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TMI Blog1974 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... That chapter contains sections 105A and 105B. According to the provisions of those sections the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the corporation and the General Manager (also defined as the Commissioner) of the Bombay Electric Supply and Transport Undertaking in relation to premises of the corporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorised occupation of any corporation premises. Unauthorised occupation is defined as occupation by any person of corporation premises without authority for such occupation and includes the continuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined. Under section 105B the Commissioner, by notice served on the person in unauthorised occupation, could ask him to vacate if he had not paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises; or sub-let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or committed, or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Collector or an Executive Engineer appointed by the State Government. The only other matter in respect of which the provisions of this Act differ from the provisions of the Bombay Municipal Corporation Act, just now referred to, is that section 8A of this Act provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Government premises on any of the grounds specified in section 4 or the recovery of the arrears of rent or the damages payable for use or occupation of such premises. This amendment was made as a consequence of the decision of this Court in Northern India Caterers v. Punjab (1967 3 SCR 399). But the matters arising under this Act and now before this Court were in respect of proceedings taken before section 8A was introduced in the Act by Maharashtra Act 12 of 1969 and this section has, therefore, no relevance for the purposes of these cases. It was not and could not be argued that the Acts in so far as they provided for special procedures applying to the State and 2the Municipal Corporation were invalid. The decisions in Baburao Shantaram More v. The Bombay Housing Board (1954 SCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of public property and premises and occupiers of private property and that it is in the interest of public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instrument mentality of a speedier procedure. However, they referred to the decisions of this Court in State of West Bengal v..Anwar Ali Sarkar (1952 SCR 284), Suraj Mall Mohta v. A. V. Visanatha Sastri (1965 1 SCR 448), Shree Meenakshi Mills Ltd. Madural v. A. V. Visvanatha Sastri (1955 1 SCR 787) and Banarsi Das v. Cane Commissioner, U.P. (1963 Supp. 2 SCR 760 : AIR 1963 SC 1417) and concluded that the principle which emerged from these decisions was that discrimination would result if there are two available procedures, one more drastic or prejudicial to the party concerned than the other which can be applied at the arbitrary will of the authority. They thought that as s. 5 conferred an additional remedy over and above the remedy by way of suit leaving it to the unguided discretion of the Collector to resort to one or the other by picking and choosing some only of those in occupation of public properties and premises for the application of the more drastic procedure un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh High Court in M. Begum v. State (AIR 1971 of 382) and Meharunnissa Begum v. State of Andhra Pradesh (1970-1 Andh. LT 88) and the Patna High Court in Bhartiya Hotel v. Union of India (AIR 1968 Pat. 476). The decision of the Patna High Court is one of the cases which was considered along with Hari Singh's case. It is rather interesting that this attack based on Art. 14 of the Constitution should have led to the apparently more onerous and harsher procedure becoming the rule, the resort to the ordinary Civil Court being taken away altogether. It is difficult to imagine who benefits by resort to the ordi- nary Civil Courts being barred. One finds it difficult to reconcile oneself to the position that the mere possibility of resort to the Civil Court should make invalid a procedure which would otherwise be valid. It can very well be argued that as long as a procedure does not by itself violate either Art. 19 or Art. 14 and is thus constitutionally valid, the fact that procedure is more onerous and harsher than the procedure in the ordinary civil courts, should not make that procedure void merely because the authority competent to take action can resort to that procedure in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch offences. Are we not familiar with gruesome crimes of murder,. arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ? Do not the existence of the communal riots and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community ? May not political murders or crimes against the State or a class of the community, e.g., women, assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment ? