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The Co-operative Housing Society, Civilian Employees, Defence Service Vs. Commissioner and Special Officer, Municipal Corporation of Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 8454 of 1983
Judge
Reported inAIR1985AP277
ActsAndhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956 - Sections 1(3), 3(1), 3(2), 3(4) and 6; Constitution of India - Article 226; Administrative Law; Constitution of India - Article 245
AppellantThe Co-operative Housing Society, Civilian Employees, Defence Service
RespondentCommissioner and Special Officer, Municipal Corporation of Hyderabad and ors.
Appellant AdvocateV. Jagannadharao, Adv.
Respondent AdvocateK. Janardhana Rao, Standing Counsel for Hyderabad Municipality, ;S. Lakshmareddy, ;P.M. Gopala Rao and ;S. Ramachandra Rao, Advs.
Excerpt:
.....in the a. (2) where the government are satisfied that it is necessary to acquire any land in a slum area for the purpose of clearing or improving the area, they may acquire the land by publishing in the a. (1) as well as against the necessity to acquire the land for the purpose of clearing of improving the area. 3(1) as well as (2) against the necessity to acquire the land for the purpose of clearing or improving the area. (2) speaks both of the owner as well as of the person interested in the land, but the explanation speaks only of persons interested in the land. there appears to be no reason as to why the owner should be deprived of an opportunity of objecting both to the declaration u/s 5(1) as well as the intention to acquire the land u/s. 3(1) as well as the necessity to..........government to the 1st respondent is illegal and the notification declaring the land in question as slum area is also illegal and unjust and the same is liable to be set aside. the application was opposed not only by the commissioner and the urban development authority but also by some of the parties who were added as party respondents supporting the notification stating that it is highly essential to declare the land in question as slum area and that the petitioners themselves have no right to question the notification. sr. v. jagannadha rao, the learned counsel for the petitioners mainly argued that the impugned notification is void as opposed to the principles of natural justice and declaring the area in question as a slum area without affording an opportunity is not only adequate but.....
Judgment:
ORDER

1. The first petitioner a Co-operative Housing Society Civilian Employees, Defence Services, represented by its Secretary, the other petitioners its members challenged the Notification issued by the Commissioner and Special Officer, Municipal Corporation of Hyderabad under S.3(1) of the A.P.Slum Improvement (Acquisition of Land) Act 33 of 1956 (hereinafter called the Act).

2. It is averred in the petition that the land was acquired for the purpose of constructing houses and the members have constructed houses at considerable cost and there are disputes about the land and in view of the disputes regarding land, proceedings under S. 145 of the Cr.P.C. were initiated and the land was under attachment of the Executive Magistrate under S. 146 of the Code and the notification issued by the 1st respondent is illegal as the same was issued without any notice to the petitioners and the 1st respondent has no power to issue notification under the Act and the delegation of the powers by the Government to the 1st respondent is illegal and the notification declaring the land in question as slum area is also illegal and unjust and the same is liable to be set aside. The application was opposed not only by the Commissioner and the Urban Development authority but also by some of the parties who were added as party respondents supporting the notification stating that it is highly essential to declare the land in question as slum area and that the petitioners themselves have no right to question the notification. Sr. V. Jagannadha Rao, the learned counsel for the petitioners mainly argued that the impugned notification is void as opposed to the principles of natural justice and declaring the area in question as a slum area without affording an opportunity is not only adequate but empty. It is also argued that the scheme of the Act does not exclude any opportunity being afforded before issuing notification under S.3(1) and the dicta of the Full bench in P. Apparao v. State : AIR1970AP318 has lost its efficacy in view of the subsequent pronouncements of the Supreme Court regarding post decisional opportunities.

