Bhagri Singh and Others vs Union of India (UOI) and Others

R.R.K. Trivedi, J.—Facts giving rise to this writ petition are that land measuring 26.46 acres comprising old M.E.S. brick field falling under the control and administration of Ministry of Defence of the Central Government was put to public auction by the Tahsildar, Agra, for cultivation in the year 1946-47. The bid of Rs. 500 offered by Petitioner No. 1 Bhagri Singh being highest was accepted and the land was thus let out for cultivation under the Grow More Food Scheme enunciated by the Government. The permission granted to Bhagri Singh expired on 31.5.1947. No extension thereafter was obtained. An offer was also made by M.E.O. Agra to get the occupation regularised but this offer was not accepted by Petitioners. Thereafter by letter No. 4/325/147, dated 31.5.1960, Petitioners were asked to hand over vacant possession of the land in dispute as they were no longer tenants and their possession was unauthorised. As the possession was not given, proceedings for eviction were initiated by serving a notice u/s 4(1) of Public Premises (Eviction of Unauthorised Occupants) Act, 1958. This notice was given to Bhagri Singh and Mal Khan Singh. Malkhan Singh is now represented by Petitioner Nos. 4 and 5. Petitioner Nos. 2 and 3, namely, Karan Singh and Sardar Singh are other brothers of Bhagri Singh. They were impleaded in the proceedings on their own application. Against this notice, objections were filed, inter alia, alleging that they were not unauthorised occupants of the land because initially the land was let out to them by the Collector for which no period was fixed. The Petitioners and their two brothers Karan Singh and Sardar Singh are in Joint possession of the land in question; that they have invested more than Rs. 20,000 in levelling the kind and making it cultivable and also In repairing the old wells, etc. It is also alleged that the applicants and their brothers have constructed four Katcha houses which were necessary for cultivation and Management of the land. It is also alleged that they are in possession for the last more than 16 years and all of them are also recorded as tenants in the revenue records of the Government and they have acquired tenancy rights. It was also said that the land in dispute is situate beyond the limits of Agra Cantonment and the Military area and lies in several Mohals. Plot No. 317/1 measuring 4-2-0 has been purchased by them from the Custodian as evacuee property and the sale certificate has been executed in their favour and they are the tenants of the same.

The prescribed authority on the basis of the objection filed by the Petitioners struck as many as 7 issues and all the issues were decided against the Petitioners by order dated 16.1.1964. It was concluded that the Petitioners are to unauthorised occupation of the Government land and they were ordered to be evicted. Petitioners then filed appeal. Appeal was dismissed on 5.9.1964. Orders of the prescribed authority and the appellate authority were challenged in Writ Petition No. 4214 of 1964 in this Court. The writ petition was allowed by a learned single Judge on 18.3.1971 on a short ground that the provisions of Act No. 32 of 1958 are ultra vires being violative of Article 14 of the Constitution of India. Against the judgment of the learned single Judge. Special Appeal No. 396 of 1971 was filed by Respondent No. 1 which was also dismissed on 9.9.1971. Thereafter an application was filed in this Court claiming a certificate under Article 134A read with Article 133(1)(a)(b) of the Constitution. This application was registered Misc. Case No. 715 of 1971. In the meantime, Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Act No. 40 of 1971) was enacted and Act No. 32 of 1958 was repealed. The New Act was enforced with retrospective effect from the date 16.9.1958 and Section 20 of the new Act validated the actions taken under the repealed Act. In the new Act, the legal infirmity found in the Act of 1958 was removed by providing in Section 15 of the Act that no Court shall have jurisdiction to entertain any suit or proceedings in respect of eviction of any person in unauthorised occupation of public premises or recovery of the arrears of rent payable u/s 7(1) or damages payable u/s 7 (2) of the Act. Section 20 of the new Act Is very relevant for the purpose of the present case, hence it is being reproduced below:

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 been done or taken under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (32 of 1958)(Eviction of (sic) in this section unauthorised referred to as the 1958 Act) shall be deemed to be as valid and effective as if such things or action was done or taken under the corresponding provisions of this Act which, under Sub-section (1) 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;

(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.

