D.N. Sinha, C.J.@mdashThis matter and a number of other matters, namely - C.R. 472(W) of 1962, C.R. 807(W) to 819(W) of 1963, C.R. 939(W) of 1963, C.R. 189(W) to 194(W) of 1964, C.R. 207(W) and 208(W) of 1964, C.R. 331(W) of 1964, C.R. 610(W) of 1964, C.R. 1121(W) of 1964, C.R. 1213(W) of 1964, and C.R. 994(W) of 1964, have been referred to this Special Bench for disposal, as all of them involve a mater of great public importance, namely, the vires of the public premises (Eviction of Unauthorized Occupants) Act, 1958 (Central Act 32 of 1958), (hereinafter referred to as the "said Act"). There has been a common argument in all these cases and the point of law being the same, they will all the governed by the decision herein. Distinctive features of each case will be considered separately. The facts in this case are briefly as follows: The Petitioner No. 1, Standard Literature Company Private Limited (hereinafter referred to as the "company") is a company incorporated under the Indian Companies Act and the Petitioners Nos. 2 and 3 are directors and shareholders thereof. Prior to September 19, 1963 and commencing from the year 1915, this Company was a tenant in respect of rooms Nos. 22, 24, 27, 28 in the ground floor and Nos. 46, 52, 56, 57, 58, 60, 64, 65, 66, 66/1 and 67 on first floor, half of Nos. 47 and 55, together with the use of the common staircase, in premises Nos. 13, 13/1, 13/2, and 13/3 Old Court House Street and Nos. 1, 2 and 2/1 Mangoe Lane, in Calcutta, under the previous owner, the Hercules Trading Corporation Private Limited. On or about the 19th of September, 1963 the demised premises were purchased by the Union of India (the Respondent No. 1) and the company became a tenant under the said Respondent on the same terms and conditions as before. On or about the 31st of March 1964 the company received a notice to quit, stated to have been issued on behalf of the President of India, calling upon them to quit and vacate the said premises on the expiry of the month of April 1964. A copy of the said notice is annexed to the petition and marked with the letter ''A''. On the 20th April 1964 the company through one of its directors, objected to comply with the said notice. A copy of the said letter of objection is annexure ''B'' to the petition. On or about the 22nd of April 1964 a notice to quit was issued by the Deputy Director of Estates and Ex-Officio Under Secretary to the Government of India, on behalf of the President of India, withdrawing the earlier notice dated 31st March 1964 and calling upon the company to quit and vacate the said premises on the expiry of the month of May 1964. It was stated in the said notice that a portion of the premises held by the company was urgently required by the Government of India for its own use for allotment to the Central Government offices, after remodeling the premises. A copy of this notice is annexure C to the petition. On 4th of May 1964 the company objected to the said notice. On the 22nd of June 1964 one Shri T.C. Jain, describing himself as the Estate Officer appointed under the said Act, purported to give notice under Sub-section (1) of Section 4 of the said Act. It was stated in the said notice that the said Estate Officer was of the opinion, on grounds specified in the notice, that the company was in unauthorized occupation of the public premises mentioned in the schedule to the said notice and that it should be evicted from the said premises. A copy of the said notice is annexure ''E'' to the petition. On the 18th of August 1964 a fresh notice was issued by the said Estate Officer asking the company to show cause under Sub-section (1) of Section 4 of the said Act. The relevant part of the said notice is set out below:
Whereas I, the undersigned, am of opinion on the grounds specified below, that you are in unauthorized occupation of the public premises mentioned in the schedule below and that you should be evicted from the said premises:
GROUNDS
The tenancy in favour of Messrs. Standard Literature Co. (P) Ltd. in respect of their occupation of a portion of premises Nos. 13, 13/1, 13/2 and 13/3, Old Court House Street and 1, 2 and 2/1 Mangoe Lane, Calcutta, more fully described in the schedule below, has been terminated on the expiry of the month of May 1964 by a notice dated 22.4.64, from the Deputy Director of Estates and Ex-officio Under Secretary to the Government of India, Ministry of W.H. and Rule (Directorate of Estates), New Delhi and they were called upon to quit, vacate and hand over possession of the accommodation to the Government, but they have failed and neglected to do so.
