State of Gujarat v. Patel Bava Karsan & Ors.

Judgment

The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by certificate is directed against a judgment of the Gujarat High Court dated 31-1-1970 issuing a writ of mandamus to the Rajkot Municipality directing it to desist from enforcing a notice dated 9-3-1966 served on respondent No. 1 and requiring him in pursuance of the provisions of s. 233 (1) of t11e Gujarat Municipality Act (hereinafter referred to as the Gujarat Act') to hand over possession of a piece of land to the Municipality on the ground that he was in unauthorised occupation thereof. The only point in controversy before the High Court was as to whether or not s. 233 of the Gu_jarat Act, under which the proceedings for eviction of the respondent No. 1 were taken, was constitutionally valid. The High Court in view of a previous decision of that Court held that s. 233 being violative of Art. 14 of the Constitution of India was ultra vires. The appellants applied for certificate for leave to appeal under Art. 133(1)- ( c) which was granted; hence this appeal.

Section 233 of the Gujarat ~ct runs thus :- "233. Power to evict certain persons from mzmicipal premises. (1) If the Chief Officer is satisfied- ( a) that the person authorised to occupy any premises belonging to the municipality (hereinafter referred to I GUJARAT v. PATEL BAVA KARSAN (Fazal Ali,!.)

I 089 as "the municipal premises") as a tenant or otherwise has- (i) not .paid rent lawfully due from in respect of such premises for a period of more than two months, or (ii) sub-let, without the perm1ss1on of the mumc1- pality, the whole or any part of such premises, or (iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or (b) that any person is in unauthorised occupation of any municipal premises, the Chief Officer may, notwithstandig anything contained in any law for the time being in force, by notice ~ervcd (i) by post or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be provided in the rules made by the State Government order that the person as well as any at.her person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.

(2) Before an order under sub-section (1) is made against any person the Chief Officer shall inform the person by notice in writing of the grounds on which the proposed order is to he made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the chief officer for extension of the period specified in the notice the chief officer may grant the . same on such terms as to payment and recovery of the amount claimed in the notice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case und such person shall be entitled to appear before the authority proceeding in this connection by advocate, attorney or [1930] 2 s.c.a. pleader.

Such notice in writing shall be served in the manner provided for service of notice under sub-section (1). It appears that in the case of Northern India Caterers Pvt. Ltd. & Anr. v. State of Pun;ab & Anr.(1) this Court while construina a statutG whose provisions were almost similar to those of s. 233 of the Gujarat Act took the same view as the High Court and struck down the statute. This decision held the field until it was ultimately overruled in the case of Chhagan!al Maganlal( 2 ). In a later decision in Ahmedabad Municipal Corporation & Ors. v_ - Ramanlal Govindram & Ors. (3 ) this Court while following the case of Chhaganlal Maganlal upheld a provision of the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 which was in pari materia with s. 233 of the Gujarat Act. Mr. M. K. Ramamurthi appearing for the respondents submitted that Ahmedabad Municipal Corporation's case (supra) was not correctly decided because though in Chhaganlal Magan/al's case (supra) there was a right to appeal tc a Civil Court and the right to take evidence was given by the statute concerned, in the former, the relevant statute contained no such provision.

This contention does not appear to be well-founded because once property belonging to the Government or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, whether a civil remedy is given or not would not be violative of Art. 14 of the Constitution on the broad principle laid down in Chhaganlal Maganlal's case. It was also argued that the provisions of the Gujarat Act were violative of Art. 19 of the Constitution of India. This contention was expressly considered and negatived by this Court in Ahmedabad Municipal Corporation & Ors. v. Raman/al Govindram & Ors. (supra) with which we find ourselves in complete agreement. We, therefore, allow these appeals, set aside the judgment of the High Court and affirm the order of the Chief Officer dated 9-3-1966. We might, however, observe that under section 236 of the Gujarat, Act, the respondents have a right to file an appeal to the Government against the impugned order of eviction.

This section ~lso contains a specific provision under which delay can be condoned if sufficient cause is shown to the satisfaction of the appellate autho- (1) [1967] 3 S.C.R. 399. (2) [1975] 1 S.C.R. I. (3) [1975] 3. S.C.R. 935. GUJARAT v. PATEL BAVA KARSAN (Fazal Ali, J.) rity namely the Government. In these circumstances, it will be open to the respondents to file an appeal to the Government against the order of eviction passed by the Chief Officer which will be disposed of by the Government in accordance with the law. There will be no order as to costs . N.KA. Appeals allowed.