Babubhai & Co. & Ors Vs. State
of Gujarat & Ors [1985] INSC 81 (9 April 1985)
TULZAPURKAR, V.D. TULZAPURKAR, V.D.
KHALID, V. (J)
CITATION: 1985 AIR 613 1985 SCR (3) 614 1985
SCC (2) 732 1985 SCALE (1)658
CITATOR INFO:
R 1986 SC 468 (32) R 1989 SC1949 (10)
ACT:
Bombay Town planning Act 1954 , s 54 read with Rule 27
of Bombay Town planning Rules 1955 Provision for summary eviction of lands
required for public purpose- Absence of a corrective machinery by the appeal or
revision- validity of.
HEADNOTE:
The respondent-State issued notice u/s. 54 of
the Bombay Town Planning Act 1954 (for short the Act) read with Rule 27 of the
Bombay Town Planning Rules 1955 (for short the Rules) to the appellants to hand
over possession of their lands lying within the limits of Borough Municipality
of Ahmedabad to the Municipal Corporation of Ahmedabad as the same had vested
absolutely - in the Municipal Corporation free from all encumbrance u/s 53 (a)
of the Act and were required for construction of roads and other public
purposes. The appellants challenged before the High Court under Art. 226 the
constitutional validity of s. 54 of the Act and Rule 27 of the Rules. The High
Court dismissed the writ petitions holding; (i) that the rights of the local
authority (to own and obtain possession of such lands) with the corresponding
liability of the occupants to suffer eviction therefrom did not exist under the
general 11' law prior to the making of the Final Scheme , that such rights and
liabilities were created for the first time by the Final Scheme which is to be
read as part of the Act and since the Act while creating these new rights and
liabilities provided for a special and particular remedy for enforcing them
under s. 54 , the remedy of summary eviction must be held to be an exclusive
remedy and the liability to eviction arising under s. 53 (a) or (b) cannot be
enforced by the ordinary remedy of a suit; (ii) that s 54 conferred upon the
local authority a quasi-judicial power and not administrative power and as such
it was bound , in conformity with the principles of natural justice , to give
an opportunity of hearing to the occupants before taking the threatened action
of summary eviction and therefore no question of section being bad in law
arose; and (iii) that since Rule 27 did not contain any express exclusion of
such hearing and since s.54 impliedly required the observance of principles of
natural justice on the part of the local authority 615 while exercising the
power of summary eviction , the said requirement must also be read in Rule 27
and so read the Rule could not be regarded as ultra vires the section.
In appeals to this Court , the appellants
contended that even proceeding on the basis that s. 54 impliedly required a
hearing to be given and consequently such a requirement could be read into Rule
27 which was asubordinate piece of legislation , there was no corrective
machinery provided for by way of an appeal or revision to any superior
authority against an adverse order that may be passed by the local authority
acting under Rule 27 and in the absence of any such corrective machinery the
entire provision must be held to be bad in law and therefore the impugned
notices served on the appellants should be quashed.
Dismissing the appeals , ^
HELD: (1) Mere absence of a corrective
machinery by way of appeal or revision by itself would not make the Power
unreasonable or arbitrary , much less would render the provision invalid.
Regard will have to be had to several factors , such as , on whom the power is
conferred whether on a high official or a petty officer , what is the nature of
the power-whether the exercise thereof depends upon the subjective satisfaction
of the authority or body on whom it is conferred or is it to be exercised
objectively by reference to some existing facts or tests , whether or not it is
a quasi-judicial power requiring that authority or body to observe principles
of natural justice and make a speaking order etc.; the last mentioned factor
particularly ensures application of mind on the part of the authority or body
only to pertinet or germane material on the record excluding the extraneous and
irrelevant and also subjects the order of the authority or body to a judicial
review under the writ jurisdiction of the Court on grounds of perversity , extraneous
influence , malafides and other blatant infirmities. Moreover all these facts
will have to be considered in the light of the scheme of the enactment and the
purpose intended to be achieved by the concerned provision. If on an
examination of the scheme of the enactment as also the purpose of the concerned
provision it is found that the power to decide or do a particular thing is
conferred on a very minor or petty officer , that the exercise thereof by him
depends on his subjective satisfaction , that he is expected to exercise the
power administratively without any obligation to make a speaking order then ,
of courtesy , the absence of a corrective machinery will render the provision
conferring such absolute and unfettered power invalid. But it is the cumulative
effect of all these factors that will render the provision unreasonable or
arbitrary and liable to be struck down.