As the new Act had come in force on 20.3.1972, Estate Officer passed an order for ejectment of the Petitioners u/s 5(1) of the new Act. The order of the Estate Officer was challenged in appeal (registered as Misc. Appeal No. 80 of 1972) which was dismissed by Respondent No. 2 by his order dated 2.8.1979. Aggrieved by the aforesaid two orders, Petitioners have approached this Court under Article 226 of the Constitution.

I have heard learned Counsel for the parties. Shri M.C. Gupta, learned Counsel appearing for Petitioners, has made the following submissions:

Firstly, that the Petitioners have not been given any notice before passing the order of eviction under the Act of 1971. Thus, the order of eviction is bad in law and cannot be sustained.

It has also been submitted that u/s 20 of the Act, only the proceedings in civil court and the effect of the said proceedings has been barred.

Secondly, that eviction could not be ordered straightaway on the basis of the order dated 16.1.1964 passed under the old Act. It is submitted that the earlier order passed merged in the order passed by this Court allowing Writ Petition No. 4214 of 1964.

Thirdly, it has been submitted that it was not proper on the part of the Estate Officer to pass the impugned order dated 20.3.1972 during the pendency of the Supreme Court petition in this Court claiming certificate.

Lastly, it has been submitted that during this period Petitioners acquired right independently by purchase from the Custodian and also by operation of law of Zamindari on part of the land and for this reason they could not be evicted.

Learned Counsel for the Union of India, on the other hand, submitted that the effect of Section 20 of the new Act was to revive all the actions done under the Act of 1958. The writ petition was allowed by this Court only on the legal question that the provisions of the Act of 1958 were ultra vires being violative of Article 14 of the Constitution as the Act conferred unguided power to the authorities to initiate action either under this Act or to file a suit in the civil court and such provision suffers from vice of discrimination and is violative of Article 14 of the Constitution.

It is submitted that as the defect has been removed by enacting Act No. 40 of 1971 and it has been given retrospective effect, the order of eviction passed against Petitioners on 16.1.1964 revived and the order of eviction has rightly been passed by the Estate Officer on 20.3.1972. Learned Counsel has further submitted that the orders were not quashed on merits by this Court and there was no question of any merger. As noticed by the appellate authority, the objections raised by the Petitioners were dealt with In detail while passing the order dated 16.1.1964 and they were already afforded full opportunity of hearing. Again, in appeal filed by Petitioners against the order dated 20.3.1972, all the contentions raised by Petitioners have been examined thoroughly and the appeal has been dismissed by order dated 2.8.1979. The orders do not suffer from any error of law. Petitioners are illegally occupying Government land without any right, title or interest for the last more than fifty years and no interference is called for by this Court under Article 226 of the Constitution.

I have thoroughly considered the submissions of the learned Counsel for parties. However, in my opinion, the contentions have no merit. From a close reading of Section 20 of the Act of 1971, it is clear that the notices issued and evictions ordered revived under a legal fiction created by Section 20 of the Act. As the order dated 16.1.1964 by which objection of Petitioners was rejected and eviction was ordered stood revived, the Estate Officer was competent to pass an order of ejectment straightaway without initiating fresh proceedings by service of notice u/s 4(1) of the new Act. It is not disputed that the writ petition filed by Petitioners was allowed by this Court on 18.3.1971 only on the ground of legal and constitutional infirmity found in the Act of 1958 which was removed by enacting Act No. 40 of 1971, the constitutional validity of which has already been upheld by Honble Supreme Court in case of Hari Singh and Others Vs. The Military Estate Officer and Another, . In Para 22 of the aforesaid judgment, Honble Supreme Court has concluded the legal position after 1971 Act in the following words:

The Legislature had legislative competence to enact the 1971 Act. It means that it could legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. The Legislature has power to pass laws with retrospective operation. The challenge to the 1978 Act is that the 1958 Act is unconstitutional and, therefore, there cannot be validation of anything done under an unconstitutional Act. The fallacy of the Appellants'' submission is in overlooking the crucial provisions in the 1971 Act that the 1971 Act is effective from September 16, 1958 and the action done under the 1958 Act is deemed to be done under 1971 Act. There is no vice of discrimination under the 1971 Act. There is only one procedure under the 1971 Act.

