B.K. Mehta, J.
1. These two petitions under Arts, 226 and 227 of the Constitution of India are directed against the notices issued by the respondent-Municipality to the respective petitioners to open and remove the unauthorised construction of cabins and structures on the plots of a public street in the town of Kalol. The short facts leading to these petitions are as under:
2. In Special Civil Application No.498 of 1970, there is a piece of land near Vishnu Talkies in Kalol town. The said piece of land is a part of the public street and as such vested in the respondent-Municipality. The petitioners were in possession of the said piece of land as lessees. They were said to be in possession since more than 15 years and are running the business in the cabins which they had put up on the said land since inception of the tenancy. The petitioners are monthly tenants and paying rent of the premises to the respondent-Municipality. It appears that various pieces of public street lands were leased out to the petitioners and other persons for a limited and a specified period of one year or more at a time with the permission of the State Government under S. 65(2) of the Gujarat Municipalities Act. The petitioners have erected wooden cabins on these lands. It also appears that the last lease made in favour of the petitioners in respect of the different pieces of land was for two years, namely, 1967-68 and 1968-69, and the period of leases had expired on March 31, 1969. A resolution was passed by the General Board of the respondent-Municipality being resolution No.13 dated April 25, 1968 granting the aforesaid lessees, which in term were sanctioned by the State Government by its order of July 26, 1968. The petitioners have paid the rent in respect of the pieces of land leased out to them upto March 31, 1969. It appears that on 30th December, 1968 the respondent-Municipality passed a resolution being Resolution No.235 deciding to take possession of the land in question from the petitioners. The respondent-Municipality thereafter served the petitioners with notices on 16-12-1969 that they were in unlawful possession of the pieces of land in question from April, 1, 1969 and their occupations of land beyond March 31, 1969 was an unlawful encroachment. It was also intimated to the petitioners in the said notices that the pieces of land were required by the Municipality for its own use and that it could not be let out to the petitioners any further. It appears that the petitioners moved the Gujarat High Court by their Special Civil Application No.1646 of 1969 for appropriate writs, orders and directions to quash and set aside the said notices. As the respondent-Municipality in the said application had declared before the Court its intention to withdraw the impugned notices reserving the right to issue fresh notices after giving an opportunity to the petitioners to show cause why an action should not be taken under Section 185(2) or any other relevant provisions of the Act, the petitioners had withdrawn in about February 1970 the said Special Civil Application. It appears that thereafter on 23rd February 1970 the petitioners were served with notices calling upon them to show cause why the illegal encroachment made by the petitioners by constructing cabins on the part of the public street should not be removed within 4 days of the service of the notice, and if they did not show cause by 2nd March, 1970, the respondent-Municipality would take necessary action in the matter. The petitioners filed their reply to the aforesaid notices. It appears that thereafter the respondent-Municipality had issued a notice again on April 7, 1970 to all the petitioners calling upon them to vacate the lands by removing cabins on or before 16th April, 1970 and in case of default the respondent-Municipality threatened to take necessary action to remove the said cabins forcibly. The petitioners, therefore, approached this court under Arts. 226 and 227 of the Constitution of India for appropriate writs, orders and directions to quash and set aside the said notices as they were without jurisdiction and authority on the various grounds stated in the memo of petition contending inter alia, that Section 185 of the Gujarat Municipalities Act, 1963 under which the impugned notices were issued was ultra vires as offending Art, 14 of the Constitution.