Now, therefore, in pursuance of Sub-section (1) of Section 4 of the Act I hereby call upon you to show cause on or before the 2.9.64 why such an order of eviction should not be made.
SCHEDULE
Room (s) No. 22, 24, 27 and 28 on the ground floor, 46, 52, 56, 57, 58, 60, 64, 65, 66, 66/1 and 67 on the 1st floor, Half of 47 and 66 common staircase on the 1st floor in premises Nos. 13, 13/1, 13/2 and 13/3, Old Court House Street and 1, 2, and 2/1, Mangoe Lane, Calcutta containing an area of approximately 5879 cft.
2. On the 2nd of September 1964 the company showed cause and objected to the vacating of the said premises. Thereafter, there was a hearing before the Estate Officer and on the 27th November 1964 the Estate Officer passed an order, a copy of which is annexure ''H'' to the petition. The company inter alia took the point that the provisions of the said Act are unconstitutional and void. The Estate Officer stated that he was unable to decide the constitutional point, although he gave his brief views with regard to the points that were raised. By the said order, in exercise of the principles conferred on the said Officer under Sub-section (1) of Section 5 of the said Act, the company was directed to vacate the said premises within thirty days of the date of the publication of the said order. It was stated that in the event of refusal or failure to comply with the said order the company and all other persons in occupation thereof were liable to be evicted from the said premises, if need be, by use of such force, as might be necessary. On the same date, the company gave notice demanding justice and made an application to this Court whereon, on the 10th of December 1964 a Rule was issued by this Court calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not be issued directing them to forbear from giving effect to the order dated 27th November 1964 or why a writ in the nature of Certiorari should not be issued, setting aside or quashing the said order, and for other reliefs. An interim order was passed which has been extended from time to time.
3. Before I proceed further, it will be necessary to consider the provisions of the said Act. The said Act of 1958 was preceded by the Government Premises (Eviction) Act 1950 (Central Act XXVII of 1950). This Act was promulgated because Government was faced with the fact that many of its properties came to be in the occupation of unauthorized persons and it was found that if the ordinary legal remedies were to be pursued, there would be inordinate delay. This Act was challenged as ultra vires and in (1) Jagu Singh v. M. Shaukat Ali and Anr. 58 CWN 1066, I held that the 1950 Act was ultra vires and void, as infringing the provisions of Article 19(1)(f) of the Constitution. Under the provisions of the 1950 Act, the title of a citizen to property was to be decided upon the subjective satisfaction of the "competent authority" who may have no competence whatsoever to decide such a question, and behind the citizen''s back, without giving him any opportunity of vindicating his title, and the jurisdiction of the Civil Court was taken away. I held that the provisions of the Act constituted a wholly unreasonable restriction on the fundamental right granted to a citizen of acquiring and holding property and as a such was void. The same view was taken by the Allahabad High Court in (2)
4. (1) If the Estate Officer is of opinion that any persons are in unauthorized occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
(2) The notice shall -
(a) specify the grounds on which the order of eviction is proposed to be made; and
(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim in-test in, the public premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.
(3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned.
(4) Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of Sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.
(5) (1) If, after considering the cause, if any, shown by any person in pursuance of a notice u/s 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the Estate Officer is satisfied that the public premises are in unauthorized occupation, the Estate Officer 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 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.
(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 Estate Officer or any other officer duly authorised by the Estate Officer in this behalf my evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary.
