# MAGANLAL CHHAGGANLAL (P) LTD v. MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS

- **Citation:** [1975] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1974-04-11
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maganlal-chhagganlal-p-ltd-v-municipal-corporation-of-greater-bombay-ors-6329
- **Pages:** 56

## Headnote

•
A
MAGANLAL CHHAGGANLAL (P) LTD.
v.
MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS .
April 11, 1974
B
rA. N. RAY, C.J., D. G. PALEKAR, H. R. KHANNA, K. K. MATHEW,
A. ALAGIRISWAMI, P. N. BHAGWATI AND V. R. KRISHNA IYER, JJ.J
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Consrit"tion of Jndfa, 1950, A.rt. 14-Provision in the Bon1bay Municipal
Corporation Act, 1888 and the Bombay Goi•er11nlefll Pren1iscs (Eviction) Act,
1955, for a .vpeedy procedure of eviction in addition to procedure in a civil suitStn!cial procedure, if discrbninatory.
Chapter VA was introduced in the Bombay Municipal Corporation Act, 1888,
bv Maharashtra Act 14 of 1961. It consists of ss. 105A to 105H.
Se~tion Hl5A
(d) defines unauthorised occupation. Under s. 1058 (p) tho Commi,sioner, by
notice served on the person in unauthorised occupation could order him to vacate
within one month of the date of service of the notice. on any of the grounds
nicntioned in clau:ies (a), (b) and (c) of that sub-section.
Vader sub-s. (2),
before making such an order, the Commissioner shall issue a notice to the
pi:;rs:ons concerned specifying the grounds on which the order of eviction
j5
proposed to be made and to show cause against the proposed q-rder of eviction.
The person concerned can file a written statement, produce docun1ents and is
entitled to appear b:fore the Commissioner by a lawyer. If, after hearing the
person concerned the Commissioner is satisfied that the case falls under clauses
(a), t b) or ( c} of sub-s. (I) he is~n1es a notice of eviction, and, if the person
.'>O ordered to vacate fails to comply with the order he, as well as any other
person whl) obstructs eviction, can be evicted by force under eub-s. (3). Under
:;ub-s. (6) the Commissioner may, in certain cases, in lieu of evicting the person
cancel the· order under eub-s. (1) and such person may continue in oc..:upation.
Under s. 105E tho Commissioner, for the purpose of holding an~· inquiry under
the Act. has the siimo powers as are vested in a civil court under thei C.P.C. in
(e.;;pect of. (i) summoning and enforcing the attendance of any person
and
examining him on oath, (ii) requiring the discovery and production of docurnents. and (iii) any other matter which may be prescribed by regulations under
s. f05H.
Under s. 105F everv order of eviction is appealable to the Principal
Judge of the Citv Civil Court of Bombay or su1;h other judicial officer of not
less than 10 years standing as tho Principal Judge may designate. The appellate
Judge. is given power to stay the enforcement of the order of Conunissioner on
conditions and is required to dispooe of the appeal expeditiously.
Section
105G provides that, subject to the result of the appeal, every order of the
Co111n1iss.ioner or of the aopellate Judge is fina1.
Under s. 105H regulations may
he made. inter alia, in respect of holding of inquiries and the procedure to be
followed in appeals.
The Bon1bay Government Premise!'\ (Eviction) Act, 1955, also lays down
S1Jectal procedure for eviction of persoru from government premises which
i~
1nore or less similar to Chapter V of the Municipal Act.
The power to order
the eviction is given to an authority not lower in rank than a Deputy Collector
or an Executive Engineer, Section 8A of the Act provides that no civil conrt
~hall have jurisdiction to entertain any suit or proceedings in respect of eviction.
The-re is no such provision in the Municipal Act but the proceedings in
the
in:ltant cases arose before s. 8A was introduced in the 1955-Act by Maharashtra
Act of 1969.
The constitutional validity of Chapter VA of the Municipal Act and the provisions of the Government Premises (Eviction) Act, as it stood prio1·
to
its
amendment by Maharaahtra Act of 1969, was challenged on the ground that they
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contravene Art. 14. on the basis of the decision of thi3 Court in Northern !tr.dia
Ca/ems [1967] 3 S.C.R. 399, wherein it was held, by tho majority of judges,
that amongst occupants of public premises inter se there was discrimination in
as much as the

## Text

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•
A
MAGANLAL CHHAGGANLAL (P) LTD.
v.
MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS .
April 11, 1974
B
rA. N. RAY, C.J., D. G. PALEKAR, H. R. KHANNA, K. K. MATHEW,
A. ALAGIRISWAMI, P. N. BHAGWATI AND V. R. KRISHNA IYER, JJ.J
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Consrit"tion of Jndfa, 1950, A.rt. 14-Provision in the Bon1bay Municipal
Corporation Act, 1888 and the Bombay Goi•er11nlefll Pren1iscs (Eviction) Act,
1955, for a .vpeedy procedure of eviction in addition to procedure in a civil suitStn!cial procedure, if discrbninatory.
Chapter VA was introduced in the Bombay Municipal Corporation Act, 1888,
bv Maharashtra Act 14 of 1961. It consists of ss. 105A to 105H.
