Scheduled
Caste and Weaker Section Welfare Association Vs. State of Karnataka & Ors
[1991] INSC 86 (2 April
1991)
Fathima
Beevi, M. (J) Fathima Beevi, M. (J) Ahmadi, A.M. (J)
CITATION:
1991 AIR 1117 1991 SCR (1) 974 1991 SCC (2) 604 JT 1991 (2) 184 1991 SCALE
(1)581
ACT:
Karnataka
Slum Areas (Improvement and Clearance) Act, 1973: Sections 3(1) and 11(l)-Slum
clearance area- Declaration of larger area-Subsequently changed-Smaller area
re-declared-Whether opportunity of hearing to be given to affected parties-Denial
of hearing-Whether violative of principles of natural justice-Whether
Association representing slum dwellers' interests and a resident of slum area
have locus standi to challenge the notification rescinding earlier
notifications and redeclaring smaller area-Power of rescinding- Whether properly
exercised.
Constitution
of India, 1950: Article 226-General Clauses
Act, 1897: Sections 21/Karnataka (Mysore) General Clauses Act, 1899; Section 10:
HEAD NOTE:
Under
Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973
Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the State
Government declaring an extent of one acre in the city of Bangalore, as 'slum
area'. After considering the objections, another notification dated 30.12.1977
was issued under Section 11(1) of the Act declaring the entire land as 'slum
clearance area'. However, on January 20, 1981,
the Government issued notification under Section 3(1) cancelling the earlier
notification dated 3.12.1977 and re-declaring an extent of 14 1/2 guntas only
as 'slum area'. The appellants, an Association representing the interest of
slum dwellers and a resident of the area challenged notification dated
20.1.1981 on the ground that it was in violation of the principle of natural
justice and Article 14 of the Constitution inasmuch as the slum dwellers
affected by the Government's action were not given an opportunity of being
heard and were denied equality, since a major part of the slum area has been
excluded from the operation of the scheme.
A
Single Judge of the High Court held that the appellants had no locus standi to
challenge the notification and that even on merits there was no case. The
Division Bench agreed on the question of locus standi but did not go into the
merits.
975
The appellants filed an appeal by special leave before this Court, contending
that the High Court had erred in holding that the petitioners had no locus standi,
that in view of the purpose of the legislation and the scheme contemplated thereunder,
once action had been taken declaring a larger area as 'slum clearance area',
any change thereafter which directly affected the slum dwellers could not be
taken without giving the affected persons an opportunity of being heard and,
there was, therefore, clear violation of the principle of natural justice, and
that there was no specific provision under the statute enabling the Government
to rescind the notification, and even assuming that it existed there was no
proper exercise of the power.
On
behalf of Respondent No. 3 it was submitted that there was no need to hear the
owners or occupiers at the stage of issuing notification under Section 3(1) of
the Act and Section 11 did not confer any statutory right on the occupiers, and
that under Section 21 of the General Clauses Act, the power to withdraw or
rescind the notification was inherent and the authority who was empowered to
issue the notification was entitled to rescind the same. The State adopted the
contentions of Respondents No. 3.
Allowing
the appeal, this Court,
HELD:
1. 1. Where a member of the public acting bona fide moves the Court for
enforcement of a fundamental right on behalf of a person or class of persons
who, on account of poverty or disability or socially or economically
disadvantaged position cannot approach the Court for relief, such member of the
public may move the Court even by just writing a letter. [979E] Bandhua Mukti Morcha
v. Union of India & Ors., [1984] 2 SCR 67, relied on.
S. P.
Gupta v. Union of India, [19821 2 SCR 365; Olga Tellis v. Bombay Municipal
Corporation, [1985] Suppl. 2 SCR 51, referred to.
1.2.
The first appellant-Association represents the interests of the slum dwellers
and the second appellant himself is one of the residents in the area. The
action of the Government affects a class of persons and if that group of
persons is represented by the Association, they have a right to be heard in the
matter. Even a public interest litigation would lie in such a situation.
Therefore, the High Court was wrong in concluding that appellants were
incompetent to invoke the jurisdiction of the Court.[979D, F] 976
2.1.