3. In Special Civil Application No.527 of 1970, the petitioner was given a piece of land near Khani Bungalow in town of Kalol and the last lease in respect of the said piece of land was for two years, namely, for the years 1965-66 and 1966-67. The petitioner has erected a wooden cabin over the said piece of land and has paid rent upto March 31, 1967 to the respondent-Municipality. It appears that on August 9/12, 1968 the respondent-Municipality gave a notice to the petitioner that he was in unlawful possession of the piece of land in question on and from March 31m 1967 and he was asked to show cause why he should not hand over the possession of the said piece of land to the respondent-Municipality. As the explanation submitted by the petitioner by his letter of September 12, 1968 did not satisfy the Municipality, it called upon the petitioner by its letter of November 5, 1968 to hand over the vacant possession of the piece of land within one month of the receipt of the notice. The petitioner, therefore, moved the High Court by his Special Civil application, being Special Civil application No.1415 of 1968 challenging that the said notice was without authority and jurisdiction as Section 233 of the Gujarat Municipalities Act under which the said notice was issued was ultra vires and ineffective as it offended Art. 14 of the Constitution of India. In the said petition, the High Court of Gujarat, by its orders of November 15, 1969 issued necessary writs quashing the aforesaid notice and also declaring Section 233 of the Gujarat Municipalities Act as ultra vires. It appears further that the respondent-Municipality served another notice on the petitioner on Mach 11, 1970 calling upon him to show cause why the alleged encroachment should not be removed under Section 185 of the Act. The petitioner filed his reply to the said notice by his letter of March 19, 1970 contending, inter alia, that the piece of land in question was not a part of the public street and the petitioner could not have a recourse to the coercive machinery under the Municipal Act but must have a recourse to a proper legal action in Court of law and also on the ground of Section 185 being ultra vires as being violative of Art. 14 of the Constitution of India. It appears that the explanation did not satisfy the respondent-Municipality which called upon the petitioner by its notice of 10th/13th April, 1970 that if the petitioner did not voluntarily remove himself the cabin from the land and hand over the quiet possession to the Municipality, latest by April 21, 1970, the Municipality would be compelled to removed the said encroachment forcibly. The petitioner being aggrieved with the said notice has approached this Court for appropriate writs, orders and directions to quash and set aside the said notice.
4. As both these petitions involve identical questions and the contentions raised in both of them are similar, we intend to dispose off both these petitions by this common judgment Mr. N.H.Bhat, the learned advocate, appearing on behalf of the petitioners in both these petitions, has urged that the impugned notices are beyond the power of the respondent-Municipality under Section 185 of the Gujarat Municipalities Act, inasmuch as the alleged unauthorised abstractions or encroachments have not been made after the area in question has become a Municipal Borough under the Gujarat Municipalities Act, 1963, as required under Section 185 of the said Act. The second contention of Mr. Bhatt on behalf of the petitioners was, that the Chief Officer shall have a power to remove such obstructions or encroachments as described under sub-section (1) of Section 185 provided the Municipality prosecutes and obtains the conviction under sub-section (1) of S. 185 against the person alleged to have made such obstructions or encroachments and unless such a prosecution is made and conviction is obtained, the Chief Officer is not entitled under sub-section (2) of S. 185 to remove any such obstructions or encroachments. The third contention of Mr. Bhatt on behalf of the petitioners was that Section 185 was ultra vires the power of the State Legislature, inasmuch as it was violative of Art. 14 of the Constitution.
5. In our opinion none of the contentions of Mr. Bhatt on behalf of the petitioners has any merit in it. The relevant sub-sections (1) and (2) of S. 185 of the Gujarat Municipalities Act, 1963, provide as under:--
'S. 185. Obstructions and encroachments upon public streets and open places.
(1) whoever in any area after it has become a municipal borough.
(a) shall have built or set up, or shall build or set up, any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or any projecting structure or thing or other encroachment or obstruction, or
(b) shall deposit or cause to be placed or deposited any box, bale, package or merchandise, or any other thing, in any public place or street or in or over or upon any open drain, gutter, sewer or aqueduct in such place or street shall be punished with fine which may extend to fifty rupees and with further fine which may extend to ten rupees for every day on which such projection, encroachment, obstruction or deposit continues after the date of first conviction for such offence.
(2) The Chief Officer shall have power to remove any such obstruction or encroachment, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open space not being private property, whether such space is vested in the municipality or not:
Provided that if the space be vested in Government the permission of the collector shall have first been obtained; the expense of such removal shall be paid by the person who has caused the said obstruction or encroachment, and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX.'
