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PETITIONER: SCHEDULED CASTE AND WEAKER SECTION WELFAREASSOCIATION (REGD.

       Vs.

RESPONDENT: STATE OF KARNATAKA AND ORS.

DATE OF JUDGMENT02/04/1991

BENCH: FATHIMA BEEVI, M. (J) BENCH: 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- Whetherproperly exercised.      Constitution   of  India,  1950:  Article   226-General Clauses  Act, 1897: Sections 21/Karnataka  (Mysore)  General Clauses Act, 1899; Section 10:

HEADNOTE:      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

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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

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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]

JUDGMENT:      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

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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

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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

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         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

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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

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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.                                                        984