State of Maharashtra Vs. Mrs. Kamal
Sukumar Durgule & Ors [1984] INSC 218 (28 November 1984)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA TULZAPURKAR, V.D.
REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)
CITATION: 1985 AIR 119 1985 SCR (2) 129 1985
SCC (1) 234 1984 SCALE (2)793
ACT:
Constitution of India, 1950:
(i) Articles 14, 19 (1) (f) and 31-Act passed
by a State Legislature-No guideline for exercise of discretion provided-Neither
proper classification nor provision for notice to affected persons
made-Constitutional validity of.
(ii) Entries 18, 64 and 65 of List II-Whether
State Legislature competent to pass the Maharashtra Vacant Lands (Prohibition
of Unauthorised occupation and Summary Eviction) Act, 1975.
Maharashtra Vacant Lands (Prohibition of
Unauthorised occupation and Summary Eviction) Act 1975, ss. 2(f), 3, 4, 4A, 4B
read with Maharashtra Vacant Lands (Prohibition of Unauthorised occupation
& Summary Eviction) (Service of Notice) Rules 1975-Constitutional validity
of-Whether guidelines for exercise of discretion & Proper classification
and provision notice to affected persons provided in the Act-Rules framed
subsequently regarding provision of notice to affected persons-Whether cures
the unconstitutionality of the Act.
HEADNOTE:
The Maharashtra. Vacant Lands (Prohibition of
Unauthorised occupation and Summary Eviction) Act, LXVI of 1975 passed by the
State of Maharashtra was amended twice- first by Act No XXXVII of 1976 and
later by Act No. VlI of 1977. Section 2 (f) as amended retrospectively by the
First Amendment Act divides "Vacant land" into four categories:
(1) lands which are in fact vacant, that is
to say, not built upon; (V lands on which structures have been or are being
constructed otherwise than in accordance with any law regulating the
construction of such structures and which the Competent Authority may specify
and declare to be vacant lands by announcing by beat of drum or other suitable
means;
(3) lands specified in the Schedule to the
Act, and (4) lands included in the Schedule by the State Government by an order
amending the Schedule. Section 3 provides that no person shall occupy or enact
any shelter enclosure or other structure on such land for the purposes of
residence or otherwise without the express permission of the Municipal
Corporation and also prohibits any person to collect from the occupier of such
vacant land any amount by way 130 of rent or compensation in relation to the
unauthorised occupation of such vacant land while it empowers the government to
collect or receive from the occupier of such vacant land such reasonable amount
by way of penal charges as may be determined till such time as the structure
erected in contravention of the provisions of s.3 is removed from the land.
Section 4 empowers the government to evict a person occupying any vacant land
in an urban area in contravention of the provisions of s. 3. Section 4A deals
with permission for renovation of structures on vacant lands as a temporary
measure in certain circumstances. Section 4B lays down mode of recovery of dues
of financial institutions which render assistance for renovation of structures.
The respondents were owners of some plots of
land in Bombay. The plots were assessed to non-agricultural assessment and to
Property tax by the Bombay Municipal Corporation The respondents had
constructed buildings of a Permanent nature on the plots and the same had been
provided with essential civic amenities like water and electricity.
The appellants-State Government &
Municipal Corporation of Bombay called upon the respondents to demolish the
buildings since they were constructed without the requisite permission of the
Bombay Municipal Corporation. The respondent's request to regularize, the
unauthorised construction was also rejected because the Government was
considering a proposal for acquisition of the said land for the purpose of an
industrial estate. The respondents then approached the Special Land Acquisition
officer requesting that the land be released from acquisition. The Land
Acquisition officer informed the respondents that the said plots of land had
been released from acquisition by a notification dated September 14, 1964. But,
later on, the said plots of land were declared by the Competent Authority as
"vacant land" in exercise of the powers conferred upon it by Section
2 (f) (b) of the Maharashtra Vacant Lands (Prohibition of Unauthorised
occupation and Summary Eviction) Act LXVI of 1975.
The respondents challenged before the High
Court the constitutional validity of the Act and the legality of orders passed
thereunder The High Court declared the Act as violative of the provisions of
the Constitution and allowed their writ petitions In the appeals to this Court,
the appellants contended that the infirmity, if any, from which the Act
suffered in its inception has been cured by the passing of the Maharashtra
Vacant Lands (Prohibition of Unauthorised occupation and Summary Eviction)
(Service of Notice) Rules, 1979 in as much as the affected person is given a
notice before passing an order under section 2 (f) (b) or under section 4(1) of
the Act and that the Competent Authority is further required to consider any
objections submitted to it by the affected person. On behalf of the respondents
it was argued (1) that at the Act violates the fundamental rights conferred
upon them by Art. 14. 19(1)(f) and 51 of the Constitution; (11) that the State
Legislature lacked the Legislative competence to pass the Act and (III) that
the Act delegated excessive and uncanalised powers to the Executive to pass
orders.
131 Dismissing the appeals,
HELD: 1.1 It is evident that the expression
'land' in Section 2 (f) of the Act means plots of land with defined boundaries
which are generally recognized for revenue and survey purposes. Section 2 (f)
(b) requires two conditions to be satisfied in order that a land can be
described as a vacant land; Firstly, there has to be an unauthorised structure
on the land and secondly, the Competent Authority has, by an order in writing,
to specify and declare that land to be a vacant land [143 D.E]
1.2 Section 2 (f) (b) suffers from the vice
in that, it treats all persons alike irrespective of how they are situated in
the matter of their involvement in the construction of unauthorised structures
and their interest therein. Classification requires division into classes which
are marked by common characteristics. Such division has to be founded upon a
rational basis and it must be directing at subserving the purposes of the
statue.Section 2 (f) (b) and the other cognate provisions of the Act make no
distinction at all between owners of the lands who have themselves constructed
unauthorised structures and those others on whose lands unauthorised structures
have been constructed by trespassers The latter class of owners who are silent
spectators to the forcible and lawless deprivation of their title to their
property have been put by the Act on par with trespassers who, taking law into
their own hands, defy not merely private owners but public authorities. [146 G-H;
1 47 A] 1.3. Section 2(f) (b), also, suffers from the infirmity of according
equal treatment to unequals. Take a simple example: A plot of land may be
vacant in the true sense of the term, that is to say, wholly unbuilt upon.
