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TMI Blog1984 (11) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... two Acts as the First Amendment Act 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. 154, Bandra, Greater Bombay admeasuring about 1100 square meters. Though the petitioners had obtained possession of the plot in about . 1964 under an agreement of sale, they became owners thereof under an agreement of sale dated September 20, 1974. The plot is assessed to non- agricultural assessment and to property tax by the Bombay Municipal Corporation. There are four chawls consisting of 31 one-room tenements and a two-storeyed building having four rooms on each floor on the plot. These buildings 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised occupants on vacant lands in urban areas was increasing rapidly and was causing grave danger to public health and sanitation and to the peaceful life of the inhabitants of these areas. The Act was applicable to the entire State of Maharashtra but, in the first instance, it was brought into force in the Bombay Metropolitan Region on November 11, 1975 which was the date on which the ordinance was promulgated. The Act confers power 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 land in any urban area or erect any shelter or enclosure or other A structure on such land for the purposes of residence or otherwise without the express permission in writing of the Municipal commissioner in a corporation area, of the Chief officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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, it is hereby declared that the power to take steps under this sub- section includes the power to enter upon any land or other property whatsoever. (2) The order of eviction of any person from any vacant land or forfeiture of any property therein or any property therefrom under sub-section (1) shall be final and conclusive, and shall not be called in question in any Court. (3) A person who is found to be on any vacant land belonging to, or vesting in, another person shall, unless the contrary is 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 str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate under his hand indicating therein the amount which is due to the financing institution. Thereupon, the Collector or any officer authorised by him shall recover the amount due as an arrear of land revenue: Provided that no such certificate shall be sent to the Controller, unless the occupier has been served 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 comply with an order made by the Competent Authority under section 4 or for obstructing the Competent Authority in the exercise of any power conferred upon it by the Act. The penalty extends to imprisonment for a period of three years and fine. Section 8 of the Act provides that no court shall have jurisdiction to entertain any proceeding, civil or criminal, in respect of the eviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 November 11, 1975 while the Act was passed on December 24, 1975. As stated earlier, the Act came into force in the Bombay Metropolitan Region with retrospective effect from November 11, 1975. On January 8, 1975, the President of India issued another order under Article 359(1) of the Constitution suspending the right of any person to move any Court for the enforcement of any of the fundamental rights conferred by Article 19 of the Constitution for the period during which the said two proclamations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, that is to say, not built upon; (2) lands on which structures have been or are being constructed otherwise than in accordance with any 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 defined boundaries which are generally recognised for revenue and survey purposes. Section 2(f) (b) requires two conditions to be satisfied in order that a land can be described as a vacant land; Firstly, there has to be an unauthorised structure on the land and secondly, the Competent Authority has, by an order in writing, to specify and declare that land to be a vacant land. The Act confers upon the Competent Authority the discretion to declare a land as a vacant land without laying down any guidelines to control that discretion. The Competent Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures. It is clear from this Statement that the evil which was sought to be remedied by the ordinance, which was later replaced by the Act, was not danger to public health or sanitation or to the peaceful life of the inhabitants of the Metropolis of Bombay. The danger posed by the construction of unauthorised structures is the evil which the Act seeks to remedy. The Act does not also provide for any safeguard against the arbitrary exercise of the discretion conferred upon the Competent Authority to declare a land as a vacant land. It 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 before declaring a land as a vacant land. There is no provision in the Act requiring the Competent Authority to observe even the rudimentary norms of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 any person likely to be affected by such order, calling upon him to show cause within such period as may be specified in the notice why the pro posed order should not be issued. The Competent Authority is further required to consider any objections submitted to it by any such person within the period specified in the notice. Rule 3(2) provides for service of such notices. We are unable to accept that the unconstitutionality of the Act is cured by the framing of the Rules made three and a half years 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is impossible to understand the scheme of the Schedule or to discover any rational basis behind it. It is also difficult to understand as to why certain lands which are under acquisition for the purposes of the Maharashtra Housing Board and the Bombay Municipal Corporation have been included in the Schedule and other lands similarly situated have 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. No criterion or standard is laid down in order to enable the State Government to determine objectively as to which lands can be added to the Schedule. The power to add to the Schedule is in the nature of a legislative power which, in the very nature of things, cannot stipulate for service of notice to the persons affected by the amendment. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 section 4(1), the State Government has been recovering compensation from unauthorised occupants. It seems to us quite incongruous that while the true owner is prevented from taking legal proceedings to recover any rent or compensation from persons who had trespassed upon his land, the State Government can recover penal charges from the trespassers. By the Second Amendment Act, a new section 4-A was inserted in the Act. That section provides that if any occupier of a structure on a vacant land from 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts instrumentalities. Therefore, the Act does not offend against the provisions of Article 31(2) of the Constitution. Since that Article is not attracted, no question can arise 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 as it violated Article 19 (l) (f), it revived on the deletion of that Article by the Constitution (Forty-fourth Amendment) Act. 1978. We express no opinion on the question whether the doctrine of eclipse applies both the pre-Constitution and post-Constitution laws or whether that doctrine applies to pre-Constitution laws only. For these reasons, which are substantially similar to the reasons given by the High Court, we affirm the judgment of the High Court and dismiss these appeals with costs. We quantify the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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