Gujarat High Court
Dalvadi Laljibhai Gatorbhai And Ors. vs State Of Gujarat And Ors. on 28 February, 1994
Equivalent citations: (1995)2GLR974, 1995 A I H C 243, (1995) 1 GUJ LH 1 (1995) 2 GUJ LR 974, (1995) 2 GUJ LR 974
Author: H.L. Gokhale
Bench: H.L. Gokhale
JUDGMENT A.P. Ravani, J.
1. Rule. Mr. R.M. Chhaya, learned A.G.P. waives service of rule on behalf of respondent Nos. 1 & 4, i.e., State Government of Gujarat and Shri Vipul Mitra, District Collector, Surendranagar, respectively. Mr. P.M. Thakkar, learned Advocate, waives service of rule on behalf of respondent Nos. 2 and 3, i.e., Surendranagar Joint Municipality, through its Administrator, and Surendranagar Joint Municipality through its Chief Officer, respectively. At the request and with the consent of the learned Advocates appearing for the parties rule issued in the petition is ordered to be heard today.
2. Petitioners challenge the constitutional validity of Sections 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, and pray that the respondents be restrained from evicting the petitioners from the space occupied by them in the old vegetable market, near Shravan Talkies, Main Road, Surendranagar. The petitioners also pray that the repondents be directed to restore possession of the space occupied by the individuals whose names are mentioned in Annexure-A to the petition. The petitioners further pray that the respondents be restrained from preventing the petitioners from carrying on their business from the space in question.
3. Initially the petition pertained to 62 petitioners. By way of amendment, the scope of the petition has been extended to cover 42 other individuals whose names are shown in Annexure-A to the petition. According to the petitioners, they carry on business of selling vegetables in the old vegetable market. It is the case of the petitioners that the space is rented to them. It is claimed that they are carrying on business at this place for last about 30 (thirty) years or more. They are carrying on this business on raised floor, i.e., 'ota'. As averred in the petition on December 15, 1993 the respondents demolished the 'otas' and orally told the petitioners and others that they will not be allowed to do their business at the same place in the vegetable market.
4. Feeling aggrieved by the aforesaid action of the respondents, the petitioners have approached this Court on December 16, 1993. This Court (Coram : A.P. Ravani & D.G. Karia, JJ.) passed the following order:
Leave to amend. Notice returnable on 27-12-1993. Respondents are directed to maintain status quo in respect of the stalls/premises rented and/or allotted to the petitioners and to all other persons whose names are mentioned in Annexure"A", and are further restrained from preventing the petitioners and all other persons whose names are mentioned in Annexure "A" from doing their business at the places in question.
In view of the aforesaid order the respondents have refrained from taking further actions. However, before the petition was moved and the interim order passed as stated above was served upon the respondents, some of the petitioners were disturbed from carrying on their business and the raised floors (ota) were demolished or damaged.
5. It is the contention of the petitioners that they have been carrying on their business at this place for last more than thirty years; that they have been paying rent to the Municipality; they have produced the receipts issued by the Municipality; that they belong to Satwara, Koli, Muslim or Ghanchi communities which are socially and educationally backward class communities; that they are carrying on their business at such place out of economic compulsions; that it is their only means of livelihood; that if they are not allowed to carry on their business at the place their means of livelihood would be snatched away; if this is permitted to be done more than one hundred families will be uprooted economically and it will have adverse socio-economic repercussions; that they were carrying on business at the place in question without contravening any of the provisions of law; that the provisions of Sections 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 cannot be invoked; that even if these provisions were to be invoked, the procedure laid down therein should have been followed; that no such procedure has been followed; that they have constitutional right to carry on business at the place in question; and that they cannot be evicted from the space in question without following the procedure of law, which inter alia includes the right of being heard before disturbing their possession and taking away their property. Hence, the petition with the prayer as stated above.
