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Ramanlal Govindram Vs. Ahmedabad Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR1
AppellantRamanlal Govindram
RespondentAhmedabad Municipal Corporation and ors.
Cases Referred(Testeels Ltd. v. N.M. Desai
Excerpt:
- - the ground on which the order of eviction was proposed to be made was that the petitioner was in unauthorised occupation of the said premises a ground specified in clause (b) of section 437a sub-section (1). the petitioner appeared in answer to the show cause notice and at the inquiry held by the deputy municipal commissioner, showed cause but the deputy municipal commissioner was satisfied that the petitioner was in unauthorised occupation of the said premises and he therefore served a notice dated 11th april 1966 on the petitioner under section 437a sub-section (1) ordering the petitioner to vacate the said premises within one month from the service of the notice upon him and stating that if the petitioner failed to do so, all necessary steps would be taken to evict him under.....p.n. bhagwati, c.j.1. these are two groups of petitions involving a common question as to the validity of section 437a of the bombay provincial municipal corporations act, 1949; one group consisting of petitions nos. 1124 of 1966, 1480 of 1966, 1514 of 1967, 81 of 1967, 82 of 1967, 1567 of 1967, 1568 of 1967 to 1574 of 1967, 1578 of 1967, 489 of 1968 to 493 of 1968, 472 of 1967, 473 of 1967, 896 of 1967 and 1113 of 1967 concerns ahmedabad municipal corporation, while the other consisting of petitions nos. 141 of 1967, 178 of 1967 to 202 of 1967, 250 of 1967, 251 of 1967 and 222 of 1967 to 240 of 1967, concerns baroda municipal corporation. the facts giving rise to the petitions in each respective group are identical and we will therefore state the facts of petition no. 1124 of 1966 as.....
Judgment:

P.N. Bhagwati, C.J.

1. These are two groups of petitions involving a common question as to the validity of Section 437A of the Bombay Provincial Municipal Corporations Act, 1949; one group consisting of Petitions Nos. 1124 of 1966, 1480 of 1966, 1514 of 1967, 81 of 1967, 82 of 1967, 1567 of 1967, 1568 of 1967 to 1574 of 1967, 1578 of 1967, 489 of 1968 to 493 of 1968, 472 of 1967, 473 of 1967, 896 of 1967 and 1113 of 1967 concerns Ahmedabad Municipal Corporation, while the other consisting of Petitions Nos. 141 of 1967, 178 of 1967 to 202 of 1967, 250 of 1967, 251 of 1967 and 222 of 1967 to 240 of 1967, concerns Baroda Municipal Corporation. The facts giving rise to the petitions in each respective group are identical and we will therefore state the facts of Petition No. 1124 of 1966 as typical of the petitions in the first group and the facts of Petition No. 141 of 1967 as typical of the petitions in the second group.

2. Petition No. 1124 of 1966: The petitioner was at all material times in occupation of Slum Clearance Quarter No. 55/64 belonging to the Ahmedabad Municipal Corporation. The petitioner claimed to be in authorised occupation of the said premises but the Deputy Municipal Commissioner by a show cause notice dated 19th/20th November 1965 issued under Section 437A Sub-section (2) called upon the petitioner to show cause why he should not be evicted from the said premises. The ground on which the order of eviction was proposed to be made was that the petitioner was in unauthorised occupation of the said premises a ground specified in Clause (b) of Section 437A Sub-section (1). The petitioner appeared in answer to the show cause notice and at the inquiry held by the Deputy Municipal Commissioner, showed cause but the Deputy Municipal Commissioner was satisfied that the petitioner was in unauthorised occupation of the said premises and he therefore served a notice dated 11th April 1966 on the petitioner under Section 437A Sub-section (1) ordering the petitioner to vacate the said premises within one month from the service of the notice upon him and stating that if the petitioner failed to do so, all necessary steps would be taken to evict him under Section 437A Sub-section (3). It may be mentioned that the Deputy Municipal Commissioner claimed to exercise the power under Section 437A Sub-sections (1) and (2) in virtue of a deputation order dated 2nd November 1964 passed by the Municipal Commissioner under Section 49 Sub-section (1) deputing the power under Section 437A Sub-section (1) and (2) to him Since the petitioner was threatened with forcible eviction, the petitioner filed the present petition challenging the validity of the notice issued by the Deputy Municipal Commissioner under Section 437A Sub-section (1).

