B.Laxmaiah, Hyd And 3 Others v. Commr. G.H.M.C. Hyd And Another

THE HON'BLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HON' BLE SRI JUSTICE GUDISEVA SHYAM PRASAD Writ Appeal No.1541 of 2008 JUDGMENT: (Per the Hon'ble The Acting Chief Justice Ramesh Ranganathan) This appeal, under Clause 15 of the Letters Patent, is preferred against the order passed by the Learned Single Judge in W.P.No.5101 of 2000 dated 21.07.2008. The appellants herein filed W.P.No.5101 of 2000 to declare the action of the Commissioner, Municipal Corporation, Hyderabad in invoking Sections 3(1) and 3(2) of the A.P. Slum Improvement (Acquisition of Land) Act, 1956 (for short "the Act"), in declaring the area called Nazir Bagh (Laxmaiah Basthi), Ward No.3, Block No.5 bearing Door Nos.3-5-1138/8 to 72 as a slum by notification bearing No.469 dated 19.11.

1999 under Section 3(1) of the Act, and in acquiring the land by notification dated 29.12.1999 under Section 3(2) of the Act, as arbitrary, illegal and in violation of principles of natural justice, apart from being violative of the fundamental rights guaranteed under Article 14 of the Constitution of India. By the order under appeal, the Learned Single Judge held that it could not be said that the notifications issued under Sections 3(1) and 3(2) of the Act are illegal, arbitrary and against principles of natural justice. The writ petition was dismissed. Aggrieved thereby, the present appeal. Parties herein shall, hereinafter, be referred to as they are arrayed in the writ petition.

Facts, to the extent necessary, are that the petitioners herein had earlier invoked the jurisdiction of this Court questioning the validity of the notification issued by the Commissioner, Municipal Corporation, Hyderabad, under Section 3(1) of the Act, on 21.06.1990, and in acquiring the subject land by notification dated 31.03.1992 under Section 3(2) of the Act. They claimed to be the owners of, and to be in

possession of the premises in, the subject land, the total extent of which was said to be 1209 square yards. The petitioners claimed that the 1st petitioner was executing works for the R&B Department, and had engaged numerous labourers; with a view to accommodate and provide shelter to them, single room pucca tenements were constructed in the said land from 1958-1962; with the passage of time, most of the labourers became permanent residents, and were paying rents to the petitioners till the year 1976; however, some disputes arose between the petitioners and the tenants; the petitioners filed eviction cases against some tenants in the year 1976; some others were evicted pursuant to the decrees granted by the Court; and with respect to some, proceedings were then pending before the Principal Rent Controller, City Civil Court, Hyderabad.

The petitioners contended that the tenants had prevailed upon a local politician who, in turn, had prevailed upon the Commissioner, Municipal Corporation of Hyderabad (for short "MCH") to invoke the provisions of the Act; the Commissioner had, without application of mind and without personally inspecting the area in question, issued a draft notification dated 21.06.1990 declaring an extent of 989.07 square yards of land as a slum area; out of an extent of 1209 square yards, they had constructed a permanent residence in an extent of 230 square yards; and the rest of the land was required for construction of houses for other family members.

A Learned Single Judge of this Court, by his order in W.P.No.5864 of 1992 dated 22.09.1999, held that the notification, approved by the Commissioner under Section 3(1) of the Act, did not disclose whether the subject land was a source of danger to public health, safety or convenience of its neighbourhood, and whether the subject land was a low lying area, insanitary, squalid or otherwise;

while the notification stated that the area specified was a 'source of danger to public health, safety, convenience of its neighbourhood by reason of the area being low lying, insanitary, squalid or otherwise', it did not say whether the land in question was a source of danger to public health or safety; it did not also disclose whether it was a low lying area, and whether any insanitary conditions were prevailing; the notification was a mere reproduction of the expressions used in Section 3(1) of the Act; nothing further was required to demonstrate the nonapplication of mind by the Commissioner; while there was nothing wrong in law in referring to the report submitted by the Officers Committee before arriving at the required satisfaction for issuing the notification under Section 3(1) of the Act, there was nothing on record to show that the Commissioner had perused the record, and the report submitted by the Officers Committee; the record also did not reveal the material based on which the Commissioner had arrived at his satisfaction in declaring the land in question as a slum area; the Commissioner had merely signed the draft prepared by his Officers in a cyclostyled form; there was nothing on record to show that insanitary or squalid conditions were prevailing; and, in any event, the Commissioner was not aware, on the date of approval of the notification, of the conditions prevalent in the said land which was sought to be declared as a slum area.