Another, plot of land may have a small structure built upon it in accordance
with the Municipal rules and regulations. The first plot of land attracts
drastic provisions of the Act merely by reason of the fact that nothing has
been built upon it at all, while the second plot of land is entirely outside
the scope of the Act for the reason that some tiny structure is standing
thereon. Such a classification betrays lack of rationale [147 B-C] 2.1. The Act
confers upon the Competent Authority the discretion to declare a land as a
vacant land without laying down any guidelines to control that discretion.
Competent Authority has the freedom to pick and choose lands on which there are
unauthorised structures and declare some of them as vacant lands and leave
other lands similarly situated untouched. [143 E] 2.2. The Act does not also
provide for any safeguard against the arbitrary exercise of the discretion
conferred upon the Competent Authority to declare a land as a vacant land. It
does not contain any provision whatsoever which is directed at ensuring the
public health and sanitation or the peaceful life of the inhabitants of the
concerned locality Indeed, nothing is farther removed from the true purpose and
object of the Act than these considerations. The last item in the Schedule to
the A.t includes all public roads and highways in Greater Bombay. These,
surely, cannot be regarded as constituting a grave danger to public health,
sanitation or peaceful life of the citizens. It is clear from the Statement of
objects and Reasons that 132 the evil which was sought to be remedied by the
ordinance, which was later replaced by the Act, was not danger to public health
or sanitation or to the peaceful life of the inhabitants of the Metropolis of
Bombay, but, the danger posed by the construction of unauthorised structures,
is the evil which the Act seeks to remedy. [144 H; 143 H; 144 A-B; G] 2.3. The
Act does not prescribe any procedure which the Competent Authority is required
to adopt before declaring a land as vacant land. There is no provision in the
Act requiring the Competent Authority to observe even the rudimentary norms of
natural justice before making the statutory declaration. The Authority is not
obliged to give notice to anyone and it need not hear any person who is likely
to be affected by the declaration. The State Government too, is under no
obligation to follow any set procedure prior to amending the Schedule so as to
include new lands therein. The power conferred by Sections 3(1) and 4(1) of the
Act is similarly uncontrolled and arbitrary.
[145 B-Dl 2.4. In the instant case, massive
encroachments on private properties have led to the virtual deprivation of the
title of rightful owners of those properties The Act penalises such owners for
no fault of theirs and, that too, without giving them an opportunity to be
heared. The fact that the power to make the requisite declaration under the Act
is vested in officers of the higher echelons makes no difference to this
position and is not a palliative to the prejudice which is inherent in the situation.
[145 F-G] 3.1. It is impossible to understand the scheme of the Schedule to the
Act or to discover any rational basis behind it ii difficult to understand as
to why certain lands which are under acquisition for the purposes of the
Maharashtra Housing Board and Bombay municipal Corporation have been included
in the Schedule and other lands similarly situated have not been so included
Some of the entries in the Schedule show that unauthorised structures could not
have been possibly constructed on the lands mentioned therein By and large, the
Schedule is divorced from the true object of the Act . [147 E-F] 3.2. No
criterion or standard is laid down in order to enable the State Government to
determine objectively as to which lands can be added to the Schedule. The power
to add to the Schedule is in the nature or a legislative power which, in the
very nature of things cannot stipulate for service of notice to the persons
affected by the amendment.
This power of amendment of the Schedule is
not even conditioned by the fact that the lands added to the Schedule must have
unauthorised structures standing thereon. The State a Government is free to
pick and choose any land and put it in the Schedule This kind of conferment of
uncanalised discretion is strawn all over the Act. [147 G-H; 148 A] 3.3. It is
therefore clear that each part of the definition of 'vacant land' in section
2(f) of the Act is violative of the provisions of Articles 14 and 19 (1) (f) of
the Constitution. The Act had to satisfy the requirements of Art. 19 (1) (f) so
long as it was a part of the Constitution. [148 B-C] 133 (4) It may be noted
that until the Competent Authority passes an A order under section 4(l) calling
upon an occupier to vacate a land, even a trespasser or an unauthorised occupier
can continue to be in possession of the eland. lf he is granted permission to
occupy the land under section 3(1), he cannot be evicted at all, for the simple
reason that the order of eviction under section 4(1) can be passed only if a
person is in occupation of a land contrary to the provisions of section 3. Even
the eviction of a trespasser from the land can afford no solace to its rightful
owner because, the Act doesn't contain any provision whereby the land can be
returned to him after it is freed from unauthorised occupational If the owner
himself has erected an unauthorised structure, the Act does not provide as to
what is to happen to the land after he is evicted therefrom [148 D-F] (5) The
Statement of objects and Reasons of the First Amendment Act shows that the
provision for levying penalty was introduced into the Act in order that
occupants of lands on which there were unauthorised structures and, who are
allowed to continue in possession of the structures do not continue to occupy
those lands without payment of any amount at all to public authorities. It
appears that even after forfeiting the structures consequent upon the passions
of ;U1 order under section 4(l), the State government has been recovering
compensation from unauthorised occupants. It seems quite incongruous that while
the true owner is prevented from taking legal proceeding to recover any rent or
compensation from persons who had trespassed upon his land, the State
Government can recover penal charges from the trespassers. Moreover, the
Statement of objects and Reasons of the Second Amendment Act shows that the
Government had carried out substantial environmental improvements on vacant
lands and had sponsored a scheme for building semi-permanent houses thereon.