Se~tion Hl5A
(d) defines unauthorised occupation. Under s. 1058 (p) tho Commi,sioner, by
notice served on the person in unauthorised occupation could order him to vacate
within one month of the date of service of the notice. on any of the grounds
nicntioned in clau:ies (a), (b) and (c) of that sub-section.
Vader sub-s. (2),
before making such an order, the Commissioner shall issue a notice to the
pi:;rs:ons concerned specifying the grounds on which the order of eviction
j5
proposed to be made and to show cause against the proposed q-rder of eviction.
The person concerned can file a written statement, produce docun1ents and is
entitled to appear b:fore the Commissioner by a lawyer. If, after hearing the
person concerned the Commissioner is satisfied that the case falls under clauses
(a), t b) or ( c} of sub-s. (I) he is~n1es a notice of eviction, and, if the person
.'>O ordered to vacate fails to comply with the order he, as well as any other
person whl) obstructs eviction, can be evicted by force under eub-s. (3). Under
:;ub-s. (6) the Commissioner may, in certain cases, in lieu of evicting the person
cancel the· order under eub-s. (1) and such person may continue in oc..:upation.
Under s. 105E tho Commissioner, for the purpose of holding an~· inquiry under
the Act. has the siimo powers as are vested in a civil court under thei C.P.C. in
(e.;;pect of. (i) summoning and enforcing the attendance of any person
and
examining him on oath, (ii) requiring the discovery and production of docurnents. and (iii) any other matter which may be prescribed by regulations under
s. f05H.
Under s. 105F everv order of eviction is appealable to the Principal
Judge of the Citv Civil Court of Bombay or su1;h other judicial officer of not
less than 10 years standing as tho Principal Judge may designate. The appellate
Judge. is given power to stay the enforcement of the order of Conunissioner on
conditions and is required to dispooe of the appeal expeditiously.
Section
105G provides that, subject to the result of the appeal, every order of the
Co111n1iss.ioner or of the aopellate Judge is fina1.
Under s. 105H regulations may
he made. inter alia, in respect of holding of inquiries and the procedure to be
followed in appeals.
The Bon1bay Government Premise!'\ (Eviction) Act, 1955, also lays down
S1Jectal procedure for eviction of persoru from government premises which
i~
1nore or less similar to Chapter V of the Municipal Act.
The power to order
the eviction is given to an authority not lower in rank than a Deputy Collector
or an Executive Engineer, Section 8A of the Act provides that no civil conrt
~hall have jurisdiction to entertain any suit or proceedings in respect of eviction.
The-re is no such provision in the Municipal Act but the proceedings in
the
in:ltant cases arose before s. 8A was introduced in the 1955-Act by Maharashtra
Act of 1969.
The constitutional validity of Chapter VA of the Municipal Act and the provisions of the Government Premises (Eviction) Act, as it stood prio1·
to
its
amendment by Maharaahtra Act of 1969, was challenged on the ground that they
H
contravene Art. 14. on the basis of the decision of thi3 Court in Northern !tr.dia
Ca/ems [1967] 3 S.C.R. 399, wherein it was held, by tho majority of judges,
that amongst occupants of public premises inter se there was discrimination in
as much as the special procedure in the Punjab Public
Premises and Land
2-1J!Sup.Clr75
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SUPREME COURT REPORTS
[1975] 1 s.c.R.
(Eviction and Rent Recovery) Act, 1959, Vias more-drastic ilnd prejudicial than . A
the ordinary procedure of a civil suit and that it was left to the arbitrary ani.I
imfettered discretion of the Government to adopt such _special proJ:edurr:. against
!Ome and not against the others.
HELD (By Full Court) : The impugned provisions of the two Acts are
1101
violative of Art. 14.
(Per A. N. Ray~ CJ .• Palekar. MatheW and Alagiriswami, JJ.) :
(1) It cOuld not be contended that the special provisions of law app!ying to
government and public bodies are not based upon reasonable classitication or
that they offend ArL 14. [10 F-GJ
(2) The mere av<i.ilability of two procedures· will not vitiate one of them,
namely. the special procedure.
(23 B]
\Vhere a statute providing for more drastic procedure different from
the
ordinary procedure covers the whole field covered by the ordinary procedure a,
;in A11waraJi Sarkar's Case [1952] S.C.R. 284 and Surajn1al Afollftls case'[l96.5j
1 S.CR. 448, without any· guidelines as to the c!ass of cases in which either
. pro:edure to is be resorted to, the statute will be hit by Art. 14. But a provi':)ion
for appeal may cure the-defect. Also in such cases, if from the preamble and
surrounding circumstances as welt as the provisions of the statutes themselves.
explaint:d and amplified by affid; vits, necessary guidelines could be infern;d as
. in the Saurashtra Case [1952) S.C.R. 435 and Jyoti Persllads' case [1962) 2 S.C.R.
125.· the statute will not be hit by the Article. \V"'ere the !"tatute itself covers
only a clasS of cases as in Haldar's case [1960]'2 S.C.R. '>46 and Bajoriffs case
(1954] S.C.R. 30 the statute will not be bad. The fact that in such cases executive
will choose which cases are to be tried under tho special procedure will not
affect the validity of the statute.
