HJGHCOURrOEJUDICATURE CHHATTISGARH: BILA^PUR DIVISION BENCH : HON'BLE SRI S.R. NAYAK, CJ & HON'BLE SRI S.K. AGNIHOTRI, J. WRITPETITION N0.1993 OF 2005 WRIT PETITIQN N0.1797 OF 2005 ORDERFQRCONSIDERATJON Sd/- Chief Justice HON'BLE SRI SATISH K. AGNIHOTRI. J Sd/- Satish K. Agnihotri Judge Postfor:21stDecemberM^^ Sd/- Chief Justice /.7=A: H1GHCOURT OF JUDICATURE CHHATTISGARH: BILASPUR DIVISION BENCH HON'BLE SRI S.R. NAYAK, CJ & HON'BLE SRI S.K. AGNIHOTRI, J. PETmONERS RESPONDENTS PETITIONERS WRIT PETITION N0.1993 QF 2005 1. Smt. Kumari Bai, wife of Shri Kailash Prasad Mahto, aged about 55 years. 2. Hariprasad Mahto, son of Shri Kailash Prasad Mahto, aged about 33 years Both residents ofAnand Nagar, Raipur Versus 1. State of Chhattisgarh, through the Secretary, Ministry of Law and Legislative Affairs, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) 2. Raipur Municipal Corporation, a body corporate constituted under the relevant provisions of C.G. Municipal Corporation Act, through the Commissioner, Municipal Corporation, Malviya Road, Raipur And WRITPETmON N0,1797 QF 2005 1. 2. RESPQNDEMTS Hariprasad Mahto, son of Shri Kailash Prasad Mahto, aged about 33 years, resident of Anand Nagar, Raipur Manish Kumar Bhatia, son of Shri Jagdish Prasad Bhatia, aged about 33 years, resident of M.G. Road, Raipur Versus 1. State of Chhattisgarh, through the Secretary, Ministry of Law and Legislative Affairs, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Raipur Munidpal Corporation, a body corporate constituted under the relevant provisions of C.G. Municipal Corporation Act, through the Commissioner, Municipal Corporation, Malviya Road, Raipur 2. Present: Mr. B.P. Sharma, learned counsel for the petitioner. Mr. WS Murthy, learned Dy. A.G., with Mr. Sumesh Bajaj, learned Dy. Govt. Adv., for the State. ^.^^^^^«.^^,^.^=-^^,KS^.3S 91 Mr. H.B. Agrawal, learned Sr. Adv., with Ms. Sangeeta Mishra, learned counsel for respondenfr No.2 {Passed on 2.'"'December 2005) The followjng order of the Court was passed by S.R. Nayak, CJ In these writ petitions the constitutional validity of Sectjon 401 ofChhattisgarh Municipal Corporation Act, 1956 (forshort 'theAct) has been questioned so far it takes away the right of an aggrieved person of approaching the Court of law by filing Civil Suit of appropriate nature to obtain immediate and urgent relief without serving the statutory notice as required under sub-section (1) ofthat Section. (2) The facts of the case leading to filing of these writ petitions be noted in the first instance and they, in brief, are as follows: In Writ Petition No.1797 of 2005 the petitioners are the owners of a roof of a building situate at M.G. Road, Raipur having acquired the same under a sale-deed dated 24/05/2000. After purchasing the said property, the petitioners have raised further construction over the said roof. When the matter stood thus, they were served with a notice dated 06/09/2003 alleging that the construction of the first floor made by them is not legal and in violation of the approved plan, therefore, the same should be demolished within three days from the date of notice. The petitioners apprehending that the Corporation might demolish the construction filed a civil Suit on 15/10/2004 before the Court of First Civil Judge, Class-l, Raipur along with an application for grant of injunction. After service of summons, the Municipal Corporation on 17/03/2005 made an application 92 under Order 7 Rule 11 of the Code of Cjvil Procedure contending that the Suit is not maintainable for non-compliance of statutory provjsions of Section 401 of the Act inasmuch as the suit was filed without gjving statutory notice of one month to the Corporation and therefore the Suit should be dismissed. The Civil Court allowed the said applicationand dismissed the Suit. At that stage, the petitioners filed the writ petition. (3) In Writ Petition No.1993 of 2005 the petitioners are the owners of a land bearing Plot No.2/8 admeasuring 805 sq. ft. situate at Maudhapara, Jawahar Nagar Ward, Raipur having purchased the same under a registered sale-deed (Annexure-P/2). It is stated that having obtained required permission from the Municipal Corporation, Raipur, they have made constructions in the said plot. On 14/10/2004 the ofRcers of the Municipal Corporation, Raipur visited the property of the petitioners and threatened them that they would demolish their construction, if not removed by the petitioners themselves, for alleged violation ofthe byelaws and sanctioned plan. The petitioners apprehending that the Municipal Corporation would demolish the construction filed a Suit before the Civil Court along with an application for grant