R.M. Lodha, J.
1. The petitioners in this writ petition pray that the Government memorandum dated 14-2-1976 (Exh. F) and Government Resolution dated 9-1-1987 (Exh. G) and the Notices dated 26-9-1990 (Exhs. H-1, H-2, H-3, H-4 and H-5) be declared illegal and void and, accordingly, be set aside and quashed.
2. The petitioner No. 1 is the company registered under the Companies Act and petitioner No. 2 is Director of the said company. They claim to be lessees of respondent No. 1 viz. Municipal Corporation of City of Thane (for short 'the Corporation') in respect of Khartan plot Nos. 1 and 2, Survey No. 114 situate at Thane. It is the petitioner's case that in or about 1943 the petitioners predecessor in title constructed five structures on the said plot of land with the permission of Thane Municipal Corporation, out of which four structures were meant to be used for factory, while fifth structure was to be used for as the residence of the Manager of the factory. The petitioners claim to have paid regularly the annual rent of the aforesaid plots. In the year 1978 the lease rent was Rs. 1280/- per annum. The Corporation has accepted the lease rent upto March, 1979 but thereafter the Corporation stopped accepting the lease rent from the petitioners though tendered by them from time to time. On 14-12-1989 the petitioner No. 1 was served with five notices dated 20-11-1989 from the Deputy Municipal Commissioner (respondent No. 2) demanding sums of Rs. 1,39,236.00, Rs. 1,29,561.00, Rs. 1,45,536.00, Rs. 76,668.00 and Rs. 49,708.00 respectively in respect of the aforementioned structures for the period from April, 1978 to March, 1989 towards compensation (ground rent), administrative expenses and service charges. According to the petitioners the said notices purported to have been issued under the Government Resolution dated 9-1-1987 and section 4-A(1) of Maharashtra Vacant Lands (Further interim protection to occupiers from eviction and recovery of arrears of rent) (Amendment) Act, 1984 (for short 'Act of 1984') are illegal, unsustainable and invalid as the parent Act i.e. Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 (for short 'Act of 1975') has been declared unconstitutional and violative of Article 14 of Constitution of India by this Court on 8-2-1980 and affirmed by the Apex Court vide judgment dated 28-11-1984. The petitioners have also set up the case that upon the Act of 1975 having been declared null and void, the Government Resolution dated 9-1-1987 is also unconstitutional and illegal. It is also the case of the petitioners that the Act of 1980 and the Act of 1984 which provided for further interim protection to the occupiers from eviction and recovery of rent are of no help in sustaining the Government Resolution dated 9-1-1987 and the demand notices.
3. The Corporation has filed affidavit reply and has set up the defence that the Khartan lands mentioned in the writ petition are owned by the Corporation and the petitioners have claimed themselves to be lessees in respect thereof and, therefore, apart from the provisions of the Acts of 1975, 1980 and 1984, under proviso to section 139(b)(1) the Corporation is empowered to levy various property taxes on the petitioners with respect to the structures standing on the said land. As regards the notices- H-1 to H-5 impugned in the writ petition, the Corporation has stated that they are bound by the directions issued by the State Government, and the same were issued acting under Government Resolution dated 9-1-1987. With respect to the status and use of the five structures, it is stated that during the census it was found that the said structures were being used for commercial purposes only and accordingly charges were levied and bills were issued. It is also stated that the provisions of the Act of 1975 are relevant only in so far as private lands were concerned and there is no question of applicability of Act of 1975 to the municipal lands and, therefore, the Government Resolution dated 9-1-1987 (Exh. G) holds good and there is no infirmity in the demand notices issued.
