Supreme Court of India
SCHEDULED CASTE AND WEAKER SECTION WELFARE ASSOCIATION (REGD.) AND ANR.versusSTATE OF KARNATAKA AND ORS.
- Citation
- 1991 INSC 85
- Decided
- 2 April 1991
- Disposal
- Appeal(s) allowed
Holding
The Court held that the appellants have locus standi and that the rescission of the slum‑area notification without granting a hearing to the affected persons violates natural justice, rendering the notification void.
Summary
The appellants, a slum‑dweller association and a resident, challenged a 1981 notification that reduced the declared slum area in Bangalore, alleging denial of a hearing and violation of natural justice and Article 14. The High Court had dismissed the petition on the ground of lack of locus standi, but the Supreme Court held that a public‑interest litigant representing an affected class has standing to sue. The Court examined whether the Government could rescind a notification under Sections 3 and 11 of the Karnataka Slum Areas (Improvement and Clearance) Act without a specific statutory provision, and affirmed that Section 21 of the General Clauses Act confers a power to rescind but that such power must be exercised in accordance with the principles of natural justice. It ruled that the earlier declaration created a vested right to be heard, and the subsequent rescission without a hearing was ultra vires. Consequently, the 20‑January‑1981 notification was quashed and the appeal was allowed.
Issues considered
- Whether the association and the resident have locus standi to challenge the notification.
- Whether the Government possesses the power to rescind a notification under Sections 3 and 11 of the Karnataka Slum Areas Act in the absence of an express provision.
- Whether rescission of the notification without affording a hearing violates the principles of natural justice and Article 14.
- Whether the rule of audi alteram partem is implied in the statutory scheme of the Act.
- Whether the power to rescind under Section 21 of the General Clauses Act is subject to the same conditions as the original power.
Legislation cited
Subjects
locus standinatural justiceaudi alteram partemslum clearancenotification rescissionGeneral Clauses ActArticle 14public interest litigationKarnataka Slum Areas Actconstitutional law
Judgment
SCHEDULED CASTE AND WEAKER SECTION WELFARE
A
ASSOCIATION (REGD.) AND ANR.
v.
STATE OF KARNATAKA AND ORS.
APRIL 2, 1991
B
[A.M. AHMADI AND M. FATHIMA BEEVI, JJ.]
Karnataka Slum Areas (Improvement and Clearance) Act, 1973:
Sections 3 (1) and 11( 1)-Slum clearance area-DeclaratfDn of larger
area-Subsequently changed-Smaller area re-declared-Whether
opportunity of hearing to be given to affected parties-Denial of
c 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 redeclq.ring smaller area-Power .of rescinding-
Whether properly exercised.
D
Constitution of India, 1950: Article 226--General Clauses Act,
1897: Sections 21/Karnataka (Mysore) General Clauses Act, 1899;
Section 10:
Under Section 3 of the Karnataka Slum Areas (Improvement and
Clearance) Act, 1973 Notification No. liMA 59 MCS 76 dated 17.1.1977
E 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 andre-declaring
F -a n 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 Govern-
ment's action were not given an opportunity of being heard and were
G 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 hart-.(
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
H standi but did not go into the merits.
l.
974
S.C. WELFARE ASSN. v. STATE OF KARNATAKA 975
~ The appellants filed an appeal by special leave before this Court,
contending that the High Court had erred in holding that ~he petitioners A
had no locus standi, that in vif~w of the purpose of the legislation and the
scheme contemplated thereunder, once action had been taken declaring
a larger area as 'slum cleara1nce area', any change thereafter which
directly affected the slum dwellers could not be taken without giving the
affected persons an opportunity of being beard and, there was, there- B
;.._ fore, 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 assuing that it existed there was no
proper exercise of the power.
3--
--- 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 notifica-
tion under Section 3(1) of the Act and Section 11 did not confer any
c-
~ statutory right on the occupit~rs, 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 notifi-
cation was entitled to rescind the same. The State adopted the con- D
tentions of Respondents No. 3.
. Allowing the appeal, this eourt,
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 E
or class of persons who, on accmnnt of poverty or·disability or socially or
..... economically disadvantaged pm;ition 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 F
~ 67, relied on.
S.P. Gupta v. Union of India, [1982] 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 G
\,.---slum dwellers and the second app,~llant himself is one of the residents in
the area. The action of the Govenunent affects a class of persons and if
that group of persons is represented by the Association, they have a
right to be beard in the matter. (.ven a public interest litigation would
lie in such a situation. Therefore, the High Court was wrong in conclud-
ing that appellants were incompetent to invoke the jurisdiction of the H
Court. [979D, F]
976 SUPREME COURT REPORTS [1991] 1 S.C.R.
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 ot' 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
B imposed itself necessarily implied an obligation to hear before deciding,
that the audi alteram partem rule could be imported. [982F] ~
2.2. It is one of the fundamental rules of oqr constitutional set-up
that every citizen is protected against exercise of arbitrary authority by
the State or its officers. H there is power to decide and determine to the
prejudice of a person, duty to act judicially is implicit in the exercise of
c 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 further
declaration is made under Section 11, the inhabitants of the areas are
D 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 prejudiciaUy 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. ...J...
