Fazal Ali, J. - (1.) This appeal by certificate is directed against a judgment to the Gujarat High Court dated 31-1-1970, issuing a writ of mandamus of 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 Section 233 (1) of the 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 Section 233 of the Gujarat 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 Section 233 being violative of Article 14 of the Constitution of India was ultra vires. The appellants applied for certificate for leave to appeal under Article 133 (1) (c) which was granted, hence this appeal.
(2.) Section 233 of the Gujarat Act runs thus:- "233. Power to evict certain persons from municipal premises - (1) If the Chief Officer is satisfied:- (a) that the person authorised to occupy any premises belonging to the municipality (hereinafter referred to as "the municipal premises") as a tenant or otherwise has - (i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or (ii) sub-let, without the permission of the municipality, 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, notwithstanding anything contained in any law for the time being in force, by notice served (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 that person as well as any other 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-sec (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 be made an 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 and such person shall be entitled to appear before the authority proceeding in this connection by advocate, attorney or pleader. Such notice in writing shall be served in the manner provided for service of notice under sub-section (1). ............."
(3.) It appears that in the case of Northern India Caterers Pvt. Ltd. v. State of Punjab, ((1967) 3 SCR 399) this Court while construing a statute whose provisions were almost similar to those of Section 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 Chhaganlal Magan Lal reported in (1975) 1 SCR 1.;