4. We heard the learned Counsel for parties and considered their rival contentions.
5. The validity of the Act of 1975 and the legality of certain orders passed thereunder came to be challenged in a group of petitions before this Court under Article 226 of the Constitution of India. This Court vide its judgment dated February 8, 1980 held that the Act of 1975 was unconstitutional being violative of Article 14 of the Constitution of India. The State of Maharashtra preferred appeals to the Supreme Court against the judgment dated February 8, 1980. The Constitution Bench of the Apex Court in its judgment reported in : [1985]2SCR129 State of Maharashtra v. Mrs. Kamal Sukumar Durgule & others, maintained the judgment of this Court with little modification in the reasoning and in an unequivocal terms held that the Act of 1975 was violative of Article 14 of the Constitution of India. It may be noticed here that after the judgment was passed on 8-2-1980 declaring the provisions of the Act of 1975 unconstitutional, during the pendency of appeals, the Apex Court granted interim orders and that remained operative till 28-11-1985 when the appeals filed by the State of Maharashtra were dismissed by the Apex Court and unconstitutionality of the Act of 1975 was upheld. After the judgment of this Court was passed on 8-2-1980, the Maharashtra Vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent) Act, 1980 ('Act of 1980') was enacted, which received President's assent on 12-8-1980 and was published in Maharashtra Gazette on that date. The Act of 1980 was enacted to provide for further interim protection to occupiers of vacant lands in the State of Maharashtra from eviction and recovery of arrears of rent or compensation and for matters incidental or connected therewith. The Act of 1980 was amended by Maharashtra Vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent) (Extension of Duration) Act, 1984 ('Act of 1984') whereby section 4-A was inserted providing therein that the provisions of sections 2, 3 and 4 shall not apply to the Government or local authorities. Section 4-A reads thus :
'4-A. Provisions of sections 2, 3 and 4 not to apply to Government or local authorities.---(1)
Notwithstanding anything contained in sections 2, 3 and 4 but subject to the provisions of sub-section (2),---
(a) any suit, appeal application or other proceedings for obtaining any decree or order for recovery of or collection of, from any; such occupier, any rent, compensation, fees, service charges for providing any amenities or execution of any decree or order, for such recovery, as the case may be, by or on behalf of the Central Government, the State Government, a Municipal Corporation or Municipal Council constituted under any law for the time being in force, the Bombay Metropolitan Region Development Authority constituted under the Bombay Metropolitan Region Development Authority Act, 1974, the Authority or the Board constituted under the Maharashtra Housing and Area Development Act, 1976, any other Statutory Corporation, Government, company or local authority (hereinafter, collectively referred to as 'the said authorities') in respect of any such land as is referred to in section 2 and belonging to any of the said authorities or any structure thereon, stayed and kept pending by any Court under section 3 for any such recovery shall be proceeded with further from the stage at which they were stayed; and
(b) it shall be, and shall be deemed always to have been lawful for any of the said authorities to collect or recover or to take such action or appropriate proceedings as may be necessary to collect or recover any sum due and recoverable from the occupiers of such vacant land or structure as rent, compensation, fees, service charges for providing any amenities, as the case may be; and
(c) any suit, appeal, application or other proceedings in respect thereof, if any, filed after the commencement of the Maharashtra Vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent) (Amendment) Act, 1984 shall be entertained by the Court of competent jurisdiction:
Provided that, the provisions of section 5 shall, wherever necessary, apply to any such proceeding.
(2) Having regard to the stay granted by the Supreme Court in Civil Appeal No. 386 (NCM) of 1980, any action taken by the Municipal Corporation of Greater Bombay or the State Government under sub-section (1) shall be without prejudice to the directions contained in the said stay order.'