[619F-H; 620A-D] (2) In the instant case , it
is at the stage of execution of a town planning scheme that the power of summary
eviction of occupants who have ceased to be entitled to occupy the plots in
their occupation has been conferred upon the Local Authority itself-a highly
responsible body , and that the power is required to be exercised by it in
objective manner (it is to be found by reference to the Final Scheme and its
interpretation whether the occupants are occupying 616 lands which they are not
entitled to occupy.) Further , as already held by the High Court , the power
conferred upon the local Authority is a quasi-judicial power which implies that
the same has to be exercised after observing the principles of natural justice
, and that too by passing a speaking order which implies giving of reasons and
that ensures the application of mind to only germane or relevant material on
the record eschewing extraneous and irrelevant , Moreover any order of summary
eviction based on any extraneous , non- germane , irrelevant or malafide
considerations would be subject to the writ jurisdiction of Court. [625E - H;
622A] C. R. H. Ready money Ltd. case in AIR 1956 Bombay 304 , Chandrakant
Krishnarao's case , in [1952] 3 SCR 108 , Lala Hari Chand Sarda's case , [
1967] 1 SCR 1012 and Excel Wear's case in [1979] 1 SCR 1009 , referred to
Organo Chemical Industries & Another v- Union India and Others , relied
upon.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos 2084 2089 (N) of 1972 a From the Judgment dated 24.12.1971 of the High
court of Gujarat in Special Civil Applications Nos. 650/71 , 652-654/71 , 81/71
and 64/71 Soli J. Sorabiee , Kamal Mehta , Aditya Narayan and Mrs. A.K. Verma
for the Appellants M.N. Phadke and R.N. Poddar for the Respondents.
S.T. Desai and H.S.Parihar for Respondent
Nos. 2 & 3.
The Judgment of the Court was delivered by
TULZAPURKAR , J. There is no substance in these appeals preferred by the
appellants against a common judgment rendered in a batch of writ petitions by
the High Court on 24th December 1971 wherein the High Court has upheld the
constitutional validity of s. 54 of the Bombay Town Planning Act 1954 (for
short the Act) and Rule 27 of the Bombay Town Planning Rules 1955 (for short
the Rules).
By a notification dated 21st July , 1965 the
State Government of Gujarat sanctioned the final Town Planning Scheme in
respect 617 of certain areas lying within the limits of Borough Municipality of
Ahmedabad and directed that the said Final Scheme shall come into force on 1st
September , 1965. The lands in the possession of the appellants were allotted
or reserved for construction of roads and other public purposes in that Scheme
and therefore , being lands required by the Municipal Corporation they vested
absolutely in Municipal Corporation (local authority) free from all
encumbrances under s. 53 (a) of the Act. Thereafter by notices issued under
s.54 read with Rule 27 the Municipal Corporation called upon the appellants to
hand over possession of the lands in their - occupation , which , since such
vesting , they were not entitled to occupy; in other words , the procedure or
the remedy for summary eviction of the appellants was resorted to by the
Municipal Corporation.
By writ petitions filed under s. 226 of the
Constitution the appellants challenged the validity of these notices on two
grounds:
(a) that s 54 confers absolute discretion
upon the local authority to adopt for eviction the occupants of such lands
either the normal remedy of a civil suit or the drastic remedy of summary
eviction under it without any guide-lines being prescribed or indicated for the
exercise of such discretion and therefore the section was violative of Art. 14
inasmuch as the local authority could pick 'and choose at its sweet will some
of such occupants for subjecting them to the more drastic remedy;
(b) that s. 54 which provides for summary
eviction by service of notice contemplated thereunder was opposed to principles
of natural justice inasmuch as no opportunity was contemplated to be afforded
to the occupants of such lands to show cause against the proposed eviction and
as such was bad in law; and in any event even if s. 54 was , on proper
construction held to include the affording of such opportunity Rule 27 was
ultra vines the said section inasmuch as it laid down the procedure which did
not conform to principles of natural justice.