They intended to give to the occupants of such structures security of tenure
subject only to the condition of regular repayment by them of the loans given
by the financial institutions. The true owners of lands are totally ignored in
this scheme of things, even if they are victims and not the authors of
unauthorised constructions. [14811; 149A-B; F-G] (6) The unconstitutionality of
the Act cannot be cured by the framing of the Rules made three and a half years
after the Act was passed. Besides, the Rules only provide for a notice to be
given and objections to be considered before the passing of an order under
sections 2 (f) (b) and 4(l). They do not make a similar provision before
permission is granted or refused under section 3(1) of the Act. But, even, the
Rules do not lay down any guidelines for the exercise of the discretition which
is conferred upon the Competent Authority by section 2(f) (b) or section 4(1)
of the Act. [146E-F] (7) The Act does not violate the provisions of Art.
31(1) of the Constitution as it then stood.
It does not provide for transfer of ownership of vacant lands to the State or
to a corporation owned or controlled by the State;
nor does it vest in the State the right of
the owner or occupier of vacant lands to recover rent or compensation for use and
occupation of such lands. [150A-B] (8) The Act does not amount to a measure of
requisition and is not 134 bad for the reason that it provides for requisition
without payment of compensation. It is straining the language of the Act to
hold that it provides, directly or indirectly, requisition of private property
the Act does not transfer the right to possession of vacant lands to the State,
its agents or its instrumentalities. Therefore the Act does not offend against
the provisions of Article 31(2) of the Constitution as it then stood Since that
Article is not attracted, no question can arise of the invalidity of the Act on
the ground mentioned in Article 31(5), namely that the Act had not received the
assent of the President. [150C- D] (9) In so far as the question of legislative
competence is concerned, the High Court was right in holding that the State
Legislature had the competence to pass the Act under Entries 18, 64 and 65 of
List 11 [150C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 386, 529 & 532 of l98O.
From the Judgment and order dated the 8th
February, 198() of the Bombay High Court in Miscellaneous Petitions Nos. 1340
of 1977, 141 of 1977 and 1535 of 1976.
IN C.A. 386 OF 1980.
Dr. L.M. Singhvi, O.P. Rana, R.P. Vyas, M.N.
Shroff and Abhishek Manu Singhvi for the Appellant.
K.K. Singhvi, Anil Gupta and Brij Bhushan,
for Respondent.
lN CIVIL APPEAL No. 529 AND 532 OF l98O.
Harish Salve, J.B. Dadachanji and D.N. Mishra
for the Appellants in C.A. 529.
S.B. Bhasme, S.S. Khanduja and A.K. Galati
for the Respondent in C.A. 529 of 1980.
Y.H. Mocdala B.P. Singh and Ranjit Kumar for
the Respondent in CA. 532 of l98O.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. These appeals by the State of Maharashtra arise out of a
judgment dated February 8, 1980 of the High Court of Bombay in a group of writ
petitions which were filed under Article 226 of the Constitution. By those writ
petitions, the petitioners, who are respondents herein, challenged the validity
of the Maharashtra Vacant Lands (Prohibition of Unauthorised occupation and
Summary Eviction) Act, LXVl of 1975 and the legality of certain orders passed
thereunder. We will refer to the aforesaid 135 Act as "the Act". The
Act replaced an ordinance, bearing a A similar title, which was promulgated by
the Governor of Maharashtra on November 11, 1975. The Act was amended twice,
first by Act No. XXXVII of 1976 and then by Act No. VII of 1977. We will refer
to these two these two Acts as 'the First Amendment Act' and the 'Second Amendment
Act'.
Several writ petitions were filed in the
Bombay High Court to challenge the validity of the Act and the orders passed
under it, the facts being broadly or the same pattern. In order to understand
the nature of the controversy in these appeals, it would be sufficient for our
purpose to set out the facts in one of those petitions, namely Writ Petition
No. 1340 of 1977. The petitioners in that petition are the owners of a plot of
land which is part of survey No. 154, Bandra, Greater Bombay admeasuring about
1100 square meters. Though the petitioners had obtained possession of the plot
in about . 1964 under an agreement of sale, they became owners thereof under an
agreement of sale dated September 20, 1974. The plot is assessed to non-
agricultural assessment and to property tax by the Bombay Municipal
Corporation. There are four chawls consisting of 31 one-room tenements and a
two-storeyed building having four rooms on each floor on the plot. These
buildings were constructed by the petitioners between 1964 and 1970. The
two-storeyed structure is in the occupation of the petitioners while the
one-room tenements have been let out by them. These structures having been put
up by the petitioners without the requisite permission, the Bombay Municipal
Corporation called up them to demolish the same.
Thereupon, the owners of various plots of
land comprised in Survery No. 154 formed an Association through, which they
requested the Standing Committee of Bombay Municipal Corporation to regularise
the constructions. The Association was, however, informed that its request
could not be granted because, the Government was considering a proposal for the
acquisition of the land for the purpose of an industrial estate. The
Association then approached the Special Land Acquisition officer requesting
that the land be released from acquisition. The Land Acquisition officer
informed the Association that Survey No 154 had been released from acquisition
by a notification dated September 14, 1964.
It would appear from the contentions of the
petitioners in the aforesaid writ petition that there are two main tarred
roads, two tarred by-lanes, two Municipal Primary Schools,one High School 136
and one Municipal dispensary in the area comprised in Plot No. 154. Besides,
the head office of the Central Consumer Co-operative Society is also situated
in one of the buildings situated on that plot of land. The structure standing
on the plot are alleged to be of a permanent nature. In any event, it seems
clear that they are provided with essential civic amenities like water and
electricity.