[22 G-23 BJ
(3) In the present cases, the statutes themselves, in the two clisses of cases,
that~, •premises belonging to the Corporation and the Government, clearly lay
·down the purpose behind- them; namely that they should be subject to speedy
procedure in the matter of evicting unauthorised persons occupying them. The
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fact that the legislature considered that the ordinary procedure is
insufficient
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or ineffective for evicting the unauthorised occupants and provided a special
!peedy procedure therefor. is a clear and sufficient guidance for the authorities
on whom the duty of evicting such occupants and the power to do so has been
conferred. [23 B-GJ
(4) Further, it .would be extremely unreal° to hold that an administrative
·officer· would,- in taking proceedings for eviction of unauthorised occupants of
government and municipal property, resort to the procedure prescribed in the two
Acts in some cases and to the ordinary civil court in others. In considering
whether the officers would be discriminating between one set of persons and
another, ·one has to take into account normal human behaviour. It is not every
fancied possibility of discrimination but real risk that must be taken into account.
Discrimination is not writ large on the face of the statute; it may be pcssible but
highly improbable, and, if there is discrimination in actual practice the p0wer of
thil Court can be invoked. (23 D-G)
·
(5) Moreover, considering the object with which the special procedure has
been enacted the procedures laid down by the two Acts are not so harsh or un·
conscionable as to suggest that a discrimination would result if resort to them is
had in i;ome cases and to the ordinarv civil court in others.
Even though the
ofti :rS deciding the question are administrative officers there is ample provision
in the A.ct."" for notice of the grounds of eviction and opportunity to the person
affected to- tile a written statement and produce documents. He c:i.n also be
rcpresCnteJ by a lawyer and the officer himself has ~wer to enforce attcn~ance
of witnesses to examine them on oath, and to order discovery and production of
doi:Uments. • 'There is also provision for aopeal to the Principal Judge of th: City ·
Civil Court .or a District Juclge. · It may be that a second appeal is no_t avai11ble
to the affected pen;,on ~ when procedure before an ordinary civil court is foUow·
ed, but ~e aggrieved party may _resort to the High Court under either Art. 226
or 227 Bild this Is not less effective than a second appeal. (24 D-H]
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MAGANLAL V. MUN!C. CORPORATION
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Lachmandas Kewalram Ahuia v. Bombay [1952] S.C.R. 710; Shru Meellllbhl
Mills Ltd. v. Sri A. V. ViswaMtha Sastri [!955] 1 S.C.R. 787; Muthlah v. C.l.T.
Madras [1955) 2 S.C.R. 1247; T/umgal Kuniu Musaliar v. M. Venkltachalam
Patti & Anr. [1955] 2 S.C.R. 1196 and Rarnkrishna Dalmia v. Justice Tendolkar
[1959] S.C.R. 279. referred to.
(6) Th~ majority of the Court ~n the Northern India Ca~ere1s' case in i~~r
ing the obligatory nature of the notice under s. 4 of the PuD]ab Act and tho discretionary power under s. 5 which was to be exercised after hearing the party,
were in error in proceeding on the basis of s. 5 alone and holding that it conferred arbitrary Power on the Collector to resort to the power under the Act in
the case of some and to a suit in the case of others. Under s. 4, if the Collector
is of opinion that a person is in unauthorised occup&tion and has to be evicted
he shall issue a notice to him to show cause why an order of eviction should not
be passed.
But after consjderine; the cause shown, evidence produced and after
giving the person a reasonable opportunity of being heard the Collector '"4Y
order eviction. Therefore, if he is of opinion that it is a Ca!e where a suit ii more
appropriate he may not order eviction, and then, it would be for the Government
to institute the suit. The ColJector has no discretion either to file a suit or to
take proceedings under the Act. Nor can the Government order the Collector
to pass an order of eviction in every case under s. 5 as the power under th.at
section is the Collectors' statutory pcwer.
[23 H-24 DJ
Northern India Caterers Ltd. v. Punjab [1967] 3 S.C.R. 399, overfl!led.
(Per Khanna J) :(1) The simple fact that there are two forums with different procedures would net justify the· quashing of the impugned provisions as
being violative of Art 14 especially when both procedures are fair and in consonance with the nrinciples of natural justice.
What is necessary to attract the
inhibition of the Article is that there must be substantial and qualitative dit'fcrences between the two procedures so that one is really and substantially more
drastic and prejudicial than tne other.
A dogmatic and finical approach in
appJyin• the Article should be avoided.
[26 C-D]
The impugned provisions provided for the giving of notice to the party affected; he bas to be informed of the grounds on v:hich the order for eviction is proposed to be made; he has to be afforded an opportunity to file a ·written statement
and produce documents; and he can be represented by lawyers.
The provisions
of the C.P.C. regarding summoning and enforcing attendanee of persons and
examining them on oath as also those relating to discovery ana production of
documents which are made applicable, provide
a
valuable
safeguard. The
aggrieved party has a right of appeal and the appeal lies not to an administrative officer but to a judicial officer of the status of a Principal Judge of the City
Civil Court or a District Judge. If the appellate officer concerned acts beyond
his jurisdiction his order would be liable to be assailed under Arts. 226 and 227
of the Constitution.