The High Court has negatived both the grounds
of challenge. As:
618 regards ground (a) , relying upon the
decision in Wolver- hampton New Water Works case reported in ( 1859) 6 B.
(N.S.) 336 and observations of Willes J. therein (appearing at page 356 of the
Report) the High Court took the view that the rights of the local authority (to
own and obtain possession of such lands) with the corresponding liability of
the occupants to suffer-eviction therefrom did not exist under the law prior to
the making of the Final Scheme , that such rights and liabilities were created
for the first time by the Final Scheme which is to be read as part of the Act
and since the Act creating these new rights and liabilities provided for a
special and particular remedy for enforcing them under s. 51 the remedy of summary
eviction must be held to be an exclusive remedy and the liability to eviction
arising under s. 53 (a) or (b) cannot be enforced by the ordinary remedy of a
suit; in other words , the remedy of summary eviction under s. 54 having been
held to be an exclusive remedy the entire ground of challenge disappeared.
As regards ground (b) the High Court took the
view that s. 54 conferred upon the local authority a quasi-judicial power and
not administrative power and as such it was bound , conformity with the principles
of natural justice , to give an opportunity of hearing to the occupants before
taking the threatened action of summary eviction and therefore no question of
section being bad in law arose; as regards Rule 27 the High Court held that
since the said Rule did not contain any express exclusion of such hearing and
since s.
54 impliedly required the observance of
principles of natural justice on the part of the local authority while
exercising the power of summary eviction , the said requirement must also be
read in Rule 27 and so read the Rule could not be regarded as ultra vires the
section. The High Court also proceeded to indicate in what ways such hearing
could be afforded by the local authority while acting under the said Rule. This
is how the High Court upheld the constitutional validity of s. 54 of the Act
and Rule 27 of the Rules.
Counsel for the appellants fairly conceded
the validity of the High Court's view on the first ground of challenge to s.
54. It was only in regard to the second ground of challenge that he pressed one
more aspect before us on the basis of which he contended that s. 54 read with
Rule 27 may have to be struck down. He urged that even proceeding on the basis
that s. 54 impliedly required a hearing to be given and consequently such a
requirement could be read into Rule 27 which was a subordinate piece of
legislation , there was no 619 corrective machinery provided for by way of an
appeal or revision to any superior authority against an adverse order that may
be passed by the local authority acting under Rule 27 and in the absence of any
such corrective machinery the entire provision must be held to be bad in law
and therefore the impugned notices served on the appellants should be quashed.
In support of this contention counsel relied upon three or four decisions in
C.R.H. Ready money Ltd. case(l) Chandrakant Krishnarao's case , (2) Lala Hari
Chand Sarda's case(3) and Excel Wear's case(4) where a view has been taken that
in the absence of a provision for corrective machinery by way of appeal or
revision , the provision conferring a power to decide or do a particular thing
may have to be regarded as unreasonable and or un-guided , un-controlled and
arbitrary and hence violative of Article 14 of the Constitution. It is not
possible to accept the contention.
It cannot be disputed that the absence of a
provision for a corrective machinery by way of appeal or revision to a superior
authority to rectify an adverse order passed by an authority or body on whom
the power is conferred may indicate that the power so conferred is unreasonable
or arbitrary but it is obvious that providing such corrective machinery is only
one of the several ways in which the power could be checked or controlled and
its absence will be one of the factors to be considered along with several
others before coming to the conclusion that the power so conferred is
unreasonable or arbitrary; in other words mere absence of a corrective
machinery by way of appeal or revision by itself would not make the power
unreasonable or arbitrary , much less would render the provision invalid.