What particular rule of natural justice should apply to a given case must
depend to an extent on the facts and circumstances of that case, the framework
of the law under which the enquiry is held and the body of persons appointed
for that purpose. It is only where there is nothing in the statute to actually
prohibit the giving of an opportunity to be heard but, on the other hand, the
nature of the statutory duty imposed itself necessarily implied an obligation
to hear before deciding, that the audi alteram partem rule could be imported.
1982F]
2.2.
It is one of the fundamental rules of our constitutional set-up that every
citizen is protected against exercise of arbitrary authority by the State or
its officers. If there is power to decide and determine to the prejudice of a
person, duty to act judicially is implicit in the exercise of such power and
the rule of natural justice operates in areas not covered by any law validly
made. [982E]
2.3.
When a declaration is made under Section 3 and a further declaration is made
under Section 11, the inhabitants of the areas are affected and any further
action in relation to the area which is declared to be 'slum clearance area' without
affording such persons an opportunity of being heard would prejudicially affect
their rights. The right to be heard in the matter has been acquired by the
earlier action of the authority in considering the area for the purpose of the
scheme. This is clear from the proviso to sub-section (1) of Section 11 of the
Act. When any alteration is sought to be made in the original scheme, it
becomes incumbent upon the authorities to give an opportunity to the persons
who had been affected by the earlier order and required to adopt a certain
course of action. [983D-E]
2.4.
It is true that under Section 21 of the General Clauses Act, the power to issue
a notification includes the power to rescind it, and it is always open to the
Government to rescind the notification. [980B] State of Kerala v. K. G. Madhavan Pillai, [1988] 4
SCC 669; State of M.P. v. V.P. Sharma, [1966]3 SCR557; Lt.
Governor of H.P. v. Sri Avinash Sharma, [ 1970] 2 SCC 149; Lachmi Narain v.
Union of India,[ 1976] 2 SCR 785; State of Bihar v. D. N. Ganguly & Ors., [
1959] SCR 1191 and Kamia Prasad Khetan v. Union of India, [1957] SCR 1052,
referred to.
But
when a notification is made rescinding the earlier notifications without
hearing the affected parties, it is clear violation of the principles of
natural justice. Such action in exercise of the implied 977 power to rescind
cannot then be said to have been exercised subject to the like conditions
within the scope of Section 21 of the General Clauses Act. [983F] In the
circumstances, the notification dated 20.1.1981 is liable to be quashed. It
shall be open to the Government to proceed after affording the slum dwellers an
opportunity of being heard on the basis of the earlier notifications that were
in force. [983F-G]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1401 of 1991.
From
the Judgment and Order dated 26.10.1987 of the Karnataka High Court in W.A. No.
607 of 1982.
S.R. Bhat
and Prabir Chaudhury (NP) for the Appellants.
A.B. Rohtagi,
M. Veerappa, R.L. Bhardwaj and Vishnu Mathur for the Respondents.
The
Judgment of the Court was delivered by FATHIMA BEEVI, J. The Karnataka Slum
Areas (Improvement and Clearance) Act, 1973, which received the assent of the
President on 1st
October, 1974, is an
Act to provide for improvement and clearance of slums in the State of Karnataka. Section 3 of the Act empowers the
Government to declare certain areas as slum areas. If the Government is
satisfied that any area which is likely to be a source of danger to health,
safety or convenience of the public of that area or of its neighbourhood by
reason of the area being low-lying, unsanitary, squalid, over-crowded or
otherwise, the Government may by notification declare the areas as 'slum area'.
Under Section 11, when the Government is satisfied on a report from the
competent authority that the most satisfactory method of dealing with the
conditions in the area is the clearance of such area and demolition of the
buildings in the area, it may, by notification, declare the area to be the
'slum clearance area'.
