Holding

The Act is unconstitutional as it violates Article 14 (and, pre‑44th Amendment, Article 19(1)(f)) due to arbitrary classification and unregulated discretion, though the State had legislative competence to enact it.

Summary

The petitioners, owners of plots in Bandra, Bombay, were ordered by the Municipal Corporation and the State to demolish buildings constructed without permission and the lands were later declared "vacant" under the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975. They challenged the constitutional validity of the Act, arguing that it violated Articles 14, 19(1)(f) and 31 of the Constitution, that the State legislature lacked competence, and that the Act delegated un‑canalised discretionary powers. The Supreme Court held that while the State had legislative competence under entries 18, 64 and 65 of List II, the Act's definition of "vacant land" and the powers conferred on the Competent Authority were arbitrary, discriminatory and lacked procedural safeguards, thereby violating Article 14 (and, insofar as it applied, Article 19(1)(f)). The Court also rejected the contention that the 1979 Service of Notice Rules cured the infirmities. Consequently, the Court affirmed the High Court’s declaration of unconstitutionality and dismissed the appeals. The judgment emphasized the need for a new, constitutionally compliant legislation to address unauthorised occupation.

Issues considered

Whether the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 is violative of Article 14 of the Constitution.
Whether the Act infringes Article 19(1)(f) (right to practice any profession, trade or business) as it stood before the 44th Amendment.
Whether the Act violates Article 31(1) or 31(2) relating to acquisition and requisition of property.
Whether the State Legislature had competence to enact the Act under entries 18, 64 and 65 of List II of the Seventh Schedule.
Whether the delegation of powers to the Competent Authority is excessive and un‑canalised.
Whether the Maharashtra Vacant Lands (Service of Notice) Rules, 1979 cure the constitutional defects in the Act.

Legislation cited

Constitution of Indias. Article 14, s. Article 19(1)(f), s. Article 31(1), s. Article 31(2), s. Article 359, s. Article 38th Amendment, s. Article 44th Amendment
Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975s. 2(f), s. 3, s. 4, s. 4A, s. 4B
Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) (Service of Notice) Rules, 1979

Subjects

constitutional validityArticle 14Article 19Article 31legislative competenceclassificationarbitrary discretionvacant landsummary evictionunauthorised occupationstate legislationemergency provisions

Judgment

STATE OF MAHARASHTRA ETC. ETC.

"·
MRS. KAMAL SUKUMAR DURGULE AND ORS. ETC.

[Y.V. CHANDRACHUD, C.J. S. MURTAZA fAZAL ALL, B
v.o. TUL7.APURKAR, 0. CH!NNAPPA REDDY AND
A. VARADARAIAN, JJ.j

November 28, 1984
Consttlution of India, 19SO :
c
(I) Articles 14, 19 (/) (f) and 31-Act paJSed by a State Legislature-
No guidelines for exercise of discretion provided-Neither proper classification
nor provls/on /or nqtice to affected pe~sons made-Constitutional validity oi.

(ii) Entries 18, 64 and 65 of List II-Whether State Legislature com..
petent to pass the ft,faharashtra Vacant Lands (Prohibition of Unauthor/sed
Occupation and Summary 1~·victlon) Act, 197S. D

Maharashtra Vacant Lands (Prohibition ofUnauthoriJed Occ11patfon &:
Summary Eviction) Act 1975, ss. 2(/J, 3, 4, -4A, 4B read w;th Maharashtra
Vacant Land!(Prohibition of Unauthorised Occupation & Summary Evkli~n)
(Service of Notice) Rules 1975-Constitutional validity of-Whether guidelines
for exercise of discretion &. Proper classification and provision/or notice to
E
affected persons provided tn the Act-Rules framed subsequently regarding
provision of notice to affected persons-Whether cures the unconst/lut/onality
of the Act,

The Maharashta Vacant Lands fProhibition of Unauthorised Occu..
pation and Summary Eviction) Act, LXVI of 1975 passed by the State of
Maharashtra was amended twice-first by Act No. XXXVII of 1976 and later E
by Act No. VII of 1977. Section 2 (f) as amended retrospectively by the
First Amendment Act divides ..Vacant land" into four categories: (I) lands
which are in fact vacant, that is to say, not bllilt 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 G
in the Schedule to the Act, and (4) lands included in the Schedule by the
State Government by an order amending the Schedule. Section 3 provides
that no person shall occupy or enect any~ shelter enclosure or other
structure on such land for the purposes of residence or otherwise without
the express permission of the Muni:ipal Corporation and also prohibits any
per$on to collec~ ffom the occupier of such v~caqt land any amount by way n
130 SUPREME COURT REPORTS (1985] 2 S.C.R.

A of rent or compensation in relation to the unauthorised occupation of such
vacant Jand while it empowers lhe govern1nent to collect or receive from the
occupier of such vacant land such reasonable amount by way of penal
charges as may be determined till such time as the structure erected in
contravention cf the provisions of s. 3 is removed from the land. Section 4
empowers the government to evict a person occupying any vacant land in an
Urban area in contravention of the provisions of s. 3. Section 4A deals with
B permission for renovation of structures on vacant lands as a temporary
measure in certaian circumstances. Section 4B lays down mode or recovery
of dues of financial institutions which render assistance for renovation of
structures.

