Ii'-

108'7

STATE OF GUJARAT A v.

PATEL BAVA KARSAN & ORS.

February 22, 1980

[S. MURTAZA FAZAL ALI, P, S, KAILASAM AND AD. KosHAL, JJ.] B

Constitution of India 1950, Artich'.~ 14 and 19 & Gujarat Ji, funicipality Act Sections 233 llltd 236-Statute empowering eviction from municipal pre1nises-

An appeal to go1ernment against the order of eviction provided-Constitutional validity of prorisfons.

Section 233 of the Gujarat Municipality Act 'empowered the Chief Officer of the iunicip[l.fity to evict persons from municipal premises.

Respondent No. 1 in the appeals was required by a notice in pur8uance uf the provisions of section 233(1) of the Act to hand OVer possession of a piece of land to the J\iunicipality on the ground that he was in unauthorised occupa~ tion thereof\ The respondent assailed the notice in proceedings under Ar_tic.l'e 226 of the Constitution, and the only point in controversy was '\vhether or not section 233 of ihe Act under which the proceedings for eviction were taken wa~

oonstitutional!y v&lid.

The High Court in view of a previous decision of that court held th<1t section 233 being violative of Article 14 of the Constitution wa~ ultra vires.

In th~ appeals to this Court it was contended on behalf of th'e respondents :

(1) that the Ahmedabad Municipal Corporation's case was not correctly decided because though in Chhaganlal Maganlal's case there was a right to appe::il t0 a Civi1 Court and the right to take evidence was given by the Statute concerned, in the former. the relevant statute contained no such provisions, and (2) that the provisions of the Gujarat Act were violative of Article 19 of the Constitution.

Allowing the appeals,

HEtD: (l)(i) The judgment of the High Court is set aside a.nd the order F of the Chief Officer dated 9-3-66 affirmed, [l090G]

(ii) Jn the case of Northern Indian Catererl Private Limited v.

State of Punjab and others. [1967] 3 SCR, 399, this Court while considering a statute \vhos'e provisions \Vere almost similar to those of section 233 of the Gujarat Act took the same vie\V .as the High Court and struck down the Statute. This decision

held the field until it \\'as ultimately overruled in the case of ChhaRanlal Magan- G la/, [1975] 1 SCR l. In a later decision in Ahmedabad Municipal (,'orporatiun

and others v. Ra1nan Lal Govi11d Ram am! others, [1975] 3 SCR 935, this Court while fo11owing the case of Chhaganlal Magan/al upheld a provision of the

Bomb&y Provincial Municipal Corporation (Gujarat Amendment) Act, 1963 \Vhich was in pari mnteria \Vith section 233 of the Gujnraf Act.

[1090A-C]

(iii) Once the property belonging to the Govrnment or semi-Government bodies is held to fall within a particular class and therefore a reasonable classification, \Vhether a civil rem'edy is given or not would not be violative of Article

14 of the Constitution, [10900-F]

15-138SCI/80

1088 SUPREME COURT IiEPORTS

[1980) 2 S.C.R ..

(iv) Under St:ction 236, the respondents have a right to file an appeal to the Government against the impugned order of eviction. rhis section also contains a specific p:-ovision under v.hich the delay can be condoned if sufficient cau1e is shown to the sutisfaction of the appellate authority nan1ely th'e Governnt:!nt.

It will be open to the respondents to file an appeal which \v'ill be di.;; posed ot by the Government in accordance v1ith lrnv.

[10900-H, 1091A]

(2) The contention that the provisions of the Gujarat Act v.rere violative of .Article 19 of the Constitution was expressly considered and negatived in Af1111edabad .\1unicipa/ Corpnro!ion & ors. v. Rl1111anlal Govindara1n & Ors.

[1090E-FJ

CIVJL APPELLATE JURISDICTJON : Civil Appeal Nos. 1596 and 1224 of 1970.

From the Judgment and Order dated 31-1-1970 of the Gujarat High Court in SCA No. 438/66.

T. U. Mehta, D. N. Mishra and K. J. John for the appellant

CA 1224/70 & RR. 1596/70. .

S. C. Patel and M. N. Shrvfj for the Appellant CA No. 1596/70.

D M. K. Ramamurthi and Vineet Kumar for Respondent No. 1 CA

l'lo. 1224/70.

S. C. Patel and M. N. Shroff for Respondent No. 2 CA No. 1224/ 70.

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 H 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 ,

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 mumc1pality, 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

l'l

SUPREME COURT REPORTS [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.


(3) [1975] 3. S.C.R. 935.

. -

rity namely the Government. In these circumstances, it will be open A 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.