The submission of the learned Counsel for the Petitioners that the order of eviction could not be passed straightaway thus cannot be accepted. The order dated 16.1.1964 now shall be deemed to be an order passed under the provisions of 1971 Act. The submission of the learned Counsel for Petitioners the operation of Section 20 is confined to the proceedings pending only in civil court and its effect is also not correct and deserves outright rejection.

The second limb of the submission of learned Counsel for Petitioners in this connection was that the order dated 16.1.1964 stood merged in the order dated 18.3.1971 passed by this Court by which writ petition filed by Petitioners was allowed. In my opinion, this contention too is not correct for more than one reason. The theory of merger applies when there is a continuation of proceedings and the order is passed by a higher court or authority. However, writ petitions filed in this Court under Article 226 of the Constitution of India are independent proceedings for invoking extraordinary supervisory Jurisdiction of this Court provided under the Constitution. The proceedings under Article 226 of the Constitution can in no way be termed as continuation of the original proceedings. The legal position in this regard has already been made clear by Full Bench of this Court in case of Udai Bhan Singh v. Board of revenue and Ors. 1974 RD 107 (FB).

Secondly, the theory of merger cannot be applied in the present case as the orders of the lower authorities were quashed by this Court not on merits but only on the legal question that the provisions of the Act under which the orders were passed were unconstitutional and violative of Article 14 of the Constitution being discriminatory. This Court did not reverse the orders on merits. For this reason also, there is no question of merger. A full Bench of Himachal Pradesh High Court in case of Union of India (UOI) Vs. C. Baljee and Others, , also examined identical situation where the order of the Estate Officer was quashed by the appellate authority on the ground that the provisions of the Act of 1958 were unconstitutional. In this case though the order of the appellate authority was where the proceedings were in continuation, the Full Bench did not accept the submission that the order of the Estate Officer became non est. The Full Bench concluded that as the order of the Estate Officer is deemed to have been passed by legal fiction created by the Act under the provisions of Act of 1971, it shall be treated to be a valid order of eviction. Para 14 of the judgment may be gainfully quoted here:

The second contention on behalf of the Respondent Sri C. Balajee is that the 1971 Act cannot apply to the parts 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 Vs. Custodian of Evacuee Property, Delhi and Others, . 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. The 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 1971 Act excluding any transaction or proceeding taken under the 1958 Act from the operation of 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.

Next submission of the learned Counsel was about the propriety of the action on the part of the Estate Officer in passing the order of eviction when the application of Respondent No. 1, namely, the Union of India, was pending in this Court as Misc. S.C. Appeal No. 715 of 1971. In my opinion, filing of the application by Respondent No. 1 for obtaining a certificate from this Court under Article 133(1) (a) and (b) read with Article 134A of the Constitution, could not be an impediment in giving effect to the provisions of Section 20 of Act of 1971. As the notice issued and the order of eviction already passed stood revived under legal fiction created by Section 20 of 1971 Act, the Estate Officer was perfectly justified in issuing the order of eviction and in the facts and circumstances of the case, it was not at all necessary to pursue the application pending in this Court for obtaining the certificate.

Learned Counsel for the Petitioner has lastly submitted that Petitioners purchased Zamindari right in plot No. 317/1 area 4-2-0 from the Assistant Custodian on 8.6.1960. The plot was owned by a Muslim who was its Zamindar and after he migrated to Pakistan, the land was declared to be evacuee property and on the basis of the sale certificate dated 8.6.1960, they become absolute owners of the land. In my opinion, the eviction from the land in dispute cannot be resisted on the basis of the alleged sale certificate as Petitioners had obtained possession from Respondent No. 1 as lessees and now they cannot deny their title. Further, the purchase by Petitioners was of Zamindari rights which has already been abolished, and the Petitioners can at the most be entitled for a compensation of the land. However, it does not appear necessary as the sale certificate cannot be binding on Respondent No. 1 as it was not a party to the proceedings and the view taken by the appellate authority in this regard appears to be just and correct. It is sufficient to observe that if Petitioners are advised, they may file suit before the appropriate forum for establishing their rights over the land in dispute. However, they cannot resist their eviction in the present proceedings on these points.

For the reasons stated above, tills writ petition has no merit and is accordingly dismissed. The Interim order dated 23.8.1979 is vacated. There will be no order as to costs.