The land belonging to the petitioners was
declared by the Competent Authority as "Vacant Land" in exercise of
the powers conferred upon it by section 2 (f) (b) of the Act.
The constitutionality of the Act was
challenged by the respondents on the ground that it violates the fundamental
rights conferred upon them by Articles 14, 19(1) (f) and 51 of the
Constitution, that the Legislature lacked the legislative competence to pass
the Act and that, the Act delegated excessive and uncanalised powers to the
Executive to pass orders under its provisions.
The long title of the Act shows that it was
passed in order to prohibit unauthorised occupation of vacant lands in urban
areas in the State of Maharashtra and to provide for summary eviction of
persons from such lands and for matters connected therewith. According to the
preamble of the Act, it had become necessary to take certain measures because
the number of unauthorised occupants on vacant lands in urban areas was
increasing rapidly and was causing grave danger to public health and sanitation
and to the peaceful life of the inhabitants of these areas.
The Act was applicable to the entire State of
Maharashtra but, in the first instance, it was brought into force in the Bombay
Metropolitan Region on November 11, 1975 which was the date on which the
ordinance was promulgated.
The Act confers power on the State Government
to bring its provisions into force in such other urban areas as may be
specified by a notification. Later, the Act was brought into force in the urban
areas of Solapur, Aurangabad, Nagpur and Kolhapur.
Sections 3 and 4 of the Act around which a
large part of the argument revolves read thus:
"3. Prohibition against unauthorised
Occupation of vacant land.
(1) No person shall, on or after the
appointed date, occupy any vacant land or continue in occupation of any vacant
land 137 in any urban area or erect any shelter or enclosure or other A
structure on such land for the purposes of residence or otherwise without the
express permission in writing of the Municipal commissioner in a corporation
area, of the Chief officer in a municipal area and elsewhere, of the Collector,
or except in accordance with any law for the time being in force in such urban
area.
(2) No person shall on or after the appointed
date abet any person in occupying any vacant land or in continuing to occupy
such land in any urban area, or in erecting any shelter, enclosure or other
structure on such land for the purposes of residence or otherwise in
contravention of the provisions of sub-section (1), or shall receive or collect
from the occupier of such vacant land any amount whether by way of rent
compensation or otherwise or shall in any manner whatsoever operate in relation
to the unauthorised occupation of such vacant land.
Provided that, the State Government or any
officer or authority specified by it in this behalf, shall have a right to
receive or collect from the occupier of such vacant land such reasonable amount
by way of penal charges as may be determined, by general or special order, by
the State Government, till such time as the structure erected in contravention
of the provisions of sub-section (1) is removed from the land. Payment of any
such amount shall not create or confer on the unauthorised occupant any right
of occupation of such land or structure. Such amount if not paid on demand
shall be recoverable as an arrear of land revenue. The amount so collected
shall, as far as possible, be utilised for purposes connected with the
eviction, rehabilitation and improvement of conditions of unauthorised
occupants of vacant lands." "4. Power of Competent Authority to evict
persons from unauthorised occupation of vacant lands.
(1) Notwithstanding anything contained in any
law for time being in force, if the Competent Authority, either on application
or suo motu, has reason to believe that any person is occupying any vacant land
in an urban area in contravention of the provisions of section 3, it may by 138
order require such person to vacate the land forthwith or by certain time
intimated to such person, and to remove all property therefrom, and if such
person fails to comply with the order to vacate the land and to remove all
property therefrom, he may be similarly evicted from such land by the Competent
Authority, and any property which may be found thereon may be ordered by the
Competent Authority to be forfeited to such authority as State Government may
by general or special order specify and be removed from the vacant land. For
the purposes of eviction and removal of any such property, the Competent
Authority may take, or cause to be taken such steps and use, or cause to be
used, such force, and may take such assistance of the Police officers as the
circumstance of the case may require.
Explanation-For the avoidance of doubt, it is
hereby declared that the power to take steps under this sub- section includes
the power to enter upon any land or other property whatsoever.
(2) The order of eviction of any person from
any vacant land or forfeiture of any property therein or any property therefrom
under sub-section (1) shall be final and conclusive, and shall not be called in
question in any Court.
(3) A person who is found to be on any vacant
land belonging to, or vesting in, another person shall, unless the contrary is
proved by him to the satisfaction of the Competent Authority, be deemed to be
in occupation of such vacant land in contravention of the provisions of section
3." Sections 4-A, 4-B and 4-C were inserted into the Act by the Second
Amendment Act. Those sections read thus:- "4-A. Permission for renovation
of structure on vacant lands a temporary measure in certain circumstances.
(1) Notwithstanding anything contained in
sections 3 and 4, where any occupier of a structure on a vacant land, in
respect of which penal charges are collected from hi under section 3, or any
occupier is by an order made under sub-section (1) of section 4 required to
vacate any vacant 139 land and to remove all property (including any structures)
A there from, desires to renovate the structure at his risk and expense as a
temporary measure, he may seek the previous permission of the Controller of
Slums to do so. On receipt of any application for such permission, if the
Controller or Slums is, after such inquiry as he deems fit to make, satisfied
that the structure is not fit for human habitation and the proposed renovation
is necessary to make it so fit temporarily, he may, subject to such conditions
as he may impose grant the required permission.
(2) Where any structure is renovated in
accordance with the permission granted under sub-section (1), the Competent
Authority shall not evict the occupier of the structure so renovated. till such
time as the Controller of Slums may specify .
Provided that if, in the opinion of the
Controller of Slums, occupier has at any time committed a breach of any of the
conditions subject to which the permission was granted, he may cancel the
permission granted and direct the Competent Authority to take necessary action
against the occupier under section 4 forthwith for his eviction and forfeiture
and removal of his property.
