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Munnawar Ahmad and ors. Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 645 of 1979
Judge
Reported inAIR1981MP41; 1980MPLJ577
ActsConstitution of India - Article 14; Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974; Madhya Pradesh Lok Parisar (Bedakhali) (Amendment) Adhiniyam, 1976 - Sections 4, 5 and 9; Madhya Pradesh Lok Parisar (Bedakhali) (Amendment) Adhiniyam, 1978
AppellantMunnawar Ahmad and ors.
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateR.D. Jain and ;Y.K. Munshi, Advs.
Respondent AdvocateS.L. Saxena Govt. Adv.
DispositionPetition allowed
Excerpt:
.....served the order passed under sub-section (1) on the allottee or any person in occupation of the public premises either through him or otherwise by post or tendering or delivering personally to such person or one of his family members or servants at the public premises or by affixing it to a conspicuous part of the public premises or publishing the order in at least one newspaper having circulation in the locality and service of the order by any one of the modes aforesaid shall be deemed to be a good service on the allottee and all the persons in occupation of such premises through him or otherwise. we are, therefore, clearly of opinion that sections 4 and 5 introduced by section 4 of the amending act and the amendments made in section 9 by section 5 of the amending act are..........(bedakhali) adhiniyam, 1974 is an act to provide for the eviction of unauthorised occupants from public premises and for certain incidental matters. sections 4 and 5 of the adhiniyam before the amendment by act no. 9 of 1978 provided for issue of notice to the occupants to show cause against proposed order of eviction and for eviction after giving opportunity to the occupants of being heard and of producing evidence before the competent authority. the notice issued under section 4 specified the grounds on which the order of eviction was proposed to be made and required all persons concerned to show cause against the proposed order on or before the date specified in the notice. the order of eviction could be passed under section 5 as it originally stood only after considering the cause.....
Judgment:

G.P. Singh, C.J.

1. By this petition under Article 226 of the Constitution, the petitioner seeks quashing of an order dated 22nd September, 1979 passed by the Competent Authority under Section 4 of the M. P. Lok Parisar (Bedakhali) Adhiniyam, 1974 as amended by the M. P. Lok Parisar (Bedakbali) Sanshodhan Adhiniyam, 1978 (No. 9 of 1978). The main contention of the learned counsel for the petitioners is that the amendments introduced by the Amending Act No. 9 of 1978 are unconstitutional as they contravene Article 14 of the Constitution.

2. The M. P. Lok Parisar (Bedakhali) Adhiniyam, 1974 is an Act to provide for the eviction of unauthorised occupants from public premises and for certain incidental matters. Sections 4 and 5 of the Adhiniyam before the amendment by Act No. 9 of 1978 provided for issue of notice to the occupants to show cause against proposed order of eviction and for eviction after giving opportunity to the occupants of being heard and of producing evidence before the competent authority. The notice issued under Section 4 specified the grounds on which the order of eviction was proposed to be made and required all persons concerned to show cause against the proposed order on or before the date specified in the notice. The order of eviction could be passed under Section 5 as it originally stood only after considering the cause shown by the persons concerned and the evidence, if any, produced by them in support of the same and after giving them a reasonable opportunity of being heard. Section 5 further required the competent authority to state the reasons for its conclusions that the grounds for eviction were made out. There was a further safeguard in the shape of an appeal to the District Judge or a judicial officer under Section 9 as it stood before the amendment. Section 9 then did not provide for any restriction as to the power of appellate authority to interfere with the order of the competent authority. The District Judge or any other judicial officer hearing the appeal had full jurisdiction to decide any question of fact or law arising in the appeal and to give relief to the appellant if the order of the competent authority was wrong in fact or in law. The procedure before the competent authority which was consistent with the principles of natural justice and the effective right of appeal conferred by Section 9 ensured fairness and provided safeguards for preventing any arbitrary action on the part of the competent authority.

3. By Section 4 of the amending Act, Sections 4 and 5 of the Parent Act were substituted by the following as Sections 4 and 5 :

'4. Competent authority to pass order of eviction. -

(1) On an information received from an allotment officer to the effect that any person is in occupation of public premises without authority for such occupation or is in occupation of the same 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, the competent authority may pass an order of eviction in writing against the unauthorised occupant or any other person who may be in occupation of the whole or any part of the premises on behalf of or through the allottee or otherwise requiring him to vacate the public premises within thirty days of the date of the service of the order.

(2) the competent authority shall serve or cause to be served the order passed under Sub-section (1) on the allottee or any person in occupation of the public premises either through him or otherwise by post or tendering or delivering personally to such person or one of his family members or servants at the public premises or by affixing it to a conspicuous part of the public premises or publishing the order in at least one newspaper having circulation in the locality and service of the order by any one of the modes aforesaid shall be deemed to be a good service on the allottee and all the persons in occupation of such premises through him or otherwise.

5. Eviction of unauthorised occupant. -- If any person refuses or fails to comply with the order of eviction within the period specified in Sub-section (1) of Section 4 or such further reasonable period as the competent authority may deem fit to grant, the competent authority or any other officer duly authorised by the competent authority in this behalf may evict that person from and take possession of the public premises and may for that purpose use such force as may be necessary.'