In view of sub-section (1) of S. 185 a contention was sought to be raised that the Chief Officer is entitled to remove obstruction or encroachment provided such encroachment or obstruction is made in an area after it has become a municipal borough. On behalf of the petitioners our attention was drawn to the opening part of sub-section (1) which reads:-
'Whoever in any area after it has become a municipal borough, (a) shall have built or set up, or shall build or set up, any wall..............etc., or (b) shall deposit or cause to be placed or deposited any box ................ etc.,'
It was pointed out to us that the respondent-Municipality was a district Municipality before it was converted into a borough municipality under the Gujarat Municipalities Act, 1963. Our attention was also drawn to Section 2(13) where the term 'Municipal borough' has been defined. The relevant definition reads:
''Municipal Borough' means a local area declared as or deemed to be a municipal borough under Section 4 of this Act.'
Now. Section 4. Sub-s (3) provides as under:-
S.4 Declaration of municipal boroughs and alteration of their limits.
(3) Each of the local areas which, immediately before the date of the coming into force of this Act, constituted a municipal borough or municipal district under relevant earlier municipal law shall on and from the said date, be deemed to be municipal borough constituted under this Act.'
A reliance was, therefore, placed on sub-section (3) of S. 4 and it was urged that the respondent-Municipality, being a municipal district before the application of the Gujarat Municipalities Act, 1963, is deemed to be a municipal borough constituted under the said Act on and from the date of coming into the force of the said Act. It was, therefore, contended that the Municipality shall have a power to prosecute a person under Sec. 185(1) and the Chief Officer shall have a power to remove such illegal encroachments and obstructions after the local area in which such encroachments or obstructions are made, has become a borough under the Act. We are not at all, impressed by this argument that section 185 empowers municipality of chief officer to take necessary action in respect of the unauthorised obstructions or encroachments made in an area only after it has become a borough. On plain reading of Section 185 it does not appear to us that such encroachment or obstruction pertaining which the Municipality or Chief Officer is authorised to take an action under the said section, should necessarily have been made after the area has become municipal borough. While urging it to be so. What has been lost sight of by Mr. Bhatt on behalf of the petitioners is, that under Section 279 of the said Act which provides for the repeal of the Bombay District Municipal Act. 1901 and the Bombay Municipal Boroughs Act, 1925, it has been provided that notwithstanding the repeal of the said Acts, any local areas declared to be either a municipal borough or municipal district immediately before the date on which this Act comes into force, would be deemed to be municipal borough under this Act. The relevant portion of Section 279 reads as under:--
(1) The Bombay District Municipal Act, 1901 and that act as adapted and applied to the Saurashtra area of the Gujarat State, and the Bombay Municipal Boroughs Act, 1925, and that Act as adapted and applied to the Saurashtra area of the Gujarat State and that Act as extended to the Kutch area of the Gujarat State are hereby repealed. (Bom. III of 1901. Bom. XVIII of 1925).
(2) Notwithstanding the repeal of the said Acts--
(i) any local areas declared to be either a municipal borough or municipal district immediately before the date on which this Act comes into force (hereinafter referred to as 'the said date') shall be deemed to be municipal borough under this Act.
