 10, 1970 and, as has been observed, the writ petition was filed on April 19, 1971 The petitioner has attempted to explain the delay in paragraph 15 of the writ petition. The petitioner has averred that a certified copy of the impugned order had to be obtained and the Ministry of Law as well as the Ministry of Finance of the Central Government had to be consulted. The Central Government had also taken proceedings for appealing to the Supreme Court against the decision of the Full Bench of the Delhi High Court in : [1970]3SCR53 (supra), and the appeal was lodged in February 1971. It was thereafter that the decision was taken to file the present writ petition. Nothing has been shown in the return filed by the first respondent to indicate why this explanation should not be accepted. In my opinion, there is good ground for condoning the delay. The Central Government acted prudently in seeking the advice of the Ministry of Law and the Ministry of Finance and also in waiting to see whether an appeal could be filed in the Supreme Court against the decision of the Delhi High Court before deciding whether it should file the present writ petition. Had the Delhi High Court refused a certificate to the Central Government for appealing to the Supreme Court and had the Supreme Court thereafter refused special leave to appeal, on the ground that the decision of the Delhi High Court was not contrary to law the Central Government could well have taken the view then that there was no point in filing the present writ petition.

21. Besides contending that the eviction order passed by the Estate officer is constitutionally valid and the Appellate Officer erred in holding to the contrary, the petitioner also urges that if the 1958 Act was ultra vires the Appellate Officer, being a creature of that Act. had no jurisdiction to entertain the appeal and, therefore, his appellate order in favour of the first respondent is void. In the view that I have taken of Section 20 of the 1971 Act and the retrospective application of that Act, it is clear that the proceeding taken before the Appellate Officer must be deemed to have been taken under the 1971 Act. Tn the circumstances, the appellate order cannot be said to be void. But it is another thing whether that order is correct in law. That is open to examination by this Court. The decision in Lakshmi Kant Jhunjhunwala v. State of Uttar Pradesh : AIR1965All420 discusses the import of the expression 'as if' and lays down that the expression is used to give constitutional validity to an order and does not refer to its correctness on the merits. The case of the petitioner is that the 1971 Act has the effect of validating the eviction order and. therefore, the ground upon which the appellate officer has allowed the appeal does not survive. It seems to me clear that the order of the Appellate Officer can be examined as to its correctness, and for the reasons set out above it is liable to be quashed.

22. It has been said that this Court should confine the exercise of its writ jurisdiction to keeping the Tribunals within their jurisdiction and not to correction of mere errors. Reliance has been placed on Bhutnath Chatterjee v. State of West Bengal : (1969)3SCC675 and the Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ramtahel Ramanand : (1972)IILLJ165SC In my opinion, the error in the order of the Appellate officer is amenable to correction by this Court under Article 226 of the Constitution. By reason of the legal fiction that the 1971 Act is retrospective with effect from September 16, 1958, and having regard to Section 20 of that Act. it must be taken that the Appellate Officer committed a manifest error of law in holding that the eviction order passed by the Estate Officer was invalid. It is clear, therefore, that the order of the Appellate Officer can be quashed by a writ in the nature of certiorari.

23. The Estate Officer decided a number of questions raised by the first respondent when making the order for eviction. Those questions have not been considered on the merits by the Appellate Officer, who has allowed the appeal merely on the ground that the eviction order was ultra vires. Now that the appellate order is being quashed and thereby the appeal before the Appellate Officer stands revived, it will be for the Appellate Officer to dispose of the remaining questions on their merits.

24. The writ petition is allowed. The order dated November 10, 197,0 passed by the District Judge. Simla as Appellate Officer is quashed. It will be open to the Appellate Officer to dispose of the appeal afresh. The appellant is entitled to its costs, which I would assess at Rs. 150/-.

Chet Ram Thakur, J.

25. I agree.

D.B. Lal, J.