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crime s and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly ? I have no doubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very cogent and reasonable b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench which decided Anwar Ali Sarkar's case. Section 11 of the Ordinance there under consideration was exactly in the same terms as s. 5(1) of the West Bengal Special Court Act. The only difference between the two was that the Saurashtra Ordinance was purported to have been passed to provide "for public safety, maintenance of public order and preservation of peace and tranquility in the State of Saurashtra. However, an affidavit was filed on behalf of the state giving facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nose-cutting and murder by marauding gangs of dacoits in certain areas of the state and these details were held to support the claim that the security of the state and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places expeditiously. The affidavit also stated that the areas specified in the notification were the main zones of the activities of the dacoits. The impugned Ordinance having thus been passed to combat the increasing tempo of certain types of regional crime, the two-fold classification on the lines of type and territory adopted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of article 14 of the Constitution and is thus void." It would be noticed that as in Anwar A1i Sarkar's case in this case also the ordinary law under the Indian Income-tax Act and the extraordinary procedure under the Taxation of Income (Investigation Commission) Act covered the same class of people and there is no indication as to why certain cases should be sent to the Commission and certain cases be dealt with by, the regular Income-tax authorities. But here again it is interesting to note the observation but the overall picture is that though under the Indian Income-tax Act the same officer who first arrives at a tentative conclusion hears and decides the case, his decision is not fin is subject to appeal, while under the provisions of sub-section (4) of section 5 of the decision of the Commission tentatively arrived at in the absence of the assessee becomes final when taken in his presence, and that makes all the difference between the two procedures. If there was a provision for reviewing the conclusions of the Investigation Commission when acting both as investigators and judges, there might not have been such substantial discrimination in the two proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Travancore Act XXIII of 1121 was directed only against those persons concerning whom definite information came into the possession of the Income-tax Officer and in consequence of which the Income-tax Officer discovered that the income of those persons had escaped or been under-assessed or assessed at too low a rate or had been the subject of excessive relief, and the, class of persons envisaged by S. 47(1) was a definite class about which there was definite information leading to discovery within 8 years or 4 years as the case may be of definite item or items of income which had escaped assessment. On the other hand under S. 5 ( 1) of the Travancore Act XIV of 1124 the class of persons sought to be reached comprised only those persons about whom there was no definite in formation and no discovery of any definite item or items of income which escaped taxation but about whom the Government had only prima facie reason to believe that they had evaded payment of tax to a substantial amount. Further, it was definitely limited to the evasion of payment of taxation on income made during the war period, whereas s. 47(1) of the Travancore Act XXIII of 1121 was not confined to escapemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied." In Kedar Nath Bajoria v. The State of West Bengal (1954 SCR 30) the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was under consideration. The Act provided for special procedure for the trial of certain offences. It was entitled an Act to provide for the more speedy trial and more effective punishment of certain offences. These offences were set out in the Schedule to the Act. The Act empowered the Provincial Government to constitute Special Courts of criminal jurisdiction for specified areas and to appoint Special Judges to preside over such courts. It was observed that : The vice of discrimination, it is said, consists in the unguided and unrestricted power of singling out for different treatment one among a class of persons ail of whom are similarly situated and circumstanced, be that class large or small. The argument overlooks the distinction --L131Supreme Court\75 between those cases where the legislature itself makes a complete clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed, and the preamble to the latter, taken along with the surrounding circumstances, discloses a definite legislative policy which has been sought to be effectuated by the different provisions contained in the enactment. If special courts were considered necessary to cope with an abnormal situation, it cannot be said that the vesting of Authority in the State Government to select offences for trial by such courts is in ,any way unreasonable." We may now refer to the decision in Kangsari Haldar & Anr. v. The State of West Bengal (1960 2 SCR 646). There the appellants were prosecuted for having committed offences under s. 120B read with ss. 302 and 438 of the Indian Penal Code before the tribunal constituted under the West Bengal Tribunals of Criminal Jurisdiction Act, 1952. A notification issued under that Act declared certain areas to be a disturbed area within a specified period, and the case against the appellants was in respect of their activities in that area and during that period. It was held that the "classification made by the impugned Act is rational and the differentia by which offenders are classified has a rational relation with the object of the Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not have the tendency to create the problem which the Act intended to meet. We are, therefore, satisfied that the classification made by the Act is rational and the differentiation on which the offenders included within the Act are treated as a class as distinguished from other offenders has a rational nexus or relation with the object of the Act and the policy underlying it. Therefore, it would be difficult to accede to the argument that the Act violates Art. 14 of the Constitution." The Court pointed out that the majority decision in Anwar All Sarkar's case was based on two principal considerations that, having regard to the bald statement