- (1.) These appeals arise out of a common judgment rendered by a Division Bench of the High Court of Gujarat pursuant to reference of two constitutional points for decision of the High Court. The reference was made by the City Civil Court Judge in a group of civil suits pending before him. Reference obviously was made under Section 113 read with Order 46 of the C. P. C. A few facts leading to these appeals taken out by the Ahmedabad Municipal Corporation on grant of special leave deserve to be noted at the outset.
(2.) The appellant-Corporation functioning under the provisions of the Bombay Municipal Corporation Act, 1949 (hereafter referred to as "the Act") sought to enforce a roadline settled under Section 210 of the Act after following the requisite procedure laid down thereunder. It is obvious that as the section provided for issuing public notices calling for objections from those who were likely to be affected by the laying down of these roadlines, all such persons got intimation about the said proposal of the Corporation. We are told that Section 210 procedures were over in the year 1962. Thereafter it appears that the Standing Committee of the Corporation approved the proposed roadline and sanctioned the same in exercise of its statutory powers. Then was reached the stage for enforcement of the roadline and that obviously required acquisition of some portions of the properties situated on both sides of the sanctioned roadline for widening the road pursuant thereto. Consequently, notices under Section 212, sub-section (1)(b) of the Act were issued to the owners of the properties who were likely to be affected by the said exercises to be undertaken by the Corporation. Such notices were issued to these owners as early as on 21st April, 1964 and thereabout. Thereafter years rolled by and by November 1977, composite notices were issued by the Corporation under Section 212 (2) of the Act to those owners whose properties were likely to be adversely affected and would be required to be demolished to the extent they fell within the settled roadline. Such notices were also issued to the occupiers of the properties who may be the tenants in actual possession of those properties and who were also likely to be affected by the demolition of the part of the premises occupied by them. These notices resulted into filing of number of suits in the City Civil Court, Ahmedabad challenging these notices for the proposed demolition of the premises to the extent they fell within the roadline.
(3.) Learned City Civil Court Judge who heard these suits in common as common questions were involved took the view that the impugned notices were bad as the tenants of the premises who comprised of the majority of the plaintiffs (though one of the plaintiffs was owner of one of the suit properties), were given no notices under Section 212 (1). However, on the language of Section 212 (1) of the Act, learned Judge took the view that as the word 'owner' was mentioned therein it did not include tenant or any other person in possession having interest in the premises and to that extent prima facie the section would be violative of Article 14 of the Constitution and similar vice would get attached to Section 213 which dealt with the actual demolition of the premises covered by the proposed sanctioned roadline and both the sections, therefore, would prima facie appear to be violative of Article 14. The learned Judge, therefore, framed two points for decision of the High Court and made them subject-matter of the reference under Section 113 read with Order 46, C. P. C. as noted earlier. These two questions referred for decision of the High Court read as under:- "(i) Are not the provisions of Section 212 of the Bombay Provincial Municipal Corporation Act ultra vires Article 14 of the Constitution of India in so far as the said provisions provide due opportunity of being heard to the owners of building 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 Section 213 of the Bombay Provincial Municipal Corporation 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 - ;