26. I had the advantage of reading the judgment of my Lord the Chief Justice, and I am in entire agreement with that judgment. I would, however. like to say a few words as to the effect of repeal and savings contained in Sections 19 and 20 of the Act of 1971. The argument before us Was. that the order of eviction passed by the Estate Officer was set aside by the appellate Officer and therefore the said order of eviction having merged in the subsequent order and having been set aside was a final order which could not be reopened with reference to Section 20 of the Act of 1971. Reliance, in this connection, was placed on : [1955]2SCR1117 and : [1962]1SCR214 . In these two cases their Lordships of the Supreme Court were considering the previous order of the Custodian passed under Ordinance 27 of 1949 which had become final for the purpose of revision under Section 27 of the Act 31 of 1950 which repealed the said Ordinance. In the second case, it was held that the order of the Custodian had become final and therefore it could not be revised under Section 27 of the Act 31 of 1950. In the first case, the application given to the Custodian was pending decision when the amending Act came into force and therefore it was held that nothing had become final under the Ordinance 27 of 1949 and therefore Section 27 of Act 31 of 1950 was applicable and the order of the Custodian was revisable.

27. Section 58 (3) which their Lordships have quoted in their judgment stood in the following terms:--

'58. (1) The Administration of Evacuee Property Ordinance. 1949 (27 of 1949)is hereby repealed.

(2) .....

(3) The repeal by this Act of the Administration of Evacuee Property Ordinance. 1949 (27 of 1949) ..... shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of anv power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken.'

It is evident from the aforesaid repealing provision that Section 58 (3) would not affect the previous operation of the Ordinance 27 of 1949, meaning thereby that any action completed within the provision of that Ordinance was not to be called into question under any provision of the amending Act. In the case before us. such a condition never exists in the language used in Section 20 of the Act of 1971 which may be reproduced below:--

'20. Notwithstanding any judgment, decree or order of any court, anything done or any action taken (including rules or orders made, notices issued, evictions ordered or effected, damages assessed, rents or damages or costs recovered and proceedings initiated) or purported to have b'een done or taken under the Public Premises (Eviction of Unauthorised Occupants) Act. 1958 (hereafter in this section referred to as the 1958-Act) shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of this Act which under Sub-section (3) of Section 1 shall be deemed to have come into force on the 16th day of September, 1958. and accordingly-

(a) no suit or other legal proceeding shall be maintained or continued in any court for the refund of any rent or damages or costs recovered under the 1958 Act where such refund has been claimed merely on the ground that the said Act hap been declared to be unconstitutional and void; and

(b) no court shall enforce a decree or order directing the refund of anv rent or damages or costs recovered under the 1958-Act merely on the ground that the said Act has been declared to be unconstitutional and void.'

It could, therefore, be successfully canvassed on behalf of the petitioner that within the meaning of Section 20 a legal fiction was created to keep alive the provisions of the Act of 1971 with effect from 16th day of September. 1958 and if any eviction was ordered by the Estate Officer it would be deemed to be ordered under the corresponding provisions of the Act of 1971. The legal fiction cannot be bogged in the middle and must be completed from one end to the other with all its necessary consequences. In fact, nothing was left intact for the Act of 1958 which was not in consonance with the provisions of the Act of 1971, with the result that whatever infirmity is detected in the order made under the Act of 1958 is made good under the Act of 1971.

28. If Section 20 is applied to the present case, the only logical inference to which one can reach is that notwithstanding the judgment of the appellate Officer, the order of eviction made by the Estate Officer under the Act of 1958 shall be deemed to be as valid and effective as if such order was made under the corresponding provision of the Act of 1971. The deeming provision made the corresponding provisions of the Act of 1971 very much in force on the date the order of eviction was made by the Estate Officer. Therefore, the judgment of the appellate Officer was really ineffective and would not destroy the eviction order. In fact, the appellate Officer did not make any positive order so as to be covered under the words 'anything done or any action taken (including rules or orders made, notices issued, evictions ordered or effected, damages assessed, rents or damages or costs recovered and proceedings initiated)' used in Section 20. He has merely quashed the order of, eviction of the Estate Officer because, according to him, the relevant provision of the Act of 1958 was ultra vires. In my opinion. Section 20 of the Act of 1971 has been enacted to meet the present situation; Notwithstanding the judgment of the appellate Officer, the order of eviction made by the Estate Officer under the Act of 1958 shall now hold good under the Act of 1971 and cannot be called into question.

29. I am, therefore, in entire accord with my Lord the Chief Justice, and the petition will have to be allowed with the necessary consequences.

30. For thereasons disclosed in our respective judgments we allow the writ petition, andquash the order dated November 10, 1970 passed by the District Judge, Simla as Appellate Officer. It will be open to the Appellate Officer to dispose of the appeal afresh. The appellant is entitled to its costs which we assess at Rs. 150/-.


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