made in the preamble about the need of speedier trials, it was difficult to sustain the classification made by s. 5(1), and that the discretion left to the executive was unfettered and for its exercise no guidance was given by the statute. It was pointed out that in the Saurashtra case the majority took the view that the preamble to the Act gave a clear indication about the policy underlying the Act and the object which it intended to achieve, that the classification on which the impugned provisions were based was a rational classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch plea and without adequate material in that behalf this aspect of the matter does not fall to be considered in the present appeal. In Jyoti Pershad v. Administrator for the Union Territory of Delhi (1962 2 SCR 125) section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, which provided that any decree obtained for the eviction of a tenant in respect of buildings in areas declared "slum areas" could not be executed without the, permission of ,the "competent authority", was held not obnoxious to the equal protection of law on the ground that there was enough guidance to the competent authority in the use of his discretion under s. 19(1) of the Act. It was urged before this Court that s. 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act and thus offends Art. 14. In considering this argument the Court referred to the summary of the decisions of this Court laying down the proper construction of Art. 14 rendered up to 1959, made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitting discriminatory treatment of persons similarly situated. The particular executive or quasi- judicial act would, however, be open to challenge as already stated on the ground not so much that it is in violation of the equal protection of the laws guaranteed by Art. 14, because exconcessis that was not permitted by the statute but on the ground of the same being ultra vires as not being sanctioned or authorized by the enactment itself." Though the Court then went into the question whether there was any guidance found or principles laid for the authorities' guidance in the Act, and upheld its validity, the fourth proposition is very important. In the present cases also affidavits have been filed by the officers stat- ing the purposes for which those provisions were enacted. The very policy and the purpose of the enactments clearly make it apparent that the legislature intended to make them applicable to a special class (1) the-property belonging to the Government, and (2) property belonging to the Bombay Municipal Corporation and provide for a speedy method of recovering those properties. To summarise: Where a statute providing for a more drastic procedure differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be exercised in such an unrealistic fashion. In considering whether the officers would be discriminating between one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers' case'. We should add that the basis of that decision is that section 5 of the Act enables the Collector to discriminate against some by exercising his power under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of docu- ments are a valuable safeguard-for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to' a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mall Mehta's case. The main diffe- rence between the procedure before an ordinary Civil Court and the executive authorities under these two Acts is that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal- is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Art. 226 and Art. 227 of the Constitution. This is no less effective than the provision for a second appeal. On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Art. 14 does not demand a fanatical approach. We, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and that we should avoid dogmatic and finical approach when dealing with life's manifold realities. I must also utter a note of caution against the tendency to lightly overrule the view expressed in previous decisions of the Court. It may be that. there is a feeling entertained by certain schools of thought, to quote the words of Cardozo, that "the precedents have turned upon us and are engulfing and annihilating us-engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead. of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty relative and temporary, a writing on the sands to be effaced by the advancing tides. Some of them even go so far as to adjure us to give over the vain quest, to purge ourselves of those yearnings for the unattainable ideal, and to be content with an empiricism th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and automatically, in all its pristine generality (see Selected Writings, page 31). As in life so in law things are not static. Fresh vistas and horizons may reveal-themselves as a result of the impact of new ideas and developments in different fields. of life. Law, if it has to satisfy human needs and to meet the problems, of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded was in its origin the product of institutions or conditions which have gained a new significance or development with the progress of years. It sometimes happens that the rule of law which grew up in remote generations may in the fulness of experience be found to serve another genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of constitutional law." (see page 170 and 171 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall). So far as the question is concerned about the reversal of the previous view of this Court, such reversal should be resorted to only in specified contingencies. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should not be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience. Question about the overruling of its previous decisions was considered by this Court in the case of Bengal Immunity Co. Ltd. v. The State of Bihar & Ors.