3. Petition No. 141 OF 1967: Since 1948 the petitioner is in occupation of a small plot of land belonging to the Baroda Municipal Corporation. The petitioner has constructed a cabin on this plot of land and is carrying on business in that cabin. The petitioner claims to be a tenant of the Baroda Municipal Corporation in respect of this plot of land but according to the Baroda Municipal Corporation, this plot of land was given by the then Baroda Municipal Borough to the petitioner as a licensee and the petitioner is accordingly not a tenant in respect of this plot of land as claimed by him. There was a litigation between the petitioner and other displaced persons like him to whom the respective plots of land were given by the Baroda Municipal Borough on the one hand and the Baroda Municipal Borough on the other in regard to the status of the petitioner and other displaced persons whether they were tenants or licensees This litigation was decided in favour of the petitioner and other displaced persons by the Extra Assistant Judge, Baroda, who held that they were tenants of the Baroda Municipal Borough in respect of the land in their respective occupation. There was also dispute between the petitioner and other displaced persons on the one hand and the Baroda Municipal Borough on the other as to the amount of rent or compensation payable by the petitioner and other displaced persons to the Baroda Municipal Borough. The Baroda Municipal Borough claimed that from 1st August 1960, compensation was payable by the petitioner and other displaced persons at the rate of four annas per square foot while according to the petitioner, rent was payable only at the rate of three annas per square foot. On 1st April 1960 whilst this dispute was pending between the parties, the Baroda Municipal Borough was converted into a Municipal Corporation under the provisions of the Bombay Provincial Municipal Corporations Act, 1949 and the Municipal Commissioner thereafter decided to avail himself of the provisions of Section 437A of that Act. The Municipal Commissioner issued a show cause notice dated 28th September 1966 under Section 437A Sub-section (2) pointing out to the petitioner that according the Baroda Municipal Corporation, the petitioner was a licensee but even if according to the decision of the learned Extra Assistant Judge (which was in appeal) the petitioner was to be regarded as a tenant, the petitioner had not paid the amount of monthly rent remaining legally due from him for a period of more than two months from the month commencing from 1st March 1965 and an amount of Rs. 110-95 remained due from the petitioner for the period upto 31st August 1965 and calling upon the petitioner to show cause why he should not be evicted from the plot in his occupation on this ground. The petitioner showed cause by his advocate's letter dated 3rd October 1966 and the contention raised by him in this letter was that he was not liable to pay rent at the rate of more than three annas per square foot and that so far as rent for the period upto 31st July 1966 was concerned, he had already deposited the same at the rate of three annas per square foot in the Court of the Civil Judge, Senior Division. Baroda and the Baroda Municipal Corporation had actually withdrawn the same except for the period of last six months. The petitioner pointed out in this teller that he was ready and willing to pay rent directly to the municipal authorities at the rale of three annas per square foot but the municipal authorities were not prepared to accept the same. The petitioner thus contended that there was no default by him which would invite the exercise of the power under Section 437A Sub-section (1). The Municipal Commissioner was however not impressed by the contention of the petitioner and he therefore issued a notice dated 20th January 1967 under Section 437A Sub-section (1) stating that he was satisfied that:

you have not paid the amount of rent/licence fee remaining legally due from you for a period of more than 2 months from the month commencing on 1-3-65...

and ordering the petitioner to vacate the land in his occupation within one month from the service of the notice upon him. The petitioner thereupon filed the present petition challenging the validity of the order of eviction contained in the said notice.

4. These two petitions were argued as the main petitions and principal arguments were advanced in them but since the questions involved in all the petitions are identical, the learned advocates appearing on behalf of the parties in other petitions were allowed to supplement the arguments advanced in these two petitions.

5. The main grounds of challenge common in both the groups of petitions related to the validity of Section 437A and they were:

(A) Section 437A is violative of the equal protection clause contained in Article 14 in that--

(i) it makes unjust discrimination between occupants of municipal premises and occupants of non-municipal premises in both clauses of Sub-section (1);

(ii) it also discriminates amongst those in occupation of municipal premises inter se in that it leaves it open to the Municipal Commissioner at his own sweet will to adopt either the ordinary remedy of civil suit or the drastic summary remedy under the section and there being no guiding policy or principle, it permits him to pick and choose occupants of municipal premises for the application of the more drastic procedure under the section;

(iii) even if the remedy provided in the section for cases falling within Clause (a) of Sub-section (1) is exclusive and no choice of remedy is left to the absolute uncontrolled discretion of the Municipal Commissioner, there is no policy or principle to guide the Municipal Commissioner in the matter of selection of occupants of municipal premises who should be proceeded against under Sub-section (1) Clause (a): even amongst the occupants of municipal premises falling within Clause (a) of Sub-section (1) inter se, it is open to the Municipal Commissioner at his own sweet will to proceed against some and not to proceed against others and thus to discriminate amongst them.

(B) Section 437A imposes unreasonable restrictions on the occupants' fundamental righi to hold property under Article 19(1)(f) inasmuch as:

(i) the liability to be evicted under Clause (a) of Sub-section (1) arises not on the objective existence of the conditions specified in that clause but on the satisfaction of the Municipal Commissioner that they exist, and

(ii) that the machinery provided in the section for determining the liability to eviction under both clauses of Sub-section (1) is unreasonable.

There was also one other ground of challenge equally applicable to both groups of petitions and that was:

(C) The orders of eviction contained in the notices under Section 437A Sub-section (1) were bad as they were not supported by reasons.

Then there were two grounds of challenge, one peculiar to each group of petitions but in the view we are taking as to the earlier grounds, it is not necessary to make any reference to them.