6. In response to the notice, affidavit-in-reply is filed by the Law Officer of Surendranagar Joint Municipality. It is inter alia contended that all the persons covered by the petition are not lawful occupants of the space. At any rate these persons have been permitted to sit on the floor of vegetable market. So long as they carry on trade on the floor of the vegetable market, the Municipality has no objection, but when they create obstruction to the public then only action was required to be taken. It is contended that the Municipality has power to remove such obstructions and encroachments. In para 6 of the affidavit dated December 29, 1993 it is stated as follows:
The respondent Nagar Palika has no objection if the petitioners carry on their business as per the permission granted to them to sit on the floor of the vegetable market without causing any obstruction to the public.
In para 9 of the same affidavit it is further stated as follows:
Moreover, even in the vegetable market in question they can sit on the floor to sell the vegetable at appropriate places without causing any obstruction to the public.
In further affidavit-in-reply dated January 24, 1994 it is contended that since otas were illegally constructed contrary to the permission granted to these persons to sell the vegetables by sitting on the floor, they were causing obstruction and hinderance to the customers, action was required to be taken. It is contended that such action is taken in exercise of powers under Section 185 of the Gujarat Municipalities Act, 1963 which empowers the Municipality to remove the obstructions and encroachments upon public place and open spaces. No affidavit-in-reply is filed on behalf of respondent Nos. 1 and 2, i.e., State Government of Gujarat and the Collector, Surendranagar.
7. Having regard to the affidavit-in-reply filed and considering all the relevant aspects of the matter, learned Counsel for the petitioners stated that he did not press the prayer with regard to the constitutional validity of the provisions of Sections 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Therefore, the prayer with regard to the challenge to the constitutional validity of the provisions of Sections 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is concerned, the same is not required to be considered as having not been pressed.
8. Learned Counsel for the respondents has relied upon the provisions of Section 185 of the Gujarat Municipalities Act, 1963. Section 185 of the Act relates to obstructions and encroachments upon public streets and, any open spaces. The relevant part of the provision is contained in Sub-section (2) of Section 185 of the Act, which reads as follows:
185. (1) ... ... ...
(2) The Chief Officer shall have power to remove any such construction or encroachment, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open space not being private property, whether such space is vested in the Municipality or not; provided that if the space be vested in Government the permission of the Collector shall have first been obtained; the expense of such removal shall be paid by the person who has caused the said obstruction or encroachment, and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX.
(3) ... ... ...
(4) ... ... ...
(5) ... ... ...
In view of the aforesaid provision it is contended that the Chief Officer of the Municipality has power to remove any obstruction or encroachment which may be on the open space, which is not private property and whether such space is vested in the Municipality or not. In the instant case, it is an admitted position that the open space occupied by the petitioners and other persons is in the old vegetable market which is vested in the Municipality. Therefore, there was no question of obtaining permission of the Collector, because the property did not vest in the Government. It is further submitted that the section does not provide that any notice be given to the occupant. Therefore, no notice was required to be given and the action could be taken by the Chief Officer of the Municipality without notice and without affording an opportunity of being heard.
9. The contention cannot be accepted. Conferment of power upon the Chief Officer does not mean that he could exercise power otherwise than in accordance with law. Conferment of power upon the Chief Officer carries with it the obligation to exercise the same in just, fair and reasonable manner. In the context the requirement of exercise of power in just, fair and reasonable manner would also include the necessity to issue notice upon the person concerned and affording an opportunity of being heard to him. Absence of specific provision obliging the authorities concerned to observe the principles of natural justice in the statutory provision does not mean that the provision of the statute excludes observance of the principles of natural justice. The principles of natural justice is nothing but fair play in action. No one needs direction from the legislature that he is required to act fairly. Any one, be it an executive officer, or judicial officer, who has been conferred with discretionary powers and who is charged with a duty to act judicially or impartially is bound to act fairly. Therefore, the provision as regards applicability of the principles of natural justice has got to be read into the provisions of the statute concerned, unless it is shown that the legislature has expressly or by necessary implication excluded the observance of the principles of natural justice.
