ORDER G. Mehrotra, J.
1. This is an application under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the notices dated 15-9-1955 and 23-12-1955 issued by the opposite party, the Administrator, Improvement Trust, Agra. It is further prayed that a writ of mandamus be issued to the opposite party requiring him to forebear from giving effect to the notices and the order dated 15-9-1955 and 23-12-1955.
2. The facts briefly which are alleged in the affidavit are that the petitioner is the proprietor of a flour mill known as Agra Roller Flour Mill which is situate in Phatak Suraj Brian, Agra, on land, and premises bearing the present municipal number 1162. The land was acquired by the petitioner under various sale deeds on different dates and it is not necessary to go into details as regards the question of title of the petitioner to the land.
On 16-9-1955 the petitioner, it is alleged, received the notice dated 15-9-1955 from Sri M. A. Quraishi, Administrator, Agra Improvement Trust, Agra, requiring him to remove encroachments alleged to have been made over a total area of 629.7 sq. yards of Nazul Plot No. 2325 at Phatak. Suraj Bhan, Agra within ten days of the receipt of the notice failing which the encroachments were to be removed through the Administrator's own agency at petitioner's cost.
This notice purports to have been issued under bye-law No. 3 (1) of the Bye-laws of the Agra Municipal Board., The petitioner then on receipt of the notice, it is alleged, made several attempts to personally see the Administrator. Several attempts failed till untimately he met the Administrator and he was asked to give his reply to the notice.
Thereafter the petitioner filed his objections to it in writing and he claimed that he had, made no encroachments on the Nazul land but whatever constructions he had made he had made on his own land. At a later stage he was asked to produce evidence to substantiate this allegation. His allegation is that he tried to place all the materials before the Administrator but he was not given any opportunity till finally on 23-12-1955 the notice was issued by the Administrator which reads as follows:
"Whereas a notice No. 4116 dated 15-9-1955 under bye-law No. 3 (1) of the Bye-laws for protection of Government and Municipal Property directing you to remove the encroachment over a portion measuring 629.7 sq. yards of Nazul -plot No. 2325 situated at Phatak Suraj Bhan, Belanganj, encroached upon by you as follows:
has already been served upon you on 16-9-1955.
And whereas the said encroachment has not yet been removed although ten day's time given in the notice referred to above has already expired.
I, M. A. Quraishi, ICS, Administrator, Agra Improvement Trust, hereby order the removal of the said encroachment by the agency of the Agra Improvement Trust on 30-12-1955 at 10 a. m. at your costs,"
After the receipt of this notice the petitioner tried that the demolition of the constructions be stayed but as he failed in his attempts ultimately this petition was filed in this Court on 29-12-1955. By means of this petition, as I have already pointed out, the two notices, one issued on 15-9-1955 and the other on 23-12-1955, are sought to be quashed.
3. The counter-affidavit has been filed on behalf of the opposite party in which it is asserted that the petitioner is not the owner of the land on which he had made certain constructions, that land is a part of the Nazul land and the petitioner has encroached upon it. It is further alleged in the counter-affidavit that the petitioner was given full opportunity which he did not avail of with the result that the Administrator was forced to take action under the Bye-laws of the Municipal Board and the provisions of the Act.
In view of the points pressed before me and in view of the decision on the other points it is not necessary to enter into this controversial question of fact.
4. Three points have been urged by the petitioner. Firstly it is contended by the petitioner that bye-law No. 3 (1) of the Bye-laws of the Municipal Board, 'Agra, is ultra vires inasmuch as it affects the fundamental right guaranteed to the petitioner under Article 14 of the Constitution. Secondly it is contended that the right guaranteed to the petitioner under Article 19(1)(f) has been infringed by the bye-law in question and it is therefore void under Article 13(2) of the Constitution.
Lastly it is urged that the bye-law goes beyond the scope of the provisions of Section 298 of the Municipalities Act. Nothing has been stated in either of the two affidavits as to whether this bye-law had been adopted by the Improvement Trust, Agra; but it has been assumed and it is not necessary for me to decide that the bye-law in question was a bye-law adopted by the Improvement Trust, Agra or not. It was in the exercise of his powers under that bye-law that the notices had been issued by the Administrator, Agra,
5. I shall first take up the question with regard to the applicability of Article 14 of the Constitution. Reliance has been placed on the decision of this Court in Brigade Commander, Mee-rut Sub-Area v. Ganga Prasad, 1956 All LJ 251: ( (S) AIR 1956 AH 507) (A). In that case the validity of the Government Premises (Eviction) Act. 1950 was challenged.