The Learned Single Judge then observed that it was obvious from the record that the report submitted by the Officers Committee was not made available for the perusal of the Commissioner; it could not be said that the Commissioner had reached his satisfaction on the basis of the material contained in the officers report; the satisfaction, under Section 3(1) of the Act, must be either of the Government or that of the Commissioner; both the Government and the Commissioner could

reach the satisfaction only after making pragmatic assessment of the objective conditions; unguided and uncanalised power was not conferred upon the Government or the Commissioner; the notification, declaring an area to be a slum area, was fraught with serious consequences; valuable rights, in immovable property, get adversely affected thereby; the Commissioner and the Government were required to scrupulously follow the legislative mandate in arriving at the satisfaction, before issuing the notification declaring an area to be a slum area; while the notification itself need not disclose as to how and in what circumstances and on what material, the Commissioner had arrived at such satisfaction, the record should disclose the material which the Commissioner had relied upon in reaching the required satisfaction that the land in question was required to be declared as a slum area; the record did not disclose any such material; and no affidavit was filed by the Commissioner explaining the circumstances suggesting as to how the satisfaction had been arrived at.

After referring to the judgments of the Supreme Court in Barium Chemicals Limited vs. Company Law Board1 and Indian Nut Products vs.

categorical finding as to the nature of the land and the category in which the land, to be declared as a slum, falls; and a mechanical reproduction of the expressions used in Section 3(1) of the Act would not suffice.

The impugned notification under Section 3(1) of the Act was set aside, and the consequential notification under Section 3(2) of the Act was also set aside holding that it would not survive after the notification, under Section 3(1) of the Act, was set aside. The Learned Single Judge, however, left it open to the respondents therein to proceed further in the matter, in accordance with law, if the area in question continued to be a source of danger to public health, safety, convenience of the neighbourhood for the reason that it was low lying, insanitary, squalid or otherwise. The Learned Single Judge further held that, before issuing a notification, the Commissioner was required to make an objective assessment on the material available on record; and it was open to the Commissioner to make a spot inspection of the land.

Thereafter, a notification was issued by the Commissioner, under Section 3(1) of the Act, declaring the subject area, described in the schedule, to be a slum area, and was published in the A.P.Gazette on 19.11.1999. This was followed by a notice being issued to the petitioners, under Section 3(2) of the Act, calling upon them to show cause why the land, owned by them or enjoyed under easement right, should not be acquired.

The petitioners were also informed that their objections, if any, to the proposal should be made in writing and should be addressed to the Commissioner, MCH, and presented in person or through Lawyer within 15 days of the receipt of the notice, failing which it would be presumed that the petitioners had no cause to show against the proposed acquisition, and further action would be taken on that presumption as required under the said Act.

notice, the petitioners submitted a letter on 23.12.1999 informing the Commissioner that they be granted four weeks time to consult their Advocate and submit their objections.

The Commissioner, MCH issued a notification, in Form III in the A.P.Gazette dated 29.12.1999, in exercise of the powers conferred by Section 3(2) of the Act, deciding to acquire the said lands declared as "Slum area" pursuant to the notification issued under Section 3(1) of the Act. The notification declares that the land shall, on and from the beginning of the day on which this notice was published in the A.P. Gazette, vest absolutely in the Government free from all encumbrances. The said notification records that though notices were issued to the owners individually, vide letter dated 03.12.1999, calling upon them to show cause, no objections were either received from the land owners or the interested persons; and the Commissioner was satisfied that it was necessary to acquire the said land for the purpose of clearing or improving the said area.