10. In this connection reference may be made to 'Statutory Interpretation' by Francis Bennion, (1984) page 725. The learned author states that "unless the contrary intention appears, the conferring by an enactment of a power or duty to make a decision by implication imports related principles and rules of law. These are the principles and rules (such as the need to observe natural justice) which have been laid down or adopted by the Courts to govern the making of such decisions in the territory to which the enactment extends". The learned author further states, "it follows that the rules apply to every type of functionary upon whom any Act confers a decision making duty. They are implicit in the Act." The aforesaid observations have been adopted and approvingly followed by Division Bench of this Court in the case of Torrent Laboratories Pvt. Ltd. v. Union of India (paras 8 and 9 of the reported decision).
11. In view of the aforesaid settled legal position the contention that the provision of Sub-section (2) of Section 185 does not provide for issuing notice and therefore, it was not necessary for the Chief Officer to issue notice and afford an opportunity of being heard has no mertis.
12. It is contended that the very nature of the duty cast upon the Chief Officer and the nature of power conferred upon him is such that by necessary implication observance of principles of natural justice has been dispensed with by the legislature. Reliance is placed on the provisions of Section 231 of the Bombay Provincial Municipal Corporation Act, 1949 which inter alia provides that the Municipal Commissioner may, without notice, remove anything erected, deposited or hawked or exposed for sale in contravention of the provisions of the Bombay Provincial Municipal Corporations Act, 1949 ('BPMC Act' for short). Be it noted that the legislature has expressly conferred discretion upon the Municipal Commissioner to remove encroachment without issuing notice. The legislature has merely conferred discretion. The legislature has not given command to the Commissioner that he shall, without notice, cause encroachment to be removed. The section has conferred discretion on the Commissioner to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of public act must be fair and reasonable.
13. Here reference may be made to a decision of the Hon'ble Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation . Therein the provisions of Section 314 of the Bombay Municipal Corporation Act (3 of 1888), which was in pari materia with the provisions of Section 231 of the BPMC Act, came up for consideration. The Hon'ble Supreme Court upheld the constitutional validity of the aforesaid provision. The Hon'ble Supreme Court at the same time observed that conferment of discretion upon the Commissioner does not mean that the legislature issued a command to the Commissioner that he shall remove encroachment without issuing notice. In para 45 of the reported decision the Hon'ble Supreme Court observed that it must be presumed that while vesting in the Commissioner the power to act without notice, the legislature intended that the power should be exercised sparingly, and in case of urgency which brook no delay. In all other cases no departure from the audi alteram partem (hear the other side) rule could be presumed to have been intended. The Supreme Court further observed that hearing may be given individually or collectively, depending upon the facts of each situation. Departure from this fundamental rule of natural justice may be presumed to have been intended by the legislature only in circumstances which warranted such departure. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence. Thus, even in cases where the legislature has conferred discretion upon the authority concerned to dispense with the observance of principles of natural justice, the Hon'ble Supreme Court has held that departure from the fundamental rule of observance of principles of natural justice may be made sparingly and only in cases of urgency which brook no delay. Be it noted that such discretion is not conferred upon the Chief Officer as far as the provisions of Section 185 of the Gujarat Municipalities Act, 1963 is concerned. The legislature has not empowered the Chief Officer of the Municipality to take action under Section 185 of the Act without issuing notice to the person affected.