Therefore. the procedure envisaged
in
the
impugned
provisions is not so onerous and drastic as would justify an inferCnce of discriminatio~. [25 H-26 CJ
(2) It ~·ould thus appear that some of the infirmities from which the Punjab
Act, which was struck down in the Northern India Catereri Case LI 9671 3 S.C.R.
399, ~uffered. are not present in the impugned enactments. Hence there are no
trufficient grounds for overruJing the view expressed by the majority in the
Northern India Cater"s Case. [25 D, 29E-F]
This Court may, no doubt, in appropriate cases overrule the view previously
taken by it but that should only be for cornoelling reasons.
Necessity mav
sometimes be felt of ridding stare dtcisis of its petrifying rigidity,
Some ncW
aspe-<:ts may come to light and it may become essential to cover fresh grounds to
meet the· new situations or to overcome difficulties which did not manifest themselves or were not taken into account when the earlier view was
propounded.
Law. if it has to satisfy human needs and to meet the problems of· Hfe.
must
adapt it.elf to cope with new situatiollS. It has to bo recognised th•t there is a
continuous process of growth of law and one can retard it onlv at the risk of
alienating Jaw from life itself.
There should not be much hesitation to abandon
an untenable position when the rule to be discarded was, in its origin, the product
4
SUPREME COURT REPORTS
(1975] l S.C.R.
of institutions or conditions which have gained a new significance or development
with the progress of years. It sometimes happen that the rule of law \vhich grew
up in remote generations may, in the fulness of expenence, be found to serve
another generation badly. The Court cannot allow itself to be tied down and
become captive of a view which, in the light of the subsequent experience, has
been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconveni.ence. [27 B-G]
.
In Bengal Inununity Co·. Ltd. v. State of Bi!1ar, {1955J 2 S.C.R. 603 althoe.gh
this Court affirmed its pO\Ver to overrule and depart from the view expressed in
its previous judgments, it also stressed the importance of not lightiy dissenting
(rom previous pronouncements of this Court.
A view which has been accepted
for a long period of time should. not be disturbed unless the court can say positively that it \Vas wrong, or unreasonable, or that it was productive of public
hardship or inconvenience. It has to be borne in mind that certainty and continuity are essential ingredients of rule of law, and certainty in law would be considerably eroded and suffer a serious set back if the highest cowi of the
land
r~adily overrules the view expressed by it in earlier cases even thougil that view
has held the field for a number of years. ln inany cases \vhich come up before
this Court two views are possible and !limply because the Court considers that the
view not taken by the Court in an earlier ca<ie was a better view would not justify
the overruling of the view· taken in the earlier case.
The law laid down by this
Court is binding upon all courts in the country under Art. 141 and numerous
cases all over the country are decided in accordance with the view taken bv this
Court.
Many people arrange their affairs and large number of transactions also
take place on the faith of the correctness of the view taken by this Court.
It
\Vould create uncertainty. instability and confusion if such a view is held lo
be
not the correct law.
[26 F-27 B; 28 E·G; 27 E·F]
'fhe Court has thus to keep the balance- behvecn the need o! certainty and
i.:ontinuity and the desirability of growth and develop1neut of law.
On the one
hand the need is to ensure that the judicial inventiveness shall not be desiccated
or stunted and on the other it is essential to curb the temptation to lay down new
and novel principles in substitution of \Vell-established principles in the ordinary
run of cW1es and the readiness to canonise the new principles too quickly before
their saintliness has been affirmed by the passage of time. (27 F-H]
It n1ay be that the view expressed by the minority in the
1\/ortiur11 India
Caterers case appears to be preferable but that by itself would not show that a
decision arrived at by the majbrity was plainly erroneous requiring to be overruled. It also cannot be said that the decision had given rise to public inconvenience and hardship. 'fhe legislature, in view of the inajority decision in . the
ca<>e, made necessary arnend111ents in many ot the enacr1nents 1:.0 as to bar the
jurisdiction of the civil court in matters dea1t with.by those enactments, and no
con.stitutional amendment was required to set right the difficulty c:xperienced as a
result of the majority decision.
[29 F-H]
tPer Bhagwati and Krishna Iyer, JJ) : ( 1) It is not uncorun1on to find legislation according special treatment to Government or other public
bodies,
and
such legislation has been upheld by this Court in numerous decided cases.
But
from that it does not follo\v that every laW which gives differential treatment to
government or other public bodies is nece!'i<Jarily immune from challenge on the
ground of discrimination. 'fo get out of the reach of the equality clause in Art.
14 it must appear that not only a classification has been made but also that it is
one ba<>ed on some real distinction bearing a just and reasonable relation to the
object of the legislation a:s<l is not a mere arbitrary selection.
[34 C-D, G-H.
35 A·B]
In the present case, the speedy machinery for eviction of unauthorised occupants of 9ublic premises is justified in that it is _in the interest of. public t.hat
speedy and expeditious recovery of such preffilses from unauthonse<l occupiers
is made possible through the in<>trumentality of a speedier procedure instead of
tho elaborate procedure bv way ?f civil. s~it involving both_ex~'ense an~ ~elay.