The petitioners, thereafter, submitted a representation dated 24.01.2000 seeking two more weeks' time to submit their reply, and claim to have submitted another letter on 04.02.2000 requesting that a report of the Committee be made available to them. Reference is made by them to the memo issued on 14.02.2000, by the Director, Urban Community Development of the Municipal Corporation, giving the petitioners three more days' time to file their objections; and informing them that, otherwise, the case would be decided as per the material on record.

On the petitioners invoking the jurisdiction of this Court, questioning the notifications issued under Sections 3(1) and 3(2) of the Act, by way W.P.No.5101 of 2000, the Learned Single Judge, in his order dated 21.07.2008, took note of the contents of the counter-

affidavit, filed by the respondents, that the relevant procedure in issuing the impugned notifications was followed, and principles of natural justice was not violated; the Government had issued G.O.Ms.No.213 dated 28.04.1986 reconstituting the Officers Committee to review the position of the existing slums, and for recommending new areas to be included as slums; the said committee had inspected various slums, including the slum in question, and had listed out 207 slums in which the subject slum was shown at serial No.37; the total slum area was 1176 square yards, and there were 67 families residing therein; after the earlier writ petition in W.P.No.5864 of 1992 was disposed of on 22.09.1999, two Additional Commissioners i.

e Additional Commissioner (Works and Planning) and Additional Commissioner (UCD) were deputed to inspect the site, and to submit a report; it is only on the basis of their report that the area was declared as a slum; slum dwellers were residing in 810.

02 square yards out of 1209 square yards, and the petitioners were residing in an area of 180 square yards; the remaining area was covered with small roomed tenements with 3 feet width land, which was in occupation of slum dwellers; though the area in occupation of slum dwellers was not in a low lying area and was not squalid, it was very congested and insanitary; around 70 families, consisting of 350 members, were residing with only two latrines and without any proper drainage facility; even the drainage pipeline was broken at one place, and foul smell emanated, causing a health hazard to the inmates of the slum as well as the neighbourhood; after examining the report of the two Additional Commissioners alone, had he arrived at the satisfaction that a notification, under Section 3(1) of the Act, was required to be issued; and he had, therefore, issued the notification on 19.

11.1999 after affording the petitioners a reasonable opportunity of being heard.

The Learned Single Judge further recorded that, though the petitioners were given an opportunity to file their objections within 15 days, they had merely sent letters on 23.12.1999 and 24.12.1999 requesting four weeks' time to submit their objections on the ground that their Advocate was out of station; and no explanation/objections were submitted before issuance of the notification dated 29.12.1999.

The Learned Single Judge then observed that the requirement of Section 3(1) of the Act was that, if the area was a source of danger to public health, safety and convenience of its neighbourhood by reason of the area being low lying, insanitary, squalid or otherwise, it could then be declared as a slum area; insanitary conditions was also a ground to declare an area as a slum area; in the present case, the area was insanitary and had become a source of danger to public health, safety and inconvenience to the neighbourhood; the record reflected that, in an area of 810.

02 square yards, 70 families were residing with a total population of 350 members; though the area was not low lying, it was very much congested and insanitary; 70 families with 350 members were residing in a congested area with two latrines, and even the drainage pipeline was broken and foul smell was emanating causing health hazards to the inmates of the slum as well as the neighbourhood; the two Additional Commissioners had inspected the place on 01.11.1999, and had submitted a report; and on the basis of the report alone, had the Commissioner come to the conclusion that a notification, under Section 3(1) of the Act, should be issued. The Learned Single Judge, thereafter, held that he had perused the joint inspection report dated 01.11.

facilities etc; they were living in very congested bye-lanes; because of lack of proper accommodation and drainage facilities, foul smell was being exposed causing severe health hazards; it was becoming a source of danger to the inmates of the slum, and also to the neighbourhood; the area was very much congested with very narrow lanes of about 3 feet width with families consisting of a total population of 350; for all the 70 families there were only two latrines without proper drainage facility; even the drainage pipe was broken, and foul smell was being exposed causing health hazards to the inmates as well to those in the neighbourhood; and, unless the area was developed, their life would become miserable.

