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TMI Blog1976 (8) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... rises in this batch of Special Civil Application. Leave refused:. We, therefore, now give our reasons for the said decision. 2. In all these petitions, the petitioners have been issued notices of eviction under S. 54 of the Bombay Town Planning Act, 1954 (hereinafter referred to as 'the Act') read with Rule 27 of the Bombay Town Planning Rules, 1955 (hereinafter referred to as 'the Rules) because their right to occupy their-final plots in question had come to an end on the final town planning scheme having been sanctioned and as it became a legally binding enforceable scheme as if enacted in the Act itself under S. 51 (3) of the Act. The petitioners have, however, challenged these notices on various grounds in these petitions, inter alia (1) That the mandatory safeguard of individual notice having not been complied with under R.21 (3) and R.21 (4) at the time of reconstitution of their plots under S. 32 (1) by the Town Planning Officer, the scheme is ultra vires the Act. (2) That the eviction scheme under S.54 and R.27 could not be invoked in cases where a building is to be pulled down in view of the specific demolition notice. (3) That in any event , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (On the Prosecution of Yaffe) (1931) AC 494. Even the Supreme Court had in State of Kerala v. K. M. C. Abdulla and Co., AIR 1965 SC 1585 at page 1589 held that the effect of such a legislative device by giving the Rule effect as if enacted in the Act was to prevent its validity being challenged in Courts so long as the authority had not transgressed its limits in making such a rule. Even in Chief Inspector of Mines v. K, C. Thapar AIR 1961 SC 838 at p. 845-847, this English practice had been considered by pointing out that the effect of this legislative device was to prevent the challenge to the validity of such measures sought to be protected by the words as if enacted in the Act . The settled legal position had not been considered on the earlier occasion because S. 51 (3) was not pointed out. (ii) While considering the safeguard under R. 21 (3) and (4) to be mandatory, the further question as to when the violation of even a mandatory provision resulted in nullity had not been considered as per the settled distinction pointed out between a mere illegality and a nullity in the decision in Dhirendra Nath v. Sudhir Chandra. AIR 1964 SC 1300 at p. 1305. (iii) That the distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machinery provided in Chap. V by way of the decisions of the Town Planning Officer under S. 32 and of the Board of Appeal under S. 34 which have become final and binding on the parties under S. 43 (1), this further procedure is for summary eviction in S. 54 and for enforcement of schemes under S. 55. Section 54 and its corresponding R. 27 run as under:- 54. On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority. 27. Procedure for eviction under S. 54:(1) for eviction under S. 54, the local authority shall follow the following procedure, namely:- (a) The local authority shall in the first instance serve a notice upon the person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land. (b) If the person to be evicted fails to comply with the requirement of the notice, the local authority shall depute any Officer or servant to remove him. (c) If the person to be evicted resists or obstructs the officer or servant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into force and the persons continue to occupy any land which they are not entitled to occupy under the final scheme as per the procedure prescribed in R. 27. On the other band, S. 55 (1) (a) deals with the case of removal, pulling down or alteration of any building or other work in the area. included in the scheme only on the grout that it is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not ' been complied with. Even under S. 55 (1) (b) the local authority has the power to, emanate any work which it is die duty of any parson le secure under the scheme where it appears to the load authority that delay in the exam ion of the work would prejudice the efficient Operation of the semen. That is why proviso is made in S. 55 (2) tot recovery of diseases incurred by the local authority under 55 from the persons in default or from the owner of the plot in the same Tanner as recovery Of other sums due to the local authority under the Act. The whole ambit of S. 55 being of such constructions which are offending constructions being of the nature as to, contravene the scheme or where erection or carrying out of the work h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would be Of the same nature as of the persons who are evicted under the provisions of the Land Acquisition Act after the acquired land h vested in the State and the matter is only of taking possession: 7. That is why the procedure prescribed in the two cases is different. Under R. 27 (1) (a) it is enacted that the local authority shall in the first instance serve a notice upon the Person to be evicted requiring 'him. within a reasonable time specified therein, to vacate the land. Under Clause (b), if he fails to comply with the requirement of the notice, any Officer or municipal servant can be deputed to remove him. The person to be evicted. if he resists or obstructs the officer or servant, would be dealt with under R. 27 (1) (c). This prescribed procedure, therefore, does not specifically provide for any * notice of hearing at this stage of eviction and the notice, if any would have to be implied only in cam where the principles of fair play. would so require on account of the development of our administrative law so that the person concerned may not be prejudiced if he has a substantial ground to urge. On the other hand, so far as R. 28 is concerned, it provides a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in such context, if the person is to be evicted by incidentally pulling down his building which has absolutely vested in the local authority and in which no right of occupation continues, the adjudication machinery under S.55(3) would have to be invoked. That machinery deals with the only statutory question as to whether the building or work contravenes the town planning scheme or whether any provision has not been complied with in the erection or carrying out of any such building or work which is the only contingency for the application of S.55 (1) (a). Therefore, in such cases on this narrow construction there would be no eviction in cases of buildings where the right to occupy has connect to an end under the final scheme as no right of occupation is