( [1955] 2 S.C.R. 603.) Das Acting CJ. after quoting from American, Australian and Privy Council decisions observed as under "Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting from, previous pronouncements of this Court. Applying the principle enunciated above also, I am of the view that no sufficient ground has been shown for overruling the view expressed by the majority in Northern India Caterers case((1967) 3 S.C.R. 399.). It may be that the view expressed by the minority in that case appears to be preferable, but that by itself would not show that the decision arrived at in the Northern India Caterers case was plainly erroneous and as such requires overruling. It also cannot be said that aforesaid decision has given rise to public inconvenience and hardship. The legislature has in view of the decision in Northern India Caterers case made necessary amendments in many of the enactments so as to bar the jurisdiction of the civil courts in matters dealt with by those enactments. No constitutional amendment was required to set right the difficulty experienced ,as a result of the decision of this Court in Northern India Caterers case. I am, therefore, of the view that it is not necessary for the purpose ,,of this case to overrule the majority decision in the case of Northern India Caterers. BHAGWATI, J., These appeals and writ petitions challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of any of the terms, express or implied, under which he is authorised to occupy such premises- (b) that any person is in unauthorised occupation of any corporation premises; (c) that any corporation premises in the occupation of any person are required by the corporation in the public interest. the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice-order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice." Before, however, an order can be made by the Municipal Commissioner against any person under subs. (1) of s. 105B, sub-s. (2) of that section says that the Municipal Commissioner shall issue a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. This notice is required to specify the grounds on which the order of eviction is proposed to be made and it is intended to give an opportunity to all persons who are or may be in occupation of or claim interest in the Corporation premises to show cause against the proposed order of evicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for our purpose and. we may omit it from consideration. Sec. 105E is the next section and that says that the Municipal Commissioner shall. for the purpose of holding any inquiry under the Act, have the same powers as are vested in the civil Court.under the Code of Civil Procedure, when trying a suit, in respect of (a) summoning and enforcing attendance of any person and examining him on oath, (b) requiring the discovery and production of documents and (c) any other matter which may be prescribed by Regulations made under 3 3 s. 105H. This section clearly contemplates that the Municipal Commissioner, while holding an inquiry, can order discovery and production of documents and also examine witness on oath in the same manner as a civil court. Every order of the Municipal Commissioner under s. 105B or s. 105C is made appealable under s. 105F and the appeal lies to the Principal Judge of the City Civil Court of Bombay or such of their judicial officer in Greater Bombay of not less than ten years standing as the Principal Judge may designate in that behalf. The appellate officer is given power to stay the enforcement of the order of the Municipal Commissioner which is impugned in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Act and the provisions of the Government Premises Eviction Act with which we are concerned are, therefore, the provisions as they stood prior to their amendment by the introduction, of section 8A. Having set out the relevant provisions of the two statutes impugned in these cases, we may now turn to examine the grounds on which they are challenged. But before we do so, we may clear the ground by pointing out-and this is important to remember in the context of an argument advanced on behalf of the respondents which we shall have occasion to examine a little later-that the special procedure for determining the liability to eviction and securing eviction of persons found liable to be so evicted laid down in the two statutes has not been assailed before us on the ground that it is unreasonable and imposes unjustified restriction on the fundamental right to hold property guaranteed under Art. 19(1) (f). It was faintly argued before us that the impugned provisions of these two statutes by providing special procedure for eviction of occupants of Municipal or Government premises have made unjust discrimination between occupants of other premises and are on that account viola- tive of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of its reach it must appear that not only a classification has been made but also that it is one based on some real distinction, bearing a just and reasonable relation to the object of the Legislation, and is not a mere arbitrary selection. The classification to be valid and permissible must satisfy a double test; it must be founded on an intelligible differentia, which distinguishes those who are grouped together from others, and that differentia must have a rational relation ,to the object sought to be achieved by the statute. It was on application of this double test that in the above-mentioned decision that the law making special provision for Government or other public bodies was held to be constitutionally valid. The application of the same double test, however, resulted in the invalidation of the exemption of debts due to the Central Government or the Government of any State or a local authority from the operation of the Rajasthan Jagirdar's Debt Reduction.Act which provided for scaling down of debts of Jagirdars whose Jagir lands had been resumed by the Government. Vide State of Rajasthan v. Mukanchand & Ors.