There is thus a valid basis of differentiation and the constitutional vahd1ty of
the impugned provision~ in the rwo statutes cannot, in the circumstances, be
assailed on the ground that they make unjust ~iscrimination bet~een oc:upiers
of goverrunent or 1nunicipal premises and occupiers of other pren11~es. [3) G36 CJ
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MAGANLAL v. 1-fUNIC. CORPORATION
5
(2) Unlike the decision in Arizona Copper Co. v. Hanuner (63
Law. Ed.
1058; 250 U.S. 400} which was concerned with a party having several rights to
relief arising out of the same act, the present case is concerned 'vith the existence
of several remedies in enforcement of a single right to relief. The only right which
is sought to be enforced by the Municipal C)rporation and the Government is a
right based on title given by the general law (1f the land and it is for the enforcement of this right that two alternative procedures are available to the !Vlunicipal
Corporation or the Government.
Therefore, it could not be urg~d by the respondents, on the basis of the Hanuner case, that the constitutional guarantee
under Art. 14 is not violated where the law gives a free choice of remedies to a
person entitled to relief even if one remedy is more drastic and prejudicial than
the other.
If for determination and enforcen1ent of a liability two alternative
procedures are available, one more drastic and prejudicial than the o.ther and no
guiding policy or principle is laid down by the legislature as to whi!n one or the
other procedure shall be followed, so that, either procedure may be indiscriminately adopted against persons similarly situated, the la\v providing for the more
drastic and prejudicial procedure would be violative of the equal protection
clause.
[40 A-C, El
Arizona Copper Co. v. llanuner, 63 Law. E<l. 1058; 250 U.S. 400, explained.
State of West Bengal v. Anwar Ali, [1952]
S.C.R. 284, Shri Meenakslu1
Mills Ltd., Madurai v. A. V. Visvanatlia _Sastri, [1955] 1 S.C.R. 787, Surai Mull
Mohta v. A. V. Vishvanatha Sastri, [1955] 1 S.C.R. 448, Kathi RaninR Rawat
v. The State of Saurashtra, [19521 S.C.R. 4J5, Kedar Nath Baj.aria v. State of
West Bengal, [1954] S.C.R. 30, and M. Ct. Muthiah & Ors. v~ The Commissioner
of l11con1e-tax. Madras & Anr. [1955] 2 S.C.R. 1247, referred to.
(3) The initiation of the special procedure provided in Chapter V1\ of the
:rviunicipal Act is with the Municipal Commissioner as he is to issue a notice
under s. 105-B(3)but, so far as the ordinary procedure of a civil suit is concerned,
it can only be filed by the Municipal Corporation with the previous approval of
the Standing Committee. It could not however be contended, on this basis that
the choice between the two alternative procedures is not vested in the same
authority and that therefore there is no violation of Art. 14.
[45 E-G]
It is not necessary in order to incur the condemnation of the equ.ality clause
that the initiation of both procedures should be left to the arbitrary discretion
of one and the same authority. What thi equality clause strikes at is discrimination howsoe.ver it results. To the person subjected to the more drastic and onerous
procedure it is immaterial whether such procedure is put into operation by one
or the other agency of the government or the public authority. lt would
he
nothing short of hypertechnicality to say that action against him is not initiated
by the Municipal Commissioner or the Collector.
TI1e constitutionality of
a
statutory provision cannot turn on mere difference of the hands that harm, though
both belong to the Government or the Corporation for otherwise, it would be
easy to circumvent the guarantee of equality and to rob it of its substance by a
subtle and well manipulated statutory provision vest.ing the more drastic and
prejudicial procedure in a different organ of the government or public authority
than the one in whose hands lies the power to initiate the ordinary procedure.
One must look at the substance and not the form. · [46 A-H]
( 4) l\tioreover, it is not correct to say that it is the Municipal Commissioner
who initiates the special procedure set out in Chapter VA of the Municipal Act.
When he issues notice under s. 105B (2) against an occupant he really acts on
behalf of aond for the benefit of the Municipal Corporation, whose right he seeks
to enforce.
Similarly the Dy. Collector or Executive Engineer acts on behalf of
the Government.
Therefore, it is really the Municipal Corporation and
the
Government that avail themselves of the. special procedure.
(47 B-D]
(5) It could not also be contended on behalf of the respondents that even
where two procedures are available against a person, one substantially
more
drastic and prejudicial than the other and there is no guiding principle or policy
laid down by the legislature as to when one or the other sha1I be adopte<l. there
\Vould still be no violation of the equality clause if both procedures are fair.
Such a contention n1ay be relevant where the question is as regards a reasonable~
ness of the restriction under Art. 19,
But when the question is under Art. 14,
mere fairness of the special procedure which is in1pugned as discrin1inatory is
6
SUPREME COURT REPORTS
[1975] 1 S.C.R.
not enough to take it out of its inhibition. What has to be considered is whether
there is equality before law; and therefore the question whether the two procedures are so disparate substantially and qualitatively as to lead to
unequal
treatment, has to be asked and answered. [47 E-48 C]
(6) The challenge against the constitutional validity of Chapter V-A of the
l\iunicipal Act and Government Pre111ises Eviction Act must, however, be rejected.