The
Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the Karnataka
Government declaring an extent of one acre in Timber Yard slum by the side of Main Road, Cottonpet, Bangalore, as 'slum area'. After considering
the objections, another notification dated 30.12.1977 was issued under Section I(1)
of the Act declaring 978 the entire land as 'slum clearance area'. However, on January 20, 1981, the Government issued notification
under Section 3(1) cancelling the earlier notification dated 30.12.1977 and
re-declaring an extent of 14 1/2 guntas only as 'slum area'. The notification
dated 20.1.1981 had been challenged by the appellants mainly on the grounds
that it is in violation of the principle of natural justice and Article 14 of
the Constitution has been violated. It was contended that slum dwellers who are
affected by the Government's action have not been given an opportunity of being
heard and they have been denied equality by denying basic human needs since a
major part of the slum area has been excluded from the operation of the scheme.
The
single Judge of the High Court took the view that the appellants had no locus standi
to challenge the impugned notification and even on merits there was no case.
The Division Bench of the High Court agreed on the question of locus standi and
without going into the merits confirmed the judgment.
The
appellants have approached this Court under Article 136 of the Constitution of
India. We have granted special leave to appeal.
The
learned counsel for the appellants relying on the decisions of this Court in S.
P. Gupta v. Union of India, [1982] 2 SCR 365 and Olga Tellis v. Bombay
Municipal Corporation, [ 1985] Suppl. 2 SCR 51 vehemently contended that the
High Court has erred in holding that the petitioners have no locus standi. He
also submitted that in view of the purpose of the legislation and the scheme
contemplated thereunder once action has been taken declaring a larger area as
'slum clearance area', any change thereafter which would directly affect the
slum dwellers could not be taken without giving the affected persons an
opportunity of being heard and, there is, therefore, the clear violation of the
principle of natural justice. It was also urged that there is no specific
provision under the statute enabling the Government to rescind the notification
and assuming that it exists, there was no proper exercise of the power.
Mr. Rohtagi,
counsel appearing on behalf of the 3rd respondent, submitted that the first
notification dated 17.1.1977 was challenged by the owners of the land in a writ
petition as they were not heard as required and the fresh notification have
been issued on the assurance given before the Court that they would be heard.
It was pointed out that there was no need to hear the owners or occupiers at
the stage of issuing the notification under Section 3(1) of the Act and Section
11 979 does not confer any Statutory right to the occupiers.
Relying
on Section 21 of the General Clauses Act, it was maintained that the power to
withdraw or rescind the notification was inherent and the authority who is
empowered to issue the notification is entilitled to rescind the same.
It was
also pointed out that there had been dispute over the title of the land in
question that civil litigation was in progress and that the earlier declaration
was made without proper basis. Action has been taken by the owners against the
tenants for eviction and orders have been obtained in their favour and the
petitioners have no case and are not entitled to any relief. The counsel for
the State adopted these arguments.
The
first question that falls for consideration is whether the appellants can
challenge the action of the Government. This question need not detain us when
the law is now settled that in such situation even a public interest litigation
would lie. The first appellant- Association represents the interests of the
slum dwellers and the second appellant himself is one of the residents in the
area. The action of the Government on the averments made affects a class of
persons and if that group of persons is represented by the Association, they
have a right to be heard in the matter. Where a member of the public acting
bona fide moves the Court for enforcement of a fundamental right on behalf of a
person or class of persons who on account of poverty or disability or socially
or economically disadvantaged position cannot approach the Court for relief,
such member of the public may move the Court even by just writing a letter as
held by this Court in Bandhua Mukti Morcha v. Union of India & Ors., [1984]
2 SCR 67. We are, therefore, of the view that the High Court was wrong in
concluding that appellants were incompetent to invoke the jurisdiction of the
Court.
We
shall now consider the argument that the State Government had no power to
rescind the notification issued under Sections 3 and 11 in the absence of any
specific provision in the Act. Section 21 of the General Clauses Act is in pari
materia with Section 10 of the Karnataka General Clauses Act. This Section
reads:
"21.
