Kedarnath Dahlan vs The State of Bihar and 10 Others

S.K. Jha, J.—In this writ application the constitutional validity of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (Act 32 of 1958) had been originally challenged. The learned District Judge whose order was challenged in this writ application, relying upon a Division Bench decision of this Court in (1) Bhartiya Hotel and Others Vs. Union of India(UOI) and Another, , has held that no portion of the Act including Section 5 was ultra vires of the Constitution. Subsequently, a Full Bench of the Calcutta High Court in (2) Rajendra Prosad Singh Vs. Union of India (UOI) and Others, had taken a different view with regard to the vires of the Act. As a result, the Division Bench before whom this application came up for hearing referred it to the Full Bench for resolving the conflict between the two decisions aforesaid. The petitioner in this case has challenged the legality of Annexures ''1'' ''2'' and ''3'' to this writ application, Annexure ''1'' being an order of eviction passed by the Estate Officer and Annexure ''2'' of the same date, namely, 19th October, 1966 being an order for payment of damages passed against the petitioner. The petitioner, thereupon had gone up in appeal to the learned District Judge, Saharsa who, by his order dated 25th August, 1969, a copy of which is Annexure ''3'' to this writ application, allowed the petitioner''s appeal and remanded the case back to the Estate Officer for disposal in accordance with law but, at the same time, as already indicated above, the learned District Judge held, relying upon the decision of this Court in (1) Bhartiya Hotel''s case, that Section 5 of the Act in question was not ultra vires.

Since after this case was referred to the Full Bench, the decision of this Court in (1) Bhartiya Hotel''s case (Supra) has already been the subject matter of appeal before the Supreme Court which has decided the case now and it is reported in (3) Hari Singh and Others Vs. The Military Estate Officer and Another, . It is also to be noted that since after disposal of the case by the High Court the Act of 1953 was amended by Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Act 40 of 1971). It has now been decided, by the Supreme Court that Act 40 of 1971 aforesaid, retrospectively amending the 1958 Act, has removed the lacuna which may be said to have been present in the 1958 Act, by Section 15 of the 1971 Act. Section 15 of the 1971 Act now provides only one procedure for ejectment of persons in unauthorised occupation of public premises. It has accordingly been held that now there is no vice of discrimination under 1971 Act as there is only one procedure to be adopted in all cases. In that view of the matter, the decision of this Court in (1) Bhartiya Hotel''s case was upheld by the Supreme Court. There thus now remains no conflict to be resolved as it has already been resolved by the Supreme Court after the amendment of the Act in 1971 which also has been held to be a valid piece of legislation. In that view of the matter the present application must fail and the order of the learned District Judge, Annexure ''3'', will now take its effect in accordance with law. This application is accordingly dismissed but, in the circumstances, there will be no order as to costs.

N.L. Unwalia, C.J.

I agree.

S.N.P. Singh, J.

I agree.