# [1975] 3 S.C.R. 935

- **Citation:** [1975] 3 S.C.R. 935
- **Court:** Supreme Court of India
- **Decided:** 1975-03-14
- **Case number:** Civil Appeals Nos. 81 to 103 of 1970
- **Bench:** V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1975-3-s-c-r-935-6426
- **Pages:** 7

## Headnote

Constitution articles 14 and 19-Act empowering the Municipal Commissioner
to determine whether a person is in unauthorised occupation of Municipal premises-Whether
unreaso1111ble or contrary to prindples of natural justiceChoice to adoPt remedies one of which is more drastic whether violates Article
14-Provision providing appeal to State Govt. and not to ordinary courts whether unreasonable. Bombay Provincial Municipal Corporation (Gujarat Amendmelll) Act 1963-Validity ofThe respondent~ filed Writ Petitions in the High Court of Gujarat challenging the validity of section 437A of the Bombay Provincial Municipal Corporation
• (Gujarat Amendment) Act, 1963.
Section 437A(l) of the Act speaks of the
order of eviction. In short, it states that if the Commissioner is satisfied that
the person authorised to occupy any premises belonging to the Corporation as a
tenant or otherwise has not paid any rent lawfully due from him in respect of
such premises for a period of more than 2 months or has sublet without the permission of the Corporation the whole or any part of the premises or has otherwise acted in contravention of any of the terms express or implied unde~-which
he is authorised to occupy such premises or that any person is .in unauthorised
occupation or any municipal premises the Commissioner may notwithstanding
anything contained in an.v law for the time being in force by notice order that
such a person shall vacate them within one month of· the date of service of the
notice.
Section 43 7 A (2) speaks of the service of notice before the order is
passed.
Section 4370 speaks
of appeals to the State Government.
Section
437 of the Act states that the provisions contained in section 437 are in addition to those contained in sections 60 and 438 of the Act.
The Deputy Municipal Commissioner upon whom the Municipal Commissioner
delegated powers under section 437 A served notices upon the respondents to show
cause why they should not be evicted. The respondents appeared at the enquiry. -
Thereafter an order was pa·ssed directing the respondents to vacate within one
month of the date of the notice. The respondents challenged the. said notices in
the High Court ·of Gujarat by tiling Petitions under Article 226 of Constiti1tion.
The High Court held that there is a, valid basi& of differcntia between occupiers
of municipal premises and those of other premises and that there is a rational
nexus between the basis of the classification and the object of the legislation.
1he High Court held that sections 437A, 437B and 437F of the Act in so far.
as they relate to an order made under section 437 A of the Act are' ultri;:, vires
Article J9(1)(f) of the Constitution and section 437A(l) and
(2)
is ultra
rires Article 14 of the Constitution. The High Court, however, held that section
437 A in so far as it empowers the Municipal Commissioner to make an order of
e\'iction in cases of persons who are in unauthorised occupation of any municipal
premises is violative of Article 14 on the ground that it is left to the arbitrary am'.
unguided discretion of the Municipal Commissioner to adopt the drastic and sum------
ma~ry remedy provided under section 43 7 A ( 1) or to adopt the ordinary remedy
of suit. The High Court upheld the contention of the respondents that the machinery provided for evicti?n in section .437 A(!) is unreasonabl"'. on the grou!l<l
that the Municipal Commissioner who 1s constttuted the anthonty to determme
whether the condition of liability as set out in clauses (a) and (b) of section
437A(l) exists. is the Chief Executive Officer of the Corporation which is the
owner of the premises. The Municipal Commissioner will be both a party. and a
Judge. The High Court further held that many questions of law would have to
he decided and the Municipal Commissioner who is the Executive Officer would
he hardly equipped to decide such questions of law.
Allowing1 the appeal,
936
SUPREME COURT· REPORTS
[19751 3 s.c.R.
HELD : In view of the decision

## Text

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AHMEDABAD MUNICIPAL CORPORATION & ORS.