4-B. Recovery of dues of financing
institutions, which render assistance for renovation of structures.
(1) Where an occupier of any structure
referred to in section 4A has availed of an y financial assistance for
renovation of the structure from any financing institution recognised by the
State Government in this behalf; the Controller of Slums may, at the request of
the financing institution, collect on behalf of that institution the amount of
loan advanced to the occupier by that institution in such instalments and at
such intervals, and remit the amount so collected to the institution in such
manner, as may be directed by the State Government.
(2) If any such occupier fails to pay any
amount due to the financing institution on or before the due date, the
Controller of Slums may send to the Collector, a certificate under his hand
indicating there in the amount which is due 140 to the financing institution.
Thereupon, the Collector or any officer authorised by him shall recover the
amount due as an arrear of land revenue:
Provided that no such certificate shall be
sent to the Controller, unless the occupier has been served with a notice by
the Controller of slums calling upon him to pay the amount due by a specified
date.
4-C. Powers of controller of Slums under
sections 4A and 4B exercisable by authorised officer also.
For the purposes of section 4A and section
4A, "Controller of Slums" includes any officer subordinate to him,
who is authorised by him in writing in that behalf." Section 5 of the Act
prescribes the penalty for contravention of the provisions of Section 3(1) or
for failure to comply with an order made by the Competent Authority under
section 4 or for obstructing the Competent Authority in the exercise of any
power conferred upon it by the Act. The penalty extends to imprisonment for a
period of three years and fine. Section 8 of the Act provides that no court
shall have jurisdiction to entertain any proceeding, civil or criminal, in
respect of the eviction of any person from any vacant land under the Act or in
respect of any order made or action taken by the Competent Authority in the
exercise of the powers conferred by the Act or to grant any stay or injunction
in respect of such order or action. This section further provides if any suit
or other proceeding in respect of the eviction of any person from any vacant
land is pending on the appointed date in any court, it shall abate.
The expression "Vacant Land" is
defined in section 2 (f) of the Act. The original definition was replaced by
the First Amendment Act after which the section reads as follows .
"2 (f)-'vacant land', in relation to any
urban area, means- (a) all lands in such area, whether agricultural or non.
agricultural, which are vacant and are not built upon on the appointed date;
141 (b) all lands in such area on which any
structure has been or is being constructed otherwise than in accordance with
any law regulating the construction of such structure and which the Competent
Authority may, from time to time, by an order in writing, specify and declare
to be vacant lands by announcing by beat of drum or other suitable means on or
in the vicinity of such lands, and the declaration so made shall be deemed to
be notice to all those who are occupying such lands that all such lands shall
be vacant lands for the purposes of this Act;
and includes, in particular, all lands
specified in the Schedule to this Act.
The State Government may, from time to time,
by an order, published in the Official Gazette amend that Schedule by adding
thereto any land or lands specified in that order or by modifying or
transferring any entry in that Schedule." On December 3, 1971 a Proclamation
of Emergency was issued by the President of India under Article 352 of the
Constitution on the ground that a grave emergency existed whereby the security
of India was threatened by external aggression. Another proclamation of
Emergency was issued under the same Article on June 25, 1975 on the ground that
the security of India was threatened by internal disturbance. On June 27, 1975,
the President issued an order under Article 359 (1) suspending the right to
move any Court for the enforcement of the fundamental rights conferred by
Articles 14, 21, and 22 of the Constitution for the period during which the
above two Proclamations of Emergency were in force. On August 1, 1965, the
Constitution (Thirty-eighth Amendment) Act, 1977 was passed whereby, clause 1A was
inserted in Article 359 with retrospective effect. The ordinance which preceded
the Act in the instant case was passed on November 11, 1975 while the Act was
passed on December 24, 1975. As stated earlier, the Act came into force in the
Bombay Metropolitan Region with retrospective effect from November 11, 1975.
On January 8, 1975, the President of India
issued another order under Article 359(1) of the Constitution suspending the
right of any person to move any Court for the enforcement of any of the fundamental
rights conferred by Article 19 of the Constitution for the period during which
the said two proclamations of emergency 142 were in force. The First Amendment
Act was passed on August 3, 1976 while the Second Amendment Act was passed on
January 25, 1977.
The Proclamation of Internal Emergency was
revoked by the President of India on March 21, 1977 while the proclamation of
External Emergency was revoked on March 27, 1977.
On April 30, 1979, the Constitution
(Forty-Fourth Amendment) Act, 1978 was passed. By section 2 (a) (ii) of the
said Act. sub-clause (f) of clause (i) of Article 19 was omitted from the
Constitution and, by section 2(b), consequential amendments were made in clause
(5, of Article
19. By section 8 of the said Act, Article 31
was omitted from the Constitution. By section 34, a new chapter, namely,
Chapter IV, headed "Right to Property", was inserted in Part XII of
the Constitution, containing Article 30O-A.
As a result of these constitutional
provisions, the Act would be void and would cease to have effect from March 27,
1977 if it infringes the fundamental rights conferred by Articles 14 and 19 of
the Constitution. If it infringed Article 31 (1) of the Constitution on the
ground that the provisions of Article 19 (1) (f) were violated, the Act would
be void and would cease to have effect from March 27, 1977. If the State
Legislature had no legislative competence to pass the Act or the Act infringed
the provisions of clauses 2 or 3 of Article 31, the Act would be void from its
inception. Putting it briefly, the Act or any of its provisions would be void
or would cease to have effect, as the case may be, from diverse dates depending
upon the violation of the particular Article or Articles of the Constitution
involved herein.