4. u/s 9, an appeal shall lie from every order of the Estate Officer to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years'' standing as the District Judge may designate in the behalf. Section 10, provides that every order made by an Estate Officer or an appellate officer shall be final and shall not be called in question in any original suit, application or execution proceeding, and to injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Section 13 confers upon the Central Government the power to frame rules, for carrying out the purposes of the said Act. It is this Act of 1958 which is challenged in this case as ultra vires. Before I proceed to deal with the points that have been raised, it is necessary to refer to certain cases, in order to clear the ground. The first is a Bench decision of this Court, (4)
5. As regards the constitutional grounds, they are as follows:
(1) u/s 4(1) of the said Act the condition precedent is that the Estate Officer should be of the opinion that persons are in unauthorized occupation of any public premises and that they should be evicted. It is argued that the prescribed qualifications for being appointed as an Estate Officer under Clause (a ) of Sub-section (1) of Section 2 of the said Act does not remedy the objections that were put forward against the (1950) Act A "gazetted officer" may even be a humble person like the personal assistant of a minister. To made property rights dependent on the subjective satisfaction of such a person is an unreasonable restriction on the fundamental rights of a citizen to hold property under Article 19(1)(f).
(2) The Estate Officer who forms a subjective opinion on the question of eviction of a citizen, is himself the person who is to adjudicate upon the objection of the citizen. This is in violation of the rules of natural justice and it is an unreasonable restriction on the fundamental rights of a citizen to hold property under Article 19(1)(f).
(3) That the Act is violative of the provisions of Article 14 of the Constitution because -
(a) the provisions of the said Act are more onerous, drastic and prejudicial to the citizen than the provisions contained in the Transfer of Property Act, 1882 and the West Bengal Premises Tenancy Act, 1956 and as such are discriminatory and ultra vires of the Constitution;
(b) there is discrimination violative of Article 14 in making distinction between persons in occupation of Government property and persons in occupation of private property which distinction has no relation to the object of the Act, nor establishes any intelligible differentia.
6. I shall first of all deal with the point which does not relate to the constitutionality of the said Act, namely the challenge to the notice u/s 4. The wordings of the relevant notice u/s 4, dated 18th of August 1964 have been set out above. In the notice to quit given on the 22nd April 1964 (annexure ''C'' to the petition) the reason for eviction of the company has been expressly mentioned, namely that the portion of the premises held by the company was urgently required by the Government of India for its own use, for allotment to the Central Government offices after remodeling the building. In this notice under Sub-section (1) of Section 4, however, the only ground that has been mentioned was that a notice to quit had been given and the tenancy had been terminated. If the Division Bench judgment (4)
7. Before I deal with the constitutional points, it will be necessary to make certain observations to clear the atmosphere. It will be noted that the said Act isn''t a general Act but deals with a special problem, namely the problem of taking speedy action against unauthorized persons is occupation of governmental lands. It is permissible to look into the statement of objects and reasons to find out the background of a particular legislation, see (8)
The Public Premises (Eviction) Act, 1950, was enacted to provide a speedy machinery for the eviction of persons in unauthorized occupation of public premises and certain incidental matters. This Act had been declared ultra vires by the Calcutta, Allahabad and Punhab High Courts.
8. There is then a reference to my judgment where I held that the provisions of the Act constituted a wholly unreasonable restriction on the fundamental right guaranteed to a citizen, of acquiring and holding property. According to the Allahabad High Court, the provisions of the Act were discriminatory. The Punjab High Court held that it was not violative of Article 14 of the Constitution but was violative of Article 19(1)(f). The statement proceeds to say as follows:
The above decisions have made it impossible for Government to take speedy action even in flagrant cases of unauthorized occupation of public premises and the only way in which such persons may be evicted is by the ordinary process of law which often involves considerable delay. It has, therefore, become necessary to provide a speedy machinery for the eviction of persons who are in unauthorized occupation of public premises, keeping in view at the same time the necessity of complying with the provisions of the Constitution. The present Bill seeks to achieve this object.