In the Act there was a provision which authorised the Brigade Commander of the Sub-Area to issue a notice requiring any person who was in unauthorised occupation of the Government premises to vacate the premises within a certain period and failure to do so entitled the Brigade Commander to get him ejected even with the help of police force. This provision of the Act was held to be unconstitutional and hit by the provisions of Article 14.
It is not necessary to refer to the cases of the Supreme Court where the principles with regard to the applicability of Article 14 have been laid down. As was observed by Mukherjea J., in the case of Charanjit Lal v. Union of India, AIR 1951 SC 41 (B), the classification must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid, It has been laid down that the legislation which discriminates may be justified on the ground of reasonable classification but the classification must have a reasonable relation to the objective of the Act itself. Having considered the objects and the circumstances of the case it was held in the case of Brigade Commander Meerut that the provisions of Section 3 of that Act themselves were bad as they were not bearing a rational relationship between the objective of the Act and the basis of the classification.
6. In the present case the Bye-laws were framed in the exercise of the powers conferred under Section 298 of the Municipalities Act and in order to see whether the classification brought about by bye-law 3 of the Bye-laws bears any reasonable relation to the objective of the Act itself it is necessary to examine the Municipalities Act itself. The Preamble of the Municipalities Act provides that:
"Whereas it is expedient to consolidate and amend the law relating to municipalities in the United Provinces; It is hereby enacted as follows:"
The municipalities are created under the Municipalities Act and they have got certain duties to perform. It may therefore be that the duty of "the municipalities is to efficiently administer the municipal areas and also to provide for the lighting of public streets and places, watering public streets and places and such other things which are enumerated in Section 7 of the Act.
A right has also been given to the municipalities under Section 118 to manage the Nazul land. But it cannot be said that any bye-law which gives a special power to the Municipal Board to eject a person from a land which the Municipal Board thinks has been encroached upon by a citizen by giving him notice cannot be said to bear any reasonable relation to the objective of the Act itself.
The objective of the Act does not justify any special treatment to the Government in respect of the Nazul land. As it was observed in Ram prasad v. The State of Bihar AIR 1953 SC 215 (C) by Patanjali Sastri, C. J. that the Constitution prohibits by Article 14 the State from denyixue the protection of adjudication of a dispute by observing the well established procedural safe- guards which include the right to be heard, the right to produce witnesses and so on.
If anybody encroaches upon a land of a private citizen within the municipal limits the citizen's remedy only lies in filing a suit before a proper court for ejectment of the unauthorised occupant. In that suit the parties will have opportunity to produce evidence to substantiate their title. Any party aggrieved by the decision of the court has a right to go up in appeal. Under the bye-law in respect of a Nazul land if somebody encroaches upon that land a summary power has been given to the Municipal Board by giving notice to eject the man even without giving him a right of appeal against that order.
The bye-law gives power to the Municipal Board to determine any land as Nazul land and assuming that somebody has encroached upon that land to give a notice to him to leave that land It cannot be said that such a drastic provision is justified as being in relation to the objective of the Act and any special treatment meted out to the owners of the Nazul land cannot be justified on the ground that it has any reasonable relationship with the objective of the Municipalities Act.
In my opinion therefore the bye-law No. 3 affects the fundamental right guaranteed to the petitioner under Article 14 of the Constitution and is thus void under Article 13(2) of the Constitution, In view of my decision on this point the petitioner is entitled to a relief of certiorari quashing the two notices dated 15-9-1955 and 23-12-1955 purporting to have been issued under bye-law No. 3(1) of the Bye-laws and to a writ of mandamus directing the opposite party not to act under the said two notices.
7. AS I have held the bye-law to be unconstitutional in view of Article 14 it is not necessary for me to decide whether the bye-law is unconstitutional under the provisions of Article 19 of the Constitution. It is also not necessary for me to decide whether the bye-law goes beyond the ambit of Section 298 of the Municipalities Act.
8. I therefore allow this petition with costs, quash the two notices dated 15-9-1955 and 23-12-1955 and direct the opposite party not to act under the said two notices.