)I,
RAMANLAL GOVINDRAM & ORS.
March 14, 1975
(A. N. R,AY, C.J., AND V. R. KRISHNA IYER, J.]
Constitution articles 14 and 19-Act empowering the Municipal Commissioner
to determine whether a person is in unauthorised occupation of Municipal premises-Whether
unreaso1111ble or contrary to prindples of natural justiceChoice to adoPt remedies one of which is more drastic whether violates Article
14-Provision providing appeal to State Govt. and not to ordinary courts whether unreasonable. Bombay Provincial Municipal Corporation (Gujarat Amendmelll) Act 1963-Validity ofThe respondent~ filed Writ Petitions in the High Court of Gujarat challenging the validity of section 437A of the Bombay Provincial Municipal Corporation
• (Gujarat Amendment) Act, 1963.
Section 437A(l) of the Act speaks of the
order of eviction. In short, it states that if the Commissioner is satisfied that
the person authorised to occupy any premises belonging to the Corporation as a
tenant or otherwise has not paid any rent lawfully due from him in respect of
such premises for a period of more than 2 months or has sublet without the permission of the Corporation the whole or any part of the premises or has otherwise acted in contravention of any of the terms express or implied unde~-which
he is authorised to occupy such premises or that any person is .in unauthorised
occupation or any municipal premises the Commissioner may notwithstanding
anything contained in an.v law for the time being in force by notice order that
such a person shall vacate them within one month of· the date of service of the
notice.
Section 43 7 A (2) speaks of the service of notice before the order is
passed.
Section 4370 speaks
of appeals to the State Government.
Section
437 of the Act states that the provisions contained in section 437 are in addition to those contained in sections 60 and 438 of the Act.
The Deputy Municipal Commissioner upon whom the Municipal Commissioner
delegated powers under section 437 A served notices upon the respondents to show
cause why they should not be evicted. The respondents appeared at the enquiry. -
Thereafter an order was pa·ssed directing the respondents to vacate within one
month of the date of the notice. The respondents challenged the. said notices in
the High Court ·of Gujarat by tiling Petitions under Article 226 of Constiti1tion.
The High Court held that there is a, valid basi& of differcntia between occupiers
of municipal premises and those of other premises and that there is a rational
nexus between the basis of the classification and the object of the legislation.
1he High Court held that sections 437A, 437B and 437F of the Act in so far.
as they relate to an order made under section 437 A of the Act are' ultri;:, vires
Article J9(1)(f) of the Constitution and section 437A(l) and
(2)
is ultra
rires Article 14 of the Constitution. The High Court, however, held that section
437 A in so far as it empowers the Municipal Commissioner to make an order of
e\'iction in cases of persons who are in unauthorised occupation of any municipal
premises is violative of Article 14 on the ground that it is left to the arbitrary am'.
unguided discretion of the Municipal Commissioner to adopt the drastic and sum------
ma~ry remedy provided under section 43 7 A ( 1) or to adopt the ordinary remedy
of suit. The High Court upheld the contention of the respondents that the machinery provided for evicti?n in section .437 A(!) is unreasonabl"'. on the grou!l<l
that the Municipal Commissioner who 1s constttuted the anthonty to determme
whether the condition of liability as set out in clauses (a) and (b) of section
437A(l) exists. is the Chief Executive Officer of the Corporation which is the
owner of the premises. The Municipal Commissioner will be both a party. and a
Judge. The High Court further held that many questions of law would have to
he decided and the Municipal Commissioner who is the Executive Officer would
he hardly equipped to decide such questions of law.
Allowing1 the appeal,
936
SUPREME COURT· REPORTS
[19751 3 s.c.R.
HELD : In view of the decision of this Court in Magan/al Chhagga11/al Private Limited" the judgment in Northern India Caterers case does not hold the
field. On the ruling of this Court in Magan/al Chhagan/al case the conclusion
of the High Court that section 437A offends Article 14 on the ground that there
is no dear guidance on the Municipal Commissioner to take proceedings is set
aside. The conclusion of the High Court that provision of section 437A(l) is
unreasonable because the Municipal Commissioner is in substance a party to
the dispute is unacceptable. He is the highest officer of the Corporation. There
is no personal interest of the Municipal Corporation in evicting the respondents.