[53 G-Hl
No classification can be logically complete or precise.
Life is not capable
of being divided into water-tight divisions and categories. The legislature
.can therefore do not more than define broad categories and indicate the policy
and purpose underlying the legislation and leave it to a stated authority
to
make selective application of the law in accordance with such policy and purpose.
It is inevitable that when a special procedure is being prescribed for a defined
class of persons such as occupiers of municipal or government premises, discretion--of course guided and controlled by the underlying policy and purpose
of the legislature-must necessarily be left in the administrative authority
to
select occupiers of municipal or government premises to be brought within the
operation of the special procedure.
That would not be obnoxious to Art. 14
because, in such a case, the discretion to make the selection would be a guided
and controlled discretion and not an absolute and unfettered one. In such cases,
the power given to the executive body would import a duty on it to classify
the subject-matter of legislation in accordance with the objective indicated in
the statute. The discretion has to be exercised in conformity with the policy to
effectuate which the direction is given and it is in relation to that objective that
the properiety of the classification would have to be tested. It is, therefore, not
correct, to say that merely because the Municipal Corporation or Government
is not compellable to adopt the special procedure set out in the
impugned
provisions against ail occupiers of municipal or government pren1ises, but is
vested, with the discretion in the matter, the impugned provisions offend against
Art. 14. It would indeed to be odd and certainly harsh and oppressive to the occupiers of municipal or government premises if the Municipal Corporation or Municipal Commissioner or Government were to be compelled to adopt the special
procedure in all cases. The nature of the dispute, the c.Jmplexity of the issue
arising for consideration and the legal competence of the adjudicatng authority
to decide such questions will have to be 1..veighed alongside with the need for
speedy and expeditious recovery of municipal or gov~rnment premises
for
public uses which is the basic volicy and purpose underlying the legislation.
and, the Municipal Corporation or Municipal Commissioner or Government
would have to decide in accordance with the guidance furnished by these considerations, whether, in a given case, the special procedure should be adopted
or the occupier of the municiPal or government premises should be proceeded
against under the ordinary procedure. There is thus clear guidance provided by
the legislature_ as to when the special procedure should be adopted and when
the case should be left to be dealt with under the ordinary procedure and the
impUgned provisions do not suffer from the vice of discrimination. [4'9 C50 F)
Kathti Ranin~ Rawat v. Tlze State of Saurashtra, [1952] S.C.R. 435, Kedar
Nath Bajon'a v. State of West Bengal, [19541 S.C.R 30, and A. Thangal Kunju
Mu.raliar v. M. Venkitacha{am Potti, [1955] 2 S.C.R. 1196, referred to.
Northern [ndi'a
Caterers Ltd. v. Stare of
Pu·n;ab, [1967] 3 S.C.R.
399,
overruled.
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(7) It must also be constantly borne in mind, for otherwise it is likely to
distort the proper perspective of Art. 14, that mere minor differences between
the two procedures would not be enough to invoke the inhibition of the equal.ity
clause. What the equality clause is intended to strike at are real and substantial
disparities, substantive or processual, and arb~trary or. capricious actions of t~e
executive, and, it would be contrary to the obJect and 1ntendment of the equality
clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of, prejudice into legislative inequality or executive discri1nination.
[54
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B-D]
There is no formula by which it can be said that one procedure is
substantially n1ore drastic and onerous than the other.
It does not follow that
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MAGANLAL V. MUNIC. CORPORATION
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merely because one procedure provides the forum of a civil court- while the
other provides the forum of an . administrative tribunal that
the
latter . is
necessarily more drastic and onerous than the former.
It is well konwn that
a regular suit in the civil court has a long dtawn out, expensive and escalating
litigative system which often spells ruin to the ordinary man, and consequently,
by contrast, a
prompt
and
inexpensive
instrument,
though · manned
by
•Wministrative personnel untrained in the sophisticated court methodology and
unaid-cd by long and intricate arguments of counsel eniiaged on o_nero_us terms,
may be preferred by many in this country. The procedure of the civil court
also suffers from many technicalities.
It functions on the· basis of adversary
system of administration of justice which may bring about inequality where the
opposing adversaries are not evenly balanced. It is quite possible that in certain
types of cases people may reteive better justice where judicial formalism is
kept out and the procedure is made informal.
The many-tiered
system of
appeals built into the judicial pyramid often results in a pyrrhic victory
and
leads to disenchantment with the end product of delayed justice.
Therefore,
whenever a special machinery is devised by the legislature entrusting the power
of determination of disputes to another authority set up by the legislature in
substitution of courts of law one should not react adversely against the establishment of such an authority merely because of a certain predilection for
tho
prevailing system of administration of justice by courts of la~.
[~4 F55 GJ
In the present case, it is apparent that the special procedure set out in
Chapter V-A of the Municipal Act is not substantially more drastic and prejudicial than the ordinary procedure of civil suit.
