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1988 DIGILAW 113 (ALL)

Rudra Prasad Bajpayee v. Commissioner, Allahabad

1988-02-02

K.C.AGRAWAL, R.K.GULATI

body1988
JUDGMENT K.C. Agrawal, J. - This writ petition has been filed by Rudra Prasad Bajpayee, who is the co-owner of ahata No. 26/108, Roti Godam, Kanpur, bounded by areas: North : Bairahna Road Kanpur, and Tameshwari Devi Temple. South : Pheel Khana. West : Dr. Bhalla's premises and road leading to the Kamla Tower. 2. The above premises consist of more than 30 shops and on the first floor of the shops there were residential quarters of some persons. There was a soap factory and wooden box factory in the ahata. 3. A notification under S. 3 of the U.P. Slum Areas (Improvement & Clearance) Act, 1962 (for short 'the Act') was made by the Competent Authority on 21-2-1981. It was published in the Gazette on Mar. 2, 1981. The Competent Authority did not give any notice or opportunity to the petitioner by issuing the notification under S. 3 and declaring the property of the petitioner as a slum area. This notification was followed by a notice issued by the Competent Authority under S. 17(1) of the Act dated 24-6-1982. The petitioner was called upon to show cause within fifteen days of its receipt as to why the ahata, mentioned above, and the land adjoining to the same be not acquired for the purposes enumerated in sub-section (1) of S. 17 of the Act. Sub-sec. (1) of S. 17 reads as under : "Where the Competent Authority, on information received or otherwise in the possession, is satisfied that acquisition of any land or building or both in a slum area or in a clearance area is necessary for the purpose of executing any work of improvement in relation to any building or land or for carrying out order of demolition of building in that area or for the purpose of redevelopment of any clearance area or rehabilitation of residents of slum areas, it may, by notification in the Official Gazette, declare its intention to that effect. The Competent Authority shall also serve or cause to be served a notice on the owner of the land or building, as the case may be, and also on every other person who is known to be interested in such land or building calling upon him to show cause why the same should not be acquired for the purposes of this Act." 4. The petitioner filed an objection stating that the premises No. 26/108 was not slum as declared by the Competent Authority. He also alleged that the proposed acquisition was illegal and unconstitutional. On 26-4-1983 the Competent Authority rejected the objection. The petitioner thereafter filed an appeal under S. 29 of the Act before the Commissioner, Allahabad Division, Allahabad. On Mar. 6,. 1984, the appeal was dismissed. 5. Aggrieved the petitioner has filed the present writ petition on several grounds, including that as no notice or hearing before the notification under S. 3 of the Act was given. the declaration of slum area by the Competent Authority was against the principles of natural justice and, as such, the notification was illegal and was liable to be quashed. 6. The U.P. Legislature passed the U.P. Slum Areas (Improvement & Clearance) Act, 1962 with a view to provide for the improvement and clearance of slum areas, rehabilitation of their residence and protection from eviction of tenants of such areas. 7. Section 2 gives definitions. Among those definitions, those having a direct bearing on the controversy before us are 2(d), 2(i),. 2(j). These definitions are reproduced below : - 2(d) "Competent Authority" means such officer or authority as the State Government may, by notification in the Official Gazette, appoint for such areas as may be specified therein for the purposes of this Act, 2(i) "slum area" means an area declared as such under Section 3, 2(j) "slum clearance" means the clearance of any slum area by the total or partial demolition or removal of buildings therefrom and includes the making of words of improvement in the existing building or land in that area. 8. Section 3 confers power on the Competent Authority to issue a notification declaring an area as slum area. This section is quoted below : "3. Declaration of slum areas. 8. Section 3 confers power on the Competent Authority to issue a notification declaring an area as slum area. This section is quoted below : "3. Declaration of slum areas. (1) Where the Competent Authority upon information received or otherwise in its possession is satisfied as respects any area that a majority of the buildings in that area are (a) by reason of dilapidation, over- crowding, faulty arrangement of design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, detrimental to safety, health or morals of the inhabitants in that area, or (b) otherwise in any respect unfit for human habitation, it may, by notification in the Official Gazette, declare such area to be a' slum area. (2) In determining whether a building is unfit for human habitation, regard shall be had to the following matters, that is to say - (a) extent of necessary repairs, (b) stability, (c) extent of dampness, (d) availability of natural light and air, (e) water supply, (f) arrangements for privies, drainage and sanitation, (g) facilities for storage, preparation and cooking of food and for the disposal of waste matter and water, and the building shall be deemed to be unfit as aforesaid if it is so far defective in one or more of the aforesaid matters that it is not reasonably suitable for occupation in that condition." 9. Chapter III of the Act provides for slum improvement, whereas Chapter IV for slum clearance and redevelopment. 