The Corporation represents public interest.
The ~;unicipal Commissioner acts
in public duty in aid of public interest. If the Municipal Commissioner wrongly
exercises his· power the action will be corrected in appeal. The contention that
the provision of section 437 A imposes unreasonable restrictions on the right of
the respondents under Article 19(1) since the Municipal Commissioner has no
power to summon witnesses and the State Government has Jo hear tlie appeal
and not the ordinary courts was negatived. As long as the persons to be evicted
is given the opportunity to produce evidence there is no element of unreasonableness. There are many statutes which provide appeals to the State and not to a
court of law, like, Sea Customs Act, Mining Act etc. The State Government
will employ persons who are equipped to deal with such matters and appeal to •
the State Government will not indicate unreasonableness. If there is any abuse
of justice or miscarriage of justice or violation of the principles of natural\ justice
the courts are always open to redress such grievances. [940 F; G; 941 B-E] ·
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 81 to 103 of
1970.
.
From the Judgment and Order dated the 16/19/20th November,
1968 of the Gujarat High Court in Special Civil Application Nos. 1124,
1480, 154 of 1966, 81, 82, 472, 473, 896, 1113,· 1567 to 1574, 1578
of 1967, and 489 to 493 of 1968.
I. N. Shroff, for the appellants.
Vineet Kumar, for respondents in 81, 83 and 89 and respondent
1 in 85/70.
M. K. Ramamurthy, C. R. Somasekharan and Vineet Kumar, for
respondents in : 90, 93-101 & 103 of 1970.
M. C. Bhandare, M. N. Shroff and S. P. Nayar, for respondent 2 in
85/70.
The Judgment of the Court was delivered by
RAY, C.J.-These 23 appeals by certificate challenge the validity
of section 43 7 A of the Bombay Provincial Municipal Corporation
(Gujarat Amendment) Act, 1963 hereinafter referred to as the Act.
The High Court held that sections 437A, 437-D, 437F of t'he Act
in so far as they relate to an order made under section 437-A of the Act
are ultra 1·ires Article 19(1 )(f) of the Constitution and section 437-A
(1) and (2) is ultra vires Article 14.
Section 437-A(l) of the Act
speaks of the order of eviction. Section 437A(2) of the Act speaks of
service of notice before the order is passed. Section 437D of the Act
speaks of appeals.
Section 437£ of the Act bars jurisdiction of the
Court to question these orders.
Section 43 7F of the Act states that
these provisions are in addition to Sections 60 and 438 of the Act.
Section 437-A(I) of t'he Act in short states that if the Commissioner
is satisfied (a) that the person authorised to occupy any premises
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AHMEDABAD MUNICIPjAL CORP. V. RAMANLAL (Ray, C.J.)
937
belonging to the Corporation as a tenant or otherwise has, whether
before or after the commencement of the Bombay Provincial Municipal
Corporation (Gujarat Amendment) Act, 1963 (i) not paid any rent
lawfully due from him in respect of such premises for a period of more
than two months, or (ii) sublet, without the permission of the Corporation the whole or any part of such premises, 0r (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 occupatior. of any Municipal premises, the Commissioner may,
notwithstanding anything contained in any law for the time being in
force by notice served as mentioned in the section order that such a person shall vacate them within one mol)th of the date of the service of the
notice.
Sub-section (2) of section 437A of the Act further provides that
before an order under sub-section ( 1) is made against any person the ·
Commissioner shall inform the person by notice in writing of the grounds
for which' the proposed order is to be 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 maqe, within a period
to be specified in s~ch notice.
The other provisions in section 437A of the Act are these.