6. In order to determine the validity of these grounds and particularly grounds (A) and (B), it is necessary first to arrive at a proper interpretation of Section 437A which is the key section in the group of sections dealing with the power to evict persons from municipal premises. Section 437A Sub-section (1) provided that if the Municipal Commissioner is satisfied (a) that the person authorised to occupy any municipal premises as a tenant or otherwise has committed any of the defaults specified in Sub-clauses (i) to (iii) of Clause (a), or (b) that any person is in unauthorised occupation of any municipal premises within the meaning of Clause (b) read with the Explanation, the Municipal Commissioner may by a notice order such person 'as well as any other person who may be in occupation of the whole or any part of the premises' to vacate them within one month of the service of the notice. There are two conditions of liability to eviction set out in Clauses (a) and (b) and either of these two conditions must exist, albeit according to the determination of the Municipal Commissioner who is constituted the authority to determine whether these conditions exist and the person concerned is liable to be evicted, before the Municipal Commissioner can make an order of eviction under Section 437A Sub-section (1). These two clauses are, on a plain natural construction, mutually exclusive and deal with different kinds of situations. Clause (a) refers to a person authorised to occupy any municipal premises committing any of the defaults specified in Sub-clauses (i) to (iii). Such person may be authorised to occupy as 'tenant or otherwise'. The word 'otherwise' takes within its sweep all forms of legal relationships under which a person may be authorised to occupy any municipal premises. Where a person in authorised occupation of any municipal premises, whatever be the legal relationship under which the authority to occupy the premises is given to him, commits any of the defaults specified in Sub-clauses (i) to (iii), he becomes liable to eviction under Clause (a). Sub-clauses (i) and (iii) of course by their very nature apply only where the person authorised to occupy any municipal premises is a tenant but Sub-clause (iii) is not confined in its application to tenants only and applies equally to persons authorised to occupy municipal premises under any other form of legal relationship such as licence, grant, allotment, etc. Clause (a) thus imposes, in the circumstances set out in Sub-clauses (i) to (iii), a liability to eviction on a person authorised to occupy municipal premises even though the authority to occupy has not been determined and he cannot be regarded as being in unauthorised occupation of municipal premises. It is clear that under the general law a person in authorised occupation of any premises cannot be evicted unless his authority to occupy the premises is first determined in the manner provided by law but Clause (a) creates a new liability to eviction in that a person authorised to occupy municipal premises can be evicted even though the authority to occupy has not been determined and as co-relative of this liability, it creates a new right of eviction in the Municipal Commissioner as the chief executive officer of the Municipal Corporation which he did not possess prior to the enactment of Section 437A. Where, however, a person is in unauthorised occupation of any municipal premises either by reason of his initial occupation being unauthorised or by reason of his continuance in occupation after the authority to occupy has been duly determined, he would be liable to be evicted by the Municipal Commissioner under the general law and this existing liability under the general law with the corresponding right of eviction is recognised by Clause (b) read with the Explanation. It would thus appear from the above analysis of Clauses (a) and (b) that Clause (a) creates a new liability to eviction, with a corresponding new right of eviction in the Municipal Commissioner while Clause (b) refers to an existing liability to eviction which would be enforceable under the general law by means of a suit, even apart from Section 437A. Now who is to determine whether the condition of liability to eviction set out in either of these two clauses is satisfied and the parson occupying municipal premises is liable to be evicted? That is left by Section 437A Sub-section (1) to the Municipal Commissioner. The Municipal Commissioner is constituted the authority to determine whether the condition of liability to eviction set out in Clause (a) or (b) exists. If the Municipal Commissioner is satisfied that it exists, he may make an order of eviction under Section 437A Sub-section (1). But before he arrived at the requisite satisfaction and makes an order of eviction, he is required under Section 437A Sub-section (2) to inform the person against whom the order of eviction is proposed to be made by notice in writing of the grounds on which the proposed order is to be made and to give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and at the inquiry such person is entitled to appear by advocate, attorney or pleader. This procedure is intended to give effect to the principle of natural justice embodied in the maxim audi alterem partem and it is as it should be, for the Municipal Commissioner is given power to determine whether a person is liable to be evicted from any municipal premises under Clause (a) or Clause (b) and before any determination adverse to him is made affecting his right to hold the said premises, he must be given a reasonable opportunity of being heard. If after hearing the person-concerned, the Municipal Commissioner is satisfied that the case falls within Clause (a) or Clause (b) and such person is liable to be evicted under either of the two clauses, he may by notice order such person to vacate the premises within one month of the date of the service of the notice. If the person ordered to vacate the premises does not comply with the order of eviction, the Municipal Commissioner can under Section 437A Sub-section (3) evict that person from and take possession of the premises, if necessary, by use of force. This is the scheme of the provisions of Section 437A.

7. Now on these provisions the first question which arises for consideration is as to what is the true scope and ambit of the jurisdiction of the Municipal Commissioner. Does the jurisdiction of the Municipal Commissioner to act under Section 437A Sub-section (1) depend on the objective existence of the fact that the premises are municipal premises or is that fact left to the determination of the Municipal Commissioner as if it were a fact in issue? The question is based on the well-known distinction drawn by Lord Esher, M.R. in Rex v. Commissioners for Special Purposes of Income Tax (1888) 21 Q.B.D. 313 at page 319 between two kinds of enabling powers, one in which 'an inferior Court or tribunal or body' is empowered to adjudicate only if certain facts exist but in which it is open to further question by a superior Court whether those facts are established and the other in which the tribunal is empowered to delimit its own jurisdiction by determining, without possibility of challenge, the pre-requisite facts themselves. The following passage from Halsbury's Laws of England (Siminds Edition) Volume 11, paragraph 270, accurately brings out the distinction between the two categories of inferior jurisdiction:

The case is more difficult where the jurisdiction of the Court below depends, not upon some preliminary proceeding, but upon the existence of some particular fact. If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot, by a wrong decision with regard to it, give itself jurisdiction which it would not otherwise possess. The lower Court must, indeed, decide as to the collateral fact, in the first instance; but the superior Court may upon certiorari inquire into the correctness of the decision and may quash the proceedings in the lower Court if such decision is erroneous, or at any rate if there is no evidence to support it. On the other hand, if the fact in question be not collateral, but a part of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an erroneous conclusion with regard to it.

The dichotomy which is made in cases of this kind is between a collateral fact, on the existence of which depends the jurisdiction of the tribunal or authority, and a fact in issue which forms part of the very issue left to the jurisdiction of the tribunal or authority to decide. The question is, in which category does the fact of premises being municipal premises fall: is it a collateral fact or a fact in issue?