Tho initial
authority to
determine the liability to eviction is no doubt the Municipal Commissioner who
is the Chief Executive Officer of the Municipal Corporation and who may not
be possessed of any legal trainin~ but s. 68 o_t the Municipal Act provides that
this function may be discharged by any Municipal Officer whom the Municipal
Commissioner may
generally or
specially
empower
and the
Municipal
Commissioner can authorise a Deputy Municipal Commissioner attached to the
legal department of the Municipal Corporation to discharge this function. The
determination of liability to eviction is therefore really, in practice, made by an
officer having proper arid adequate legal training.
Then again, the occupant
against whom the snecial procedure is set in motion would have a right to file
his written statemeilt and produce documents and be would also be ·entitled to
examine and cross-examine witnesses.
The officer holding the inquiry is given
the power to summon and enforce the attendance of witnesses, examine them
on oath and also require the discovery and production of
documents.
The
occupant is entitled to appear at the inquiry by an Advocate. Thus, in effect
and substance the same procedure which is followed in a civil court ~ made
available in the proceeding before the ·officer holding the inquiry~ There is also
a right of appeal against the decision of such officer to a senior and highly
experienced judicial officer and not to a mere executive authority, namely, the
Principal Judge of the City Civil Court or any other judicial officer of not Jess
than 10 years standing. It is also op~ to the aggrieved party to bring up th.e
matter before the High Court for examination under Art. 226 and 227 even
though a revision application against the appellate or~er is not provided f~r.
The ultimate decision is, thus, by a jU.dicia1 officer trained in the art and skill
of law and not by an executive officer. Therefore, in the context of need for
speedy and expeditious recovery
of public
premises
for
utilisation
for
important public uses, where dilatoriness of the procedure may defeat the very
object of recovery, the special procedure set out in the two Acts cannot be
reg<irded as really and substantially more drastic and prejudicial
than . the
ordinary procedure of a civil court. The two procedures are not so substantially
and qualitatively disparate as to attract the vke of discrimination.
(55 c;._._56]
Crv1L APPELLATE JURISDICTION : Civil Appeal No. 680 of 1968.
II
From the judgment and order dated the 21/23rd day of. August,
1967 of the Bombay High Court in Misc. Petition No. 478 of 1966 ..
Civil Appeals Nos. 2076-2080 of 1969 & 2093-2103 of 1969.
8
SlJ_PREME COURT REPORTS
(1975] 1 S.C.R.
From the judgment and order dated the 14/17th March, 1969 of
the Bombay High Court in Special Civil Application Nos. 676, 837,
838, 840 and 841 of 1967 and 827 to 836 and 839 of 1969.
Civil Appeal No. 2527 of 1969.
From the judgment and order dated the 21st/24th August, 1967 of
the· Bombay High Court in Special Civil Application No. 1116 of 1966,
Civil Appeal No. 249 of 1970.
From the judgment and order dated the 25th August, 1967 of the
Bombay High Court in Special Civil Appeal No. 1138 of 1966.
·Writ Petitions Nos. 333-348 of 1970.
Under Art. 32 of the Constitution of India.
A. K. Sen, S. C. Mazumdar and S. K. Basu, for the appellant (in
C.A. 680/68).
• G. L. Sanghi, A. D. Merchant and B. R. Agarwala, for the appellant
(in C.As. 2076-2080/69 and 2093-2103/69).
S. l. Sorabjee and B. R. Agarwala, for the appellant (in C.A.
2527 /69).
S. l. Sorabjee, A. D. Merchant and B. R. Agarwala, for the petitioner (in W.P. 333-348/70).
B. R. Agarwala, K. L. flathi and P. C. Kapoor, for the appellant (in
C.A. 249/70).
R. l. Joshi, M. N. Kothari, K. S. Kadam, P. C. Bhartari, J, B. Dadachanji, 0. C. Mathur and Ravinder Narain, for respondents Nos. 1 & 2
(in C.A. 680/68).
M. C. Bhandare, K. S. Kadam, P. C. Bhartari, J. B. Dadachanji,
0, C. Mathur and Ravinder Narain, for respondents Nos. 2 and 3 (in
C.A. Nos. 2527169).
·
M. C. Setalvad, Y. S. Chitale, K. S. Kadam, P. C. Bhartari, J. B.
·_ Dadachanji, 0. C. Mathur and Ravinder Narain for respondent
Nw. 1 and 2 (in CA No. 249 /70) .
. M. C. Bhandare and M. N. Shroff, for respondent Nos. 7 (in C.A.
2527 /69) and for respondent no. 3 (in C.A. 249/70).
V. S. Desai and M. N. Shroff, for respondent No. 3 (in C.A. 680/
68 and respondent no 2 in (in C.As. 2076-2080/68, 2093-2103) and
for respondent nos. 2 & 3 (in all the W.Ps.) .
. The Judgment of A. N. Ray, C.J., D. G. Palekar, K. K. Mathew
and A._ Alagiriswami, JJ., was delivered by A. Alagiriswami J., H. R.
Khanna, J. gave a separate opinion. P. N. Bhagwati, J. also gave a
separate opinion on behalf of himself and V. R. Krishna Iyer, J.