( [1964] 6 S.C.R. 903.) It will thus be seen that where a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by way of civil suit involving both expense and delay. Speedy justice is to-day, in view of the existing procedural skein of an ordinary suit, an almost impossible feat. There is, thus, a valid basis of differentiation between occupiers of Municipal premises and those of other premises, and there is a rational relation and nexus between the basis of the classification and the object of the legislation. The constitutional validity of the impugned provisions in the two statutes cannot, in the circumstances, be assailed on the ground that they make unjust discrimination between occupiers of Government or Municipal premises and occupiers of other premises. The main ground of attack against the constitutionality of the impugned provisions, however, was that even if occupiers of Government or Municipal premises form a class by themselves as against occupiers of private, owned properties and such classification is justified on the ground that they require differential treatment in public interest, the impugned provisions discriminate amongst occupiers of Government or Municipal premises inter se and are, there- fore, violative of the equality clause. The petitioners- appellants contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. There were two grounds on which the challenge was based : one was that the Act discriminated unjustly between occupants of public premises and those of private property and the other was that even amongst occupants of public premises inter se, there was discrimination, inasmuch as the special procedure set out in the Act was more drastic and prejudicial than the ordinary procedure of a civil suit and it was left to the arbitrary and unfettered discretion of the Government to adopt the special procedure against some and not against the rest. So far as the first ground is concerned, it was clearly and in so many terms repelled by Bachawat, J., in the minority judgment, and though the majority, speaking through Shelat, J., did not finally pronounce upon the validity of this ground, they pointed out that there was great force in it as it was possible to say that there was intelligible differentia between occupiers of public premises and other occupiers and the differentia had rational nexus with the object of the legislation. It was the second ground which evoked difference of opinion amongst the learned Judges, the majority, speaking through Shelat, J., taking the view that this g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, held s. 5 of the Act to be void. Bachawat, J., delivering judgment on behalf of himself and Hidayatullah, J., (as the then was) held that "without violating Art. 14, the law may allow a litigant a free choice of remedies, proceedings and tribunals for the redress of his grievances". The learned Judge observed that "it is not pretended that the proceeding under the impugned Act is unfair or oppressive. The unauthorised occupant has full opportunity of being heard and of producing his evidence. He is not denied the equal protection of the, laws because the government has the option of proceeding against him either by a suit or under the Act", and added : "an unauthorised occupant has no constitutional right to dictate that the government should have no choice of proceedings. The argument based upon the option of the government to file a suit is unreal, because in practice the government is not likely to institute a suit in a case where it can seek relief under the Act". The learned Judge concluded by saying that "Art. 14 does not require a fanatical approach to the problem of equality before law" and upheld the validity of the Act. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept this broad and unqualified statement of the law as correct and if we, scrutinize the decision in Arizona Copper Co. v. Hammer([1967] 3 S.C.R. 399.) closely, we would find that it does not support any such statement. It is, no doubt, true that Mr. Justice Pitney said in this case :.......... it is thoroughly settled by our previous decisions that...... election of remedies is an option very frequently given by the law to a person entitled to an action, an option normally exercised to his own advantage, as a matter of course". But this observation must be read in the, context of the question which arose for decision in that case and if it is so read, it would be clear that what Mr. Justice Pitney had in mind when he made this observation was the existence of several rights to relief arising out of the same act and not the existence of several remedies in enforcement of a single right to relief. Under the laws of Arizona, an employee injured in the course of his employment had open to him three avenues of redress, any one of which he might pursue according to the facts of his case, namely, (1) the common law liability relieved of the fellow-servant defense, and in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination". Vide also Weaver's Constitutional Law,, page 407. If for determination and enforcement of a liability, two alternative procedures are available, one more drastic and prejudicial than the other and no guiding, policy or principle, is laid down by the legislature as to when one or the other procedure shall be followed so that either procedure may be indiscriminately adopted against persons similarly situated, the law providing for the more drastic and prejudicial procedure would be violative of the equal protection clause. That was laid down as far back as 1952 in the celebrated case of State of West Bengal v. Anwar