(ii) the municipalities constituted under the said Acts immediately before the said date (hereinafter called :the old municipalities') shall be deemed to be municipalities of the respective boroughs (hereinafter respectively called 'the new municipalities' and 'the new boroughs.');
It is clear from this repealing section that any local area which was declared to be a municipal district under the repealed Bombay District Municipal Act 1901 would be deemed to be a municipal borough under the Gujarat Municipalities Act, 1963. Mr. Bhatt has submitted that such a local areas would be deemed to be municipal borough under the Gujarat Municipalities. Act. 1963 and, therefore sub-section (2) of S. 4 would be attracted and it would be a borough only on and from the date of coming into force of the Gujarat Municipalities Act only. It should be noted that Section 279(2) does not lay down any such date from which an area which was a municipal district under the repealed law would be deemed to be a municipal borough under the Gujarat Municipalities Act. It appears that in order to give a continuity to the local administration of the area concerned and also to empower the authorities of the district municipalities under the Gujarat Municipalities Act. 1963, that the repealing section has provided a deeming fiction to treat the local area either under the Municipal Act as a municipal borough under the new act. Mr. Bhatt has urged that this deeming fiction should be taken to all logical conclusions and there cannot be any other course but to accept that such a deeming fiction would be effective only from the date of the commencement of the Act as prescribed in Section 4(3). It should be recalled that Section 4 is a part of Chapter II which provides for Municipal Boroughs and constitution of Municipalities. Section 4 deals with declaration of municipalities and alteration of their limits. Section 279 on the other hand deals with the repeal of the previous Acts under which a local area is constituted as a municipal district or municipal borough and in order to provide a continuity in respect of the acts done and omissions made that the repealing section has provided that a local area under the repealed Act would be deemed to be a municipal borough under the Act, and deeming fiction without any reference to the date. No doubt borough so deemed would be under the new Act but to import the reference of date prescribed under sub-section (3) of Section 4 would have the effect of defeating the purpose sought to be achieved under Section 279(2). It should be noted that the leases which have been created in respect of the lands in question, with which we are concerned in these petitions, were prior to coming into operation of the Gujarat Municipalities Act, 1963, and the unauthorised encroachments or obstructions were also made before coming into force of the Gujarat Municipalities Act. 1963. The said Act came into force on 1-1-1965. The effect of the repealing section is, as is well-known to enforce the consequences arising from the obligations and/or liabilities incurred under the old repealed Acts. It, therefore, appears to us clearly that under Section 279 the Legislature has provided that notwithstanding the repeal of the said Acts any local areas which are declared to the municipal district under the repealed Acts would be deemed to be a municipal borough under the new Act. The effect of such repeal has been provided in sub-clauses (I) and (ii) of sub-section (2) of S. 279. Mr. Bhatt has drawn our attention to the decision of Bombay High Court in the Dakore town Municipality v. Anupram Haribhai Travedi, (1913) 15 Bom LR 833, where a resident of Dakore town sued the Municipality for an injunction to restrain the municipality from obstructing him in reinstating the stone of the Otla which was removed by the Municipality as an encroachment. Dealing with the power under the District Municipal Act under Sections 113 and 122 of the District Municipal Act, 1901. His Lordship Chief Justice Scoot as he then was, speaking for the Court observed:--
'............ The Municipality is the creature of the statute with duties, inter alia, to preserve the passage along public streets, and, under Sections 113 and 122 of the District Municipal Act. It is given certain powers depending upon the existence of certain conditions for the removal of encroachments or obstructions upon the streets. Under Section 113, if it is proved that the encroachment objected to is an obstruction to the safe and convenient passage along a street, the Municipality may by written notices require the owner to remove it. Under Section 122 the municipality have power to remove an encroachment which may have been set up after the place has become a municipal district. It matters not in either case whether the encroachment has been in existence for 12 years or more, but the statutory conditions regulating the exercise of the power must be shown to exist. The Municipality in the present case have not shown either that the stone which they have removed was an obstruction to the safe and convenient passage along the streets or that the stone was set up by the plaintiff after the place became a municipal district.'