10. It may be noted, briefly, that under Section 4 of the Act the Competent Authority is required that if a Competent Authority finds that any area is in any respect unfit for human habitation, it will issue a notice stating the things which render the building unfit for human habitation and require improvement on the land. If a notice under S. 4 is not complied with, the Competent Authority may, after the expiration of the time fixed therein, or extended by it from time to time, by itself do, or through such agency as may be authorised by it in this behalf cause to be done, all or any of the things required to be done by the notice. Sub-s. (2) of S. 5 authorises the Competent Authority to realise the expenses incurred in carrying out the things mentioned in the notice issued under S. 4. 11. Section 9 deals with the procedure to be followed before demolition order has been made. The Competent Authority under S. 10 of Chapter IV has the power to declare any slum area to be a clearance area. However, before any area is declared as slum area under S. 10, the Competent Authority shall serve or cause to be served a notice upon every person owning or occupying any area proposed to be notified as a clearance area. S. 12 confers power on the Competent Authority to hear objection received under S. 11. 12. The first submission of the learned counsel for the petitioner was that before declaration of an area as slum area made under S. 3 of the Act, there is a need for giving of an opportunity of hearing and if opportunity is not given the notification issued under that section is invalid. 13. There is nothing in the section itself laying down an opportunity of hearing to be given to the person who may be affected by the notification declaring an area as slum area. It was, however, contended on behalf of the petitioner that as the making of a notification prejudices ones right, the opportunity is implied although there may not be any specific requirement by providing it in the section itself. 14. For the argument advanced the petitioner places reliance on a decision of the Supreme Court in Govt. of Mysore v. J.B. Bhat, AIR 1975 SC 596 . In this case the notification challenged were: (1) a declaration under section 3 of the Mysore Slum Areas (Improvement & Clearance) Act, 1958, (2) a declaration under S. 9 of the Act and (3) notification by the Government issued under S. 12 by which certain lands were to be acquired under the Act. 14A. The object of the Mysore Act was also the same as it is in our Act. S. 3 of that Act provides for declaration initially of slum areas. In that case the notification under S. 3 was issued without hearing the persons who were likely to be affected by the same. The validity of the notification was challenged on the ground of not affording of opportunity before issuing the same. S. 3 of that Act provides for declaration initially of slum areas. In that case the notification under S. 3 was issued without hearing the persons who were likely to be affected by the same. The validity of the notification was challenged on the ground of not affording of opportunity before issuing the same. Validity of the notifications issued under S. 9 under which the Competent Authority was entitled to declare a clearance area and the notification under S. 12 by which certain lands were to be acquired had also been challenged on the ground of opportunity having not been given before issuing the same. Before the Supreme Court arguments about the validity of these provisions had also been advanced. The Supreme Court repelled the arguments relating to invalidity of the aforesaid provisions, but found that there was a need to hear the affected persons before issuing notices to them. In para 18 of the decision the Supreme Court held : "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 taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed." 15. In the U.P. Act hearing has been provided for before demolition of the property envisaged by S. 4 as also before declaring any slum area to be a clearance area. If Notifications have been issued after opportunity in these sections (Ss. 4, 8 and 10) they would not be liable to be quashed on that ground. However, in the case before us what was done by the Competent Authority was to issue a notification under S. 3 and thereafter the notification under S. 17 has pointed out that the State Government is empowered to acquire land. The petitioner has challenged the notifications issued under Sections 3 and 17. It was open to the Competent Authority to resort to the- steps provided for by Chapters III and IV if it thought the same was admissible under the circumstances. However, after S. 3 the Competent Authority exercises power of exclusive acquisition of land and consequently issued notification. There is no legal defect in doing so. It was open to the Competent Authority to resort to the- steps provided for by Chapters III and IV if it thought the same was admissible under the circumstances. However, after S. 3 the Competent Authority exercises power of exclusive acquisition of land and consequently issued notification. There is no legal defect in doing so. As it was not necessary at all for the Competent Authority to have taken actions under Chapters III and IV before arriving at S. 17 of Chapter V. In connection with the acquisition notices had been issued and as against rejection of the objection filed under the same the petitioner had preferred an appeal as well under S. 29. The grievance of the petitioner against the notification issued under S. 17 could not have persuaded us to quash the same had we found that the notification issued under S. 3 was valid having been made after having followed the procedure of giving opportunity to the persons affected. The controversy as to whether there was requirement of giving of opportunity before notification issued under S. 3 stands concluded by the judgment of the Supreme Court abovementioned. 16. Natural justice was summed up as 'fair play in action' by Sachs L.J. in Edwards v. Society of Graphical and Allied Trades, (1970) 3 All ER 689 at p. 701 (CA). 