Since the statutory concept of vacant land'
as defined in Section 2 (f) of the Act permeates the entire Act and is, as it
were, the quintessence of the Act, respondents concentrated their attention in
the High Court on challenging the vires and legality of that definition. They
succeeded in that challenge for the wighty reasons given by the High Court,
which we adopt, except with some minor variations. Indeed, if the draftsman
were to give to the framing of the Act even a part of the care and concern
bestowed upon it by the High Court, though not at the same length, many an
impediment in upholding the validity of the Act could have been cleared without
much difficulty. If we were to deal again with the manifold challenges made to
the validity of the Act, we will be repeating, more 143 or less, what the High
Court has said. Therefore, we propose to dwell upon some of the fundamental
objections to which the Act is open and some of the more serious infirmities
from which its provisions suffer.
Coming first to the definition of 'vacant
land', Section 2 (f) as amended retrospectively by the first Amendment Act
divides vacant lands into four categories: (1) lands which are in fact vacant,
that is to say, not built upon; (2) lands on which structures have been or are
being constructed otherwise than in accordance with any law regulating the
construction of such structures and which the Competent Authority may specify
and declare to be vacant lands by announcing by beat of drum or other suitable
means;
(3) lands specified in the Schedule to the
Act; and (4) lands included in the Schedule by the State Government by an order
amending the Schedule. It is evident, despite some needless controversy upon
that question in the High Court, that the expression 'land' in Section 2 (f) of
the Act means plots of land with defined boundaries which are generally
recognised for revenue and survey purposes. Section 2(f) (b) requires two
conditions to be satisfied in order that a land can be described as a vacant
land; Firstly, there has to be an unauthorised structure on the land and
secondly, the Competent Authority has, by an order in writing, to specify and
declare that land to be a vacant land.
The Act confers upon the Competent Authority
the discretion to declare a land as a vacant land without laying down any
guidelines to control that discretion. The Competent Authority has the freedom
to pick and choose lands on which there are unauthorised structures and declare
some of them as vacant lands and leave other similarly situated untouched. The
second recital in the preamble to the Act on which reliance is placed by the
State Government as affording a guideline to the Competent Authority for making
a declaration that a certain land is a vacant land cannot serve that purpose.
That recital reads thus:
"AND WHEREAS the number of unauthorised
occupants on vacant lands in the urban areas in the State was rapidly
increasing and was causing grave danger to the public health and sanitation and
peaceful life of inhabitants of such areas." The Act does not contain any
provision whatsoever which is 144 directed at ensuring the public health and
sanitation or the peaceful life of the inhabitants of the concerned locality.
Indeed, nothing is farther removed from the
true purpose and object of the Act than these considerations. The last item in
the Schedule to the Act includes all public roads and highways in Greater
Bombay. These, surely, cannot be regarded as constituting a grave danger to
public health, sanitation or peaceful life of the citizens.
The circumstances which led to the passing of
the Act are mentioned in the Statement of objects and Reasons to the Ordinance
which are as follows;
"It was found that the vacant lands in
Greater Bombay and similar other urban areas were rapidly being unauthorisedly
occupied by squatters and traffickers in lands. The different laws and various
authorities constituted under these laws, as well as different procedures laid
down by these laws, did not permit immediate demolition of unauthorised huts or
prevent the growth of unauthorised structures. The lengthy procedure laid in
the laws also prevented the authorities from taking immediate preventive
action. A law which would simplify the procedure and reduce possibilities of
litigation, and adequately arm the law enforcing authorities such as Municipal
officers, Police officers, Revenue officers and other officers of Government
Department to demolish the unauthorised huts and houses was found in mediately
necessary. Further, it was also necessary to take drastic penal action against
those who construct unauthorised hutments or colonies of temporary sheds, and
traffic in lands and such structures or recover rents by letting out such
structures." It is clear from this Statement that the evil which was
sought to be remedied by the ordinance, which was later replaced by the Act,
was not danger to public health or sanitation or to the peaceful life of the
inhabitants of the Metropolis of Bombay. The danger posed by the construction
of unauthorised structures is the evil which the Act seeks to remedy.
The Act does not also provide for any
safeguard against the arbitrary exercise of the discretion conferred upon the
Competent Authority to declare a land as a vacant land. It is true that abuse
of 145 power is not to be assumed lightly but, experience belies the
expectation that discretionary powers are always exercised fairly and
objectively. In fact, instances of discriminatory declarations made by the
Competent Authority were cited in the High Court to which according to the High
Court, no satisfactory answer was given in, the return filed on behalf of the
State Government. The Act does not prescribe any procedure which the Competent
Authority is required to adopt before declaring a land as a vacant land.
There is no provision in the Act requiring
the Competent Authority to observe even the rudimentary norms of natural
justice before making the statutory declaration. The Authority is not obliged
to give notice to anyone and it need not hear any person who is likely to be
affected by the declaration. The State Government, too, is under no obligation
to follow any set procedure prior to amending the Schedule so as to include new
lands therein. The power conferred by Sections 3(1) and 4(1) of the Act is
similarly uncontrolled and arbitrary. Indeed, the hall-mark of this
ill-conceived legislation is; "No notice and no hearing".
There can be cases, though their category
ought not be enlarged by Courts, wherein failure to afford to hearing before an
adverse decision is rendered may not necessarily vitiate that decision. But, in
cases like those before us, a hearing preceding a decision is of the essence of
the matter. It is notorious as the Statement of objects and Reasons of the
ordinance shows, that, in Bombay, open lands have been trespassed upon by
professional slumlords who have become a law into themselves. Perhaps, they
rise to the occasion by pandering to political needs and pressures but that is
beside the point. Massive encroachments on private properties have led to the
virtual deprivation of the title of rightful owners of these properties. The
Act penalises such owner for no fault of theirs and, that too, without giving
them an opportunity to be heard. The fact that the power to make the requisite
declaration under the Act is vested in officers of the higher echelons makes no
difference to this position and is not a palliative to the prejudice which is
inherent in the situation.