of injunction. The petitjoners also filed an application for permissjon to file the Suit without service of notice on the Municipal Corporation as required under Section 401 of the Act. The Municipal Corporation on service of summons entered appearance and raised an objection that the civil Suit instituted by the petitioners is not maintainable for noncompliance of the mandatory provisions of Section 401 of the Act inasmuch as the Suit was instituted without service of notice on the Municipal Corporation. The Civil Court allowed the application filed by the Municipal Corporation and dismissed the suit. At 93 that stage, the petitioners filed Writ Petition No.1993 of 2005 praying for the same reliefs as prayed for by the petitioners jn Writ Petition No.1797 of 1993. (4) The reliefs sought in Writ Petition No.1797 of 2005 read as follows: "7.1 A writ and / or an order in the nature of writ of certiorari or any other appropriate writ do issue declaring Section 401 of C.G. Municjpal Corporation Act, 1956 as illegal, unconstitutional i.e. ultra-vires to the Constitution of India, so far it takes away the right of a citizen of approaching the Court of law by filing civil suit of appropriate nature to obtain immediate and urgent relief without serving the statutory notice of one month. 7.2 A writ and / or an order in the nature of writ of certiorari do issue quashing the impugned order passed by the court of 1st Civil Judge Class-l, Raipur passed in Civil Suit No.403-A/2004 between Hariprasad Mahto & another Vs. Municjpal Corporation, Raipur dated 27.4.2005 dismissing the suit ofthe petitioners herein as premature on the ground of non-service of the statutory before institution of the suit as required under Section 401 of the Act. 7.3 A writ and / or an order in the nature of writ of prohibition do issue restraining the respondent Authorities, their agents, servants and employees from interfering/intermeddling with the possession of the petitioners or demolishing the construction raised by the petitioners. 7.4 Cost of the petition may also be granted. 7.5 Any other relief which this Hon'ble court may deem fit in the facts and circumstances of the case." 94 (5) In Writ Petition No.1993 of 2005 also similar reliefs are sought. (6) The writ petjtions were contested both by the State of Chhattisgarh and Munidpal Corporation, Raipur by filing the replies/statements of objectjons. The State of Chhattisgarh filed statement of objections in Writ Petition No.1234 of 2005 wherein also the constitutional validity of Section 401 of the Act was questioned and in these writ petitions the State of Chhattisgarh has filed necessary applications praying the Court to adopt and treat the statement of objections filed by it in Writ Petition No.1234 of 2005 as the statement of objections/replies in these writ petitions also. Writ Petition No.1234 of 2005 was not pressed for decision-making by the learned counsel for the petitioner and the same was dismissed as not pressed by our separate orderdated 06/12/2005. (7) We have heard Mr. B.P. Sharma, learned counsel for the petitioners, Mr. WS Murthy, learned Dy. Advocate General for the State of Chhattisgarh and Mr. H.B. Agrawal, learned Sr. Advocate for the Municipal Corporation, Raipur. (8) Mr. B.P. Sharma, learned counsel for the petitioners would contend that right to file a civil suit is a basic right and that right cannot be (jmited by prescribing a condition that suit should be filed only after service of notice of one month on the Municipal Corporation, the Mayor-in-Council or any other officer or servant or any person acting under the Municipal Corporation in respect of any act done or purporting to have been done in pursuance of execution or intended execution. Mr. Sharma would, 95 therefore, contend that Section 401 of the Act insofar as it places the above obligation on a plaintiff before institution of the suit is ex facie arbitrary, unreasonable and violative of Article 14 of the Constitution of India and therefore that part of Section 401 of the Act is required to be declared as unconstitutional. Mr. B.P. Sharma further contended that whereas Sub-section (2) of Section 80 of the Code of Civil Procedure provides for institution of a suit with leave of the Court without serving notice as required by Sub-section (1) thereof where the party requires an urgent or immediate relief against the Government and other authorities, similar provision is not incorporated in Section 401 of the Act and therefore the impugned provision is arbitrary as well as discriminatory. Mr. Sharma further contended that Sub-section (3) of Section 319 of the Madhya Pradesh MunicipalJtiesAct, 1961 enacts special