14. However, having regard to the nature of duty cast and the nature of the power to be exercised, one may assume and by necessary implication read that such discretion is conferred upon the Chief Officer also. Thus, we may proceed to examine the question on this assumption. We make it clear that we do not conclude that such discretion is conferred upon the Chief Officer. Even if it is assumed that such discretion is conferred upon the Chief Officer, he is bound to exercise the discretion in just, fair and reasonable manner which would inter alia mean observance of principles of nature justice. In the instant case, it is an admitted position that respondent Nos. 2 and 3, i.e., the Administrator of the Municipality and the Chief Officer of the Municipality, have not recorded the reasons to show that there existed exceptional circumstances which needed departure from the ordinary rule of following the principles of natural justice, i.e., audi alteram partem (hear the other side). There is nothing to indicate that there was urgency which brook no delay. No circumstances are shown to exist which would justify departure from the ordinary rule of observance of princiles of natural justice. Therefore, it is obvious that the action taken by respondent Nos. 2 and 3 is in contravention of the principles of natural justice and therefore, nullity.
15. Learned Counsel for the respondents referred to Division Bench decision of this Court in the case of Gulamali Gulamnabi Shaikh v. Municipal Commissioner reported in 1986 GLH 616. In that case the constitutional validity of provisions of Section 231 of the BPMC Act was challenged. Following the decision of the Supreme Court in the case of Olga Tellis (supra) the constitutional validity of the provisions of Section 231 of the BPMC Act has been upheld. In facts of the case the Division Bench has held that the action of the Municipal authorities in removing the larrywalas and gallawalas or patharanas without affording an opportunity of being heard was justified. It may be noted that in that case on facts justification was made out by the respondent authorities in support of their action of removing encroachment on public road without issuing notice. It may also be noted that in that case the petitioners had not raised any other defence except that no action should have been taken against them on humanitarian consideration. In para 14 of the reported decision the Court has justified the action taken by the Municipal Corporation by making the following observation:
None of the petitioners has put any other defence except that no action should have been taken against them on humanitarian considerations.
Thereafter, it is further observed by the Court that any inaction or delay on the part of the Commissioner would have created not only serious traffic problem by causing obstructions to the vehicular and pedestrian traffic but also could have resulted in serious safety problems to the persons travelling by the Municipal bus transport or private vehicles. Thus, it was in the peculiar facts and circumstances of the case that the Court rejected the contention about violation of the principles of natural justice.
16. The Court has not laid down general principles of universal applicability that the principles of natural justice are not required to be observed in all cases. This judgment of a Division Bench of this Court cannot be read so as to lay down any principle contrary to the principles laid down by the Hon'ble Supreme Court in the case of Olga Tellis (supra). It is not permissible to read this decision in a manner which may lead to conclusion inconsistent with the law laid down by the Supreme Court. Whenever it is possible to read a decision of this Court harmoniously with the principles laid down by the Supreme Court, the decision has to be read in that fashion only. It has to be presumed that this Court would never intend to lay down any principles of law which may run counter to law declared by the apex Court of the country. The Hon'ble Supreme Court has in the case of Olga Tellis (supra)(para 45 of the reported decision) laid down that the power conferred upon the Commissioner may be exercised sparingly and in case of urgent emergency which book no delay. In all other cases no departure from the rule of audi alteram partem could be premused to have been intended by the legislature. The Hon'ble Supreme Court has further observed that hearing may be given individually or collectively depending upon the facts of each situation. Departure from this fundamental rule may be presumed to have been intended by the lagislature only in circumstances which warrant such departure. The Supreme Court has laid down the principle that such circumstances must be shown to exist when so required. The burden to prove the existence of such circumstance is on those who affirm the existence of such circumstance.
17. As observed hereinabove, no such circumstances have been shown to exist in this case by producing contemporaneous record. Of course, an attempt is made to justify the action by making certain averments in the affidavit-in-reply. But it is an admitted position that before taking action no reasons have been recorded. There is no contemporaneous document indicating that there existed emergency which brook no delay and the situation demanded dispensing with the observance of principles of natural justice. Therefore, on the basis of the averments made in the affidavit-in-reply the action cannot be justified. If this is permitted it would mean that the order/decision which is initially bad may be made good by supplying reasons later on. This is not permissible. Therefore, also the action cannot be justified.