ALAGIRisWAM1, J.-These appeals and writ petitions relate to the
legality of certain proceedings taken under Chapter V-A of the Bom~ay
Municipal Corporation Act and the Bombay Government Premises
(Ev)ction) Act, 1955. chapter.\:'cA was introduced in the Bombay
Municlpal Act,· 1888 by Maharashtra Act 14 of 1961. That chapter
cpnta:in$ sections · 105A l!,ntl - 105B. According to- the· provisions · · of
those ~e<;tions the Cqmm:issioner in relation· to_ pteJ:nises bl;longing to'
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or ves\)ng_ ,iJ1,, qrc l'll::~n ~n)~a,•w
1by tp.ec~ornorl!t\ou;~ud_ !~I( Oeru,;ral
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MAGANLAL v. MUN!C. CORPORATION (Alagiriswami, ],)
9
Manager (also defined as the Commissioner) of the Bombay Electric
Supply artd Transport Vndertaking in relation to premises Qf the corporation which vest in it for the purposes of that undertaking were
granted C"!tain powers of eviction iii respect of unauthorised occupation
of any corporation premises.
Unauthorised occupation is defined as
occupation by any person, of corporation premises without authority
for such occupation and includes the continuance in occupation: by any
person of the premises after the authority under which he was all?wed
to occupy the premises bas expired, or, bas. been duly determlned.
Under section I05B the Commissioner, by notice served on the person
in unauthorised uccupatioa, could ask him to vacate if he had not paid
for a period ot more than two months the rent or taxes lawfully due
from him in respect of such premises; or sub-let, contrary to the terms
or conditions of his occupation, the whole or any part of such premises;
or committed,· or is committing, such acts ot waste as are likely to
diminish materially the value, or impair substantially the utility, of the
premises, or otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to occupy such
premises; or if any person is in unauthorised occupation of any corporation premises; or any corporation premises in the occupation of any
person are required by the corporation in the public interest. Before
making such an order the Commissioner should issue a notice calling
upon the person concerned to show cause why an order of eviction
should not be made and specify the grounds on which the order of eviction is proposed to be made.
The person concerned can file a written
statement and produce documents and is entitled to appear before the
Commissioner by advocate, attorney or pleader.
Persons failing to
comply with the order of eviction. as well as any other person who
obstrl!cts eviction can be evicted by force.
Under section 105C there
is power to recover rent or damages as arrears of property taxes.
A
person ordered to vacate on the grounds of being in arrears of rent or
acting in contravention of the terms under which he is authorised to
occupy the premises could be allowed to continue if he satisfies the
Commissioner.
The Commissioner has, for the purpose of holding any
inquiry, the same ·powers as are vested in a civil court under the Code
qf Civil Procedure, when trying a suit, in respect of (a) summoning
and enforcing the presence of any person and examining him on oath,
(b) requiring the discovery and production of documents, and (c) any
other matter which may be prescribed by regulations. An appeal from
cver:y order of the Commissioner lies to the principal Judge of the City
Civil Court or such other judicial officer as the principal Judge may
designate.
The appeal is to be disposed .of as expeditiously as possible.
Subject to the results of the appeal every order of the Commissioner or
the appellate officer is final. The power to make regulaticns includes
the power to make regulations in respect of hoJding of inquiries .and the
procedure to be fo!lowed in such appeals.,.
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;fl1e, prJ)visio)ls of the Bombay Oover)inient Premises .. (Eviction)
A~t ate more. or Jess. siinilar,. eltcept tliat~ey relate to Qovemment ptelllises and the powerto order .eyietion ls gi;ven. to. the competent aut~o
iity.nQt lower inral)k; than,tlJ<1t.of a,Pep)!ty.CoUector or aq
~x~c:nt1ve
~eer app,o)nted by th.e- State G~emml'.n~, · .. The only qtl)er matt~r
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SUPREME COURT REPORTS
[1975] 1 S.C.R.
in respect cif which the provisions of this Act differ from the provisiens
of.the-Bombay Municipal Corporation Act, just now referred to, is that
section. 8A of this Act provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any
person from any Government premises on any of the grounds specified
in section 4 or the recovery of the arrears of rent or the damages payable for·use or occupation of such premises. This amendment was made
as a consequence of the decision of this Court in Northern India Caterers
v. Punjab (1967 3 SCR 399). But the matteis arising under this Act
and now· before this Court were in respect of proceedings taken before
section 8A was introduced in the Act by Maharashtra Act 12 of 1969
and this section has, therefore, no relevance for the purposes of these
cases. -
lt was not and could not be argued that the Acts in so far as they
provided for special procedures applying te> the State and the Municipal
Corporation were invalid.
The decisions in Baburao Shantaram
More v. The Bombay Housing Board (1954 SCR 572) upholding the
exemption of l!remises belonging to the Government or a local authority
from the provisions of the Bombay Rents~ Hotel and Lodging House
Rates Control Act, 1947; The Collector of Malabar v. Erimal Ebrahim
Hajee (1957 SCR 970) upholding the provision for special modes of
recovery for income-tax; Asgarali Nazarali Singaporawalla v.