provision for institution of the suit under Section 54 of the Specific Relief Act, 1877 exempting such institution from embargo contained in Sub-section (1) of Section 319 of the said Act which prohibits institution of the suit against any Council or any Councillor, officer or servant thereof or any person acting under the direction of any such Council, Councillor, officer or servant for anything done or purporting to be done under the said Act, until the expiration of frwo months next after a notice, in writing, stating the cause of action, the name and place of abode ofthe intending plaintiffand the relief which he claims, has been, in the case of a Council delivered of left at 'rts office, and, jn the case of any such member, officer, servant or person as aforesaid, delivered to him or usual place of abode, but similar provision is not enacted in Section 401 of the Act. It was submitted by Mr. Sharma that one set of citizens who reside within the Municipaljty may file suit for injunction without serving the notice and another set of citizens 96 who reside in the Municipal Corporation area cannot file a suit for permanent injunctjon before a civil Court without serving notice. According to Mr. Sharma that difference between two provisions tantamounts to an invidious discrimination violating Article 14 of the Constitution of India. Mr. Sharma further placing reliance on the maxim ubijus ibi remedium would contend that though right to property is no longer a fundamental right still it js a constitutional right guaranteed and protected under Article 300-A of the Constitution and, therefore, a citizen should have a legal remedy to protect his property against the wrong action of the State and State authorities, instrumentalities of the State and other authorities by seeking appropriate legal remedies before the Civil Court and that no limitation on that right to seek legal remedy could validly be imposed by prescribing that no suit shall be instituted against the Corporation until the expiration of one month next after notice in writing has been served on the Corporation and since that prescription violates the rights of the citizen under Article 300-A of the Constitution, the impugnedprovjsjon is liable to be condemned as unconstitutionsil. Mr. Sharma in support of his submission dted judgments of the Supreme Court in Smt. Ganga Bai Vs. Vijay Kumar And others1, Salem Advocate Bar Association, Tamil Nadu Vs. Union of India2;- Mardia Chemicals Ud. And others Vs. Union of India And others3; and Mahesh Chandra Vs. Regional Manager, U.P. Finandal Corporation And others . (9) Mr. V.V.S. Murthy, learned Dy. Advocate General, would contend that since the power of the legislature to enact the Municipal i. (1974)23cc393 2. AIR 2005 SC 3353 3. (2004) 4 SCC 311 4. (1993) 2 SCC 279 97 8 h^^rt Corporation Act is not disputed, the only thing to be seen is whether in enacting the impugned provjsion the Legislature has violated any of the provisions of Part-111 of the Constitution or other provisions of the Constitution. Mr. Murthy would contend that simply because one cannot file a suit without serving notice on the authorities as prescribed under Section 401 ofthe Act, it cannot be said that in urgent situation the parties are left with no legal remedies. It was submitted by Mr. Murthy that in urgent situation where a party seeks urgent interim order to protect his property or person, he can approach the High Court under Artide 226 of the Constitution of India for relief because the power of the High Court under Article 226 of the Constitution of India is always available to the aggrieved persons and in appropriate cases the High Court can entertain the writ petition filed even without exhausting the alternative statutory remedies. It was also contended by Mr. Murthy that simply because jn the amended provisions of Sub-section (2) of Sectjon 80 of the Code of Civil Procedure, the civil Court is empowered to permit the institution of the suit and grant appropriate interim order in urgency without serving the stetutory notice on the respondent authorities, it cannot be said that the Legislature ought to have incorporated similar provision in Section 401 of the Act also. Shri V.V.S. Murthy would altematively contend that an intending plaintiff has a remedy to institute a claim by issuing a notice and filing an application seeking temporary orders such as temporary injunction or temporary stay by invoking inherent power of the civil Court under Section 151 of the CPC enclosing a copy of the intended plaint to be registered as a suit upon the expiry of statutory period of notice. This submission of the Deputy Advocate General is based