Ali Sarkar (supra) which was decided ,by a Bench.of seven judges. Section 5(1) of West Bengal Act 10 of 1950 was impeached in that case and the majority decision held that section to be wholly invalid. The preamble to the Act merely stated that it was expedient to provide for speedy trial of certain offences and section 5(1) empowered a special Court to try such offences or class of offences or cases or class of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Saurashtra case was adjourned to enable the State Government to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety (Third Amendment) Ordinance, 1949 which was impugned in that case. The Saurashtra case was thereafter heard by the same Bench of seven Judges which decided Anwar Ali Sarkar's (supra) case. Section II of the Saurashtra Ordinance was in the same terms as section 5(1) of the West Bengal Act and the constitutional objection against the validity of that section was also the same, namely, that it committed to the absolute and unrestricted discretion of the executive Government the power to refer cases to be tried by the special procedure laid down in the Saurashtra Ordinance and the section was, therefore, discriminatory, and void. But this time the conclusion reached by the majority judges was different. The decision in Anwar Ali Sarkar's case (supra) was distinguished by three of the learned judges who were parties to the majority decision in that case. Fazl Ali, J., observed : "The main objection to the West Bengal Act was that it permitted discrimination without reason or without any rational bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the decision of the majority judges in that case marked a retreat from the position taken up by the majority in the earlier case of Anwar Ali Sarkar (supra), the majority judges strongly refuted this proposition and pointed out that it was on an application of the same principle which resulted in the invalidation of section 5(1) of the West Bengal Act that the validity of section 11 of the Saurashtra Ordinance was sustained by them. The principle which was applied by the majority judges in Anwar Ali Sarkar's case and Kathi Raning Rawat's case([1952] S.C.R. 435) was the same and it was stated in these terms by Patanjali Sastri, C.J., delivering the majority judgment of the Court in Kedar Nath Bajoria.v. State of West Bengal([1954] S.C.R. 30) : "if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the decision of this Court in Suraj Mull Mohta v. A. V. Visvanatha Sastri (supra). The constitutional validity of section 5(4) of the Taxation on Income (Investigation Commission) Act, 1947 was assailed in that case on the ground that "evasion, whether substantial or unsubstantial, came within its ambit as well as within the ambit of section 34 of the Indian Income Tax Act", and it was, therefore, violative of article 14. This Court compared the provisions of section 5(4) of the Act with those of section 34(1) of the Indian Income Tax Act and came to the conclusion that section 5(4) dealt with the same class of persons who fell within section 34 of the Indian Income Tax Act and were dealt with in sub-section (1) of that section, and whose income could be caught by proceeding under that section. There was nothing uncommon, observed this Court, either in properties or in characteristics between persons who had been discovered as evaders of income tax during an investigation conducted under section 5 (1) of the Act and those who had been discovered by the Income Tax Officer to have evaded income tax. Both these kinds of persons had common properties and characteristics, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has thus to be relieved against. All these persons can now well ask the question, why are we now being dealt with by the discriminatory and drastic procedure of Act XXX of 1947 when those similarly situated as ourselves can be dealt with by the Income- tax Officer under the amended provisions of section 34 of the Act-in other words, there is nothing uncommon either in properties or in characteristics between us and those evaders of income-tax who are to be discovered by the Income-tax Officer under the provisions of amended section 34. In our judgment no satisfactory answer can be returned to this query because the field on which amended section 34 operates now includes the strip of territory which, previously was occupied by section 5(1) of Act of 1947 and two, substantially different laws of procedure, one being more prejudicial to the Assessee than the other, cannot be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution." The same line of reasoning prevailed with this Court in M. Ct. Muthiah & Ors. v. The Commissioner of Income-tax, Madras & Anr.( [1955] 2 S.C.R. 1247.) in holding that_though section 5(1) of the Taxation on I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of article 14. This contention of the respondents, is, in our opinion, having, regard to the substance of the guarantee of equality, untenable and cannot be accepted. It proceeds on a misconception of the true principle on which this Court, has struck down laws providing for special procedure which is substantially more drastic and prejudicial than the ordinary procedure. principle as well as precedent, clearly appreciated, would remove the mist of misunderstanding surrounding this facet of constitutional quality. The principle which emerges from the decisions of this Court-and we have already discussed some of the important decisions-is that where persons similarly circumstanced are exposed to the procedures for determination of liability, one being more drastic and prejudicial than. the other and no guidelines are provided by the legislature as to when one procedure shall be followed or the other. to that one person may be subjected to the more drastic and prejudicial procedure while the other may