8. The answer is provided by the language and structure of the provision enacted in Section 437A Sub-section (1). That sub-section in so far as it relates to Clause (a) says that if the Commissioner is satisfied 'that the person authorised to occupy any municipal premises....' has committed any of the defaults specified in Sub-clauses (i) to (iii), he may make an order of eviction against such person. The satisfaction which the Municipal Commissioner is required to reach is in regard to the entire composite fact, namely, that the person authorised to occupy any municipal premises has committed any of the defaults specified in Sub-clauses (i) to (iii). The satisfaction must extend to every part of this composite fact and no dichotomy can be made between two parts of this composite fact for the purpose of saying that one belongs to the field of satisfaction of the Municipal Commissioner while the other does not. The Municipal Commissioner has to be satisfied in regard to all the parts of this composite fact, namely, whether the premises are municipal premises, whether the person in occupation of the premises is in authorised occupation and if he is in authorised occupation, whether he has committed any of the defaults specified in Sub-clauses (i) to (iii) and it is only if the Municipal Commissioner is satisfied in regard to each one of these parts that he can make an order of eviction under Section 437A Sub-section (1). So also in regard to Clause (b), it is for the Municipal Commissioner to be satisfied whether the premises are municipal premises and if so, whether the person sought to be proceeded against is in unauthorised occupation of the premises and the fact that the premises are municipal premises is as much a fact in issue as the fact that the person concerned is in unauthorised occupation of the premises. It is therefore clear that both under Clauses (a) and (b) the fact of the premises being municipal premises is a fact in issue and its determination is left to the Municipal Commissioner under Section 437A Sub-section (1).

9. The second question of construction which falls for consideration is as to whether the remedy of eviction provided by Section 437A Sub-section (1) in cases falling within Clauses (a) and (b) is an exclusive remedy or an additional remedy. Does it negative the ordinary remedy of a suit or is it a supplemental remedy given in addition to the ordinary remedy of a suit? The rule governing decision of questions of this kind is now well-settled and it was stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford 1859 6 C.B. (N.S.) 336 at page 356 in a passage which has now become a locus classicus:

There are three classes of cases in which a liability may be established founded upon statute. One is, where there was liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely but provides no particular form as remedy; there, the party can only proceed by section at common law. But there is a third class viz., where a liability not existing at common law is created by the statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express News papers Ltd. (1919) A.C. 368 and has been re-affirmed by the Privy Council in Attorney General v. Cordon Grant and Co. 1935 A.C. 532 and Secretary of State v. Mask and Co. 44 Cal. W.N. 709 and it has also been adopted and approved by the Supreme Court in N.P. Ponnuswami v. The Returning Officer Namakkal A.I.R. 1952 S.C. 64. Let us apply this rule.

10. Now as pointed out above, the liability to eviction under Clause (a) did not exist under the general law prior to the enactment of Section 437A Sub-section (1) and it was a liability to eviction created for the first time by Section 437A Sub-section (1) and while creating this new liability to eviction under Clause (a), Section 437A Sub-section (1) gave a special 'and particular remedy for enforcing it. Section 437A Sub-section (1) in so far as the liability to eviction under Clause (a) is concerned, therein clearly falls in the third class of cases given by Willes J. and the remedy provided by Section 437A Sub-section (1) for enforcing the liability to eviction under Clause (a) must be held to be an exclusive remedy and the liability to eviction under Clause (a) cannot be enforced by the ordinary remedy of a suit. The position is however different when we turn to Clause (b) of Section 437A Sub-section (1). The liability to eviction under Clause (b) was, as pointed out above, an existing liability to eviction under the general law which could be enforced by means of suit. This existing liability to eviction was affirmed in Section 437A Sub-section (1) Clause (b) and Section 437A Sub-section (1) gave a special and peculiar form of remedy different from the remedy of a suit under the general law for enforcing it. This case therefore falls within the first class of cases given by Willes J. and the remedy given by Section 437A Sub-section (1) must be held to be a supplemental remedy in addition to the ordinary remedy of a suit, unless of course there is anything in the statute which expressly or by necessary implication excludes the remedy of a suit.

11. The learned Advocate General appearing on behalf of the State relied strongly on Section 437F and submitted that a clear indication was furnished by that section that the Legislature intended Sections 437A to 437F to be a self-contained group of sections providing an exclusive machinery for enforcement of rights and liabilities mentioned in those sections. Wherever, said the learned Advocate General, the Legislature wanted to save an existing remedy, the Legislature did so in express terms as in Section 437F but there was no provision enacted by the Legislature saving the existing remedy of a suit and the absence of such a provision showed that the remedy of a suit was intended to be excluded by the special remedy provided in Section 437A Sub-section (1). This argument is in our view not well-founded, for it overlooks the object and purpose of the enactment of Section 437F. Section 437F was enacted by the Legislature with a view to making it clear that the wide power of eviction given to the Municipal Commissioner under Section 60 in respect of premises provided by the Municipal Corporation to municipal officers and servants for their residence was not intended to be superseded or supplanted by the provisions contained in Sections 437A to 437F. There being two provisions in the statute in regard to eviction, one contained in Section 60 and the other contained in Section 437A Sub-section (1), an argument might be raised that the latter by necessary implication had the effect of repealing the former and the Legislature therefore, with a view to excluding such argument, enacted Section 437F saying that the provisions contained inter alia in Section 437A shall be in addition to and not in derogation of the provisions contained in Sections 60 and 438, Section 438 being mentioned only as a provision incidental to Section 60. No implication can therefore be raised from Section 437F that the Legislature intended the remedy provided under Section 437A Sub-section (1) to be a substitutive remedy excluding the ordinary remedy of a suit.

