DHANANJAYA YESHWANT CHANDRACHUD, J. - (1.) THIS batch of special appeals arises from a judgment of the learned Single Judge dated 8 October 2014. The learned Single Judge was seized with a batch of petitions under Article 226 of the Constitution questioning the legality of notices for eviction issued under Section 5A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (Act of 1971) and orders passed in pursuance thereof. The learned Single Judge held that Section 5A and Section 5B were introduced by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980(Amendment Act of 1980) which, upon receipt of the assent of the President, was published on 22 December 1980 and that, in consequence, the power to remove an unauthorized construction would exist only in respect of premises which have been constructed after the date on which the provisions had been introduced. In other words, in the view of the learned Single Judge, the provision would not apply to a structure which was existing prior to 22 December 1980. The learned Single Judge, in consequence, while allowing the writ petitions and setting aside the orders of eviction, held that this would not preclude the competent authority from proceeding afresh against the writ petitioners after duly verifying that the constructions have been made only after 22 December 1980.
(2.) THE learned Additional Solicitor General of India has, at the hearing, prefaced the submissions by stating that the challenge in this batch of special appeals is only to that part of the order of the learned Single Judge by which the applicability of the provisions of Section 5A has been confined to constructions which have been erected after 22 December 1980. Subject to the position in law being adjudicated upon and clarified by this Court, the appellants would have no objection to the eventual order of remand for re -examining all the facts and circumstances of individual cases.
(3.) SECTION 5A and Section 5B were introduced by Section 6 of the Amendment Act of 1980 ( No 61 of 1980). The Amendment Act of 1980 received the assent of the President on 20 December 1980 and was published in the Gazette of India on 22 December 1980 (Gazette of India Extraordinary, Part -II - Section I, pp 653 -660). Section 5A and 5B provide as follows: - "5A. Power to remove unauthorized constructions, etc - (1) No person shall - (a) erect or place or raise any building or other structure or fixture, (b) display or spread any goods, (c) bring or keep any cattle or other animal, on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub -section (1), the estate officer may serve upon the person erecting such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such remove from the person aforesaid as an arrear of land revenue. (3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub -section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue. 5B. Order of demolition of unauthorised construction. - (1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed on any public premises by any person in occupation of such public premises under an authority (whether by way of grant or any other mode of transfer), and such erection of building or execution of work is in contravention of, or not authorised by, such authority, then, the estate officer may, in addition to any other action that may be taken under this Act or in accordance with the terms of the authority aforesaid, make an order, for reasons to be recorded therein, directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced, or is being carried on, or has been completed, within such period, as may be specified in the order: Provided that no order under this sub -section shall be made unless the person concerned has been given by means of a notice of not less than seven days served in the prescribed manner, a reasonable opportunity of showing cause why such order should not be made. (2) Where the erection or work has not been completed, the estate officer may, by the same order or by a separate order, whether made at the time of the issue of the notice under the proviso to sub -section (1) or at any other time, direct the person at whose instance the erection or work has been commenced, or is being carried on, to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under section 9. (3) The estate officer shall cause every order made under sub -section (1), or, as the case may be, under sub -section (2), to be affixed on the outer door, or some other conspicuous part, of the public premises. (4) Where no appeal has been preferred against the order of demolition made by the estate officer under sub -section (1) or where an order of demolition made by the estate officer under that sub -section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein, or, as the case may be, within the period, if any, fixed by the appellate officer on appeal, and, on the failure of the person to comply with the order within such period, the estate officer or any other officer duly authorized by the estate officer in this behalf, may cause the erection or work to which the order relates to be demolished. (5) Where an erection or work has been demolished, the estate officer may, by order, require the person concerned to pay the expenses of such demolition within such time, and in such number of installments, as may be specified in the order." In Maganlal Chhagganlal (P) Ltd Vs Municipal Corporation of Greater Bombay, 1974 AIR(SC) 2009 a Bench of seven learned Judges of the Supreme Court overruled an earlier decision in Northern India Caterers Ltd V State of Punjab, 1967 AIR(SC) 1581. The Supreme Court held that the provisions of the Act of 1971 could not be construed as being in violation of Article 14 merely on the fanciful theory that the power of pursuing proceedings for eviction of unauthorized occupants could be exercised in certain cases by resorting to the summary proceedings of the Act and in other cases by taking recourse to the ordinary civil court. In that context, the Supreme Court observed that the purpose behind the introduction of the provisions of Section 5 was that properties belonging to the government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. In other words, the provisions of Section 5 were construed as provisions in aid of laying down a speedy procedure for eviction. The same principle was recognized in a decision of the Constitution Bench of the Supreme Court in Ashoka Marketing Ltd Vs Punjab National Bank, 1990 4 SCC 406 where it was held that the Public Premises Act had been enacted to provide for a speedy machinery for the eviction of unauthorized occupants of public premises. The Supreme Court adverted to the Statement of Objects and Reasons for the enactment which was as follows: - "The court decisions, referred to above, have created serious difficulties for the Government inasmuch as the proceedings taken by the various Estate Officers appointed under the Act either for the eviction of persons who are in unauthorised occupation of public premises or for the recovery of rent or damages from such persons stand null and void... It has become impossible for Government to take expeditious action even in flagrant cases of unauthorised occupation of public premises and recovery of rent or damages for such unauthorised occupation. It is, therefore, considered imperative to restore a speedy machinery for the eviction of persons who are in unauthorised occupation of public premises keeping in view at the same time the necessity of complying with the provision of the Constitution and the judicial pronouncements, referred to above." ;