9. This Bill provides for the appointment of Estate Officer who have been empowered to evict persons in unauthorized occupation of public premises. The procedure which the Estate Officer is to follow for evicting such persons has been laid down in the Bill itself. Reasonable opportunity has to be given to the persons affected to show cause against the proposed order of eviction and also to present their case to the Estate Officer at the time of the inquiry. If the Estate Officer makes an order of eviction, he is to give the persons in occupation of the public premises thirty days'' time to vacate the premises. Provision has also been made for an appeal against every order of the Estate Officer to an independent judicial officer who will be the District Judge of the district in which the public premises are situated or such other judicial officer of not less than ten years'' standing as the District Judge may nominate in this behalf. The provisions for a fair hearing before Estate Officers and that of an appeal against their orders to an independent judicial officer will be a safeguard against any arbitrary exercise of powers by the Estate Officers." (Gazette of India extra, Pt. II-S 3 p. 386)
10. Obviously, the very basis of this impugned statute is that Government property requires special consideration and the process of eviction from such property should be the subject matter of special laws, the process being expedited; as under the general law, the process of eviction of a tenant is a long-drawn process. Is it permissible, therefore, to treat Government in such matters on a special footing? On this point the following authorities have been cited: In (9)
It seems to us that the Government, even as a banker, can be legitimately put in a separate class. The dues of the Government of a State are the dues of the entire people of the State. This being the position, a law giving special facility for the recovery of such dues cannot, in any event, be said to offend Article 14 of the Constitution.
11. In another Supreme Court decision, (10)
First and foremost there is this feature that the Limitation Act, though a statute of repose, and intended for quieting titles, and in that sense looks at the problem from the point of view of the Defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the Plaintiff.
12. The learned Judge then cited instances of persons under legal disability like minors and insane persons or in the case of an express trust, and proceeded to say as follows:
It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims, which, if the ordinary rules applied, would become barred by limitation. It is in great part (sic) on this principle that it is said that subject to statutory provision, while thte maxim vigilantibus et non dormientibus jure Subveniunt is a rule for the subject, the maxim, nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, to quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provisions contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large.
13. It was held that there was no discrimination. In another Supreme Court decision, (11)
Same argument can be advanced in the instant case. The ordinary procedure for evicting a trespasser is highly dilatory and it is a notorious fact that litigation remains pending for years and that a person does not really succeed in evicting a trespasser from his land until the matter has passed through several Courts, each taking years to decide the dispute. With suits giving rise to first appeals, second appeals, and revisions and then petitions for writs with special appeals and orders staying execution of decrees, a person would be fortunate if he succeeds in getting possession back from a trespasser in less than ten years. It will be the public that will suffer and it would be a private individual - the trespasser - who will gain. In the case of a trespasser on private land, it is only one individual who suffers on account of the delay. A distinction made by the legislature between loss caused to an individual and loss caused to the whole public by enacting a special procedure to be followed by Government in evicting trespassers upon Government or public land is a rational one.
14. Let us now come to the precise Constitutional grounds taken in this case. The constitutional grounds taken can be divided under two headings. The first heading deals with Article 19(1)(f) of the Constitution, that is to say the fundamental right to acquire, hold and dispose of property. This provision has to be read with Clause (5) of Article 19, which empowers the State to make a law, even though it violates the provisions of Article 19(1)(f) if it imposes reasonable restrictions on the rights conferred by it in the interest of the general public. The second heading to Article 14, which lays down the principle of equality before the law and strikes out discriminatory legislation. Coming to the right guaranteed by Article 19(1)(f), we have to deal with the principle of reasonable restriction. This test has been described by Das, C.J. in the following terms in (12) Virendra v. The State of Punjab and another, AIR 1957 SC 897:
The test of reasonableness has been laid down by this Court in (13)
''It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.''
This dictum has been adopted and applied by this Court in several subsequent cases."