The judgment of the High Court cites a
glaring instance of the arbitrary and undesirable consequences which follow
upon orders which are passed unilaterally, that is, without hearing the parties
affected by these orders. One of the petitioners before the High Court was the
owner of a hotel called Nakesh Punjab Hotel. He held various licences which authorised
him to run the hotel. There was a dispute between him and the Revenue
Authorities as to the 146 increase in the quantum of assessment, whereupon he
obtained an interim injunction from the City Civil Court, Bombay. In the
meanwhile, the Competent Authority issued a Declaration under Section 2(f)(b)
of the Act declaring the plot of land on which the hotel stood as a vacant
land. Within a short time thereafter, the hotel was demolished.
It was urged on behalf of the State
Government that the infirmity, if any, from which the Act suffered in its
inception has been cured by the passing of the Maharashtra Vacant Lands
(Prohibition of Unauthorised occupation and Summary Eviction) (Service of
Notice) Rules, 1979. By these Rules, before issuing any order under Section
2(f)(b) or under Section 4(1) of the Act, the Competent Authority is required
to serve a written notice upon any person likely to be affected by such order,
calling upon him to show cause within such period as may be specified in the
notice why the proposed order should not be issued. The Competent Authority is
further required to consider any objections submitted to it by any such person
within the period specified in the notice. Rule 3(2) provides for service of
such notices. We are unable to accept that the unconstitutionality of the Act
is cured by the framing of the Rules made three and a half years after the Act
was passed. Besides, the Rules only provide for a notice to be given and
objections to be considered before the passing of an order under sections
2(f)(b) and 4(1). They do not make a similar provision before permission is
granted or refused under section 3(1) of the Act. But, what is of greater
importance is that, even the Rules do not lay down any guidelines for the
exercise of the discretion which is conferred upon the Competent Authority by
section 2(f)(b) or section 4(1) of the Act.
Section 2(f)(b) suffers from yet another vice
in that, it treats all persons alike irrespective of how they are situated in
the matter of their involvement in the construction of unauthorised structures
and their interest therein. Classification requires division into classes which
are marked by common characteristics. Such division has to be founded upon a
rational basis and it must be directed at subserving the purposes of the
statute. Section 2(f)(b) and the other cognate provisions of the Act make no
distinction at all between owners of lands who have themselves constructed
unauthorised structures and those others on whose lands unauthorised structures
have been constructed by trespassers. The latter class of owners who are silent
spectators to the forcible and lawless deprivation of 147 their title to their
property have been put by the Act on par with trespassers who, taking law into
their own hand, defy not merely private owners but public authorities.
Section 2(f)(b), also, suffers from the
infirmity of according equal treatment to unequals. Take a simple example: A
plot of land may be vacant in the true sense of the term, that is to say,
wholly unbuilt upon. Another plot of land may have a small structure built upon
it in accordance with the Municipal rules and regulations. The first plot of
land attracts drastic provisions of the Act merely by reason of the fact that
nothing has been built upon it at all, while the second plot of land is
entirely outside the scope of the Act for the reason that some tiny structure
is standing thereon. a Such a classification betrays lack of rationale.
By the second part of the definition of
'vacant land' in section 2(f) of the Act, vacant land "includes, in
particular, all lands specified in the Schedule to the Act".
The Schedule includes various 'lands' which
are built upon, like the B.E.S.T. Depot (Entry 73), the Health Centre at
Nawabwadi (Entry 75), the Pumping Station at Vallabhbhai Patel Nagar (Entry
82), the School in Mulund Village (Entry 130) and, last but not the least, all
land occupied by public roads and highways in Greater Bombay (Entry 1555). It
is impossible to understand the scheme of the Schedule or to discover any
rational basis behind it. It is also difficult to understand as to why certain
lands which are under acquisition for the purposes of the Maharashtra Housing
Board and the Bombay Municipal Corporation have been included in the Schedule and
other lands similarly situated have not been so included. Some of the Entries
in the Schedule show that unauthorised structures could not have been possibly
constructed on the lands mentioned therein. By and large, the Schedule is
divorced from the true object of the Act.
The concluding part of section 2(f) of the
Act confers power upon the State Government to amend the Schedule from time to
time by an order published in the official Gazette.
This power includes, inter alia, the power to
add 'any land or lands' to the Schedule. No criterion or standard is laid down
in order to enable the State Government to determine objectively as to which
lands can be added to the Schedule.
The power to add to the Schedule is in the
nature of a legislative power which, in the very nature of things, cannot
stipulate for service of notice to the persons affected by the amendment. This
power of amendment of the Schedule is 148 not even conditioned by the fact that
the lands added to the Schedule must have unauthorised structures standing
thereon.
The State Government is free to pick and
choose any land and put it in the Schedule. This kind of conferment of
uncanalised discretion is strawn all over the Act.
Thus, each part of the definition of 'vacant
land' in section 2(f) of the Act is violative of the provisions of Articles 14
and 19(1)(f) of the Constitution. Article 19(1)(f) has now lost its relevance
after the passing of the Constitution (Forty-fourth Amendment) Act, 1978 by
which clause (f) was deleted. But the Act had to satisfy the requirements of
that clause so long as it was a part of the Constitution.
It may be relevant at this stage to consider
as to what is the ultimate fate of lands which are declared as vacant lands
under section 2(f). Until the Competent Authority passes an order under section
4(1) calling upon an occupier to vacate a land, even a trespasser or an
unauthorised occupier can continue to be in possession of the land. If he is
granted permission to occupy the land under section 3(1), he cannot be evicted
at all, for the simple reason that the order of eviction under section 4(1) can
be passed only if a person is in occupation of a land contrary to the
provisions of section 3. Even the eviction of a trespasser from the land can
afford no solace to its rightful owner because, the Act does not contain any
provision whereby the land can be returned to him after it is freed from
unauthorised occupation. If the owner himself has erected an unauthorised
structure, the Act does not provide as to what is to happen to the land after
he is evicted therefrom.