On the question of violation of principles of natural justice, the Learned Single Judge observed that, while a show cause notice was issued under Section 3(1) of the Act on 03.12.1999 in Form-III calling upon the petitioners to submit their explanation within 15 days, a letter dated 24.12.1999 was issued to the Secretary to Government, after the 15 day period expired by 23.12.1999, requesting him to arrange to forward the notification to the Printing Press enabling the notification, under Section 3(2) of the Act, to be published; a notification was published on 29.12.1999; and even till then no explanation was submitted except the earlier representations dated 23.12.1999 and 24.12.1999 requesting four weeks' time.

The Learned Single Judge observed that the legal requirement was for a show cause notice to be issued proposing to acquire the slum area; in the present case, 15 days notice was issued calling upon the petitioners to show cause; and the impugned notification was issued on 29.12.1999, after the 15 days time stipulated in the show cause notice had expired. Relying on a Full Bench judgment of this Court in

P.Apparao vs. State3, the Learned Single Judge held that the legal requirement, with regards the satisfaction of the respondents that the area had become source of danger to public health, safety, convenience to its neighbourhood by reason of insanitary conditions or otherwise, was established as per the joint inspection report which was placed before the Commissioner; and the Commissioner had, after satisfying himself that the area had become a danger to public health and safety, issued the notification under Section 3(1) of the Act. Before us Sri S.Srinivas Reddy, learned counsel for the petitioners, would contend that the impugned notification dated 29.12.

1999 is in violation of principles of natural justice; the material, based on which the Commissioner had arrived at his satisfaction, was not made available to the petitioners; it is only if this material was furnished to them, along with the show cause notice, would they have had the opportunity of submitting an effective reply thereto; the ingredients of Sections 3(1) and 3(2) of the Act are not satisfied; the order of the Commissioner suffers from non-application of mind, as it is not based on material sufficient to indicate fulfilment of the conditions stipulated in Sections 3(1) and 3(2) of the Act; and the Learned Single Judge had erred in upholding the notifications, and in dismissing the writ petition.

Section 3 of the Act reads as under:

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

(2) Where the Government are satisfied that it is necessary to acquire any land in a slum area for the purpose of clearing or improving the area, they may acquire the land by publishing in the Andhra Pradesh Gazette a notice to the effect that they have decided to acquire it in pursuance of this section. 3 AIR 1970 ANDHRA PRADESH 318

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

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

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

(4) The Government may, by order authorize any authority or officer subordinate to them to exercise all or any of the powers conferred and perform all or any of the duties imposed on them by this section, subject to such conditions and restrictions as may be specified in the order. The requirement of Section 3(1) of the Act is for the Government to arrive at the satisfaction that any area is or may be a source of danger to (a) public health, (b) safety, and (c) convenience of its neighbourhood; and such a source of danger is by reason of the area being (i) low lying (ii) insanitary (iii) squalid or (iv) otherwise. On arriving at the satisfaction that the area is a source of danger, as contemplated under Section 3(1) of the Act, the Government is empowered to issue a notification in the Gazette to declare such an area to be a slum area.

After a slum area is declared as such, under Section 3(1) of the Act, Section 3(2) provides that, if the Government is satisfied that it is necessary to acquire any land in a slum area for the purpose of (1) clearing or (2) improving the area, they may acquire the land by publishing, in the A.P.Gazette, a notice to the effect that they have decided to acquire it pursuant to Section 3. Before exercising power under Section 3(2), to acquire the land in a slum area, the proviso thereto requires the Government to call upon the owner of the land to show cause why it should not be acquired; and after considering the

cause, if any, shown by any person interested in the land, the Government may pass such orders as it may deem fit. Under the Explanation thereto, the cause which a person can show shall be both against the declaration of the area as a slum area under Section 3(1) of the Act, as well as against the necessity of acquiring the land, for the purpose of clearing or improving the area, under Section 3(2). Section 3(3) provides that, on a notice being published in the A.P. Gazette, the lands shall vest absolutely in the Government free from all encumbrances.