E 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,
F the power to issue a notification includes the power to rescind it, and it
is always open to the Government to rescind the notification. [9808] _...&..
State of Kerala v. K. G. Madhavan Pillai, [1988] 4 SCC 669; State
of M.P. v. V.P. Sharma, [1966]3SCR557;Lt. GovernorofH.P. v.Sri
Avinash Sharma, [1970] 2 SCC 149; Lachmi.Narain v. Union of India,
G {1976] 2 SCR 785; State of Bihar v. D.N. Ganguly & Ors., [1959] SCR
1191 a~d Kamla Prasad Khetan v. Union of India, (1957] SCR 1052~
referred to.
But wben a notification is made rescinding the earlier notifica-
tions without hearing the affected parties, it is clear violation of the
H principles of natural justice. Such action in exercise of the implied
S.C. WELFARE ASSN. v. STATEOFKARNATAKA [FATHIMABEEVI,J.] 977
~ po~r to Rscind cpnnot then be $lid to have ll~.n .e¥erds.ed ~bj~ tQ
tbe l~e cO:p~itions within the S£ope ~f 8ec.ti(JJ121 of the General Chluses A
1\d. (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 afford-
ing the slum dwellers an opportunity of being heard on the basis of the B
,..._
, .earlier notifications that were in force. [983F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1401
of 1991.
From the Judgment and Order dated 26.10.1987 of the Kama-
taka High Court in W.A. No. 607 of 1982. c
~ S.R. Bhat and Prabir Chaudhury (NP) for the Appellants.
A.B. Rohtagi, M. VeeraRpa, R.L. Bhardwaj and Vishnu Mathur
for the Respondents. D
The Judgment of the Court was delivered by
F ATHIMA BEEVI, J. The Karnataka 'Slum Areas (Improve-
ment and Clearance) Act, 1973, which received the assent of the Presi-
dent on 1st October, 1974, is an Act to provide for improvement and E
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, insanitary,
squalid, over-crowded or otherwise, the Government may by notifica- F
..A.. tion 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 the buildings in the
area, it may, by notification, declare the area to be the 'slum clearance
area'. G
The Notification No. HMA 59 MCS 76 dated 17.1.1977 was is-
sued ry 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 11(1) of the Act declaring H
978 SUPREME COURT REPORTS [1991] 1 S.C.R.
~-
the entire land as 'dum clearance area'. However, on January 20, ~·
A 1981, the Government issued notification under Section 3(1) cancel-
ling the earlier notification dated 30.12.1977 and re-declaring an
extent of 14 1/2 guntas only a.s '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
B Article 14 of the Constitution has been violated. It was contended that
slum dwellers who are affected by the Government's action have n'ot
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.
c
The single Judge of the High Court took the view that the appel-
lants had no locus standi to challenge the impugned notification and
.k
....
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 ).f..
merits confirmed the judgment.
D 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. Gup'ta v. Union of India, [1982] 2 SCR 365 and Olga
Tellis v. Bombay Municipal Corporation, [1985] Suppl. 2 SCR 51 vehe- ..._, ·
E mently 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 be~n taken declaring a larger area as 'slum clearance
area', any change thereafter which would directly affect the slum dwel-
...
lers could not be taken without giving the affected persons an
F 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.
G Mr. Rohtagi, counsel appearing on behalf of the 3rd respondent,
submitted that the first notification dated 17.1.1977 was challenged b~
-'
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 Cou~t that they would be heard. It was pointed out
that there was no need to near the owners or occupiers at the stage of
H issuing the notification under Section 3(1) of the Act and Section 11
S.C.. WELFARE ASSN. v. STATEOFKARNATAKA [FATHIMABEEVI,J.) 979
does not confer any statutory right to the occupiers. Relying on
Section 21 of the General Clauses Act, it was maintained that the A
power to withdraw or rescind the notification was inherent and the
authority who is empowered to issue the notification is entitled 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 progress
and that the earlier declaration was made without proper basis. Action B
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 entitl~d 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 C
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 D
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 behlf 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 E
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.