The authority which has been cited by Mr. Bhatt, in our opinion, does not take the case of the petitioners any further. In our opinion in the cases before us the repealing clause has provided that notwithstanding the repeal of the old Act under which an area has been constituted a district municipality,. It would be deemed to be a municipal borough under the new Act and, therefore, the defining C1 (13) of S. 2 or sub-section (3) of S. 4 do not apply at all because that definition is subject to contrary as appearing in the reference or the context. Section 279, as we have stated, provides for the effect of the repeal of the old Acts. It should be also noted that in the District Municipal Act, 1901, and the Bombay Municipal Boroughs Act, 1925, there were such corresponding provisions enabling the municipality and their officers to take necessary action in respect of the encroachment or obstruction on the public streets. As stated earlier, sub-section (2) of S. 279 does not lay down any date from which a local area declared to be a municipal district under the repealing Act would be deemed to be a borough under the new Act and, therefore, under Section 185(1)(2), the Municipalities and their officers have the right to remove the encroachment or obstruction made on the public streets, even though such obstructions or encroachments have been made prior to the Gujarat Municipalities Act came into force. In our opinion this is not merely a right or power of the Municipalities or their officers in the Municipalities Acts, but they are the powers coupled with the duties and if any such encroachments or obstructions are made on the public streets, the local authorities can be compelled to remove such obstructions or encroachments as they hold these public streets under the relevant sections of the Municipalities Acts as tustees and for being used for the purposes of the Act as has been held as early as in the case of Emperor v. Vishvanath Nana Karpe, AIR 1926 Bom 535, which was a case of an obstruction made on the public street of a district municipality, wherein it has been observed:--
'The contention that has been put before us, as also before the Magistrate and the Sessions Judge is, that under Section 90 of the Bombay district Municipal Act, the municipality has authority to discontinue or stop up any public street, and, therefore, they have power to discontinue or stop up a part of such street. Accordingly, it is contended that there is no objection to their allowing a strip of a street to be used as a market for the sale of timber. I think that in considering this argument, it is important to remember that public streets are vested in the municipality for the purpose of being maintained as public streets, under Section 50 of the Bombay District Municipal Act, and that section expressly declares that public streets so vested in them shall be applied by them as trustees subject to the provisions and for the purposes of the Act. Therefore, it rests upon any one who supports the action of the municipality to show that it had statutory authority to divert a portion of a public street in the manner that has been done. I also think that the Act contains clear provisions, which show that ordinarily a municipality should not allow a permanent obstruction upon any public street vested in the municipality. Section 122 of the Bombay District Municipal Act is a very plain enactment to that effect.'
6. There are corresponding provisions in the Gujarat Municipalities Act, 1963 similar to the provisions contained in Section 50 of the Bombay District Municipal Act and Section 122 of the Bombay District Municipal Act in respect of the obstructions and encroachments of public streets and removal thereof. In the matter of the Cantonment Board. Meerut v. Narain Dass : 1SCR240 , the Court while dealing with the powers of the Cantonment Authority under Section 185(1) and S. 187(1) of the Cantonments Act (1924) in respect of erection or re-erection of buildings either on the private land or the construction or projection or structures on any public streets. His Lordship Justice Hegde speaking for the Court observed in paragraphs 7 and 8 as under:--
'This section deals with a constructions which are projections or structures overhanging, projecting into or encroaching on any street or any drain, sewer or aqueduct. Undoubtedly the kiosk is a structure. Further it is a projection into a drain. It is also encroaches on the drain if it does not also overhang it. Therefore, the Act complained of clearly falls within the scope of S. 187(1).
In other words Section 185 deals with erection or re-erection of buildings on private lands whereas Section 187 deals with the construction or projections or structures overhanging, projecting into or encroaching on any street, any drain or aqueduct. The two provisions deal with different situations one has nothing to do with the other. Obviously the legislature does not want the Cantonment Board to demolish buildings erected on private lands after the period mentioned in Section 185(1), but public interest requires that no such limitation should be placed on the Cantonment Board while acting under Section 187(1). Otherwise our streets and roads may soon disappear. The High Court missed the distinction between Sections 185(1) and S. 187(1). Quite clearly the present case falls within Section 187(1).
7. The present case with which we are concerned is also in respect of obstructions and encroachments upon public streets and it empowers as well as lays down a duty on the municipalities and their officers to take necessary action under sub-sections (1) and (2) thereof in respect of an obstruction of encroachment made on the public street. This is as stated earlier a power of the Municipality coupled with duty and the municipalities are not entitled under law to lease out permanently or for a considerable period the land forming part of the public street and the action of the municipality in leasing out such land would be clearly contrary to law and without any authority or jurisdiction. And if such obstructions or encroachments remain or public streets, not only the municipality and its officers are empowered to take necessary action, but they would be under the duty to remove such encroachments or obstructions. The contention that these lands were leased out to the petitioners by the municipality has to bearing on the question which arises for our determination, namely, whether the municipalities and their officers are entitled to remove the encroachments or obstructions on public streets and more so when the period under the lease expired. In our opinion at any rate after the periods of the leases in question have expired, there is no doubt that such constructions are encroachments or obstructions on public streets and the municipalities and their officers have the power to remove such obstructions or encroachments under Section 185 of the Gujarat Municipalities Act, 1963. The first contention of Mr. Bhatt, therefore, should be rejected.