3. It is necessary to examine the scheme of the Act and also notice the effect of the Full bench on this question. The Act is intended for the acquisition of lands in slum areas and the preamble declares that it was noticed that there are slum areas in almost every town in the State of A.P. which are a source of danger to public health and sanitation and it was felt that I has not been possible to provide for the basic needs of sewerage, water supply and road and side-drains in these slum areas, without causing excessive financial strain on the owners of the lands affected and hence the Act is intended to clear those lands in those areas and undertake the execution of works designed to improve those areas. The Act is made applicable in the entire State of A>P.in 1961 by Act 41 of 1961. S.1(3) enables the Government to apply the provisions of the Act in any Municipality in the State by issuing a notification on such date as the government may by such notification in the A.P.Gazette appoint. The said section provides that a notice should be issued to the Municipality for not less than two months before issuing the notification. The 'slum area' was defined to mean any area declared to be a slum area under sub-sec.(1) of S.3, Section 3 which is crucial in the present enquiry is in the following terms:

'3.(1) Where the Government are satisfied that any area is or may be a source of danger to the public health, safety or convenience of its neighbourhood by reason of the area being low lying, insanitary, squalid or otherwise, they may by notification in the A.P.Gazette declare such area to be a slum area.

(2) Where the Government are satisfied that it is necessary to acquire any land in a slum area for the purpose of clearing or improving the area, they may acquire the land by publishing in the A.P.Gazette a notice to the effect that they have decided to acquire it in pursuance of this section.

Provided, that, before publishing such notice, the Government shall call upon the owner of or any other person who in the opinion of the Government, is interested in such land to show cause why it should not be acquired, and after considering the case, if any, shown by any person interested in the land, the Government may pass such orders as they deem fit.

Explanation: Cause shown by the person interested in the land may be against the declaration of the area as a slum area under sub-sec.(1) as well as against the necessity to acquire the land for the purpose of clearing of improving the area.

(3) when a notice as aforesaid is published in the A.P.Gazette the land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Government free from all encumbrances.

(4) The Government may, by order, authorise any authority or officer subordinate to them to exercise all or any of the powers conferred and perform all or any of the duties imposed on them by this section, subject to such conditions and restrictions as may be specified in the order.'

S.4 provides that the Government may, either hold the land acquired by them under the Act or hand over to the Municipality, S.5 and S.6 provide for right to compensation and the mode of determining the same. The jurisdiction of the civil Court is barred under S.13 S.15 provides that the provisions of the Act can be made applicable to any pending acquisition proceedings.

4. S.3(1) was construed by a Full bench of this Court when the constitutional validity of the Act was challenged in : AIR1970AP318 . It was held that the provisions of the Constitution. No doubt in that case the learned Judges mainly examined the validity of the Act to find out how far the provisions offend Arts. 14 and 31(2) of the Constitution Adverting toS.3 (1) it was held (at P.33):-

'The explanation entitles the person interested in the land to show cause (1) against the declaration of the area as a slum area u/s. 3(1) as well as (2) against the necessity to acquire the land for the purpose of clearing or improving the area.

It is true that while proviso to sub-sec. (2) speaks both of the owner as well as of the person interested in the land, but the explanation speaks only of persons interested in the land. We have however no doubt that the expression 'the person interested' would include even the owner of the land. There appears to be no reason as to why the owner should be deprived of an opportunity of objecting both to the declaration u/s 5(1) as well as the intention to acquire the land u/s.3(2) just as a person interested in the land can object. This is just a case of accidental omission but the intention of the Legislature is clear from the proviso itself.

A close reading of sub-sec. (2) makes it abundantly plain that before a notice under S.3920 is published, it is the statutory duty of the government to call upon the owner and the person interested in the land to show cause. Such a case shall be shown both in regard to the notification u/s.3(1) as well as the necessity to acquire the land. It thus provides opportunity to the owner and the person interested in the land to object to the declaration that it is a slum area, although such opportunity is given only after the declaration.'