The
Commissioner may before an order is made under sub-section (1) grant
an extension of the period as to payment and recovery of the amount
claimed. If any person refuses or fails to comply with an order made
.the -Commissioner may evict that person from and take possession of,
the premises and may for that purpose use such force as may be necessary. If a person, who has been ordered to vacate any premises under
sub-clause (i) or (iii) of clause (a) of sub-section (l) within one month
of the date of service of the notice or such longer time as the Commissioner may allow, pays to the Corporation the rent in arrears or carries
out or otherwise complies wi1lh the terms contravened by him to the
satisfaction of the Commissicfaer, the Commissioner shall in lieu of
evicting such person under sub-section (3) cancel its order made under
sub-section ( 1) and thereupon such person shall hold the premises on
the same terms on which he held them immediately before such notice
was served on him.
The expression 'unauthorised occupation' is explained in section
437A of the Act in relation to any person authorised to occupy any
Municipal premises to include the continuance in occupation by him or
by any person claiming through or under him of the premises after the
authority under which he was allowed to occupy the premises has been .
duly determined.
Section -437-D speaks of appeal against any order of the Commissioner under section 437-A or section 437-B.
Section 437B speaks of
power to recover rent or damages as arrears of land revenue.
Appeals
are preferred to the State Government.
Section 437-E ~ars the jurisdiction of civil courts in respect of orders made by tlhe State Government
or the Commiss.ioner.
938
SUPREME COURT REPORTS
ll 97 51 3 s.c.R.
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.
The respondents thereupon filed in the High Court of Gujarat petitions under Article 226 of the Constitution praying for quashing th.e
orders issued under section 437-A.
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The main grounds of challenge were these.
First, section 437-A
C
violates Article 14.
It makes unjust discrimination between occupants
of municipal premises and occupant~ of non-municipal premises. It
also discriminates r.mongst 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 tlrastic procedure.
D
Even if the remedy provided in section 437-A for cases falling within
clause (a) of sub-se1:tion (l) 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
th'.~ 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)
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inter se.
It is open to the Municipal Commissioner at his will to proceed against some and not to proceed against others.
Second, section 437-A imposes unreasonable restrictions on the
occupant's 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
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that clnuse 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.
Third,. the orders of'evi:::tion contained in the notices are bad as
reasons are not furnished along with the orders.
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. 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.
The High Court further held .nat the discretion which is conferred
oq the Municipal Commissioner · 1 the matter of enforcement of liability
falls' equally on all within the ~. ;cified class in section 437-A(I), and,
therefore, there is no discrimi• tion.
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AHMEDABAD MUNICIPf'\L CORP. V. RAMANLAL (Ray, C.J.)
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..
The High Court, however, held that section 437-A in sofar as it
empowers the Municipal Commissioner to make an order of eviction
in cases falling within section 437 A(I) (b) viz., that any person :.S in
unauthorised occupation of any municipal 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.
' The High Court said ·that the provisions in section 437-A(l) (a)
of the Act create a new liability and. a special and particular. remedy
which is an exclusive remedy.
'fhe High Court concluded that the
liability to eviction under section 437-A(l) (a) of the Act could not be
euforced 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 437i<\(1) (b) was therefore no't exclusive
but only supplemental.
Relying on the decision of this Court in
Northern India Caterers Private Ltd. v. State of Punjab & Anr.
(1967) 3 S.C.R. 399 the High Court held that section 437A(l) (b}
therefore violated Article 14.
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(l).(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.
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 tci determine w'hether conditions.
of liability as set out in clauses (a) and (b) of section 437-A(l) exist
is the Chief Executive Officer o_f the Corporation which is the owner of
the premises.
The functions of the Municipal Commissioner are such
that in reality an_c:j substa.nce 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
Commis~.ioner
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 Commiss1oner 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 :eport 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).
940
SUPREME COURT REPORTS
fl975J 3 S.C.R.
•
The High Court also held that the notice embodying the order of
eviction must furnish the reasons to the affected person"
A
111e decision of this Court in Hari Singh v. Military Estate Officer
(1973~ 1 S.C.R. 515 is that where there is only one procedure for
ejectment of persons in public premises there is no vice of discrimination.