17. Law leans in favour of natural justice unless forbidden by statute expressly or by implication. If there is neither express nor implied prohibition, opportunity would be necessary and any action taken or thing done without the same would be illegal. Lord Denning held in R. v. Gausing Board, (1970) 2 WLR 1009 that at one time it was said that the principles of natural justice apply only to judicial proceedings and not to administrative proceedings. That Hersy so Scteed in Ridge v. Baldwin, (1964) AC 40. 18. Natural justice, however, is a flexible term which imposes different requirements in different cases. An elaborate judicial procedure is not required to be followed. It would be sufficient if the person likely to be affected is given an opportunity to have his say against the action proposed to be taken. The authority would be thereafter required to perform the duty of fair play and to decide the controversy before it. 19. An elaborate judicial procedure is not required to be followed. It would be sufficient if the person likely to be affected is given an opportunity to have his say against the action proposed to be taken. The authority would be thereafter required to perform the duty of fair play and to decide the controversy before it. 19. In Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180 the Supreme Court was required to consider whether giving of opportunity of hearing was necessary to persons who had encroached on pavements. The Supreme Court held in para 42 of the aforesaid judgment that there is no static measure of reasonableness which can be applied to all situations alike. It was said in para 5 of this judgment that : ........... hearing may be given individually or collectively or depending upon the facts of each case." 20. Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences. 21. In the instant case, it appears to us, it is not necessary for every person who is likely to be affected by the declaration of the notification under S. 3 be personally served with a notice and be provided with an opportunity of hearing. A collective notice may subserve the purpose. This would obviate the possibility of arbitrary decision. However, as stated earlier, how much and in which manner should a notice be given is a question for the authority itself to decide. What we wish to emphasise is that the procedure of providing an opportunity before issuing declaration under S. 3 cannot be such a long one as may defeat the object of the Act itself. There are persons who may be interested in its prolongation and it would be for the authority to decide about the procedure to' be adopted. Garner in this regard has stated the law at pages 145 and 146 of the Sixth_ Edition of the Administrative Law : "In other contexts, at or towards the other end of the spectrum, the audi alteram partem obligations may be satisfied by much less elaborate or sophisticated procedural safeguards. Garner in this regard has stated the law at pages 145 and 146 of the Sixth_ Edition of the Administrative Law : "In other contexts, at or towards the other end of the spectrum, the audi alteram partem obligations may be satisfied by much less elaborate or sophisticated procedural safeguards. So, for example, it may only be necessary to give the citizen a 'general idea' of the matters to be taken into account or the 'case' against him and it may not be necessary to offer any oral hearing at all - an opportunity to make written representations sufficing." 22. In Mohinder Singh Gill v. The Chief Election Commr., AIR 1978 SC 851 , it was emphasised that fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. The aim of the rule of natural justice is to prevent miscarriage of justice. 23. We are not in agreement with the argument of the respondents' learned counsel that the declaration of an area as a slum area by the notification under S. 3 could be challenged under S. 29 of the Act by means of an appeal before the Commissioner and thereafter before the State Government in a revision. S. 3 makes the notification declaring an area as slum area final. Such a declaration cannot be a subject matter of appeal or revision before the Commissioner and the State Government. A notification under S. 3 is conclusive of the fact that such area regarding which it has been made is a slum area. Its validity can be challenged only when it is found to have been done in colourable exercise of power of is mala fide. The Legislature has not provided for the declaration made under S. 3 to be a subject matter of any further investigation than which is made by the competent Authority itself. The presumption is that the Competent Authority clothed with the power has done it in accordance with law. 24. Counsel for the State further urged that whether an opportunity is to be given to persons affected is the legislative act and if the Legislature did not choose to do so this Court has no power to read the same in between the lines. 24. Counsel for the State further urged that whether an opportunity is to be given to persons affected is the legislative act and if the Legislature did not choose to do so this Court has no power to read the same in between the lines. The proposition so far as it goes may not be disputable, but the notification under section 3 was issued by the Competent Authority and we are unable to find any thing express or implied under S. 3 for any opportunity of being heard. or making representation to be given to the persons which would be found pre-judicially affected by the same. 25. For what we have said above, we allow the writ petition. The notification issued under S. 3 of the Act, in so far as it concerns the petitioner's land, is quashed. It is needless to point out that it is open to the authority concerned to take action in accordance with the Act after providing opportunity to the petitioner to make representation. There is, however, no order as to costs. We have not, quashed the proceedings in respect of those persons regarding which the same has become final.