15. The way that the objection under Article 19 is framed before us is as follows: Under the said Act, the prescribed qualification for being appointed as an Estate Officer is no more than that he should be a "gazetted officer." It is said that the matter depends upon the subjective satisfaction of this person, which satisfaction may be quite arbitrary. On this point the following decisions have been referred to by the Petitioners: The first is a Supreme Court decision (14)
The licensing authority may grant, renew or refuse to renew a license and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded, provided that every power which is under this order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller or any person authorised in this behalf.
16. Both these provisions were held to be unreasonable restrictions, and violative of Article 19 of the Constitution. Mukherjea, J. said as follows:
Nobody can dispute that for ensuring equitable distribution of commodities considered essential to the community and their availability at fair prices, it is quite a reasonable thing to regulate sale of these commodities through licensed vendors to whom quotas are allotted in specified quantities and who are not permitted to sell them beyond the prices that are fixed by the controlling authorities. The power of granting or withholding licenses or of fixing the prices of the goods would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in these matters.
So far no exception can be taken; but the mischief arises when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do anything they like without any check or control by any higher authority. A law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. As has been held by this Court in (15) ''Chintaman Rao v. State of Madhya Pradesh'' AIR (1951) S.C. 1118 the phrase ''reasonable restriction'' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness. It is in the light of these principles that we would proceed to examine the provisions of this Control Order, the validity of which has been impugned before us on behalf of the Petitioners."
17. As stated above, the impugned provisions of the Order mentioned above were held to be unreasonable restrictions on the fundamental rights of the Petitioners and therefore set aside. In Virendra''s case (Supra), the provision of law impugned were, Sections 2 and 3 of the Punjab Special Powers (Press) Act, 1956. u/s 2(1), the State Government or any authority so authorised in this behalf if satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by order in writing addressed to a printer, publisher or editor prohibit the printing or publication of any document or any class of documents of any matter relating to a particular subject or class of subjects for a specified period or in a particular issue or issues or a newspaper or periodical. It is provided that no such order shall remain in force for more than two months and the person against whom the order was made had the right of representation to the State Government against the said order. u/s 3, the State Government or any authority authorised by it in this behalf, if satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order may by a notification, prohibit the bringing into Punjab of any newspaper, periodical, leaflet or other publication. One Virendra was the editor, printer and publisher of a journal - Daily Pratap, published from Jullunder and one Narendra was the editor, printer and publisher of the Daily Pratap and Vir Arjun published from New Delhi. An order was made u/s 2 prohibiting Virendra from printing and publishing any article, report, news item, letter or any other material of any character relating to or connected with the "Save Hindu Agitation" for a period of two months and an order was served u/s 3 on Narendra prohibiting the bringing into Punjab of his newspaper printed and published in Delhi. It was contended that these sections impose not merely restriction on, but total prohibition against, the exercise of the fundamental right under Article 19(1)(a) and 19(1)(g) of the Constitution and were not saved by the protecting section embodied in Article 19(2) and 19(6). Das, C.J. held that crucial question must always be: Are the restrictions imposed on the exercise of the rights under Article 19(1)(a) and 19(1)(g) reasonable, in view of all the surrounding circumstances? In other words, were the restrictions reasonably necessary in the interest of public order under Article 19(2) or in the interest of general public under Article 19(6)? The learned Chief Justice proceeded to say as follows:
It was for preserving the safety of the State and for maintaining the public order that the Legislature enacted this impugned Statute. Legislature had to ask itself the question: who will be the appropriate authority to determine at any given point of time as to whether the prevailing circumstances require some restriction to be placed on the right to freedom of speech and expression and the right to carry on any occupation, trade or business and to what extent?.
The answer was obvious, namely, that as the State Government was charged with the preservation of law and order in the State, as it alone was in possession of all material facts, it would be the best authority to investigate the circumstances and assess the urgency of the situation that might arise and to make up its mind whether any, and if so, what, anticipatory action must be taken for the prevention of the threatened or anticipated breach of peace.