reserved by the Town Planning Officer to such an occupier as the statutory question in S.55 (1) of the building or construction being in contravention of the scheme or in non-compliance with the provision of the scheme does not arise. That would whittle down this implementations machinery and render it ineffective to deal with cases of such building where the right to occupy has ended and still the building does not come within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belongs to some other owner. Therefore the innocent owner could not be put to undeserved hardship and the object of removing the slum dwellers as expeditiously as possible which is the very object of such a town planning scheme would be frustrated if a provision of eviction which is visualized in Section 54 giving ample powers to the local authority to do the needful had not been enacted. Further proceeding at page 800 it was pointed out that since development and planning was primarily for the benefit of the public, the Corporation was under an obligation to perform its duty in accordance with the provisions of the and, therefore, in such cases even by a mandamus, a Municipal Corporation could be directed to perform its statutory duty of evicting the unauthorized occupiers from the finally reconstituted plots. 10. Even in K. R. Shenoy v. Udipi Muni. capacity, AIR 1974 SC 2177 at p. 2182, where a cinema house had been erected in violation of a town planning scheme even at a huge expense, their Lordships held that if the Municipality had arbitrarily acted to sanction such a plan, the Court must enforce the performance of statutory duty by such public bodies as obligation to rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not exist under the general law prior to the making of the final scheme and it was a right or liability created for the first time by the final scheme which was to be read as a part of the new Act. The new Act while creating these new rights and liabilities gave a special and particular remedy for enforcing them under S. 54 and the remedy of summary eviction provided in S. 54, therefore, must be held to be an exclusive remedy and the liability to eviction under S. 53 clause (a) or Clause (b) could not be enforced by the ordinary of a suit. Therefore, where a person continued to occupy any land which he -was not entitled to occupy under the final scheme there was only one remedy of eviction which could be availed of against him and that was the remedy 4 summary eviction provided in' S. 54 and it was, therefore, held not to violate the equality guarantee under Art. 14. 12. After upholding the vires of this provision the further question was considered as to whether this was a quasi-judicial power or an administrative power and as to what extent the principles of natural justice could be read into this provision in the face of R. 27 because it had been contended that R. 27 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it so thinks fit, afford an opportunity to the occupant of the land show cause against the proposed action by stating in the notice of summary eviction issued under R. 27 Clause (a) that he should vacate the land unless, within such reasonable time as may be specified in the notice. he shows cause why he should not be summarily evicted. The occupant of the land would in such case have an opportunity of making his defense or explanation showing that he is entitled to occupy the land under the final scheme and he should not, therefore, be summary evicted. If the local authority is satisfied with the defense or explanation of the occupant of the land, it may discharge the notice. But if it is not so satisfied, it may confirm the notice and after fixing a reasonable time for vacating in the order of adjudication, proceed to summarily evict the occupant of the land if he fails to vacate within the time so fixed. Either of these two procedures would satisfy the basic minimum requirements of natural justice. It is, therefore. clear that there is nothing in R. 27 which excludes the principles of natural justice and R. 27 cannot be said to be ultra vires Section 54. This decision uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which the Petitioners' rights have totally ceased to Occupy these predates and the power of eviction in such a context would be in the nature of an administrative power. In such a context under the developed administrative law after Kraipales case (AIR 1970 SC 150) the minimum requirement of natural jute would be by way of fair-play and justice. Therefore, the said requirement of principle of only fairplay would be complied with when the eviction notice is given and the petitioners have failed to show any substantial ground by any substantial question. In such cases the notice would have to be implemented when no ground whatever has been made Out by giving any explanation raising a substantial question or even suggesting the same sit the hearing before us, Therefore, in such cases there is no question Of any Preludal decision and the impugned notices could not be attacked on a mere academic ground. The principles of natural justice would be vf0lated if the petitioners are said to be substantially or prejudicially affected by the notices. The principles of natural justice when they are read impliedly for making the administrative decision a fair one in such a context are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot further continue the interim relief any longer when these petitions now obviously fan. 16. Some additional ground has been urged by Mr. Antin in Special Civil Application No. 1560 of IW Mr. A-in argued that staff quarters of a fire brigade could not be said to be for a public Purpose of the scheme. The reliance and state al W44 Belagal v. P. N. Talukdar. AIR 1965 SC 646 In a different context of works directly useful to the public within the meaning of S. 40(1)(b) of the Land Acquisition Act could hardly be pressed in aid when these lands were required for the salutary purpose of the town planning scheme for housing the fire brigade personnel. Mr. Amin ignores Section 81 which proved that land needed for the public purpose of a town planning scheme or development plan shall be deemed to be land needed for purpose within the meaning of the Land Acquisition Act 1894. Equally misconceived is his objection that the scheme is mala fide because landlord land had been under a compromise acquired for a Co-operative Housing Society at higher price. These are not allegations of mala fide whatever of the State Government The urgent Co-operative Housing Societies schemes might have j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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