Case: Ahmedabad Municipal Corporation &amp; Others Vs. Ramanlal Govindram etc

8. The Deputy Municipal Commissioner upon whom the Municipal Commissioner delegated powers under Section 437-A served notices under Section 437-A upon the respondents , to show cause why they should not be evicted. The respondents appeared at the enquiry held by the appellant No. 3. The respondents gave their statements in reply. Appellant No. 3 being satisfied that the respondents were in unauthorised occupation of the premises served notices on the respondents under Section 437-A ordering the respondents to vacate within one month of the date of the notices .9. The respondents thereupon filed in the High Court of Gujarat petitions under Article 226 of the Constitution praying for quashing the orders issued under Section 437-A:10. The main grounds of challenge were these. First, Section 437-A violates Article 14. It makes unjust discrimination between occupants of municipal premises and occupants of non-municipal premises. It also discriminates amongst those in occupation of municipal premises inter se because it leaves it open to the Municipal Commissioner at his own will to adopt either the ordinary remedy of civil suit or the summary remedy under the Section. There is no guiding policy or principle in the Section to choose the application of the drastic procedure. Even if the remedy provided in Section 437-A for cases falling within clause (a) of sub-section (1) is exclusive 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 selection of occupants of municipal premises who should be proceeded against under clause (a) of sub-section (1) 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 will to proceed against some and not to proceed against others.11. Second, Section 437-A imposes unreasonable restrictions on the occupants fundamental right to hold property under Article 19 (1) (f) inasmuch as 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 the machinery provided in the Section for determining the liability to eviction under both clauses of sub-section (1) is unreasonable.12. Third, the orders of eviction contained in the notices are bad as reasons are not ,furnished along with the orders.13. The High Court held 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.14. The High Court further held that the discretion which is conferred on the Municipal Commissioner in the matter of enforcement of liability falls equally on all within the specified class in Section 437-A (I), and, therefore, there is no discrimination.The High Court, however, held that Section 437-A in so far as it empowers the Municipal Commissioner to make an order of eviction in cases falling within Section 437A (I) (b) viz., that any person is in unauthorised occupation of any municipa1 premises is violative of Article 14.The reasoning given by the, High Court is that it is left to the arbitrary and unguided discretion of the Municipal commissioner to adopt the drastic and summary remedy provided under, Section 437-A (1) or to adopt the ordinary remedy of suit.16. The High Court said that the provisions in section 437-A (1) (a) of the Act create a new liability and a special and particular remedy which is an exclusive remedy. The High Court concluded that the liability to eviction under Section 437-A (1) (a) of the Act could not be enforced by ordinary suit. The High Court held that the liability to eviction under Section 437-A (1) (b) of the Act was an existing liability which could be enforced by suit. The High Court held that the liability to eviction under Section 437-A (1) (b) was therefore not exclusive but only supplemental. Relying on the decision of this Court in Northern India Caterers Private Ltd, v. State of Punjab, (1967) 3 SCR 399   - (AIR 1967 SC 1581  ) the High Court held that Section 437-A (1) ( b) therefore violated Article 14.17. The High Court did not accept the contention that Section 437-A violated Article 19 (1) (f) that there was no objective existence of conditions specified for liability to be evicted under Section 437-A (1) (a). The determination of the question whether these conditions exist or not is entrusted to the Municipal Commissioner who is constituted the authority for determining the liability to eviction. If the determination by the Commissioner is wrong, it can be challenged in appeal.18. The High Court upheld the contention of the tenants that the machinery provided for eviction in Section 437-A (1) is unreasonable. The reasons given by the High Court are that the Municipal Commissioner who is constituted the authority to determine whether conditions of liability as set out in clauses (a) and (b) of Section 437-A (1) exist is the Chief Executive Officer of the Corporation which is the owner of the premises. The functions of the Municipal Commissioner are such that in reality and substance the Municipal Commissioner is a party to the dispute. The Corporation is a party to the, dispute, because the premises belong to the Corporation. The Municipal Commissioner who is constituted the authority to determine whether the tenant is liable to be evicted or not is the repository of the entire executive power of the Corporation, and, therefore, the Municipal Commissioner who is an authority in taking part in instituting the proceedings against a party would be disqualified to act as an adjudicator in the proceedings for he would then be in substance both judge and party. The High Court further held that many questions of law would have to be decided and the Municipal Commissioner who is the executive officer would be hardly equipped to decide such questions of law. The hearing of appeal by the State shows that the State Government is given the power to call for a report from the Municipal Commissioner. There is no provision in the statute requiring the State Government to furnish a copy of the report to the tenant. Therefore, the provisions are violative of Article 19 (1) (f).19. The High Court also held that the notice embodying the order of eviction must furnish the reasons to the affected person.

Court's reasoning:
22. On the ruling of this Court in Maganlal Chhagganlals case (1974) 2 SCC 402   = (AIR 1974 SC 2009  ) (supra) the conclusion of the High Court that Section 437A,offends Article 14 on the around that there is no clear guidance on the Municipal Commissioner to take proceedings is set aside. It may also be stated here that the respondents because of the decision of this Court in Maganlal Chhagganlals case (supra) did not support the conclusion of the High Court on the infraction of Article 14.23. The conclusion of the High Court that the provision in Section 437 A (I) is unreasonable because the Municipal Commissioner is in substance a party to the dispute is unacceptable. The conferment of power on the Municipal Commissioner as an Administrative Officer to take proceeding for eviction cannot be down as unreasonable on the struck ground that he is a judge in his own cause. He is the highest officer of the Corporation. The Corporation acts through these officers. There is no personal interest of the Municipal Commissioner in evicting these persons. The Corporation represents public interest. The Municipal Commissioner acts in aid of public duty in aid of public interest. The Municipal Commissioner will apply his mind to the facts and circumstances of a given case as to whether there should be an order for eviction. If the Municipal Commissioner will wrongly exercise his power the action will be corrected in appeal.The provisions in the sent case show that before an order is made against any person under Section 437A (1) the person concerned is to be given a reasonable opportunity to tender an explanation and to produce evidence. The absence of a special provision to compel summoning of witnesses does not make the Section unreasonable. As long as the son to be evicted is given the opportunity to produce evidence, there no element of unreasonableness.26.The fact that an appeal is provided to the State and not to a court of law also does not make the provision unreasonable. In many statutes like the Sea Customs Act, the Mining Act appeals are provided to the State Government. This is because of special character of things forming subject matter of these statutes. The State Government will employ persons who are equipped to deal with such matters. An appeal to the State Government will not indicate unreasonableness. If there is any abuse of justice or miscarriage of justice or violation of principles of natural justice the courts are always open to redress such grievances.27. The orders which were passed gave reason. The orders were not served. That should not happen. That indicates inefficiency. There is no infirmity in the orders. The authorities should serve -orders giving reasons for making the order.28. For these reasons we hold that the provisions contained in Sections 437A, 437D, 437E and 437F are not unconstitutional.