ESSO STANDARD EASTERN INC Vs. S K GANGOPADHYAY

JUDGEMENT

(1.) The first petitioner herein is a petroleum company and the second petitioner is a registered partnership working as a dealer in petroleum products. The second petitioner firm is a supplier dealing in the products of the first petitioner Company. The respondents are the Municipal Corporation of Baroda and the Municipal Commissioner. The predecessor in title of the first petitioner Company had taken on lease a piece of land admeasuring 70x 45 from the Baroda Borough Municipality which was the predecessor in title of the Municipal Corporation of Baroda the second respondent herein. This piece of land is situate at Sayaji Ganj near Sayaji Ganj Police Chowky. The lease was effected by a registered lease deed dated December 14 1960 and the duration of the lease was from November 4 1959 and the lease was to be in force for a period of seven years. Under the lease the Company which was the predecessor in title of the first petitioner Company was at liberty to underlet the premises and had also the right to install erect and maintain underground tanks delivery pumps and shelter for an attendant and other building. It was entitled to erect structures of permanent or temporary natures for the purpose of storing selling or otherwise carrying on the business in petrol petroleum products etc. and any other business. After the lease was executed petrol tanks were installed; petrol pumps and other installations were also put up and necessary super structures were also put up on the and. Thereafter the first petitioner Company gave a licence of the premises with installations and super structures to the second petitioner firm and the second petitioner firm occupied the same for the purpose of carrying on business in petroleum and petroleum products bought from the first petitioner Company. The second petitioner firm is in actual occupation of the premises since 1962. By its letter dated August 6 1966 petitioner No. 1 Company wrote to the Municipal Commissioner Baroda requesting him to renew the lease for a further period but on October 12 1966 the municipal authorities replied that the Company's request for continuation of the lease had not been granted and therefore the Company should arrange to remove the pump and other structures from the site and hand over possession of the land on or before November 4 1966 In the meanwhile first petitioner Company learnt that the Municipality had renewed the leases granted to the other oil companies or their dealers namely Burmah Shell and Caltex for a further period of five years. The first petitioner therefore addressed a letter dated October 28 1966 to the Municipal Commissioner bringing to his notice these facts and requested him to reconsider his decision in respect of this plot of land at Sayaji Ganj. Thereafter there was a meetings between the Municipal Commissioner and the first petitioner Company and oral discussions took place but the Municipal Commissioner was of the view that the site occupied by the petitioner Company should be leased to the Indian Oil Corporation which is a rival of the first petitioner Company dealing in petrol and the Indian Oil Corporation had applied for lease of this particular site. The petitioners have annexed at Annexure C to the petition a circular issued by the Government of Gujarat to all Government Departments and Municipalities on December 1 1961 stating that the request for plots of land made by the Indian Oil Corporation should be expeditiously and sympathetically dealt with.

(2.) The Municipal Commissioner served a notice on the first petitioner Company dated November 30 1966 purporting to act under sec. 437A sub-sec. (2) of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the Act) and the notice stated that the first petitioner Company was in unauthorised occupation of the premises and the Company was called upon to show cause why an order evicting it should not be made. The first petitioner Company showed cause in response to that notice and at that stage it contended that sec. 437A was unconstitutional and invalid and that the Municipal Commissioner had no jurisdiction to make the order which he proposed to pass. Various other contentions were also taken by the first petitioner Company. The then Municipal Commissioner first respondent herein rejected all the contentions and passed an order on April 15 1967 directing the first petitioner Company to vacate the premises within one month of the service of the order. A notice dated April 20 1967 was received calling upon the petitioner Company to show cause why an order to pay mesne profits at the rate of Rs. 220/per month for occupying the site after the lease had expired should not be made and this notice of April 29 1969 contained a reference to the order of eviction and thereupon the Company came to know about the order of eviction having been passed. In the present petition the petitioners have prayed that the respondents should be directed to treat provisions of sec. 437A of the Act as unconstitutional and void and further directing the respondents to treat the order dated April 15 1969 as ultravires illegal void and of no effect. They have also sought a direction from this court restraining the respondents from taking possession of the premises in question in pursuance of the said order dated April 15 1967

(3.) We may mention in the beginning that the question of the vires of sec. 437A(1) has been decided by a Division Bench of this court consisting of Bhagwati C. J. and Bakshi J. in Kamanlal Govindram v. Ahmedabad Municipal Corporation (XI G. L. R. 1). We may point out that under sec. 437A if the Municipal Commissioner is satisfied that any person is in unauthorised occupation of the municipal premises he 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 order that such 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. Clause (a) of sec. 437A(1) is not material for the purpose of this judgment. It is clear from what we have stated hereinabove that the Municipal Commissioner was purporting to act only by virtue of the powers conferred upon him by sec. 437A(1)(b) As regards the provisions of this clause (b) the Division Bench has held following the decision of the Supreme Court in Northern India Caterers (Pvt.) Ltd. v. State of Punjab (A.I.R. 1967 S. C. 1581 that as the remedy provided in sec. 437 sub-sec. (1) clause (b) is supplemental and not exclusive and as this remedy is clearly a summary and is more drastic and prejudicial in nature than the ordinary remedy of a suit and sec. 437A sub-sec (1) leaves it open to the Municipal Commissioner at his sweet will to adopt either the one remedy or the other according as he in his absolute and uncontrolled discretion thinks fit it must be held to be violative of the equality clause in Art. 14 of the Constitution and the Division Bench therefore struck down sec. 4373(1)(b). Mr. Divecha on behalf of the Municipal authorities has urged before us that this Division Bench decision requires reconsideration and he contended that we should come to the conclusion that a reconsideration is required and therefore we should refer this case to a larger Bench.