on a judgment of the Division Bench of Madhya Pradesh High Court in the case of 98 Ram Krishna Parashar Vs- Chironji Lal Vaishya and others5. It was also contended that simply because provisions have been enacted in sub- Section (3) ofSection 319 ofthe Municipalities Act exempting jnstitution of suit from embargo contained in sub-Section (1) thereof, it cannot be said that similar provisions should have been enacted in Section 401 of the Act also. Mr. Murthy would contend that the constitutional validity of a law made by a competent Legislature could be attacked only on two groun^s stated by the three-Judge Bench of the Supreme Court in the case of State of A.P. and others Vs. Mc.dowell & Co. and others6 and not on any other ground and thatjudgment holds the field as on today. (10) Mr. H.B. Agrawal, Sr. Advocate, appearing for the Raipur Municipal Corporation would adopt the argyments of Mr. Murthy. (11) Having heard the learned counsel for the parties, the only question that arises for our decision is whether the petitioners have shown any constitutional limitation or infirmity to invalidate the impugned provisions of Section 401 oftheAct. (12) The Constitution of India has distributed legislative power between the Centre and the States. The three lists of Seventh Schedule of the Constitution of India do this job. List-1 (Union List) enumerates the matters in respect of which the Parliament has the exclusjve power to make the laws; List-11 (State List) contains the legislative fields reserved for State Legislatures and List-111 (Concurrent List) lays down the items on which both the Pariiament and the State Legislatures can make the laws (with overriding effect over the law passed by the Parliament). Clause (2) 5.1977 JLJ 184 6. (1996)33cc 709 10 99 of Article 13 of the Constitution of India mandates that the State shall not make any law which takes away or abridges the rights conferred by Part- III of the Constitution and any law made in contravention of that clause shall, to the extent of the contravention, bevoid. Therefore, ii*becomes the duty of the Constitutional Court to declare a law enacted by the Parliament or State Legislature as unconstitutional when they have assumed to enact a law which is void, either for want of Constitutional power to enact it, or because the Constjtutional forms or conditions have not been observed, or where the law infringes the fundamental rights enshrined and guaranteed in Part-111 of the Constitution or any other substantive Constitutional provisions. (13) It needs to be noticed, at the threshold, that the presumption is always in favour of constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of constitutjonal principles and limits, whether it is a pre-constitutional or post-constitutional law. This position is well settled by the Judgments of the Apex Court in Chiranjit Lal Vs. Union of India7 and Madhu Limaye Vs. Sub-Divisional Magistrate8. In Cf Rao Bahadur VS. State of U.P.9, the Supreme Court held that the burden of providing all the facts which are requisite for the constitutional invalidity is upon the person who challenges the same. However, it is not to state that by reason of the presumption in considering the validity of the impugned law, the Court will be restricted to 7. (1950)SCR869 8. AIR 1971 SC 2486 9. (1953) SCR 1188 11 100 the pleadings only. The Court would be free to satisfy itself whether under any provision of the Constitution the impugned law can be sustajned having due regard to the circumstances in which such law was enacted, as held by the Supreme Court in Burarkar Coal Co. Vs. Union of India10 and Hamdard Dawakhana Vs. Union of India . For the same reason the Court should, if possible make such a progressive and/or narrow construction of the impugned statute as would sustain its constitutional validity, as opined by the Supreme Court in Sunil Vs. Delhi Admn.12. The Supreme Court in Naresh Vs. State of Maharashtra 3 has opined that the Court should not cover grounds or make observations on points not directly involved in the proceedings, thereby meaning thatunless a point arises for consideration and decision out of the pteadings of the parties, the Court shall not express its opinion on such point. It is well settled by the judgments of the Supreme Court in Diamond Sugar Mills Vs. State of U.P. , Navinchandra Vs. Commissioner of Income Tax15 and in Peerless Vs. R.B.I.18 that when the vires of an enactment is challenged, and there is any difficulty in ascertaining the limits of a Legislature's power, the difficulty must be resolved, so far as possible, in favour of the legislative body, putting the most liberal construction upon the relevant Jegislative entry so that it may have the widest amplitude, and looking at the substance pfthe Legislation. 