12. This point need not be discussed any further for we find that there is a decision of the Supreme Court in Northern India Catereis (Private) Ltd. v. State of Punjab : [1967]3SCR399 which completely supports the view that the remedy under Section 437A Sub-section (1) in cases falling within Clause (b) is not an exclusive but an additional remedy. The statute which came up for consideration in that case was Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, the provisions of which were in material respect identical with Sections 437A to 437E and the question was whether the summary remedy of eviction provided in Section 5 of the Punjab Act (which corresponded to Section 437A Sub-section (1) of our Act) in. cases falling within Section 3 of the Punjab Act (which corresponded to Clause (b) of our Act read with the Explanation) was an exclusive remedy or a supplemental remedy. If the remedy under Section 5 was a supplemental remedy in addition to the ordinary remedy of a suit, the argument was that Section 5 was violative of the equal protection clause contained in Article 14. Though there was ultimately a difference of opinion amongst the learned Judges of the Surpeme Court on the question as to whether Section 5 was ultra vires Article 14 of the Constitution, all of them agreed that the remedy provided under Section 5 was a supplemental remedy and not an exclusive one and it did not exclude the ordinary remedy of a suit. Shelat J. speaking on behalf of the majority said:

In our view, there is nothing in the Act to warrant the conclusion that it impliedly takes away the right of suit by Government or that, therefore, it is substitutive and not supplemental.

and so also, Bachawat J. expressing the view of the minority observed:

The Act does not create a new right of eviction. It creates an additional remedy fur a right existing under the general law. It does not repeal the law giving the remedy of a suit or bar the jurisdiction of civil Courts to try a suit for eviction. The Government is at liberty to proceed against the occupant either under the Act or by way of a suit.

These observations though made in the context of Section 5 of the Punjab Act are equally applicable in the construction of Section 437A Sub-section (1) Clause (b) and they clearly support the view that so far as the liability to eviction under Clause (b) is concerned, the remedy provided by Section 437A Sub-section (1) is supplemental and not substitutive.

13. We now go on to examine the various grounds of challenge urged before us.

14. Re. Ground (A)(i): This ground was not seriously pressed and indeed, in view of the observations in the majority as well as minority judgments of the Supreme Court in Northern India Caterers (Private) Ltd. v. State of Punjab (supra) it could not be sustained. An identical argument was advanced in that case challenging the validity of Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 on the ground that it discriminated between occupants of public premises and those occupying private property and was therefore violative of Article 14. This argument 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 argument, they pointed out that there was no force in it as it was possible to say that there was intelligible differentia between the two classes of occupiers and the differentia had rational nexus with the object of the Legislation. Shelat J. speaking on behalf of the majority said:

The objects and reasons of the impugned Act and its preamble indicate that the Act was passed to provide for eviction of unauthorised occupants from public properties and premises and to keep such properties free from encroachment and unlawful possession and to provide a speedier machinery for that purpose as against the lengthy proceedings under the ordinary law of eviction involving delay. The Act no doubt differentiates occupiers of public property and premises from other occupiers. Nevertheless, it is possible to say that there is an intelligible differentia between the two classes of occupiers, that they are not similarly situated in that in the case of public properties and premises the members of the public have a vital interest and are interested in seeing that such properties and premises are freed from encroachment and unauthorised occupation as speedily as possible. It is also possible to contend that such classification is justified in that it is in the interest of the public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instrumentality of a speedier procedure instead of the elaborate procedure by way of suit involving both expense and delay.

We respectfully adopt these observations and hold that there is a valid basis of differentiation between occupiers of municipal premises and those of other premises and there is a rational relation or nexus between the basis of the classification and the object of the legislation. This ground therefore fails and must be rejected.

15. Re. Ground (A)(ii): On the view taken by us as to the construction of Section 437A Sub-section (1), this ground can have application only in relation to Clause (b) for it is only in respect of liability to eviction under Clause (b) that the remedy provided under Section 437A Sub-section (1) is supplemental and not exclusive. Now there can be no doubt that so far as the liability to eviction under this clause is concerned, it is left to the arbitrary unguided discretion of the Municipal Commissioner whether to adopt the drastic and summary remedy provided under Section 437A Sub-section (1) or to adopt the ordinary remedy of a suit. It was suggested in the course of arguments by Mr. V.B. Patel, learned advocate appearing on behalf of the Ahmedabad Municipal Corporation, that the remedy provided under Section 437A Sub-section (1) could not be said to be a drastic or prejudicial remedy compared to the ordinary remedy of a suit but this suggestion is wholly untenable. We fail to see how a remedy which entrusts determination of the liability to eviction to the chief executive officer of the Corporation which is the landlord of the premises and makes his decision final, subject only to an appeal to the State Government which is another executive authority and where the procedure is so inadequate that the determining authority has no power to summon witnesses and to order production of documents, can be regarded as anything but drastic and prejudicial compared to the ordinary remedy of a suit under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary Court dealing with the ordinary law of the land with right of appeal, revision etc. The remedy provided under Section 437A Sub-section (1) is clearly a summary remedy and is more drastic and prejudicial in nature than the ordinary remedy of a suit and if Section 437A Sub-section (1) leaves it open to the Municipal Commissioner at his sweet will to adopt either the one remedy or the other according as he in his absolute and uncontrolled discretion thinks fit, it must be held to be violative of the equality clause in Article 14. That was precisely the ground on which the majority in Northern India Caterers (Private) Ltd. v. State of Punjab (supra) held Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act. 1959 to be ultra vires Article 14. Shelat J. speaking on behalf of the majority observed:

If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and not against the rest. A person who is proceeded against under the more drastic procedure is bound to complain as to why the drastic procedure is exercised against him and not against the others, even though those others are similarly circumstanced. The procedure under Section 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary Court dealing with the ordinary law of the land with the right of appeal, revision, etc., as against the person who is proceeded against under Section 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject no doubt to an appeal but before another executive officer, viz., the Commissioner There can be no doubt that Section 5 confers an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the un-guided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under Section 5, that section has lent itself open to the charge of discrimination and as being violative of Article 14.

This reasoning applies wholly and completely to Section 437A Sub-section (1) in so far as it empowers the Municipal Commissioner to make an order of eviction in cases falling within Clause (b). Section 437A Sub-section (1) Clause (b) must therefore be struck down as violative of Article 14.