be subjected to the more favourable one, without there being any valid justification for distinguishing between the two, the law providing for the more drastic and prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im is initiated not by the Municipal Corporation or the Government but by the Municipal Commissioner or the Collector. The constitutionality of a statutory provision cannot turn on mere difference of the hands that harm, though both belong to the Government or the Municipal Corporation, for otherwise it would be easy to circumvent the guarantee of equality and to rob it of its substance by a subtle and well-manipulated statutory provision vesting the more drastic and prejudicial procedure in a different organ of the Government or public authority than the one in whose hands lies the power to, initiate the ordinary procedure. That would be disastrous. We must look at the substance and not the mere form. In fact in Suraj Mull Mohta's case (supra) and Shree Meenakshi Mills case (supra) the special procedure under the Income Tax Investigation Commission Act could be initiated by the Central Government while the ordinary procedure under the Income Tax Act could be initiated by an altogether different authority, namely, the income Tax Officer, and yet it was held that section 5, sub-section (4) in one case and section 5, sub-.section (1) in the other were violative of article 14 sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similarly situated so far as the procedure for determination of liability is concerned. Mere fairness of the special procedure which is impugned as discriminatory is not enough to take it out of the inhibition of article 14. The fairness of the special procedure would undoubtedly be relevant if the special procedure is challenged as imposing unreasonable restriction under article 19(1) (f). it would also be relevant if the special procedure were assailed as being in violation of the due process clause in a country like the United States. But where the attack is under article 14, what we have to consider is whether there is equality before law, and there the question that has to be asked and answered is whether the two procedures are so disparate substantially and qualitatively as to lead to unequal treatment. Equality before law cannot be denied to a person by telling him "It is true that you are being treated differently from others who are similarly situate with you and the procedure to which you are subjected is definitely more drastic and prejudicial as compared to the procedure to which others are subjected, but you should not complain because the procedure adopted aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the ordinary procedure ? Do the impugned provisions vest absolute and unguided power in the Municipal Corporation or Municipal Commissioner or Government to pick and choose some occupiers of Municipal or Government premises for being dealt with under the special procedure set out in the impugned provisions leaving others to be dealt with under the ordinary procedure of a civil suit ? The majority decision in Norther Indian Caterers Ltd. v. State of Punjab([1967] 3 S.C.R. 399 Ltd.) would seem to suggest that the impugned provisions do suffer from this vice but that is not correct. There is a basic fallacy from which the majority decision in Northern India Caterers v. State of Punjab ([1967] 3 S.C.R. 399) suffers and that is that it overlooks the distinction between those cam where the legislature itself makes a complete classification of persons or things and applies to them the law which it enacts and others where the legislature merely lays down the law to be applied to persons or things answering to a given description or processing certain common characteristics and having regard to the impossibility of making a precise and complete classification, leaves it to an administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to he tested." It is, therefore, not correct to say that merely because the Municipal Corporation, or Municipal Commissioner or Government is not compellable to adopt the special procedure set out in the impugned provisions against all occupiers of Municipal or Government premises, but is vested with a discretion in the matter, the in offend against article 14. What we have to see is Whether there is any standard indicated or policy and purpose disclosed in the impugned provisions in accordance with and in fulfillment of which the Municipal Corporation or Municipal Commissioner or Government is expected to select occupies of Municipal or Government premises for being proceeded against under the special procedure. If the discretion conferred on the Municipal Corporation or Municipal Commissioner or Government to make selective application of the special procedure is guided and controlled discretion, the impugned provisions would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f could properly form a class in respect of which special legislation could be enacted, section 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 was discriminatory and void inasmuch as it vested an unfettered discretion in the Provincial Government to choose any particular case of a person alleged to have committed an offence falling under any of the specified categories for allotment to the special court to be tried under the special procedure, while other offenders of the same category would be left to be tried by ordinary courts. It was urged that section 4(1) permitted the Provincial Government to make a discriminatory choice amongst persons charged with the same offence or offences for trial by special court and such absolute and unguided power of selection, though it had to be exercised within,the class or classes of offences mentioned in the Schedule, was discriminatory.This contention urged on behalf of the petitioners was negatived and