18. The decision of the Hon'ble Supreme Court in the case of Olga Tellis (supra) has been followed by a single Judge Bench of this Court in the case of Nehru Marg Cabin Association v. Modasa Nagar Palika and Ors. reported in 1988 (1) GLR 441. In paras 4 and 5 of the reported decision it is inter alia observed that even a trespasser should be asked and be given a reasonable opportunity to depart before force is used to expel him. Further, the decision of the Hon'ble Supreme Court in the case of Francis Coralis Mullin v. Union Territory of Delhi 1981 (2) SCC 516 : AIR 1981 SC 746 has been referred to. Then it is observed that in all cases it will be for the Court to decide whether the procedure adopted is reasonable, fair and just or otherwise. The necessary corollary of the aforesaid observation is that the Court may in a given case indicate what procedure would be reasonable, fair and just. After making the aforesaid observations the Court has indicated the procedure which should be adopted by the authority concerned before evicting the persons who occupy the places of their business in public places.
19. In the case of Bhavnagar Municipal Corporation v. Nandumal Pahelumal L.P.A. No. 264 of 1989 decided on October 17, 1989, a Division Bench of this Court has approved the principles laid down in Nehru Marg Cabin Association (supra) and it is observed as follows:
...even trespassers cannot be removed without affording an oppotunity of being heard and without giving sufficient notice so as to enable them to remove themselves from the place alleged to have been encroached. The observations made and the conclusion arrived at in the case of Nehru Marg Cabin Association (supra) are eminently just and proper. We are of the opinion that in absence of prescribed procedure under any Act or rules, the procedure indicated in the aforesaid decision of this Court is required to be followed by the executive authorities before removing the persons who might have allegedly encroached upon the land of public street.
20. The procedure indicated in the case of Nehru Marg Cabin Association (supra) is as follows:
(i) The respondent-authorities shall not take any action of removal of the petitioners from the business premises occupied by them without affording them an opportunity of being heard.
(ii) Such opportunity of being heard would also include:
(a) notice in writing to be served upon each of the occupants, calling upon him to show cause as to why he should not be removed from the place in question;
(b) the occupant concerned shall be afforded an opportunity of leading evidence in response to the notice; and
(c) the occupant concerned shall also be afforded an opportunity of being heard in person either by himself or through an Advocate;
(iii) In case the respondent-authorities after the inquiry as stated hereinabove, come to the conclusion that the occupant concerned is required to be removed from the place, and any decision adverse to the occupant is taken, the same shall not be implemented for a period of one month from the date of communication to the occupant.
(iv) The order that may be passed by the respondent-authorities shall be served upon the occupant preferably by registered A.D. post. The same shall also be sent by an ordinary post under certificate of posting and the order shall also be affixed on the premises in question.
21. While deciding L.P.A. No. 264 of 1989 Division Bench of this Court has further observed that the minimum that may be required of the executive authorities would be to follow the just, fair and reasonable procedure and that just and reasonable procedure, in absence of any statutory provision, should conform with what is indicated in the case of Nehru Marg Cabin Association (supra).
22. In the instant case, as observed hereinabove, no such case is made out by the respondents. As observed by the Supreme Court, the burden lies upon the authority which wishes to claim exception and wishes to make departure from ordinary rule of affording an opportunity of being heard to the other side before action is taken. In this case no such procedure is followed. Therefore, the action by the respondent Nos. 2 and 3 is in contravention of the principles of natural justice and hence such action is nullity. In view of the settled legal position, the respondents cannot be permitted to take action otherwise than in accordance with the principles of natural justice and the procedure as indicated hereinabove.