POWER TO ISSUE TO INCLUDE, POWER TO ADD TO, AMEND, VARY OR RESCIND
NOTIFICATIONS,ORDERS, RULES OR BYE-LAWS.-Where, by any Central Act or
Regulation, a power to issue notifications, orders, rules, or bye-laws is
conferred, then that power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any) to add 980 to, amend, vary
or rescind any notifications, orders, rule or bye-laws so issued." Under
Section 21 of the General Clauses Act, the power to issue a notification includes
the power to rescind it. It is always open to the Government to rescind the
notification. We shall refer to the decisions of this Court in State of Kerala
v. K. G. Madhavan Pillai, [1988] 4 SCC 669; State of M. P. v., V. P. Sharma, [
1966] 3 SCR 557 and Lt. Governor of H. P. v. Sri Avinash Sharma,[1970] 2 SCC
149. In these cases arising under the Land Acquisition Act, the issue before
the Court was whether the Government could exercise powers only under Section
48 of the Land Acquisition Act to withdraw a notification for acquisition made
under Section 4(1) of the Act. When the Government issued successive
notifications under Section 6 covering different portions of the land notified
for acquisition under Section 4(1), the validity of the last of the
notification was challenged on the ground that a notification under Section
4(1) could be followed only by one notification under Section 6. In repelling
the contention, this Court incidentally observed at page 693 thus:
"That
the only way in which the notification under Section 4(1) can come to an end is
by withdrawal under Section 48(1)" is not correct because "under
Section 21 of the General Clauses Act, the power to issue a notification
includes the power to rescind it and therefore it is always open to the
Government to rescind a notification under Section 4 or under Section 6 and a
withdrawal under Section 48(1) is not the only way in which a notification
under Section 4 or Section 6 can be brought to an end." In Lt. Governor of
H.P. v. Sri Avinash Sharma, (supra) the Court observed at page 151 thus:
"Power
to cancel a notification for compulsory acquisition is, it is true, not
affected by Section 48 of the Act; by a notification under Section 21 of the
General Clauses Act, the Government may cancel or rescind the notification
issued under Sections 4 and 6 of the Land Acquisition Act. But the power under
Section 21 of the General Clauses Act cannot be exercised after the land
statutorily vests in the State Government." In Lachmi Narain v. Union of
India, [1976] 2 SCR 785, this 981 Court observed at page 808 thus:
"Section
21, as pointed out by this Court in Gopichand v. Delhi Admn., [1959] Suppl. 2
SCR 87, embodies only a rule of constructions and the nature and extent of its
application must be governed by the relevant statute which confers the power to
issue the notification." In State of Bihar v. D.N. Ganguly & Ors.,
[1959] SCR 1191, it was held that it is well-settled that the rule of
construction embodied in S.21 of the General Clauses Act can apply to the
provisions of a statute only where the subject- matter, context or effect of
such provisions are in no way inconsistent with such application. In that case,
the question was where an industrial dispute has been referred to a tribunal
for adjudication by the appropriate government under Section 10(1)(d) of the
Industrial Disputes Act, can the said government supersede the said reference
pending adjudication before the tribunal constituted for that purpose? The
Court held the notification to be invalid and ultra vires pointing our that is
would be necessary to examine carefully the scheme of the ACt, its object and
all its relevant and material provisions before deciding the application of the
rule of construction enunciate by Section 21. After examining the relevant
provisions of the Act, the Court said that once an order in writing is made by
the appropriate government under Section 10(1)(d), the proceedings before the
tribunal are deemed to have commenced and if the appropriate government has by
implication the power to cancel its order passed under Section 10(1), the
proceedings before the tribunal would be rendered wholly ineffective by the
exercise of such power and Section 21 cannot be invoked.
In Kamla
Prasad Khetan v. Union of India, [1957] SCR 1052, this Court considred the
scope of Section 21 of the General Clause Act. At page 1068, the Court observed
thus:
"The
power to issue an order under any Central Act includes a power to amend the
order; but this power is subject to a very important qualification and the
qualification is contained in the words `exercisable in the like manner and
subject to the like sanction and conditions (if
any)'..................................The true scope and effect of the
expression `subject to the like conditions (if any)' occurring in Section 21 of
the General Clauses Act has been explained." 982 Relying on these
decisions, the learned counsel for the appellants contended that even if source
of power could be traced under Section 21, the exercised of that power could
only be in the same manner as provided and when a notification under Section
3(1) had been issued declaring certain areas as `slum area', the power to
rescind the notification and limit the extent could be exercised only after
hearing the affected parties, for the Government to satisfy itself that what
has already been declared does not come within the scope of the proposed
scheme. The object of the statute and the relief that was sought to be
conferred are matters to be taken into consideration in such action.