6. Sub-section (b) of section 4-A upon which strong reliance was placed by the learned Counsel for Corporation empowers the Government or local authorities to collect or recover any sum due and recoverable from the occupiers of such vacant land or structures as rent, compensation, fees, service charges for providing any amenities etc. Be it noted here that the Act of 1980 was deemed to have come into force on 6-3-1980 and its initial life was upto 31-3-1981 which was extended from time to time, but admittedly it expired on 30-9-1985. Section 4-A which was introduced in the Act of 1980, by Amending Act, 1984, thus, was operative only upto 30-9-1985, and died its natural death on its expiry. On 9-1-1987 when the impugned resolution by the State Government came to be issued, admittedly, much before that the Act of 1980 was declared ultra vires (by this Court on 8-2-1980 and upheld by the Supreme Court by their judgment dated 28-11-1984) and even otherwise by that time life of the Act of 1980 and Act of 1984 had come to an end. Upon declaration of the Act of 1975 being unconstitutional and violative of Article 14, apparently the Government Resolution dated 9-1-1987 which is issued under the said Act is rendered ultra vires. However, the learned Counsel for respondent No. 1 submitted that even if the Government Resolution dated 9-1-1987 has apparently been issued under the Act of 1975, upon the said Act having been declared ultra vires, its validity could be upheld by resorting to Article 162 of the Constitution of India. What is provided by Article 162 is extent of executive power of State and it provides that the executive power of the State is co-extensive with the legislative power of the State Legislature. This general Rule, however, is subject to other provisions of the Constitution as provided in the proviso. It is not even the State Government's case that the Government Resolution dated 9-1-1987 has been issued in exercise of the power under Article 162 of the Constitution of India. As a matter of fact, so far as the Corporation is concerned, according to them as stated in affidavit in reply that primary duty to defend the Government Resolution dated 9-1-1987 is upon the State Government. But we find that the State Government has neither filed any reply affidavit nor anybody appeared on their behalf during the course of hearing. Even otherwise on the face of the Government Resolution dated 9-1-1987 it is apparent that the same has been issued under the Act of 1975 and not under any other power and as we have already indicated above, since the Act of 1975 was declared ultra vires Article 14 of the Constitution of India, the Government Resolution dated 9-1-1987 cannot stand and has to be declared as invalid.
7. Mr. R.S. Apte, the learned Counsel for respondent No. 1 submitted that the judgment passed by the Apex Court declaring the Act of 1975 ultra vires is dated 28-11-1984 and has to be made applicable prospectively. In support of this contention he relied upon the judgment of the Apex Court in Federation of Mining Associations of Rajasthan v. State of Rajasthan and another : AIR1993SC949 . In Federation of Mining Associations of Rajasthan, the Supreme Court was concerned with the question of validity of the provisions of section 3 of Rajasthan Land Tax Act, 1985 whereby the State Legislature purported to levy tax on every land holder on the annual value of the land held or used by him in so far as it concerned lands containing minerals. The Apex Court held that the State Legislature did not have competence to legislate for the levy of a tax on minerals bearing lands based on the royalty derived from the land and it is not possible to sever the invalid portion of the legislation and uphold the validity of the rest of it. However, the Apex Court observed that the declaration of invalidity of the levies should only be prospective and not retrospective as the High Court has upheld the levy and it is being declared unconstitutional only by their order. Paragraph 8 of the judgment reads thus:
'8. Counsel for the respondents has, however, rightly pointed out that the declaration of invalidity of the levies should only be prospective and not retrospective. Both in India Cement as well as in Orissa Cement cases, this Court has, for reasons discussed therein, declared similar legislations invalid only prospectively. In paragraphs 71 and 72 of the judgment in Orissa Cement case, it has been held that the levy of such tax in a State should be declared to be unconstitutional only with effect from the date of the first judgment which declares the legislation to be invalid and not earlier. In the present case, since the High Court has upheld the levy and the levy is being declared unconstitutional only by this order, we direct that our declaration will take effect only from the date of this judgment. In other words, any tax collected under the statute so far need not be refunded by the State Government and if any amount of tax remains to be paid in respect of earlier periods, it will have to be paid by the assessee. However, as and from the date of this judgment, the impugned tax imposed by the Act in question will not be enforceable.'
8. What follows from Article 13(2) of the Constitution of India is that once a statute is declared invalid for contravention of fundamental right (in the present case Act of 1975 has been declared unconstitutional being violative of Article 14), the invalidity attaches to the law from the date of enactment. Neither the High Court while declaring Act of 1975 invalid nor the Apex Court holding so declared that the declaration will take effect from the date of the judgment. Therefore, the aforesaid observations made by the Apex Court upon which reliance has been placed by the learned Counsel for the petitioners do not apply to the present case. Even otherwise in so far as the present case is concerned, the Government Resolution dated 9-1-1987 and the demand notices have been issued on 26-9-1990 i.e. much after the judgment of the High Court and the Apex Court and, therefore, the contention of the learned Counsel for the petitioner has no force.
