Decided on August 03,1983



N.H.BHATT - (1.) All these References are made to this Court by the learned Judge of the City Civil Court at Ahmedabad under sec. 133 read with Order 46 Rules 2 and 4 of the Civil Procedure Code in the matters of the Civil Suits Nos. 2770/77 2773 3321 3764 4043 4044 77 493 942 2084 3158 and 197/78. The suits have been filed by various citizens challenging the notices of the Municipal Commissioner issued under secs. 212 and 213 of the Bombay Provincial Municipal Corporations Act 1949 hereinafter referred to as the Act for brevitys sake. One of the grounds challenging the said actions was that secs. 212 and 213 of the Act were ultra vires Article 14 of the Constitution of India in so far as they unreasonably provided for a notice only to the owner and not to the other interests like those of tenants to be heard before the drastic action under secs. 212 or 213 of the Act was taken. The argument found favour with the learned Judge who by his common order referred the following two questions to this court : (i) Are not the provisions of sec. 212 of the Bombay Provincial Municipal Corporations Act ultra vires Article 14 of the Constitution of India in so far the said provisions provide due opportunity of being heard to the owners of buildings whereas it does not provide such opportunity to tenants occupying the said buildings falling within the regular line of street; in this context are not the owners as also the tenants of such buildings quite alike and yet differentially treated by the said section without any intangible differentia ? (ii) Is not sec. 213 of the Bombay Provincial Municipal Corporations Act liable to be struck down on the ground that it is violative of the fundamental principles of natural justice viz. audi alteram partem in so far as before asking the owner/occupant of the land to hand over possession thereof to the Municipal Commissioner it does not provide an opportunity to such occupant/owner to show cause why the roadline earlier prescribed may not be implemented and why the land in his ownership/occupation acquired ?
(2.) The learned Advocate Mr. P. V. Nanavati appearing for the various plaintiffs urged that it was ex-facie unreasonable on the part of the Legislature to hear only the owners and exclude the other interests that were likely to be adversely affected by the actions under sec. 212 or 213 of the Act. We do not elaborate his arguments because in effect be reproduced the very arguments which were advanced before the learned trial Judge.
(3.) To us it appears that the question is no longer open to be agitated it having been set at rest by the Supreme Court before which the question had been taken against the order of the Division Bench of this court in the case of GIRDHARLAL GANPATRAM GANDHI V. THE MUNICIPAL CORPORATION OF CITY OF AHMEDABAD & ORS. 8 G. L. R. 500 Chief Justice N. M. Miabhoy as he then was sitting with N. K. Vakil J. in that case held that secs. 211 212 213 and 216 of the Act had been designed to convert private property into part of a public street directly and those powers could be brought into play after the Municipal Commissioner had prescribed a road-line under sec. 210. The Bench held that those provisions embodied a scheme for compulsory acquisition of private property and therefore directed the Municipal Commissioner to treat the notice or notices issued under sec. 12 of the Act as null and void and further directed not to act on the same. In paragraph 42 of the said judgment the learned Judges ultimately held that sec. 212 of the Act was bad. They stated that none of the powers conferred upon the Municipal Commissioner by sec. 212 could be salvaged as the scheme of acquisition as embodied therein was bad. In the circumstances the learned Judges held that the provisions contained in sec. 212 conferring various powers of issuing notices requiring demolition or authorising demolition must be held to be unconstitutional.;

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