16. Re. Ground A (iii): So far as this ground of challenge is concerned, the petitioners conceded that the Legislature had made a classification by segregating occupants of municipal premises falling within Clause (a) for the special treatment provided in Section 437A Sub-section (1) but the contention was that, within the specified category, it was open to the Municipal Commissioner to pick and choose: he could in exercise of unguided and unfettered discretion proceed against some occupants of municipal premises falling within the specified category and not proceed against others at his own sweet will and thus discriminate amongst them. This contention was really directed against the discretionary nature of the power conferred on the Municipal Commissioner but, as pointed out by the Supreme Court in Matajog Dobay v. H.C. Bhari : [1955]28ITR941(SC) at page 48: 'every discretionary power is not necessarily discriminatory power'. Here the Legislature has made a classification and imposed the liability to eviction uniformly on occupants falling within a particular category described in Clause (a). Every occupant of municipal premises falling within this category is subject to the liability to eviction and in the matter of imposition of liability of eviction, there is no discrimination amongst occupants of municipal premises falling within that category. But since the liability to eviction is imposed for the benefit of the Municipal Corporation, it must be left to the Municipal Commissioner as the chief executive officer of the Municipal Corporation to decide in a particular case, having regard to the exigencies of the situation and the interests of the Municipal Corporation, whether to enforce the liability or not. Merely because a discretion is conferred on the Municipal Commissioner in the matter of enforcement of the liability which falls equally on all within the specified class, it cannot be said that the power is discriminatory. Even if there is a possibility of discriminatory treatment of persons falling within the same class, such possibility cannot per se invalidate the power. Moreover it must be remembered that the Legislature has confided this discretion not to a petty official of the Corporation but to the Municipal Commissioner who is a highly placed officer and in whom the entire executive power of the Municipal Corporation rests. If the Municipal Commissioner in exercise of this power acts 'with an evil eye and an unequal hand' or makes intentional or purposeful discrimination, the arms of the Court are long enough to reach him and strike down such abuse of power with a heavy hand. Vide A. Thangal Kunju Musaliar v. M. Venkatachalam : [1956]29ITR349(SC) at 266, Messrs Pannalal Binraj v. Union of India : [1957]1SCR233 at 408 and Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar : [1959]1SCR279 .

17. Re. Ground (B)(i): This contention is based on the premise that the liability to be evicted under Clause (a) arises not on the objective existence of the conditions specified in that clause but on the satisfaction of the Municipal Commissioner that they exist. But for reasons given by us while discussing the provisions of Section 437A Sub-section (1), this premise is not well-founded and the contention based upon it must be rejected. Clause (a) sets out the conditions of liability to eviction and it is only if any of these conditions exists that the Municipal Commissioner can make an order of eviction under Section 437A Sub-section (1) but the determination of the question whether these conditions exist or not is entrusted by the section to the Municipal Commissioner who is constituted the authority for determining the liability to eviction under the section and that is why the section provides that if the Municipal Commissioner is satisfied that any of these conditions exists, he may make an order of eviction. If the determination made by the Municipal Commissioner is wrong, it is liable to be challenged in appeal to the State Government under Section 437D. The present contention is therefore without substance and must be rejected.

18. Re. Ground B(ii): It is indisputable that a tenant has under the Transfer of Property Act an interest in the demised premises which clearly falls within the expression 'property' in Article 19(1)(f). No autho rity is needed in support of this proposition but if any were needed, it may be found in the decision of the Supreme Court in Bombay Corpora tion v. Pancham : [1965]1SCR542 . Now under Section 437A Sub-section (1) certain conditions of liability to eviction are laid down and if any of these conditions of liability to eviction is satisfied, the right of a tenant to hold possession of the demised premises would come to an end. Sections 437A, 437D and 437E provide the machinery for determining whether any of these conditions of liability to eviction is satisfied and it is evident that if the machinery for determining the liability to eviction provided by the statute is unreasonable, it would amount to an unreasonable restriction on the fundamental right of the tenant to hold property under Article 19(1)(f). In view of the decision of the Supreme Court in Dr. N.B. Khare V. The State of Delhi 1950 S.C.R. 519, it must now be regarded as well settled that the question whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed under Article 19(1)(f) are reasonable within the meaning of Article 19(5) depends as much upon the procedural portion of the law as the substantive part of it. This view was re-affirmed by the Supreme Court in State of Madras v. V.G. Rao 1952 S.C.R. 597 where it was observed that in considering the reasonableness of the law imposing restrictions on the fundamental rights, both substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness. The same view has also been taken by the Supreme Court in the recent decision in Kantilal Babulal and Bros. v. H.C. Patel : [1968]1SCR735 . It therefore becomes necessary to examine whether the machinery for determining the liability to eviction provided in Sections 437A, 437D and 437E is reasonable.