By the provisio to section 3(2) which was
inserted by the First Amendment Act, power is conferred upon the State
Government or, an authority specified in that behalf, to receive and collect
from the occupiers of vacant lands a reasonable amount by way of penal charges
as may be determined by the State Government Such penal charges can be
recovered until such time as the structure erected on the land on contravention
of section 3(1) of the Act is removed.
The Statement of objects and Reasons of the
First Amendment Act shows that the provision for levying penalty was introduced
into the Act in order that occupants of lands on which there were unauthorised
structures and. who are allowed to continue in possession of the structures, do
not continue to occupy 149 those lands without payment of any amount at all to
public authorities. It appears that even after forfeiting the structures
consequent upon the passing of an order under section 4(1), the State Government
has been recovering compensation from unauthorised occupants. It seems to us
quite incongruous that while the true owner is prevented from taking legal
proceedings to recover any rent or compensation from persons who had trespassed
upon his land, the State Government can recover penal charges from the
trespassers.
By the Second Amendment Act, a new section
4-A was inserted in the Act. That section provides that if any occupier of a
structure on a vacant land from whom penal charges are collected under section
3, or if any occupier who is required by an order made under section 4(1) to
vacate any vacant land, desires to renovate the structure at his risk as a
temporary measure, he may apply to the Controller of Slums for the requisite
permission. The Controller is empowered to grant the permission after making
such inquiry as he deems fit, if he is satisfied that the structure is not fit
for human habitation and the proposed renovation is necessary to make the
structure temporarily fit. Once such permission is granted and the structure is
renovated, the Competent Authority is powerless to evict the occupier of the
structure until such time as the Controller of Slums may specify. By section
4-13, which was also inserted by the Second Amendment Act, financial assistance
for renovating structures can be made available by financial institutions
recognised by the State Government. In cases where such financial assistance is
availed of, the financial institutions can request the Controller of Slums to
collect, on their behalf, the amounts of loans advanced to the occupiers. The
Statement of objects and Reasons of the Second Amendment Act shows that the
Government had carried out substantial environment improvements on vacant lands
and had sponsored a scheme for building semi-permanent houses thereon. They
intended to give to the occupants of such structures security of tenure subject
only to the condition of regular repayment by them of the loans given by the
financial institutions. The true owner of lands are totally ignored in this
scheme of things, even if they are victims and not the authors of unauthorised
constructions. It was not disputed in the High Court, nor before us, that for a
period of more than four years that the Act has been in force, not a single
unauthorised and forcible occupier of a vacant land owned by a private person
was evicted, nor was a single plot of land encroached upon restored to its
rightful owner.
150 We are in agreement with the High Court
that the Act does not violate the provisions of Art. 31(1) of the Constitution.
It does not provide for transfer of ownership of vacant lands to the State or
to a corporation owned or controlled by the State; nor does it vest in the
State the right of the owner or occupier of vacant lands to recover rent or
compensation for use and occupation of such lands.
We are, however, unable to accept the view of
the High Court that the Act amounts to a measure of requisition and is bad for
the reason that it provides for requisition without payment of compensation. It
is straining the language of the Act to hold that it provides, directly or
indirectly, for requisition of private property. The Act does not transfer the
right to possession of vacant lands to the State, its agents or its
instrumentalities. Therefore, the Act does not offend against the provisions of
Article 31(2) of the Constitution. Since that Article is not attracted, no
question can arise of the invalidity of the Act on the ground mentioned in
Article 31(S), namely, that the Act had not received the assent of the
President.
In so far as the question of legislative
competence is concerned we uphold the finding of the High Court to the extent
that the State Legislature had the competence to pass the Act under Entries 18,
64 and 65 of List II.
Since the Act is, in any event, violative of
Article 14 of the Constitution, it is unnecessary to consider the question
whether, in so far as it violated Article 19 (l) (f), it revived on the
deletion of that Article by the Constitution (Forty-fourth Amendment) Act.
1978. We express no opinion on the question whether the doctrine of 'eclipse'
applies both the pre-Constitution and post-Constitution laws or whether that
doctrine applies to pre-Constitution laws only.
For these reasons, which are substantially
similar to the reasons given by the High Court, we affirm the judgment of the
High Court and dismiss these appeals with costs. We quantify the costs in each
appeal at rupees two thousand.
We would like to point out before we close
that the object of the state legislature in passing the Act was unquestionably
laudable. It is unfortunate that the legislation has traveled far beyond that
object. The State Government has failed in these proceedings not because the
legislature lacks the legislative competence to pass the Act mainly because the
provisions of the Act are discriminatory.
151 The Act was passed during the period of
Emergency when some of A the safeguards available under Chapter 111 of the
Constitution were suspended on the revocation of the Emergency, the Act ought
to have been amended or, better still, a new legislation ought to have been
introduced so as to comply with the provisions of the Constitution. We trust
that, in the light of our judgment and the judgment of the High Court, the State
Legislature will introduce a carefully conceived legislation on the subject at
an early date. The slumlords, which have trespassed on public and private
properties, must be evicted and expeditious steps taken to prevent them
exploiting any further the helpless member of the community who are virtually
at their mercy. Not only have these defiant law-breakers constructed
unauthorised structures on private and public properties but, as stated in the
objects and Reasons of the Act, they have been collecting extortionate rents
from the tenants of such properties, Earlier the State Government acts the
better.
M.L.A Appeals dismissed.
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