8. The challenge to the vires of Section 185 of the Gujarat Municipalities Act, 1963, also has no substance. Mr. Bhatt has in support of this contention relied on the decision of the Supreme Court in the case of Northern India Caterers (Pvt) Ltd. v. State of Punjab : 3SCR399 . It was urged that there are no guidelines in Section 185 and the absence of such guidelines in the section would enable the municipalities and their officers to pic and choose and to discriminate between persons similarly situated so that the municipalities and their officers will resort to these remedies in some cases while in other cases they would resort to any ordinary course of law to remove such obstructions and encroachments in public streets. In submission of Mr. Bhatt, therefore, the power which have been granted t the municipalities and their officers are uncanalised and arbitrary and, therefore, violative of Article 14 of the Constitution. In our opinion the contention is not well-founded at all. Section 185 gives a complete guide line, inasmuch as it lays down certain conditions to be fulfilled before the municipalities or their officers can take necessary action thereunder. The necessary conditions are that the encroachment or obstruction as illustrated under sub-section (1) of S. 185 should have been caused on the public streets in an area which is declared to be a municipal borough under the Act or any unauthorised obstruction or encroachment of the like nature as illustrated in sub-section (1) of S. 185 has been made or caused to be made on the places not being private property, whether such place is vested in the municipality or not. It, therefore, cannot be urged that the legislature has not provided any guidelines and the power which has been granted to the Municipalities and their officers is arbitrary and uncanalised and, therefore, violative of Art. 14 of the Constitution. The authority which has been pressed in service in support of his contentions not applicable in case of a power as one under Section 185 of the Gujarat Municipalities Act, 1963. In the first place there are no two competitive power in the field which may enable the Municipalities or their officers to resort to either of them and pick and choose persons in exercise thereof and thereby discriminate between persons similarly situated, nor can it be said that the power is so arbitrary and uncanalised that it would be violative of Art, 14 of the Constitution. The decision of the Supreme Court which has been pressed in service is of no avail to the petitioners.
9. The last contention of Mr. Bhatt on behalf of the petitioners that unless the prosecution is launched and conviction is obtained the Chief Officer is not entitled to remove, under sub-section (2) of S. 185, such obstructions or encroachments, is devoid of any substance. The power of the municipality to launch a prosecution and obtain a conviction in cases of encroachments or obstructions on public streets is a power which is over and above the powers vested in the Chief Officer to remove such obstructions or encroachments forcibly. The person who is liable for causing such an obstruction or encroachment would expose himself to the prosecution, if made, and conviction, if imposed by the court. Reading sub-sections (1) and (2) of S. 185 we do not find anything expressly or impliedly to suggest that the Chief Officer would be entitled to take forcibly measures to remove such encroachment or obstruction only after the prosecution is launched and conviction is obtained in respect thereof. Mr. Bhatt has made an attempt to suggest to us that the obstruction or encroachment which an officer has a power to remove as 'such obstruction or encroachment' and, therefore, in submission of Mr. Bhatt such obstruction or encroachment would be an encroachment or obstruction in respect of which the prosecution is launched and conviction is obtained. In our opinion, the contention is not correct because obstruction or encroachment in respect of which the Chief Officer is empowered to take forcible action is either such as mentioned in Cls (a) and (b) of S. 185. The last contention of Mr. Bhatt, therefore, also deserves to be rejected.
10. The result is, that both these petitions should fail and the rule which has been issued should be discharged. In the facts and circumstances of the case, there should be no order as to costs in both the petitions. Mr. K.K. Chochawala, appearing for Mr. N.H. Bhatt, at this stage applied for a certificate to go to the Supreme Court. As these petitions do not deal with any question of wide public importance, the application of Mr. Chokhawal is rejected.
11. Petitions dismissed;
12. Leave refused.