10.AIR1961SC954 11.1960 (2) SCR 671 12.AIR1978SC1675 13.AIR1967SC1 14.AIR1962SC652 15.1955 (1)SCR 829 16.AIR1992SC1033 12 101 (14) In India, any law to be valid has to satisfy the requirements of constitutional limitations contained in the Constitution. The first such requirement is that it should be passed by the competent Legislature, that is to say, the subject matter of the Law should belong to that Legislature according to the distribution of legislative powers between the Union of India and the States. Secondly, the law should not infringe the fundamental rights guaranteed in Part-111 ofthe Constitution of India or any other substantive constitutional provisions. In State of A.P. Vs. Mc. Dowell and Co. (Supra), the Supreme Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent Legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned fcwo grounds. Essentially, the question of constitutionality is always a question of power. Shri B.P. Sharma, learned counsel for the petitioners, however, contended that the correctness of the judgment of three-Judge Bench in the case of State of Andhra Pradesh Vs. Mc. Dowell & Company (Supra) was doubted subsequently by another three- Judge Bench of the Supreme Court in the case of Subramanian Swamy Vs. Director, CBI & Others and therefore, the decision of the apex Court in Mc. Dowell & Company (Supra) is no longer good law. We have carefully read the judgment of the Supreme Court in the case of Subramanian Swamy Vs. Director, CBI & Others (Supra) and we should state that the submission of Shri B.P. Sharma is not correct. The 17. (2005) SCC317 102 13 Supreme Court having noticed the contentions and counter-contentions made by the learned counsel for the parties in that case in paras 4, 5 & 7 and without expressing any opinion on those contentions has referred the case to the Larger Bench. None of the observations made by Their Lordships of the Supreme Court in the said case would even remotely indicate that Their Lordships disagreed with the law declared in the case of Mc. Dowell & Company (Supra). (15) The Supreme Court in the case of Mc. Dowell & Company (Supra), in para 43 of the judgment, held thus: "A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutionat provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtajlment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invaljdation must fall within the four corners of the two grounds mentioned above. !D....oAhej...words^..say,..jf..an...enactment...is..chaH^^^ violative of Article 14, it can be struck down onlv if it is found that^Js violative pf the equatity clause/equal protection 14 103 clause enshrjned therein. Similarly, jf an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19 (1) it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can bg>....struck..down...by..lyst..saymjg...ihat....rt...M.Arbjtrar^*.*..or ynreasonabJe;....Some..or.other.constitytional..M^ be found before Jnvalidatina an Act. An enactment cannot be_stry.ck down on the around that court thinks it unjustified._" (emphasis supplied) (16) Legislature and Judiciary are co-ordinate organs of the State of equal dignity and status under the constitutional scheme. It is permissible for the Constitutional Courts to declare legislative enactments unconstitutional and void in some cases, but, not because the judicial power is superior in degree or dignity to the legislative. The Court while declaring the law as invalid or unconstitutional is only enforcing the legislative will and the limite imposed by the Constitution on the law- making bodies. No Court can declare a statute unconstitutional and void, solely on the ground of unjust and harsh provisions, or because it is supposed to violate some natural, social, political or economic rights of the citizen, unless it can be shown that such injustice is, Jnfact, prohibited or such rights guaranteed or protected by the Constitution. Strictly speaking, the Courts are not guardians of all kinds of rights of the people of the State, unless those rights are secured and protected by some constitutional provision which comes within the judicial cognizance. (17) In 'A Treatise on the Constitutional Umitations by Thomas M.Cooley', jt is stated that the Court cannot run a race of opinions upon points of right, reason and expediency with the law -making 104 15 power, and that any legislative act which does not encroach upon the power apportioned to the other organs of the State, being prima facie valid, must be enforced, unless restrictions upon the legislative power can be pointed out in the Constitution