The Court is wholly unsuited to gauge the seriousness of the situation, for it cannot be in possession of materials which are available only to the executive Government . . . . . . . gave wide powers to the State Government or the authority to whom it might delegate the same, to be exercised only if it were satisfied as to the things mentioned in the two sections. The conferment of such wide powers to be exercised on the subjective satisfaction of the Government of its delegate as to the necessity for its exercise for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order cannot, in view of the surrounding circumstances and tension brought about or aided by the agitation in the Press, be regarded as anything but the imposition of permissible reasonable restrictions on the two fundamental rights."
18. The next case to be considered is, (16)
19. The next case to be considered is (17) M/s. Pannalal Binjraj v. Union of India, AIR 1957 SC 197. In that case, Section 6(7A) of the Income Tax Act, 1922 was challenged, inter alia on the ground that it was violative of Article 19(1)(g) of the Constitution.
Section "5(7A)" of the Income Tax Act as under:
The Commissioner of income tax may transfer any case from one I.T.O. subordinate to him to another, and the Central Board of Revenue may transfer any case from one I.T.O. to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the reissue of any notice already, issued by the I.T.O. from whom the case is transferred.
20. It was argued that an uncontrolled power was vested in the Commissioner of income tax. It was calculated to inflict considerable inconvenience and harassment on Assessees. They might have to produce before the Income Tax Officer their books of account etc. hundreds of miles from where they carried on business. Its partners or principal officer might have to be away from the head office for a considerable period of time neglecting their business. They might have no suitable place where they could put up during that period. There would be extra expenditure for railway fare etc. It was held, however, that the provisions were neither violative of Article 19 nor Article 14. Convenience of the Assessee is the main consideration in determining the place of assessment but even so, the exigencies of tax collection have got to be considered and the primary object viz. the assessment of income tax has got to be achieved Bhagwati, J. sad as follows:
It may also be remembered that this power is vested not in minor officials but in top-ranking authorities like the Commissioner of the Income Tax and the Central Board of Revenue who act on the information supplied to them by the Income Tax Officer concerned. This power is discretionary and not necessarily discriminatory and abuse of power cannot be easily assumed where the discretion is vested in such high officials. [Vide (18)
21. This presumption, however, cannot be stretched too far and cannot be carried to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory treatment [vide (20) Gulf, Colorado etc. v. W.H. Ellis, (1897) 165 US 150]. There may be cases where improper execution of power will result in injustice to the parties. As has been observed, however, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are not without ample remedies under the law [vide (21) Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411 at p. 414]. What will be struck down in such case will not be the provision which invests the authorities with such power but the abuse of the power itself."
It will be remembered in (22) Jagu Singh v. Shaukat Ali and Anr. 58 CWN 1066 Act was struck down by me was that the "competent authority" under the 1950 Act could be "any" person, whether such person had the necessary qualifications for evaluating title to immoveable property or not. I cited a Bench decision of this Court, (23)
23. Next, it is pointed out that in the said Act, unlike the 1950 Act, there is a provision for appeal. u/s 9 an appeal shall lie from every order of the Estate Officer to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other judicial officer of that district of not less than ten years'' standing as the District Judge may designate in this behalf. Thus, recourse to judicial process is not entirely prohibited. Where the object of the Act is in accordance with law, the mere fact that executive officials are given wide powers, is not by itself considered to be an unreasonable restriction. As regards the argument that a "Gazetted Officer" may even include a personal assistant to a minister, it is argued that it is not any and every Gazetted Officer who is appointed as an Estate Officer, but only such persons being Gazetted Officers of the Government, as it thinks fit to be appointed as Estate Officers, may be so appointed. Since the power is given to Government, it may be assumed that an appointment will be made in a responsible way. If the power is abused, then it is the abuse that will be struck down, but the possibility of an abuse of power will not render the statute itself ultra vires. It is pointed out that the first safeguard is that a person acting as an Estate Officer is to be a person thought fit to act as such by Government, secondly, in making his order, Section 5(1) of the said Act provides that reasons shall be recorded and thirdly an appeal to a judicial officer has been provided for. It is further pointed out that the opinion to be formed by the Estate Officer is merely a tentative opinion. It merely leads to the issue and service of a notice to show cause. The party affected is fully heard and the Estate Officer has to record reasons for his ultimate order, which is not final but an appeal is provided before a judicial officer like a District Judge or a judicial officer of not less than ten years'' standing. Further, there is provision for rules being made under the said Act, and rules have been prescribed. It is complained that under the rules only a summary of evidence has to be taken, but this is also the case in many judicial proceedings in Court. All these safeguards render the restrictions reasonable. In my opinion this argument should be accepted. In the 1950 Act, the power was unrestricted and arbitrary. In the present Act, power is limited by ample safeguards. If in a particular case, the appointment of the Estate Officer was such as was plainly reasonable, and an abuse of the powers conferred upon Government, there is always a remedy, by an application to Court in the writ jurisdiction for relief. See (17)
It is well settled that every member of a Tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that Judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.