19. One important fact which must be borne in mind while judging the question of reasonableness of the machinery is that the determination of the liability to eviction is entrusted to the Municipal Commissioner. The Municipal Commissioner is constituted the authority to determine whether the conditions of liability to eviction set out in Clauses (a) and (b) exist and the occupant of municipal premises is liable to be evicted. Now the Municipal Commissioner is the chief executive officer of the Corporation which is the owner of the premises. The functions of the Municipal Commissioner are specified in Section 67 Sub-section (3) and that sub-section says that subject, whenever it is in the Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee and subject also to all other restrictions, limitations and conditions imposed by the Act or by any other law for the time being in force, the entire executive power for the purpose of carrying out the provisions of the Act vests in the Municipal Commissioner. It is the Municipal Commissioner alone who is entitled to exercise and in fact exercises the entire executive power of the Corporation and even where any provision of the Act requires that he must obtain approval or sanction of the Corporation or the Standing Committee, it is he who exercises the particular executive power after obtaining the approval or sanction of the Corporation or the Standing Committee. The powers of the Municipal Commissioner with regard to the disposal of property are set out in Section 79 and they are broadly divisible into three categories. Clause (a) provides that the Municipal Commissioner may grant lease of any immovable property belonging to the Corporation for any period not exceeding twelve months at a time provided that he shall report to the Standing Committee every lease of immovable properly within fifteen days of the grant thereof unless it is for a contract for a monthly tenancy or the annual rent thereof does not exceed three thousand rupees. It will be seen that the Municipal Commissioner can grant a monthly lease of immovable property belonging to the Corporation and if he does so, he need not even report that fact to the Standing Committee. Where the Municipal Commissioner wants to grant a lease of any immovable property belonging to the Corporation for any period exceeding one year or to sell or grant a lease in perpetuity of any immovable property, the value or premium whereof does not exceed fifty thousand rupees or the annual rental whereof does not exceed three thousand rupees, he can, under Clause (b), do so with the sanction of the Standing Committee. Lastly, under Clause (c), the Municipal Commissioner can lease, sell, let out or hire or otherwise convey any property, movable or immovable, belonging to the Corporation with the sanction of the Corporation. Clause (b) requires sanction of the Standing Committee and Clause (c) refers to the sanction of the Corporation but in both cases, with the requisite sanction obtained, it is the Municipal Commissioner who grants, leases, sells or conveys immovable property belonging to the Corporation. It will therefore be seen that in all matters relating to the Corporation, it is the Municipal Commissioner who represents the Corporation and is, in reality and substance, the party who enters into the transaction resulting in grant of lease of the property of the Corporation to the tenant. He fixes the terms and conditions of the lease and whether or not to permit the tenant to sublet the premises is also decided by him and if the permission is granted, that is also done by him. If any dispute arises between the Corporation and the tenant in regard to the premises, what attitude should be adopted by the Corporation is determined by him and whether any proceeding for eviction under Section 437A Sub-section (1) should be adopted against the tenant or not is also decided by him. The Municipal Commissioner would therefore in a real sense be a party to the dispute or, at any rate, even if the Corporation be regarded as a party to the dispute, he would be very much interested in the dispute and would be responsible for initiating proceedings against the tenant under Section 437A Sub-section (1). Such an officer is constituted the authority to determine whether the tenant is liable to be evicted under Clause (a) or Clause (b) of Section 437A Sub-section (1). Moreover the determination of the liability to eviction under Clause (a) or Clause (b) might involve decision of questions such as: what is the rent payable by the tenant to the Corporation: what are the arrears of rent remaining unpaid: whether permission to sublet was granted by the Corporation: what are the terms and conditions of the tenancy express or implied and whether any breach of those terms and conditions is committed by the tenant. So also a question might arise whether the tenancy of the tenant has been validly determined by the Corporation and that might involve determination of the validity of the notice to quit which might have been given by the Municipal Commissioner to the tenant The decision of all these questions would, in quite a few cases, involve consideration of the acts and omissions of the Municipal Commissioner who is the repository of the entire executive power of the Corporation and the Municipal Commissioner would be called upon to examine the effect and validity of his own acts and omissions. Such a machinery which empowers one who is in a real sense a party to the dispute or, at any rate, interested in it to pronounce upon the validity and effect of his own acts and omissions and to adjudicate upon the dispute, clearly offends against the fundamental principles of judicial procedure.

20. It is an important and fundamental principle of judicial procedure that a person who is entrusted with the duty of hearing cases judicially or quasi-judicially should be one who has no personal bias in the matter. To quote Lord Cranworth, L.C. in Ranger v. Great Western Railway Co. 1854 5 H.L.C. 72 at page 89 : 10 B.R. 824 at page 827:

A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other. In ordinary cases it is just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent.

'The principle' says Halsbury, 'nemo debet esse judex in causa propria sum precludes a justice who is interested in the subject matter of a dispute from acting as a justice therein', (Halsbury's Laws of England, Third Edition, Volume 21, page 335 para 958) and this principle, as affirmed by the Supreme Court in several decisions of which we may mention only two, namely, Manek Lal v. Dr. Prem Chand : [1957]1SCR575 , and G. Nageswara Rao v. A.P.S.R.T. Corporation : AIR1959SC308 , applies not only to justices as mentioned by Halsbury but also to tribunals and bodies which are given jurisdiction to decide judicially the rights of parties. It is of the essence of judicial or quasi-judicial procedure that the authority which is entrusted with the task of determining the rights of parties judicially should have no interest in the subject matter of the dispute and, in any event, should not be so situate as to create a reasonable apprehension in the mind of a party that the authority might have a bias against him. If this fundamental principle of judicial procedure is violated by the machinery for determination of the liability to eviction provided by these sections, the machinery must necessarily be held to be unreasonable. The enjoyment of the right to hold possession of the premises would in that event become dependent on the determination of a person whose identity for the purposes of the Municipal Act is inseverable from that of the Corporation and who is in a real sense a party to the dispute or at any rate interested in the dispute and this would be clearly and indoubtably unreasonable. It can hardly be disputed that if an authority has taken an active part in instituting -proceedings against a party-which as pointed out above, the Municipal Commissioner would when proceedings are adopted against the tenant-he would be disqualified to act as an adjudicator in the proceedings for he would then be in substance both judge and parly: a machinery which permits this to be done must be condemned as unreasonable, vide R. v. Lee (1882) 9 Q.B.D. 294, R. v. Gaisford (1892) 1 Q.B. 381 : R. v. Henley (1892) 1 Q.B. 504.

