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TMI Blog1987 (3) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... ld it in plots to the petitioners and ever since the purchases, they have been in possession and enjoyment of the property as owners thereof. Padma Rao himself laid the suit O.S. No. 1324/83 on the file of the IV Addl. Judge City Civil Court, Hyderabad for declaration of title and permanent injunction impleading the State Government, Hyderabad Urban Development Authority and the Tahsildar and by order in I.A. No. 169/84 dt. July 20, 1984, Status quo was directed to be maintained. The respondents, being parties to the suit, they have no power to take any action ejecting them unlawfully. After the issue of the status quo order, the respondents have moved the machinery of the Municipal Corporation of Hyderabad to have the structures of the petitioners demolished but become unsuccessful and then the Collector, the first respondent, is now asserting to have exercised the power under S. 7A of the Andhra Pradesh Land Encroachment Act (Act 3 of 1905 for short the Act) as amended by the Andhra Pradesh Amendment Act (Act 23 of 1980 for short 'the amendment Act') but the procedure prescribed thereunder has not been followed and, therefore, not only it is an arbitrary exercise of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of the Govt. until the contrary is proved. Therefore for the purpose of the proceedings in the writ petitions, we shall proceed on the statutory presumption that the land in old S. No. 43 now T. S. No. 4 in ward No. 100,-Block-A situated in Bhotkapur, opposite, Deccan Continental Hotel is the tank bed property of the Government. The contention of Mr. Mohan Rao is that the lands were transferred to the Hyderabad Urban Development Authority and therefore, the Collector is divested of her power to take action under the Act and, therefore, it is without jurisdiction, I am unable to agree. As seen, the property shall stand vested in the Government. The handing over of possession to the Hyderabad Urban Development Authority is only for the purpose of utilisation for a public purpose. The title of the Government is not thereby divested. In fact, in similar circumstances when a contention was raised that the Government have no power to erect statues on road margins at tank-bund, since the road stands vested in the Municipal Corporation of Hyderabad this Court in Ibrabim Bin Abdullah Masqathi v. State of Andhra Pradesh (1987) 1 Andh LT 54 has considered the effect of the vesting and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector when she knows or has reason to believe that a group of persons without any entitlement and with the common object of occupying any land, which is the property of the Government are occupying or have 'occupied such land, then the is empowered to take 'action under S. 7A. If such group or groups of persons have not vacated the land on demand by either the District Collector herself or any officer authorised by the District Collector. in that behalf the District Collector shall, notwithstanding anything in the Act, order, without any notice, immediate eviction of the encroachers from the land and take possession of the land. Thereupon, it shall be lawful for the authorised officer in that behalf to evict the encroachers from the land by force taking such police assistance as may be necessary and take possession of the land. Therefore, two limbs of action to be taken under subs. (1) of S. 7A are mandatory and to be complied with. The condition precedent for taking such an action is that the District Collector must know or have reason to believe, on the basis of the material available on record, that a group or groups of persons without any entitlement and with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said power in a given situation. Therefore. the ratio in Krishna Rao's case (supra) rendered ineffectual to the gamut of operation of S. 7-A. 7. The argument of Sri Mohan Rao, is that the Collector shall herself make a demand or an Officer authorised by her in that behalf shall make a demand, obviously in writing and after giving reasonable opportunity to resist the action, an order is to be passed thereon. On failure to vacate the land on making such demand, then the Collector shall make an order directing immediate eviction of the encroacher from the land and thereupon it shall be lawful for the officer authorised by the District Collector to evict the encroachers from the land by force and after taking such police assistance as may be necessary, then only the possession of the land can be taken. Any attempt to take possession otherwise than through the above procedure is obnoxious to fair procedure under Art. 14 and deprivation of the livelihood under Art. 21 of the Constitution. It is true as contended by Sri Mohan Rao that demolition of the buildings in occupation without just and fair procedure would amount to deprivation of their livelihood offending Art. 21 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right in this case the right to life, must conform to the nor of justice and fairplay. Procedure which is unjust or unfair in the circumstances of a case attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore to be tested by the application of two standards, the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. The purpose of rule of law is the protection of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. Yet, the procedure adopted must meet the test of fair-play. 8. The next contention of Mr. Mohan Rao, is that the action is violative of the principles of natural justice. It is mandatory that the District