24. The findings of the Tribunal as well of the High Court were set aside. The facts were similar in another decision of the Supreme Court in (25)
In the result, for the reasons that the State Government did not make the enquiry consistent with the principles of natural justice in approving the scheme, the order approving the scheme is heeby quashed and a direction issued to Respondent I to forbear from taking over any of the routes in which the Petitioners are engaged in transport business. This judgment will not preclude the State Government from making the necessary enquiry in regard to the objections filed by the Petitioners in accordance with law.
25. It will be observed that the law was not struck down but its abuse. I think that the learned Standing Counsel was right in his argument that it could not be said that under the said Act the Estate Officer is necessarily to be considered as a party to the dispute or that he was likely to be biased. Numerous statutes, some of which have been mentioned above, require an executive officer to come to a tentative opinion, and as long as an opportunity is given to the citizen affected to make representation effectively, it cannot be concluded that there is a violation of the rules of natural justice. It is rightly pointed out that under the said Act, neither the opinion nor decision of the executive officer is final, but it can be corrected by a judicial officer in appeal. In my opinion the argument of the learned Standing Counsel should be upheld. There is no violation of Article 19 of the Constitution.
26. I now come to the second branch of the argument, namely that the said Act is violative of the provisions of Article 14 of the Constitution. I have already set out above, the two subdivisions of this argument. The first is that the provisions of the Act are more onerous, drastic and prejudicial to the citizen than the provisions contained in the Transfer of Property Act, 1882 and the West Bengal Premises Tenancy Act, 1956 and as such are discriminatory. The second sub-division of the argument is that there is discrimination violative of Article 14 in making a distinction between the persons in occupation of Government property and persons in occupation of private property, which distinction, it is said, has no relation to the object of the and is without any intelligible differentia.
27. As regards the first sub-division, then learned Standing Counsel argues that the said Act is by no means more onerous than the ordinary law. It is pointed out that under the Transfer of Property Act, the owner of any premises can always terminate the tenancy by a notice to quit, and provided that the procedure laid down for serving a notice to quit is observed, the tenant has no defence. Protection is offered by the West Bengal Premises Tenancy Act, 1956. But under the proviso to Section 1, the Act does not apply to any premises belonging to, or taken lease of, by Government or any local authority or requisitioned by Government. Therefore, the said Act really provides additional safeguards where none existed before. It is true that instead of a suit, which takes a considerable time to be effective, a summary remedy has been evolved. But this is the very object of the Act. As stated above. It is permissible to treat lands held by Government on a special footing. Delay in obtaining possession of governmental lands affects prejudicially, not merely an individual but citizens in general. the providing of a speedy remedy is, therefore, a permissible object for a reasonable classification of governmental lands as the recipient of special privilege. As regards the general objection on the ground of discrimination, a number of decisions have been cited and will have to be noticed. On behalf of the Petitioners, the following authorities have been cited: In (26)
The result is that these persons can be dealt with under the provisions of Act XXX of 1947, at the choice of the Commission, though they could also be proceeded with under the provisions of Section 34 of the Indian Income Tax Act. It is not possible to hold that all such persons who evade payment of income tax and do nation truly disclose all particulars or material facts necessary for their assessment and against whom a report is made under Sub-section (4) of Section 5 of the impugned Act by themselves form a class distinct from those who evade payment of income tax and come within the ambit of Section 34 of the Indian income tax Act.