As noted hereinabove, while the notification under Section 3(1) of the Act was issued on 19.11.1999, a notice, in terms of the proviso to Section 3(2) of the Act, was issued to the petitioners on 03.12.1999 calling upon them to show cause within 15 days. The petitioners failed to show cause either regarding the area being declared as a slum under Section 3(1) of the Act, or the necessity of the Government to acquire the land under Section 3(2) thereof. They merely submitted a letter dated 23.12.1999 seeking four weeks time. The contention that the petitioners should either have been granted four weeks time as sought for by them, or intimated that the Government was not willing to grant them time, does not merit acceptance.

All that the proviso, to Section 3(2) of the Act, requires is for the Government to call upon the owner, or the person interested in the land, to show cause why the area, declared as a slum, should not be acquired. The fact that such a notification was issued is not in dispute. The fact that the Commissioner waited till the expiry of 15 days, as stipulated in the notice issued on 03.12.1999, is also not in dispute.

While the proviso to Section 3(2) confers a right on the owner of the land to be put on notice, and to be given an opportunity of being heard, no obligation is placed by the proviso to Section 3(2) either on

the Government or on the Commissioner to grant time to the petitioners for the mere asking or to communicate their refusal to grant time. It was for the petitioners to avail the said opportunity, and show cause both with regards the area being declared as a slum under Section 3(1) of the Act, and regarding the necessity of the Government to acquire the land under Section 3(2) of the Act. In the absence of any statutory obligation imposed on the Commissioner to grant the petitioners time, merely because they had so sought by their letters dated 23.12.1999 and 24.12.1999, the complaint that the Government should have granted the petitioners time, as sought for by them in their letters dated 23.12.1999 and 24.12.1999, or should have intimated them of the Government's refusal to grant time, does not merit acceptance. Sri S.

Srinivas Reddy, learned counsel for the petitioners, would submit that, while a memo was issued on 14.02.2000, granting the petitioners three days' time to file objections, the order was passed much prior thereto. As noted hereinabove, both the notification under Section 3(1) of the Act, and the notice in terms of the proviso to Section 3(2) of the Act, were issued by the Commissioner. As exercise of power, under Sections 3(1) and 3(2) of the Act, is by the Commissioner, the memo dated 14.02.2000 issued by the Director, Urban Community Development is of no avail, for the Director neither had the power to issue a notice to show cause nor to grant the petitioners further time to submit their objections. In any event, this memo dated 14.02.2000 was issued more than a month and half after the notification was issued, in the A.P.Gazette on 29.

12.1999, by the Commissioner, exercising his powers under Section 3(2) of the Act, to acquire the subject land. A memo issued, long after the date of the notification under Section 3(2) of the Act, on 14.02.

Commissioner by way of the notice issued, in terms of the proviso to Section 3(2) of the Act, on 03.12.1999.

With regards the contention that the notification issued under Section 3(1) of the Act on 19.11.1999 suffers from non-application of mind, it is necessary to note that the satisfaction, of the need to declare an area as a slum area, is that of the Commissioner and not of this Court. In Barium Chemicals Limited1, the Supreme Court considered the scope of an enquiry into an order passed by an authority on the basis of his subjective satisfaction, and observed that such an order could be challenged if it is beyond the limits or is passed on the grounds extraneous to the legislation or there are no grounds at all for passing the order or grounds are such that no one could reasonably arrive at the opinion or satisfaction requisite under the Act; and, in any one these situations, it could be said that the authority did not honestly form its opinion or that, in forming the opinion, it did not apply its mind to the relevant facts.