It has
been brought to our notice that about 100 persons had been living in the area
under conditions which require the implementation of the scheme under the Act
for their redressal and once steps have been taken in that direction any variation
that could affect the occupants in the areas was required to be made only after
giving them an opportunity of being heard. It is thus maintained that there had
been no proper exercise of the power assuming that the power is vested on the
Government and there is clear violation of the principle of natural justice.
It is
one of the fundamental rules of our constitutional set-up that every citizen is
protected against exercise of arbitrary authority by the State or its officers.
If there is power to decide and determine to the prejudice of a person, duty to
act judicially is implicit in the exercise of such power and the rule of
natural justice operates in areas not covered by any law validly made. What
particular rule of natural justice should apply to a given case must depend to
an extent on the facts and circumstances of that case, the frame work of the
law under which the enquiry is held and the body of persons appointed for the
purpose. It is only where there is nothing in the statue to actually prohibit
the giving of an opportunity to be heard, but on the other hand, the nature of
the statutory duty imposed itself necessarily implied an obligation to hear
before deciding, that the audi alteram partem rule could be imported. The Mysore
Slum Areas (Improvement and Clearnance) ACt, 1958, this Court held in
Government of Mysore & Ors. v. J.V. Bhat etc., [1975] 2 SCR 407 thus:
There
can be no two opinions about the need to hear the affected persons before
declaring an area to be a slum area under section 3 or an area as a clearance
area under section 9 or before taking action under section 10. All these
difficulties will be removed if the affected persons are given 983 an
opportunity to be heard in respect of the action proposed." The Preamble
to the present Act itself states that the Act is to provide for the improvement
and clearance of slums in the State. Under the existing law, it has not been
possible effectively to check the increase and to eliminate congestion and to
provide for basic needs such as streets, water-supply, and drainage and to
clear the slums which are unfit for human habitation. To obviate this
difficulty, it is considered expedient to provide for the removal of unhygenic
and insanitary conditions prevailing in the slums for better accommodation and
improved living conditions for slum dwellers for the promotion of public health
generally.
These
are the objectives sought to be achieved by the enactment which has been made
in implementation of the Directive Principles of State Policy to improve public
health. It is, therefore, obvious that when a declaration has been made in
implementation of the Directive Principles of State Policy to improve public
health. It is, therefore, obvious that when a declaration is made under section
3 and a further declaration is made under section 11, the inhabitants of the
areas are affected and any further action in relation to the area which areas
are affected and any further action in relation to the area which is declared
to the `slum clearance area' without affording such persons an opportunity of
being heard would prejudicially affect their rights. The right to be heard in
the matter has been acquired by the earlier action of the authority in
considering the area for the purpose of the scheme. This is clear from the
proviso to sub-sec. (1) of Section 11 of scheme. This is clear from the proviso
to sub-sec. (1) of Section 11 of the Act. When any alternation is sought to be
made in the original scheme, it becomes incumbent upon the authorities to give
an opportunity to the persons who had been affected by the earlier order and
required to adopt a certain course of action. In this view of the matter it is
to be held that when a notification is made rescinding the earlier
notifications without hearing the affected parties, it is clear violation of
the principle of natural justice.
Such
action is exercise of the implied power to rescind cannot then be said to have
been exercised implied power to rescind cannot then be said to have been
exercised implied power to rescind cannot then be said to have been exercised
subject to be quashed on this ground. It shall be open to the Government to
proceed after affording the slum dwellers an opportunity of being heard on the
basis of the earlier notifications that were in force.
In the
result, the appeal is allowed and the order of the High Court is set-aside. The
impugned notification is quashed subject to the observations made. We make no
order as to costs.
Appeal
allowed.
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