M.P.Thakkar, J. - (1.) A Seven -Judge Constitution Bench decision in Hari Singh's case : (973) 1 SCR 515 : AIR 1972 SC 2205 upholding the constitutionality of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (Act 40 of 1971) (Act) notwithstanding, the Petitioner has renewed the challenge by way of this petition under Article 32 of the Constitution of India. of course, the epicentre of the present challenge has shifted and is now located in the plea that Parliament does not have the legislative competence to legislate on the subject of the impugned legislation which dimension was not in focus in Hari Singh's case.
(2.) THE Petitioner was allotted a piece of land on licence by the Respondents. The licence was cancelled on the allegation that Petitioner had illegally made encroachment on further land and had illegally raised a structure on the land granted on licence. The Respondent terminated the licence Proceedings were initiated against the Petitioner under the Act. The competent authority passed an order of eviction against the Petitioner. Petitioner's appeal to the appellate authority under the Act was dismissed. The High Court also dismissed the petition preferred by the Petitioner. this Court refused to grant special leave and dismissed Petitioner's Special Leave Petition. Petitioner even so filed a Civil Suit which came to be dismissed for default of appearance. Meanwhile the Petitioner had approached this Court by way of a Special Leave Petition against an interlocutory order passed by the Civil Court. The said special leave petition also came to be dismissed for default of appearance. and thereafter the present Writ Petition has been instituted under Article 32 of the Constitution of India. In the petition as originally framed the constitutionality of the Act was not challenged. The said challenge was incorporated by amending the petition. When the matter came up for hearing this Court issued a Rule Nisi limited to the question of constitutionality of the Act as is evident from the relevant part of the order extracted herein below : Application for amendment allowed. Rule Nisi on the question of constitutional validity of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Notice to the Attorney General and the Union of India ordered. Thus, the only question before the Court presently is as regards the constitutional validity of the Act. The scheme of the Act as set out in Hari Singh's case (supra) is as under : - The scheme of the 1971 Act is that it confess power on Estate Officer to issue notice to persons who are in unauthorised occupation of any public premises to show cause why an order of eviction should not be made. 'Unauthorised occupation'* under the Act in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. 'Premises' are defined to mean any land or any building or part of a building and includes the garden, grounds and outhouses, appertaining to such building or part of a building and fitting affixed to such building or part of a building for the more beneficial enjoyment thereof. 'Public premises' means any premises belonging to or taken on lease or requisitioned by, or on behalf of the Central Government as enumerated in Section 2 (e) of the Act. The notice to show cause against order of eviction shall specify the grounds on which the order of eviction is proposed to be made. The Estate Officers under the Act are appointed by the Central Government. The Estate Officers are Gazetted Officers or officers of equivalent rank. 'Corporate authority' under the Act means any company or Corporation or any committee or the Authority as mentioned in the Act. The Estate Officer shall for the purpose of holding inquiry under this Act, have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of matters mentioned in Section 8 of the Act. These matters are summoning and enforcing the attendance of any person and examining him on oath; secondly, requiring the discovery and production of document; and thirdly, any other matter which may be prescribed. Section 10 of the Act provides for finality of orders in circumstances mentioned in Section 10 of the Act therein.
(3.) THE learned Solicitor General has raised a preliminary objection on the threshold. It is contended that the Constitution Bench in Hari Singh's case (supra) has already pronounced that the legislature had the legislative competence to enact the impugned Act. Reliance in this context is placed on the following passage from the Majority of Ray, J. (at p. 2212): - Therefore, a validating law is upheld first by finding out whether the legislature possesses competence over the subject matter, and, secondly whether by validation the legislature has removed the defect which the Courts had found in previous law. 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 (Emphasis added);