There is a bar of jurisdiction .of courts of law in such cases. It
is, therefore, only one procedure for these cases of eviction.
B
The majority decision of this Court in Magan/al Chhagganlal (P)
Ltd.
v.
Municipal Corporation of Greater Bombay & Ors. (1974)
2 S.C.C. 402 is that where the statute itself covers bnly a class of cases,
the statute will not be bad on that ground.
The feature that such cases
are chosen by the statute to be tried· under the speCial procedure laid
. down there will not affect the validity of the statute. The contention
c
that the mere wailability of two procedures will vitiate one of them i.e.
the special- procedure is. not supported by reason
01
authority. In
Magan/al Chhagganlal's case (supra) this Court held that the fact
that the legislature considered that the ordinary procedure is inefficient
or ineffective in evicting unauthorised occupants of Government and
Corporation property and provided a special procedure therefor is a
clear guidance for the authorities charged with the duty of evicting unD
authorised occupants.
The correct law is now laid down in Magan/al
Chhagganlal's case (supra) and the view of this Court in the
Northern India Caterers ca~e (supra) does not hold the field. In
Magan/al Chhaggan/al's case (supra) it has been held that a statute
which deals with premises belonging to the Corporation and the Government and lays down a special speedy procedure in the matter of evicting
unauthorised persons occupying them is a sufficient reason to support
E
such special procedure. The policy and the purpose of the Act make
it clear that the legislature intended to make the statute applicable to a
sper,ial class and provid1: a speedy method of recovering possession of
these.properties.
On the ruling of this Court in
Maganlal
Chhaggariil'al's case
(supra) the conclusion of the High Court that section 437A offends
F
Article 14 on the ground 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
Magan/al Chhagganlal's case (,supra) did not support the conclusion
of the High Court on the infraction of Article 14.
The conclusion of the High Court that the . provision in section
437A(l) is unreasonable because the Municipal Commissioner is in
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substance a party to the dispute is unacceptable.
The conferment of
power on the Municipal Commis_sioner as an Administrative Officer to
take proceedings for eviction cannot be struck down as unreasonable
,1n the ground that he is a judge in his own cause.
He is the highest
oflicer of the Corporation.
The Corporation acts through these offices.
There is no personal interest of the Municipal Corporation in evicting
these persons.
The Corporation represents public interest.
The
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Municipal Commissioner acts in public duty in aid of public interest.
·1 he Municip::d Commissioner will apply his mind to the facts and cir-
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AHMEDABAD MUNICIP1AL GORP. v. RAMANLAL (Ra~, C.J.)
941
cumstances 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 final contention on behalf of the respondents is that the provisions contained in section 437-A of the Act which provide special procedure in respect of eviction of unauthorised persons imposes unreasonaable restrictions on the right of the respondents guaranteed under Article
l 9 (1) inasmuch as the restrictions contemplated therein by way of pro-
~edure for eviction are excessive. Excessiveness is contended to consist in the absence of power of the Municipal Commissioner to summon
witnesses as in a civil court and the right of appeal being to the State
Government instead of ordinary courts.
Counsel on behalf of the respondents said that the two salutary safeguards, namely, providing an
appeal to a court of law and conferring power on the Commissioner to
summon .witnesses were found
in Magan/al Chhagganlal's . case
(supra) and were absent in the present case. It was, therefore, said
that the present case is distrnguishoable.
1ne provisions in the present case show that before an order is made
a5ainst any person under section 437A(l) 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 person to be evicted is given the opportunity to produce evidence,
there is no element of unreasonableness.
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 Govefnment 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.
The orders which were passed gave reasons. '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.
For these reasons we hold that the provisions contained in sections
437A, 437D, 437E and 437F are not unconstitutional. The appeals
are accepted and the judgment of the High Court is set aside. The
appellant will get general costs and one hearing fee.
'
P.H.P.
Appeals allowed.