5. It is urged by the learned counsel for the petitioner that S.3(1) has not excluded the prior opportunity and in view of the clear dicta of the Supreme Court in Swadeshi Cotton Mills v. Union of India : [1981]2SCR533 post decisional opportunity must be confined in case of urgency and the court should always insist on hearing or opportunity at pre-decisional stage unless the statute excluded such hearing. He relied upon the several dictas of the Supreme Court in the said case and also the earlier judgment of the Supreme Court in Meneka Gandhi v. Union of India, : [1978]2SCR621 . It is no doubt true that Menaka Gandhi's case is a landmark in the Administration Law in the area of natural justice. In that case the Passport of the petitioner was impounded by the Government u/s.10(3)(c) of the Passport Act 1967 in public interest without giving any prior opportunity. However, after laying down the law when pre-decisional opportunities can be justified they did not pass any formal order setting aside the order of the Government as the Government has agreed to provide opportunity of being heard post-decisionally to the passport holder. Bhagwati, J., emphasised the requirement of fair play irrespective of the fact whether the enquiry is administrative in character or quasi-judicial. In fact the Supreme Court observed in A.K.Kraipak v. Union of India : [1970]1SCR457 that the dividing line between the administrative power and a quasi-judicial power is quite thin and is being gradually obliterated and hence Bhagwati, J. observed in Meneka Gandhi's case that the law must therefore be taken to be well settled that even in administrative proceedings which involves civil consequences the doctrine of natural justice must be held to be applicable. This view was reiterated in Swadeshi Cotton Mills v. Union of India. The learned counsel pressed the dicta in this judgment very much in his favour holding that in that case the Supreme Court held that the provisions of the Industries Development and Regulation Act 1951 providing post-decisional opportunity u/s 18-F is not sufficient but a pre-decisional opportunity must be afforded and such pre-decisional opportunity was not excluded by virtue of S.18-AA of the Act. The provisions of the said Act provide two alternative procedures, one u/s.18-A(1)(b) and another u/s. 18-AA(1)(b). Under the former section they can make an enquiry u/s. 15 after giving an opportunity and take over the unit if it is found that the management is highly detrimental to the public interest. But in the latter section which enables the Government to take without investigation u/s. 15 where immediate preventive action becomes necessary. No doubt under S.18-F post-decisional opportunity is provided under which the Government has power to cancel the order made earlier. Construing both the provisions the Supreme Court by majority held that the pre-decisional opportunity is not excluded. This principle of post-decisional opportunity is again considered in a recent pronouncement of the Supreme Court by majority held that the pre-decisional opportunity is not excluded. This principle of post-decisional opportunity is again considered in a recent pronouncement of the Supreme Court in Liberty Oil Mills v. Union of India, : [1984]3SCR676 when that was described as abeyance order suspending an import licence was challenged. Chinnappa Reddy, J., speaking for the court held 'we do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay.' Thus this part of the law is fairly settled and the significant points one should bear in mind are:

(1) That the doctrine of natural justice applies both in administrative proceedings and quasi-judicial proceedings which involves civil consequences.

(2) Natural justice may be disregarded in an emergency situation where immediate action is necessary.

(3) In case of urgency a post-decisional hearing may be given,

(4) Whether the hearing is pre-decisional or post-decisional the affected party must be given a reasonable opportunity not being employ public relations exercise.

(5) Natural justice may be excluded either by specific or necessary implication.

6. Let us apply these principles to the present case. The provisions of the Act 33 of 1956 disclose three stages before the property is vested u/s. 3 of the Act absolutely in the Government free of all encumbrances. The first stage is issuing a notification u/s. 1(3) in respect of each Municipality making applicable the provisions of the Act after affording an opportunity to such Municipality. The second stage is notification u/s.3(1) declaring an area as slum area. The third and final stage is notification u/s.3(2) acquiring the land. A reading of these provisions makes it clear that opportunity should be provided both before issuing notification u/s. 1(3) and also under S.3(2). The opportunity provided u/s. 3(2) is for both the notifications u/s. 3(1) and also 3(2). The very fact that the explanation enables the person interested to show cause both against S.3(1) notification issued earlier and later notification proposed u/s. 3(2) clearly excludes any opportunity before the notification u/s. 3(1). There cannot be any doubt that if the authorities are satisfied that the earlier notification issued u/s. 3(1) is not well founded. They are bound to rescind the same as the opportunity is provided to the persons interested to show cause both against S.3(1) notification already issued and the proposed notification to be issued u/s. 3(2). Though the dicta of the Full bench in this regard is not specific, I am clearly of the opinion that the Full Bench also took the view that the opportunity is provided to the person interested to show cause against the earlier notification u/s. 3(1) and also latter proposed action u/s. 3(2) and thus if follows the authorities are bound to rescind the orders issued u/s. 3(1) declaring an area as slum area if they are satisfied that the earlier notification does not warrant such action.