9. The learned Counsel for respondent No. 1 then contended that wrong provision of law would not affect the validity of the Government Resolution and notices if the same can be defended under any other valid provision of law. The contention of Mr. Apte is that though the Government Resolution has been issued on 9-1-1987 purporting to be under Act of 1975 and the impugned notices-H-1 to H-5 have been issued under the Act of 1975 and Government Resolution dated 9-1-1987 and even if the Government Resolution dated 9-1-1987 is held to be bad in law, the Corporation has power to recover rent and compensation from the petitioners in exercise of the powers under section 81-C of the Bombay Provincial Municipal Corporation Act, 1949 (For short 'Act of 1949') and, therefore, demands notices are valid.
10. Section 81-C of the Act of 1949 reads thus :'81-C (1) Subject to any regulations made by the Commissioner in this behalf, but without prejudice to the provisions of section 81-B, where any person is in arrears of rent payable in respect of any Corporation premises, the Commissioner may, by notice served in the manner provided for service of notice under sub-section (1) of section 81-B, order that person to pay the same within such time not less than ten days as may be specified in the notice.(2) Where any person is in unauthorised occupation of any Corporation premises the Commissioner may, in the manner and having regard to the principles of assessment of damages provided for by the regulations assess such damages on account of the use and occupation of the premises as he may deem fit, and may, by notice, served in the manner referred to in sub-section (1), order that person to pay the damages within such time as may be specified in the notice.(3) If any person refuses or fails to pay, within the time specified in the notice, the arrears of rent under sub-section (1), or damages under sub-section (2), the Commissioner may recover the amount of rent, or as the case may be, or damages in the same manner as the general or property tax due from such person.(4) No order shall be made under sub-section (2) until after the issue of a notice in writing to the person calling upon to him show cause, within a reasonable period to be specified in such notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the Commissioner.'
11. Firstly, it is not even the case of the respondent No. 1 in their reply affidavit that the notices-Exhs. H-1 to H-5 have been issued under section 81-C of the Act of 1949 for recovery of rent or damages as arrears of property taxes. Secondly, before a rent or damages as arrears of property tax can be recovered under section 81-C, the procedure prescribed thereunder has to be followed. In the present case, the impugned notices cannot be said to have issued by following the procedure contemplated under section 81-C. Moreover calling upon the petitioners to make payment as arrears of administrative expenses and service charges cannot be said to be covered under section 81-C. The impugned notices, therefore, by no stretch of imagination can be construed to be, and in fact these are not notices under section 81-C of the Act of 1949.
12. It would not be out of place to mention here that prior to issuance of Government Resolution dated 9-1-1987 the Government of Maharashtra had issued a circular dated 14-2-1986 directing the Collector, Thane and the Additional Collector, Thane and Municipal Council, Thane to collect the compensation from the hutment dwellers on Municipal land at the rate prescribed herein. The said circular was issued apparently under the Act of 1975 which cannot hold good once the Act of 1975 was declared ultra vires and unconstitutional by this Court and its unconstitutionality was upheld by the Apex Court. Consequently the demand which has been raised in the impugned notices against the petitioners on the basis of the said circular and the Government Resolution dated 9-1-1987 being illegal, cannot be sustained.
13. For all these reasons, we allow the writ petition in terms of prayers (a), (b) and (c) which read thus :
'(a) That this Hon'ble Court may be pleased to declare the Government Memorandum dated 14th February, 1976 No. SCS/1078/126325/D. 41 Exhibit F hereto as void and illegal and/or be pleased to quash and set aside the same by appropriate writ, order or direction.
(b) That this Hon'ble Court may be pleased to declare the Government Resolution dated 9th January, 1987 No. SCS-1079/6130/C-111/7 Exhibit 'G' hereto as void and illegal and/or be pleased to quash and set aside the same by appropriate writ, order or direction.
(c) That this Hon'ble Court may be pleased to declare the notices dated 26th September, 1990 Exhibits H-1, H-2, H-3, H-4 and H-5 hereto as void and illegal and/or be pleased to set aside the same by appropriate writ, order or direction.'
14. No costs.
15. We, however, make it clear that it would be open to respondent No. 1 Thane Municipal Corporation to proceed against the petitioners in recovering the due amount of lease rent, compensation and/or property taxes in respect of the property in question in accordance with law and the present order shall not come in their way in that regard.Certified copy expedited.