Again in Indian Nut Products2 the Supreme Court observed that a person aggrieved could question the satisfaction by showing that it was wholly based on irrelevant grounds, and did not amount to satisfaction at all; and it is within these limited parameters that the satisfaction of the authority can be examined. As noted hereinabove, the pre-condition, for declaring an area to be a slum, is the satisfaction of the Municipal Commissioner that the area is a source of danger either to public health or to the safety or convenience of the neighbourhood; and such a source of danger is by reason of the area being either low lying or insanitary or squalid or otherwise. The material placed before the Commissioner, as noted in the order under appeal, shows that 70 families i.e around 350 people were living in a small extent of 810.02 square yards which was covered

by small roomed tenements with 3 feet width land; this area was congested and insanitary with only two latrines, and without any proper drainage facility; even the existing drainage pipeline was found broken at one place with foul smell emanating; and this, the inspecting officials opined, was causing a health hazard (in effect, a danger to the public health).

As noted hereinabove, it is only if this Court were to hold that the satisfaction of the Commissioner is such that no reasonable man could arrive at such a satisfaction, would interference be justified. From the facts, referred to hereinabove it cannot be said that the satisfaction of the Commissioner, that the insanitary conditions of the area was a source of danger to public health, was such that no reasonable man could arrive at, nor can it be said that the material on record before him did not justify the Commissioner arriving at the satisfaction that the insanitary conditions, prevalent in the area, was a source of danger to public health necessitating a notification being issued declaring the area to be a slum area.

In our view, the Leaned Single Judge, was justified in holding that the ingredients of Section 3(1) of the Act were satisfied. The notification issued under Section 3(1) of the Act declaring the area to be a slum area, and the notice issued under Section 3(2) of the Act to acquire the land in the slum area are, in our opinion, valid and do not necessitate interference. A notice is required to be issued, and an opportunity of being heard is required to be provided, in terms of the proviso to Section 3(2) (i.e. after an area is declared as a slum area under Section 3(1), and before the slum area is acquired by the Government). On receipt of such a notice, it is open to the person, interested in the land, to showcause both against the area being declared as a slum under Section 3(1), and against the necessity for acquisition of the said land. The

petitioners were given such an opportunity of being heard on a notice being issued to them on 03.12.1999. It was always open to them to request the Commissioner, before the notification under Section 3(2) of the Act was issued on 29.12.1999, to furnish such material as they considered necessary to submit their reply to the show-cause notice. As noted hereinabove except for seeking four weeks time to submit their reply to the show-cause notice, the petitioners did not request the Commissioner, at any time before a notification was issued under Section 3(2) of the Act on 29.12.1999, to furnish the documents they required to enable them to submit an effective reply. On the petitioner's own showing, they sought a copy of the report to be made available to them only by their letter dated 04.02.

2000, more than a month after the notification, under Section 3(2) of the Act, was issued on 29.12.1999. As the subject land stood vested in the Government on 29.12.1999, when the notification under Section 3(2) of the Act was issued, any request thereafter to furnish documents is of no avail, since the opportunity to show-cause is provided, by the proviso to Section 3(2) of the Act, only at a stage prior to a notification being issued under Section 3(2) of the Act, and not thereafter. In any event principles of natural justice is not an empty ritual or needless formality.

It has not even been contended before us that the report submitted to the Commissioner, regarding the need for the area being declared a slum area as it was congested with insanitary conditions having only two latrines and without proper drainage facility, was factually incorrect rendering the satisfaction of the Commissioner invalid and illegal. This contention, of failure to furnish documents, is only to be noted to be rejected.

We must also bear in mind that the scope of interference in an intra-court appeal, under Clause 15 of the Letters Patent, is extremely

limited. The Learned Single Judge is not a Court subordinate, and it is only if the order under appeal suffers from a patent illegality, would interference be justified. We are satisfied that the order under appeal does not suffer from any such infirmity.

The Writ Appeal fails and is, accordingly, dismissed.

Miscellaneous petitions pending, if any, shall also stand dismissed. There shall be no order as to costs.

_________________________________ (RAMESH RANGANATHAN, ACJ) ___________________________ (GUDISEVA SHYAM PRASAD, J) 21st December, 2017 JSU

THE HON'BLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HON'BLE SRI JUSTICE GUDISEVA SHYAM PRASAD Writ Appeal No.1541 of 2008 Date: 21.12.2017 JSU