Regard will have to be had to several factors , such as , on whom the power is
conferred-whether on a high official or a petty officer , what is the nature of
the power-whether the exercise thereof depends upon the subjective satisfaction
of the authority or body on whom it is conferred or is it to be exercised
objectively by reference to some existing facts or tests , whether or not it is
a quasi-judicial power requiring that authority or body to observe principles
of natural justice and make a (l) A.I.R. 1956 Bom. 304 (2) [1962] 3.S.C.R. 108
(3) [1967] 1.S.C.R. 1012 (4) [1979] 1.S.C.R. 1009 620 speaking order etc; the
last mentioned factor particularly ensures application of mind on the part of the
authority or body only to pertinent or germane material on the record excluding
the extraneous and irrelevant and also subjects the order of the authority or
body to a judicial review under the writ jurisdiction of the Court on grounds
of perversity, extraneous influence , malafides and other blatant infirmities
Moreover all these factors will have to be considered in the light of the
scheme of the enactment and the purpose intended to be achieved by the
concerned provision. If on an examinations of the scheme of the enactment as
also the purpose of the concerned provision it is found that the power to
decide or do a particular thing is conferred on a very minor or petty officer ,
that the exercise thereof by him depends on his subjective satisfaction , that
he is expected to exercise the power administratively without any obligation to
make a speaking order then , of course , the absence of a corrective machinery
will render the provision conferring such absolute and unfettered power
invalid. But it is the cumulative effect of all these factors that will render
the provision unreasonable or arbitrary and liable to be struck down. In three
of the decisions referred to by counsel where the concerned provision was
struck down the cumulative effect of several factors that were present in each
was taken into consideration by the Court , while in C.R.H. Readymoney's case
the provision was held to be valid .
In this behalf we might usefully refer to a
decision of this Court in Organo chemical Industries Another V. Union of India
and Others.(1) In this case s. 14B of the Employees Provident Fund and
Miscellaneous Provisions Act 1952 which conferred power upon the Central
Provident Fund Commissioner to levy and recover punitive damages from a
defaulting employer was challenged on the ground that within the limit of 100%
of the defaulted amount it conferred naked and unguided power on the
Commissioner to impose any quantum of damages as he fancied that no reasons
were required to be given by him for such imposition and that no appellate or
revisional review was prescribed against any adverse order that may be made by
him and as such the section was violative of Art. 14 of the Constitution.
Negativing the contention this Court took the (1) [9801] 1 S.C.R. 61.
621 view that the power under the section had
been conferred upon one of the highest officials of the Government , that the
power to impose damages on a party after hearing him was a quasi-judicial one
that observance of requirements of natural justice was implicit in such
jurisdiction that one desideratum thereof was spelling out of the reasons for
the order to be made , that giving of reasons ensured rational action on the
part of the Officer because reasons implied relevant reasons necessitating the
application of mind on the part of the Officer only to pertinent and germane
material on record and that once reasons were set out the order readily exposed
itself to the writ jurisdiction of the Court so that perversity , illiteracy ,
extraneous influence , malafides and other blatant infirmities got caught and
corrected. Under such circumstances this Court held that the needs of the
factual situation and the legal milieu were such that the absence of appellate
review in no way militated against the justice and reasonableness of the
provision and that the argument of arbitrariness on this score was untenable.
In the instant case on an examination of the
Scheme of the Act as also the purpose sought to be achieved by s. 54 it will
appear clear that the topic of making of town planning schemes is dealt with in
ss. 21 to 53 while s. 54 (and some of the following sections like 55 and 71 to
78) deal with the aspect of the execution of town planning schemes and it is at
the stage of execution of a town planning scheme that the power of summary
eviction of occupants who have ceased to be entitled to occupy the plots in
their occupation has been conferred upon the Local Authority itself-a highly
responsible body , and that the power is required to be exercised by it in
objective manner (it is to be found by reference to the Final Scheme and its
interpretation whether the occupants are occupying lands which they are not
entitled to occupy , ). Further we are in agreement with the High Court that
the power conferred upon the Local Authority is a quasi-judicial power which
implies that the same has to be exercised after observing the principles of
natural justice , that is to say , the decision that the occupants are not
entitled to occupy the plots in their occupation has to be arrived at after
hearing such occupants and that too by passing a speaking order which implies
giving of reasons and that ensures the application of mind to only germane or
relevant material on the record 622 eschewing extraneous and irrelevant.
Moreover any order of summary eviction based on any extraneous , non-germane ,
irrelevant or malafide considerations would be subject to the writ jurisdiction
of Court. Having regard to these aspects , more absence of corrective machinery
by way of appeal or review would not in our view render the provision invalid.
In the result the appeals are dismissed with
no order as to costs.
M.L.A. Appeals dismissed.
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