7. It is argued by the learned counsel that the post-decisional opportunity is employ in this case as the authorities have already made a solemn declaration that the area in question is a slum area and the declaration u/s.3(1) has stigmatised the area of the petitioner as slum area and the civil consequences are so serious and imminent and the notification without giving an opportunity to the petitioner is illegal and opposed to the principles of natural justice and fair play. It is to be noticed that an opportunity was already provided u/s. 1(3) to the Municipality as such before making the provisions of the Act applicable. By virtue of the notification u/s.3(1) no consequences flow. It is only a preliminary step for further proceedings. It is difficult to hold that any civil consequences flow from the notification u/s. 3(1) which requires an opportunity to the petitioners. The mere declaration itself cannot be treated as a civil consequence which requires an opportunity to the petitioners. The principle laid down in Swadesi Cotton Mills v. Union of India. (AIR 1981 SC 8181) is wholly inapplicable. In that case notification u/s. 18(A)(A) completely divests the entire management of the unit and vests the same in the statutory authority. Taking into account such drastic step which beset with several civil if not evil consequences the Supreme Court has to hold that s.18-AA does not exclude pre-decisional opportunity and the opportunity afforded post-decisionally u/s. 18(f) of that Act was not sufficient. But in our case no consequences flow by S.3(1) notification till notification u/s.3(2) is issued and the statute provides an opportunity to show cause both against the earlier notification u/s 3(1) and the proposed notification u/s. 3(2). Hence in the absence of any civil consequences no earlier opportunity is necessary for issue of notificationu/s.3(1) which is only preliminary step though a jurisdictional and foundational for the further proceedings.

8. Thus I do not find any legal informity in the notification in question for want of opportunity before issuing the notification and it cannot be challenged on the said ground, and consequently this contention fails.

9. It is urged by the leaned counsel for the petitioner that the power of Government u/s.3(1) cannot be delegated to the 1st respondent -Commissioner. For that we have to look to S.3(4) which is already extracted. It is urged that what was contemplated to be delegated is only powers and duties but not the function of the Government as contemplated u/s3(2). It is urged the satisfaction to be arrived at is that of the Governemnt. Such function cannot be delegated u/s.3(4). As per G.O.ms.No.987 dt 17-11-82 the Government have delegated their powers under sub-secs.(1) and (2) of S.3 of the Act to the Special Officer, Municipal Corporation of Hyderabad which is in the following terms:

'In exercise of the powers conferred by sub-sec.(4) of S.3 of the A.P.Slum Improvement(Acquisition of Land) Act, 1956 the Governor of A.P. hereby authorise the Special Officer, Municipal Corporation of Hyderabad to exercise the powers, and perform the functions imposed on the Government under sub-sec.(1) and (2) of S.3 of the said Act in respect of the slum areas in the area comprising the Municipal Corporation of Hyderabad.'

I do not think that this distinction between the power and function is justified. Infact power is a larger concept including all its facets of statutory functions. Exercising a statutory power on being satisfied is one of the modes of exercising the power and such power is clearly in the contemplation of sub-sec.(4) and the difference between power and function for the purposes of this question is wholly unjustified and without any substance and I hold that the delegation of power to the 1st respondent by the Government is well within their jurisdiction and is valid.

10. Finally it was urged that thee is no data or material on which a declaration can be made that the area in question is a source of danger to public health, safety or convenience of its neighbourhood by reason of the area being a low lying, insanitary, squalid or otherwise requiring the area to be declared as slum area. No doubt these tests are objective in nature and in a given case this court may examine whether these requirements of objective tests are satisfied though the statute speaks of arriving at the conclusion subjectively. In this case the learned counsel ultimately agreed that this enquiry can be made in the show cause notice issued to them and the authorities are bound to go into the question whether the earlier notification declaring the area as slum area is well founded or not.

11. In the result, the writ petition fails and the same is dismissed , but in the circumstances without costs.

12. Petition dismissed.


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