Section 9 of the parent Act was also amended by Section 5 of the amending Act which reads as follows :

'5. Amendment of Section 9 -- In Section 9 of the Principal Act. -

(1) for Sub-section (1), the following Sub-section shall be substituted, namely:--

(1) The State Government may, by notification, appoint such persons being an officer not below the rank of Collector as appellate authority for the purpose of this Act in respect of such areas as may be specified in the notification.

(1-A) An appeal shall lie from every order of the competent authority made in respect of any public premises under Section 4 or Section 7 to the appellate authority appointed under Sub-section (1):

Provided that no appeal shall be against an order passed under Section 4 challenging the legality of the order or correctness of the information on which the order is based.

(2) In Sub-section (2), for Clause (a), the following clause shall be substituted namely :--

(a) in case of an appeal from an order under Section 1, within fifteen days from the date of service of the order under Sub-section (2) of that section.

(3) for Sub-section (3), the following Sub-section shall be substituted, namely:--

(3) On receipt of an appeal under Sub-section (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders as it deems fit, as expeditiously as possible.

(4) Sub-section (4) shall be omitted.'

4. A look at new Sections 4 and 5 would show that the competent authority is now empowered to pass an order of eviction only on information received from the allotment officer that a person is in unauthorised occupation of public premises. The competent authority is not now required to give any notice to the occupant before passing the order of eviction. The occupant has no right to show cause against eviction or to produce evidence in support of his right to remain in possession or to be heard before the passing of the order of eviction. The procedure consistent with the principles of natural justice which was contained in Section 4 of the Act before the amendment is completely absent in fee new Section 4. If the person against whom such an order of eviction is passed under Section 4 refuses to vacate, he can be pushed out by force under Section 5. The person against whom an order is passed has, no doubt, still a right of appeal under Section 9 but the appeal now does not lie to the District judge or to a judicial officer but to an officer not below the rank of Collector. Further, the new proviso to Sub-section (1-A) of Section 9 makes the appeal a useless formality because it provides that no appeal shall lie against an order passed under Section 4 challenging the legality of the order or correctness of the information on which the order is based. It is difficult to comprehend that if in an appeal filed under Section 9 (1-A) the appellant cannot challenge the legality of the order of correctness of the information on which the eviction was ordered, what also he can usefully urge in the appeal. The changes introduced in Section 9 thus make the appeal an exercise in futility. It is in this background that one has to see whether the changes introduced by the amending Act in Sections 4, 5 and 9 of the parent Act are violative of Article 14 of the Constitution.

5. Now it cannot be disputed that it is necessary in public interest that persons in unauthorised occupation of public premises should be evicted expeditiously. There is the element of public interest involved in early eviction of unauthorised occupants from public premises which is wanting in case of occupants of premises belonging to private parties. It is, therefore, open to the State Legislature to make a law for expeditious recovery of public premises from unauthorised occupants. Such a law, if it provides a reasonable procedure, would not be discriminatory but the Legislature has no power to make a law to confer arbitrary power of eviction of persons in occupation of public premises in the garb of a law providing for expeditious eviction of such persons. The classification of public premises and a separate procedural law for eviction of persons in occupation of the premises can be sustained only when the law bears a just and reasonable relation to the object of the Legislature. If the law bears no reasonable nexus with the object in view, the classification would be invalid. The amending Act makes the provision for eviction so drastic and onerous that virtually there is no due procedure at all as the competent authority merely on getting the information from the allotment officer can evict any prison in occupation. The person evicted has no say in the matter. He is not heard. He has no effective right of appeal to challenge the order of eviction. Under the colour of making a reasonable classification in favour of the Government and Corporations with the object of expeditions eviction of persons in occupation of public premises, the Legislature has conferred an arbitrary power of eviction on the competent authority. Such a law, in our opinion, is violative of Article 14 of the Constitution. It is true that the persons in occupation of public premises ran be classified separately and they are not entitled to contend that the detailed procedure applicable to trial of suits against persons in occupation of private premises should be applied by the law which treats them separately, hut they are certainly entitled to contend that the law treating them separately must provide a fair procedure consistent with natural justice and their eviction should not be merely left on the sweet will of the executive officer designated as competent authority. If the law relating to eviction of occupants from public premises does not provide a fair procedure it would be discriminatory and invalid for that reason. We are, therefore, clearly of opinion that Sections 4 and 5 introduced by Section 4 of the amending Act and the amendments made in Section 9 by Section 5 of the amending Act are constitutionally invalid.

6. The petition is allowed, we declare that Sections 4 and 5 introduced in the parent Act by Section 4 of the amending Act (No. 9 of 1978) and the amendments made in Section 9 of the parent Act by Section 5 of the amending Act are unconstitutional and void, being in conflict with Article 14 of the Constitution. The respondents are restrained from giving effect to these provisions. The impugned order passed by the competent authority is quashed. The proceedings are remanded to the competent authority to be decided in accordance with Sections 4 and 5 as they stood before the amendment. There shall be no order as to costs of this petition. The security amount be refunded to the petitioners.


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