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State Of Maharashtra Etc. Etc. Versus Kamal Sukumar Durgule And Ors. Etc.

1984 (11) TMI 348 - SUPREME COURT OF INDIA

Civil Appeal Nos. 386, 529 & 532 of l980 - Dated:- 28-11-1984 - CHANDRACHUD Y. V., FAZALALI SYED MURTAZA, TULZAPURKAR V. D., REDDY O. CHINNAPPA, VARADARAJAN, A. JUDGMENT 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 Maharasht .....

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ct 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. 15 .....

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ngs 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 B .....

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otification 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 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 pe .....

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on, 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 nec .....

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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 .....

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g 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 autho .....

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ount 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 applicati .....

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y 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, .....

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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, .....

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y 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 i .....

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ucture 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 th .....

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d 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, "Con troller 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 comp .....

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thority 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 .....

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ouncing 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 .....

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sident 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 N .....

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of emergency 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 th .....

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ferred 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 wo .....

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ven 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 or less, what the High Court has said. T .....

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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 define .....

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nes 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 .....

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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 be .....

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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 .....

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is true that abuse of 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 be .....

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rred 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 St .....

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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 peti .....

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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 .....

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ars 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) o .....

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s 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 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), al .....

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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) .....

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ve 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. N .....

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reon. 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 satisf .....

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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 t .....

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f 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 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 s .....

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m 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 m .....

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l 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 th .....

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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 r .....

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e 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 .....

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