Patanjali Sastri, C.J., delivering majority judgment of the Court pointed out "The argument overlooks the distinction between those cases where, the legislature itself makes a complete classification of persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce falling within the same class. We are unable to share this view. There may be endless variations from case to case in the facts and circumstances attending the commission of the same type of offence, and in many of those cases there may be nothing that justifies or calls for the application of the provisions of the special Act. For example, sections 414 and 417 of the Indian Penal Code are among the offences included in the Schedule to the Act, but they are triable in a summary way under section 260 of the Criminal Procedure Code where the value of the property concerned does not exceed fifty rupees. It would indeed be odd if the Government were to be compelled to allot such trivial cases to a Special Court to be tried as a warrant case with an appeal to the High Court in case of conviction. The gravity of the particular clime, the advantage to be derived by the State by recoupment of its loss, and other like considerations may have to be weighed before allotting a case to the Special Court which is required to impose a compensatory sentence of fine on every offender tried and convicted by it. It seems reasonable, if misuse of the special machinery provided for the more effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; The learned Judge then referred to the decisions of this Court in Kathi Raning Rawat's case (supra) and Kedar Nath Bajoria's case (supra) and concluded by saying : "It therefore, follows that the mere fact that the Government is entrusted with the power to select cases of persons falling within the group of category of substantial evaders of income-tax for reference to the Commission would not render section 5 ( 1 ) discriminatory and void...... The selection of the cases of persons falling within that category by the Government cannot be challenged as discriminatory for the simple reason that it is not left to the unguided or the unconditional discretion of the Government. The, selection is guided by the very objective which is set out in the terms of section 5 (1) itself and the attainment of that object controls the discretion which is vested in the Government and guides the Government in making the necessary selection of cases of persons to be referred for investigation by the Commission. It cannot, therefore, be disputed that there is a valid basis of classification to be found in section 5(1) of the Act." These passages from the decisions in Kedarna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive or processor and arbitrary or capricious actions of the executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to article 14 must be informed by a sense of perspective and proportion based on robust understanding and rejection of over-refined distinctions. The whole dimension of protection against discrimination in the processor sphere relates to real and substantial disparities in procedures. What is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finish approach when handling life's flexible realities. We may also observe that there is no magic formula by which it can be said that one procedure is substantially more drastic and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of courts of law and which have therefore, acquired a certain predilection for the, prevailing system of administration of justice by courts of law, react adversely against the establishment of such an authority. We must cast aside our predilection for the existing system of administration of justice which has prevailed over a long period of time and examine the special machinery set up by the legislature objectively and dispassionately, without any preconceived notion or prejudice against it, and find out whether the special machinery is really and substantially more drastic and prejudicial than the age old machinery of Civil court. When we say this we do not wish to underscore the high qualities which are, the inalienable attributes of administration of justice by civil courts, namely, detachment and impartiality, objectivity of approach, sensitivity and regard for natural justice and Skill and expertise in sifting of evidence and interpretation and application of the law. But we do wish to point out that the machinery of an administrative tribunal is not necessarily and invariably more drastic and onerous than that of a civil court. The two procedures would have to be compare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f not less than ten years standing as the Principal Judge may designate in that behalf and it -is an appeal both on law and fact. It is true that a revision application against the appellate order is excluded, but if the judicial officer invested with appellate, power has failed to exercise his jurisdiction or acted in excess of his jurisdiction or committed an error of law apparent on the face of the record or the decision given by him has resulted in grave miscarriage of justice, it is always open to the aggrieved party to bring it up before the High Court for examination under article 226 or article 227. The ultimate decision is, therefore, by a judicial officer trained in the art and skill of law and not by an executive officer. It is difficult to see bow, in the context of the need for speedy and expeditious recovery of public premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the special procedure set out in Chapter VA of the Municipal Act-and this applies equally to the special procedure set out in the Government Premises Eviction Act- can be regarded as really and substantially more drastic and pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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