F
...&... We shall now consider the argument that the State Government
- had no power to rescind t.he 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 G
ADD TO, AMEND, VARY OR RESCIND NOTIFICA-
TIONS, ORDERS, RULES OR BYE-LAWS.-Where,
by any Central Act or Regulation, a power to issue notifi-
cations·, orders, rules, or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and H
subject to the like sanction and conditions (if any) to add
980 SUPREME COURT REPORTS [1991] 1 S.C.R.
to, amend, vary or rescind any notifications, orders, rule or ~
A bye-laws so issued."
ot
Under Section 21 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
B 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 sec 149. In these CdSes 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 J:
made under Section 4( 1) of the Act. When the Government issued
c 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 und~r
Section 6. In repelling the contention, this Court incidentally observed
D at page.693 thus:
"That the only way in which the notification under 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-~
E 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 Sec~
tion 48( 1) is not the only way in which a notification under
Section 4 or Section 6 can be brought to an end."
p 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,
G the Government may cancel or rescind the notification
issued under Sections 4 and 6 of the Land Acquisition A~
But the power under Section 21 of the General Clauses Act
cannot be exercised after the land statutorily vests in the
State Government."
H In Lachmi Narain v. Union of india, [1976] 2 SCR' 785, this
S.C. WELFARE ASSN. v. STATEOFKARNATAKA [FATHIMABEEVI,)J 981
..._,.,;
' Court observed at page 808 thus:
A
"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." B
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
....... - st~tute only where the subject-matter, context or effect of such provi-
sions are in no way inconsistent with such application. In that case, the cl
question was where an industrial dispute has been referred to a tri-
. bunal for adjudication by the appropriate government under Section
~ 1 10( 1)(d) of the Industrial Disputes Act, can the said government
supersede the said reference pending adjudication before the tribunal
constituted for that purpQse? The Court held the notification to be
invalid and ultra vires pointing out that it would be necessary to D'·
examine carefully the scheme of t];le Act, its object and all its relevant
and material provisions before deciding the application of the rule of
construction enunciated 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 pro.,
ceedings before the tribunal are deemed to have commenced ap.d if the E
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 F
J £ _·,
Court considered the scope of Section 21 of the General Clauses 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 qualifica"
'....... - tion is contained in the words 'exercisable in the like
manner and subject to the like sanction and conditions (if
G
any)' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The true
scope and effect of the expression 'subJect to the like condi-
tions (if any)' occurring in Section 21 of the General
Clauses Act has been explained .. , H ,
982 SUPREME COURT REPORTS [1991} 1 S.C.R.
Relying on these decisions, the learned counsel for the appel-
A lants 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 hear-
B ing the affected parties, for the Gov~rnment to satisfy itself that what
has already been declared does not come within the scope of the pro-
posed 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 implementa- ,
tion of the scheme under the Act for their redressal and once steps ·
c 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
D 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
E 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 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 ·
F 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 a!teram
partem rule could be imported. Titus in applying the test to the provi-
sions of the earlier Act. The Mysore Slum Areas (Improvement and
Clearance) Act, 1958, this <;ourt held in Go!N!rnment of Afysore &
G Drs. v. J. V. Bhar 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 ckarance area under section
9 or before taking action under section 10. All thes-: dif-
H ficulties will be removt:d if the affected persons are given
S.C. WELFARE ASSN.v.STATEOFKARNATAKA(FATHIMABE EVI, J. ] 983
an opportunity to be heard in respect of the actio
proposed." n A
The Preamble to the present Act itself states that the Act · t
'd f h • IS 0
provt e or ~ ~ tmpro~emcnt and clearance of slums in the State.
~nder the existmg.ha~, It has not been possible effectively to check the
mcrease and to ehmmate congestion and to provide for basic needs B
such as streets, water-supply. and drainage and to clear the slums
whic~ are unfit f~r human ha~itation. To obviate this difficulty. it is
consrdered expedient to provide for the rcmoYal 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 genera11y. These are the objectives sought to be achieved
by the enactment which has been made in implementation of the c
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 d eclaration 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 0
an opportunity of being heard would prejudicially affect their rights.
The right to h~ heard in the matter has been acquir~d by the earlier
act ion of the authority in considering the area for the purpose of the
scheme. This i.s clear from the proviso to sub-sec. ( l) of Section 11 of
the A cr. When anv alteration is sought to be made in the original
scheme, it becom~s incumbent upon the authorities to give an E
· •· opportunity to the persons who had been afft:ctcd by the earlier order
and required to adopt a certain course of acti~n. In this v~ew. of the
matter it is to be held that when a notification ts made rescmdmg the
earlier notifications without hearing the affected parties, it is clear
violation of the principle of natural justice. Sue~ action in exercise of
the implied power to re scind cunnot thL!n be s::ud to hav~ been ex~r- F
r cised subject to the like conditions within the scope ~f Section 2 L~f the
" General Clause Act. We, therefore, hold thut the 1mpugned notifica-
tion is liable to be q uashcd on this ground. It shall be open to the
Government to proc~cd after affording th~ slum. dwc~lcrs an op~rt~
nity of being heard on the ba~is of the earlier nottficatJOns that ''ere m
force. G
. d d the order o f the High
In the n:sult the appcul ts a 11owe: an. · t t the
Court is set-aside. i ·hc impugned notification as quaslu::d subJec o
observations made. We make no order as to costs.
Appeal allowed.
N.P.V.
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