Collector herself or an officer authorised shall order demanding possessing and conduct an enquiry; pass an order and on their failure to vacate the land, the District Collector, shall again pass an order without notice immediate eviction of the encroachers from the land and it shall be lawful for the authorised officer thereafter to take possession of the land. In Liberty Oil Mills v. Union of India, [1984] 3 SCR 676, Chinnappa Reddy, J.9 held that an opportunity of hearing either pre-decisional or post-decisional shall be read into Cl. 8-B of the Import Control Order, 1955, and on that premise, upheld the rule. Equally, in Olga Tellis case AIR 1986 SC 180 (supra), the constitution Bench construed S. 314 of the Bombay Municipal Corporation Act which gives power to the Commissioner, without notice, to take steps for removal of the encroachment in or around or on any street, channel drain, etc. It was contended on-behalf of the corporation that notice is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hom decisions taken by the public authorities operate to participate in the process by which those decisions are made; a word that expresses their dignity as persons. With regard to the squatters on public properties and their right to be heard, the same has been considered in para 49, which reads thus : - The jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the 'respondents' counsel. 'Hearing to be given to trespassers who have encroached on public properties. To persons who commit crimes', they seemed to ask in wonderment. There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. But, their intention or object in doing so is not to commit an offence or intimidate, insult or annoy any period', which is the t of the offence of 'criminal trespass' under S. 441 of the Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so where. The encroachments co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedural requirements and discriminatory techniques of judicial review are among the tools to control the discretionary power. (Rule of Law and Welfare State (1958) 58 Columbia Law Review ', 143 at 152). It makes no difference whether the occasion for the exercise of power is personal default or act 'of policy. Good administration demands fair consultation in each case and this the law can and should enforce.' This the insistence of the observance of fundamental fairness in the procedure becomes a balancing balm to alleviate apprehension of arbitrary decision by the executive Government while assuring opportunity to disabuse the prima facie impression formed against the person to usher in an era of largest good to largest number of people with proper checks and balances between needs of the State and the rights of the individual. Thus the brooding omni benevolence and omni-competency of the need for expediency and claim for justices interplaying ethos of fair adjudication in action. 10. To subserve the fundamental fairness in procedure and to avoid arbitrary exercise of power under S. 7-A right of hearing must be read into S. 7-A(1) of the Act. Undoubtedly, the District ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke representations to the District Collector to provide them alternative Government land if available elsewhere for their rehabilitation or may request for a longer period for evicting' from the lands in their occupation. Abrupt eviction of slum dwellers humblest and lowest and destruction of their improvised dwellings not only ruin all they held dear to life but also deprives them of their livelihood. Considered from this perspective, the hearing however, informal, is pragmatic and help in a great way. Therefore, it is mandatory. Even if their claim gets rejected, their request for reasonably sufficient time to vacate the land could, under no circumstances, be said to be unreasonable. Even after order is passed under the first limb of sub-s. (1) of S. 7-A and before taking possession it is mandatory that the District Collector shall pass an order to immediately vacate the land and the officer authorised for the purpose thereupon is entitled to take forcible possession with the assistance of the police. The words 'shall order eviction under the second limb 'of sub-s. (1) of S.7-A is couched in mandatory language. Therefore, the District Collector is herself enjoined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity of hearing been given to the petitioners after the demand was made for delivery of the possession and no order of immediate eviction of tile petitioners was made by the District Collector. Therefore, without making of any under by the District Collector, as enjoined under the second limb of sub-s. (1) of S. 7-A, the authorised officer is devoid of authority of law to pursue follow-up action of taking forceful possession from the petitioners. I have, therefore, no hesitation to hold that the action taken by the respondents is clearly illegal Accordingly, it is declared-. 13. Then what is the suitable order that may be made is the question? Normally, the result must follow the event. But it is found by the Collector that it has become difficult to control the encroachments on the Government land being made with impunity and, therefore, action was initiated on a time bound frame and the possession was taken from the petitioners 1 to 3 in the second writ petition and another and follow-up action is yet to be gone through in respect of other persons in the first writ petition. The commissioner appointed, by this Court submitted the report. The report shows that the properties hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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