21. But apart from this infirmity which renders the machinery for determination of the liability to eviction unreasonable, there is also one other infirmity which affects the machinery for determination of the liability to eviction with the vice of unreasonableness. We have already pointed out above while analysing and discussing the sections that even where a tenant against whom proceedings are taken under Section 437A Sub-section (1) raises a dispute that the premises are not municipal premises, the determination of such dispute is left to the Municipal Commissioner as a fact in issue to be determined by him. The Municipal Commissioner might therefore conceivably have to determine questions of title to premises forming the subject matter of proceedings under Section 437A Sub-section (1). Now it is notorious that questions of title to premises often raise complicated legal issues which sometimes baffle even trained judicial minds and yet determination of these questions is entrusted by the Legislature to an executive officer like the Municipal Commissioner without the intervention of any judicial tribunal. Moreover it is elementary that, even apart from questions of title many other questions of law, some of which may be quite complicated, may also arise in the course of proceedings under Section 437A Sub-section (1) and these questions of law would have to be determined by the Municipal Commissioner who is an executive officer having little or no training in law or legal process and who would therefore be hardly fitted or equipped to decide such questions of law. On this ground also the machinery for determination of the liability to eviction provided by the Legislature in these sections must be held to be unreasonable. This view which we are taking is clearly supported by the decision of the Supreme Court in Sri Jagannath v. State of Orissa : [1954]1SCR1046 where it was held that the settling of a scheme under Sections 38 and 39 of the Orissa Hindu Religious Endowments Act, 1939, in regard to a religious institution by an exective officer without the intervention of any judicial tribunal, amounted to an unreasonable restriction upon the right of property of the superior of the religious institution.

22. It is no doubt true that there is a provision for an appeal to the State Government under Section 437D but that is an appeal to an executive authority and it cannot, in our view, disinfect the machinery of the vice which attaches to it by reason of the determination being initially left to the Municipal Commissioner. It is significant to note that judicial scrutiny is excluded by Section 437E and the decision of the Municipal Commissioner, subject only to an appeal to the State Government, is made unquestionable in a Court of law. Moreover the procedure to be followed by the Municipal Commissioner in holding the inquiry is also hardly adequate to afford a real opportunity to the tenant to repel the allegations against him. The Municipal Commissioner is not given the power to summon witnesses or to order production of documents. The Municipal Commissioner is not constituted a tribunal but he is given the power to determine the liability to evietion as the chief executive officer of the Corporation with only this added obligation that in doing so, he must act judicially. When we examine the hearing of the appeal before the Stale Government, the position is still more unsatisfactory. The State Government is given the power to call for a report from the Municipal Commissioner and there is no provision in the statute requiring the State Government to furnish a copy of such report to the appealing tenant. The cumulative effect of all these circumstances is that the machinery provided in Sections 437A, 437D and 437E for determining the liability to eviction is unreasonable and imposes an unreasonable restriction on the fundamental right of the tenant to hold property under Article 19(1)(f) It must therefore be held that Section 437A and Sections 437D and 437E in so far as they relate to an order made under Section 437A, arbitrarily and excessively invade the fundamental right to hold property and are void as offending Article 19(1)(f).

23. Re. Ground (C): This ground is also common to both groups of petitions and since an order of eviction under Section 437A Sub-section (1) is admittedly a quasi-judicial order involving exercise of quasi-judicial power, this ground must be held to be concluded adversely against the petitioners by the Full Bench decision of this Court in Special Civil Application No. 433 of 1964 decided on 5th April 1968 (Testeels Ltd. v. N.M. Desai X G.L.R. 622): where we have held that every quasi-judicial order though made by an administrative officer must disclose reasons in support of it: it must be a speaking order. So far as the petitions relating to the Baroda Municipal Corporation are concerned, the orders of eviction are contained in the notices issued to the petitioners under Section 437A Sub-section (1) and they clearly do not show ex facie the reasons which led to their making. These orders of eviction are not supported by any reason and they must therefore he held to be bad according to the decision of the Full Bench in Special Civil Application No. 438 of 1964. (supra). The same position also obtains in the petitions relating to the Ahmedabad Municipal Corporation but in those petitions, Mr. V.B. Patel, learned advocate appearing on behalf of the Municipal Corporation, made a last minute attempt to save the validity of the orders of eviction by filing affidavits to the effect that apart from the notices issued under Section 437A Sub-section (1), there were separate orders of eviction passed by the Municipal Commissioner and those orders of eviction were supported by reasons. This argument cannot avail Mr. V.B. Patel, for the orders of eviction contemplated by Section 437A Sub-section (1) are orders contained in the notices issued under Section 437A Sub-section (1) and not any separate orders of eviction which might be kept by the Municipal Commissioner in his files. Section 437A Sub-section (1) says that the Municipal Commissioner may by notice order the person concerned to vacate the premises and the period of limitation for filing appeal under Section 437D commences from the date of service of such notice. The notice embodying the order of eviction must therefore set out the reasons which led to its making so that the person against whom the order of eviction is made may be able to effectively file an appeal against the order of eviction. If the Municipal Commissioner can make an order of eviction and keep it in his file without serving a copy of it on the person ordered to be evicted or even without giving any intimation to him that such a separate order has been passed by him, it will frustrate the provision for appeal under Section 437D and remove a healthy safeguard which the Full Bench of this Court has introduced against abuse in exercise of quasi-judicial power. The notices issued under Section 437A Sub-section (1) clearly did not set out the reasons in support of the orders of eviction and they must therefore be quashed and set aside.

24. The result therefore is that we allow the petitions and make the rule issued in each petition absolute to the extent that we declare Section 437A and Sections 437D and 437E in so far as they relate to an order made under Section 437A, ultra vires Article 19(1)(f) and Section 437A Sub-section (1) Clause (b) ultra vires Article 14 and issue a writ of certiorari quashing and setting aside the notices issued under Section 437A Sub-section (1) ordering the petitioners to vacate the respective premises in their occupation.

25. The respondents will pay the costs of the petitioner in each petition.


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