1979 (4) TMI 168 - HC - Indian Laws

Summary

Issues Involved:

1. Constitutionality of Sections 297 to 301 of the Bombay Municipal Corporation Act, 1888 under Article 14 of the Constitution.
2. Whether the group of sections 297 to 301 constitutes an alternative mode of acquisition or an exception to Section 296.
3. Validity of the classification between land falling within the regular line of the street and land outside it.
4. Alleged procedural discrimination in the absence of personal service of notice and personal hearing.
5. Adequacy and determination of compensation under Section 301 compared to the Land Acquisition Act.
6. Challenge under Article 31(2) of the Constitution regarding the adequacy of compensation.

Detailed Analysis:

1. Constitutionality of Sections 297 to 301 under Article 14:

The court examined whether Sections 297 to 301 of the Bombay Municipal Corporation Act, 1888, constitute an alternative mode of acquisition to Section 296 or an exception to it. The court held that Sections 297 to 301 are particular provisions that cut down or limit the general operation of Section 296, thus constituting an exception to it. The classification between land within the regular line of the street and land outside it was deemed reasonable and based on an intelligible differentia with a rational relation to the object sought to be achieved.

2. Alternative Mode of Acquisition or Exception:

The court ruled that Sections 297 to 301 constitute an exception to the general provisions of Section 296. The Municipal Commissioner must proceed under Sections 298 or 299 to acquire land within the regular line of the street, which is not built upon or becomes open, and cannot use Section 296 for such acquisitions. This interpretation follows the rule that when power is given under a statute to do a certain thing in a certain way, it must be done in that way or not at all.

3. Validity of Classification:

The classification between land falling within the regular line of the street and land outside it was upheld as valid. The court found that the object of Sections 297 to 301 is to prescribe a building line for regularity and orderly development, which is different from the object of Section 296, which is to widen or improve public streets. The classification was held to be rational and not arbitrary, as it was based on the type and quality of the land and the purpose for which it could be used.

4. Procedural Discrimination:

The court rejected the argument of procedural discrimination due to the absence of personal service of notice and personal hearing. It was noted that adequate publicity was given to the proposal to prescribe a fresh regular line of the street through public notices in newspapers and the Official Gazette, as well as special notices put up in the street. The court found that the nature of objections to the proposed prescription of a fresh regular line is limited and does not require a personal hearing. Additionally, the court held that the Municipal Commissioner is included in the definition of "person" under Section 504, allowing for a judicial determination of compensation by the Chief Judge of the Small Causes Court.

5. Adequacy and Determination of Compensation:

The court held that compensation under Section 301 provides full indemnification in accordance with judicial norms, similar to the principles laid down in the Land Acquisition Act. The court dismissed the argument that the compensation would be less under Section 301, noting that the owner is fully indemnified for all losses sustained. The absence of a provision for interest in Section 301 was also addressed, with the court stating that interest is awarded by courts from the date of taking possession of the property.

6. Challenge under Article 31(2):

The court rejected the challenge under Article 31(2) of the Constitution, stating that the Bombay Municipal Corporation Act is an "existing law" and thus not affected by Clause (2) of Article 31. The court also referred to the Supreme Court's decision in the Municipal Corporation of the City of Ahmedabad v. The State of Gujarat, which upheld similar provisions.

Conclusion:

The appeals were allowed, the judgment and order appealed against were set aside, and the writ petition filed by the first respondent was dismissed with costs. The court also rejected the application for a certificate of fitness to appeal to the Supreme Court under Article 133(1) of the Constitution.