23. Here it may be noted that in the case of Saudan Singh v. N.D.M.C. , the Hon'ble Supreme Court, after referring to its earlier decision in the case of Bombay Hawkers' Union v. Bombay Municipal Corporation , has observed in para 2 of the decision as follows:
It is, therefore, settled law that every citizen has a right to the use of a public street vested in the State as a beneficiary but this right is subject to such reasonable restrictions as the State may choose to impose. Street-trading is albeit a fundamental right under Article 19(1)(g) of the Constitution but it is subject to reasonable restrictions which the State may choose to impose by virtue of Clause (6) of Article 19 of the Constitution.
In view of this settled legal position the petitioners' right to carry on business in the vegetable market where they are carrying on such business for last many years cannot be denied. Of course, this may be subject to certain reasonable restrictions and regulations.
24. In above view of the matter, it was suggested to the learned Counsel appearing for respondent Nos. 2 and 3 that the persons who were carrying on business in the vegetable markets be not disturbed. Similarly, suggestion was made to the learned Counsel for the petitioners to see that some more space is made available to the customers coming to the vegetable markets. This we found necessary in respect of the persons who are occupying stalls/plots Nos. 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52/1, 52/2 and 53. In respect of these persons it was suggested to the learned Counsel for the petitioners that they should reduce the width of the plots by 'A foot, that is to say, from 3 feet it should be reduced to 2'/2 feet. Similarly, in respect of occupants of stalls/plots Nos. 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 it was suggested that the width of the stalls/plots be reduced by 1, foot, i.e., from 7 feet to 6 feet. Learned Counsel appearing for the petitioners has agreed to make such reduction in the space occupied by the respective plot/stall-holders. (Reference to the stalls/plot numbers is on the basis of the map produced on the record of the petition).
25. It was suggested to the learned Counsel for the respondents that the petitioners be not restrained from placing the floor/ota in the original position as it existed prior to the impugned action of demolition and removal. In view of the settled legal position the learned Counsel for the respondents has fairly conceded that the Court may pass appropriate order in this behalf.
26. In the result, the petition is partly allowed. The prayer with regard to the challenge to the constitutional validity of the provisions of Sections 4 and 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 is not considered as having not been pressed. As far as rest of the prayers is concerned, the impugned action taken on 15-12-1993 by respondent Nos. 2 and 3 of demolition of ota and removal of the petitioners and others from the space occupied by thern in the vegetable market is held to be illegal and void. It is directed that the possession of the petitioners and other occupants whose names are mentioned in Annexure-A to the petition shall not be disturbed by the respondents. They shall not be restrained from carrying on business as they were carrying on the business prior to the impugned action of demolition and removal had taken place on 15-12-1993. The following occupants shall reduce the width of the plots/stall occupied by them from 3 feet to 21/2 feet:
-----------------------------------------------
Name of the occupant Stall/premises No.
-----------------------------------------------Jagdishbhai Gangaram 39 Rukhiben Sodabhai 40 Popatbhai Lakhubhai 41 Kashi Gandabhai 42 Samuben Kanjibhai 43 Laloben Vaghabahi 44 Bharatbhai Jovanbhai 45 Dayaram Govabhai 46 Motiben Gandabhai 47 Kadviben Okhadbhai 48 Chhanabhai Mohanbhai 49 Rasikbhai Motibhai 50 Ganpatbhai Govindbhai 51 Govindbhai Dalabhai 52/1 Kankuben Ambaram 52/2 Lakshmiben Talshobhai 53
The occupants of stall/premises No. 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 shall reduce the width of the stalls/space occupied by them from 7 feet to 6 feet. The aforesaid occupants shall take the aforesaid action within fifteen days from today. The respondents shall not prevent the occupants from restoring the position of the stall/plots as status quo ante. However, the occupants shall not raise; the height of the floor/ota beyond 2V4 feet, and in any case the length and width of the floor/ota shall not be extended or enlarged by the occupants concerned. Respondents are directed not to disturb their possession otherwise than in accordance with law and the principles laid down in this judgment and order. Rule made absolute to the aforesaid extent with no order as to costs.