It is well settled that in its application to legal proceedings Article 14 assures to everyone the same rules of evidence and modes of procedure; in other words, the same rule must exist for all in similar circumstances. It is also well settled that this principle does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance in the same position. The State can by classification determine who should be regarded as a class of purposes of legislation and in relation to a law enacted on a particular subject, but the classification permissible must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.
28. It was held that the Act applies to the same class of persons as the Income Tax Act, 1922 and yet the procedure prescribed by it was more onerous than that which was provided for by the Income Tax ax, 1922. On this ground several provisions of the Act were considered as violative of Article 14 of the Constitution and thus void and unenforceable. The next case to be considered is (27)
29. The next case to be considered in (29)
In considering this question, it is hardly necessary to invoke the accepted principle that ''if any state of facts can reasonably be conceived to sustain a classification the existence of the state of facts must be assumed'' (see per Fazl Ali, J. in (32)
30. It was held that the main reasoning of the majority of the Judges in Anwar Ali''s case (supra), was hardly applicable to the impugned statute, based on a classification which in the context of the abnormal post-war economic and social condition was readily intelligible and obviously calculated to sub-serve the legislative purpose. It was held that it rather fell on the same side of the line as the Saurastra case, (33)
31. In (34)
A more substantial contention is the one based on Section 15, which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and in therefore repugnant to Article 14. It is true that the section does not itself indicate the grounds on which exemption could be granted, but the preamble to the ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs Section 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide (16)
32. In (39)
(1) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court. In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply to a particular person or thing or only to a certain class of persons or things. Whether the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law.
(II) A statute may direct its provisions against one individual person or things or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the Court will strike down the law as an instance of naked discrimination.
(III) A statute may not make any classification of the persons or things or the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute had laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of selection or classification. After such scrutiny the Court will strike down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law.
(IV) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification; the Court will uphold the law as constitutional.
(V) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, in such a case, the executive action but not the statute should be condemned as unconstitutional.
33. Let us, now, apply these tests to the facts of the present case. Article 14 would always be attracted where there was class legislation. In such a case the question would arise as to whether the classification was a valid one. So far as the said Act is concerned, the classification relates to Government property and the occupants thereof, hence discrimination could conceivably be (a) between Government property and private property and (b) between the occupiers of Government property and occupiers of other property. If this classification is arbitrary and has no nexus to the objects of the Act and does not lay down an intelligible differentia, then it would fail to pass the test of Article 14 and would be void, as was the case in (30)
34. But where there is any guide line in the Act, which may be gathered from the objects and reasons or the preamble or the body of the Act, by which the classification can be upheld, then the Court will not interfere: (32)
35. In my opinion, therefore, the objection that the provisions of the Act are discriminatory and violative of Article 14 fails. The result is that all the three objections taken against the vires of the Act fail. In this particular case, a special point is taken that the applicant is a company incorporated under the Indian Companies Act and as such cannot claim the benefit of fundamental rights under Article 19. A reference has been made to, (40)
36. For the reasons aforesaid the vires of the Act is upheld and the application fails and should be dismissed. The Rule is discharged. There will be no order as to costs. All interim orders are vacated. The operation of this order will remain stayed for three months in order to enable the Petitioner to prefer an appeal, as prayed for.
Arun k. Mukherjea, J.
37. I agree.
S.K. Mukherjea, J.
38. I agree.