The respondents were owners of son1e plots of land in ·Bon1bay. The
c plots were assessed to non-agricultural assessment and to Property tax by
the Bombay Municipal Corporation. The respondents had constructed
buildings of a permanent nature on the plots and the same had been
provided with essential civic amenities like water and electricity. The
appellants~State Government & Municipal Corporation of Bombay called
upon the respondents to demolish the buildings, since they were constructed
without the requisite permission· of the Bombay Municipal Corporation, The
respondent's request to regularise l the unauthorised construction was also
D rejected becau~e the Government was considering a Proposal for acquisition
of the said land for the purpose of an industrial estate. The respondents
then approached the Special Land Acquisition Officer requesting that the
Jand be released from acquisition. The Land Acquisition Officer informed
the respondents that the said plots of land had been released from
acquisition by a notification dated September 14, 1964. But, later on, the
said plots of land were declared by the Competent Authority as "vacant
E land" in exercise of the powers conferred upon it by Section 2 (f) (b) of the
Maharashtra: Vacant Lands {Prohibition of Unauthorised Occupation and
Summary Eviction) Act LXVI of 1975.

The respondents challenged before the High Court the constitutional

r- •
validity of the Act and the legality of orders passed thereunder. The High
Court declared the Act as violative of the provisions of the Constitution and
F allowed their writ petitions.

In the appeals to this Court, the appellants contended that the
infirmity, if any, from which the Act suffered in its incepticn has been cured
by the passing of the Maharashtra Vacant La~ds (Prohibition of Un-
'authorised Occupation and Summary Eviction) {Service of Notice) Rules,
1979 inasmuch as the affected person is given a notice before passing an
G order undersection 2 (f) \b) or undersec!ion 4(t) of the Act and that the
Competent Authority is further required to consider any objections submitted
to it by the affected person. On behalf cf the respondents it \Vas argued tl)
tl- at the Act violates the fundamental rights conferred upon them by Art.
}4, 19 (I) (f) and SI of the Constitution ; (II) that the Stale Legislature
lacked the Legislative competence to pass the Act and (III) that the Act
delegated excessive and uncanalised powers - to the Executive to pass
H orders.
MAHARASHTRA V, K.S. DURGULE l31
Dismissing the appeals,

llELD: 1.1 It is evident that the expression 'land' in Section 2 (0
c,f the .\ct means ph>ts of llnd with defined boundaries which are genera11y
reco2n d for revenue and survey Puposes. Section 2 (fl (b) ri.:quires two
conditil. ,s to be satisfied in order th~t a land ca"n be describ~d as a vacant
land; Firstly, there has to be an unauthorised structure on the land and
secondly, the Competent Authyrity has, by an order in writing, to specify ·B
and declare that land to be a vacant land. [143 D-E] ·

1.2. Section 2 (f) (b) suffers frcm the vice in that, it treats all persons
alike irrespective of how they are situated in the matter of their involvement
in the construction of unauthorised structures and their interest therein.
Classification· requires division into classes which are marked by common
characteristics. Such division has to be founded upon a rational basis and
it must be difecting at subserving the purposes of the statute. Section 2 (f) c
(b) and the other cognate provisions of the Act make no distinction at all
between owners of the lands who have themselves constrUcted unauttorised
structures and those others on whose lands unauthorised structures have
been constfucted by trespassers. The latter class of owners who are silent
spectators to the forcible and l~. wless deprivation of their title to their
property have been put by the Act on par with tresspassers who, taking law
into their own hands; defy not merely private owners '.but public ,D
acthorities, [146 G·H; 147 A]

1.3. Section 2 (f) (b), also, suffers from the infirmity_ of according
equal treatment to unequals. Take a simple example: A plOt Of land may
be vacant in the true sense of the term, that ls.to say. wholly u"nbuilt upon.
Another. plot of land may have _a small sti-Ucture built upcn ii iii: a:;:c~rdaiice
with the Municipal rules and regulations.· The first plot of land attraCts E
drastic provisions of the Act merely by reason of the fact that nothing has
been built upon it at an. while the second plot of land is entirely outside the
scope of the Act for the reason that some tiny structure is standing thereon.
Such a classification betrays lack of rationale.[147 B·C]
2.J. The Act confers upon the Comoetent Authority the discretion
to declare a land as a vacant land without laying down any guidelines to ,y
control that discretion. Competent Authority has the freedom to. pick and
choose lands on which there are unauthorised structures and decl: re some
of them as vacant lands and leave other lands similarly situated untouched.
[143 E]
2.2. The . Act ·does ~ot al! o 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 does not contain any provision whatso- G
ever which is directed at ensuring· the public health and sanitation or the
peaceful life of the inhabitants of the concerned locality. Indeed, nothing
is fa rt her removed. from the true purpos~ and object of the Act than these
considerations. 'The last item in the Schedule (o the Act include.i l1H public
roads and highways in Greater Bombay. These, surely, cannot' be regarded
as constituting a grave danger to public· health. s1Ilitation or peaceful life
cf the citizens. It is clear from the Statement of Objects ·and Reasons that II
132 SUPREME COURT PEPORTS [1985] I s.c.R.

A tbe evil which was sought to be remeded by the Ordinance which was later
replaced by the Act, was not danger to public health or s;nitation or to the
peaceful life of the inhabitants of the Metropolis of Bombay, but, the dang.:r
posed by the construction ofunanthorised structures, is the evil wtic! .. '1· .'
Act seeks to remedy. [144 H; 143 H; 144 A·B; GJ

2.3. The Act does not prescribe any procedure which the Competent
Authori_ty is required to adopt before declaring a land as vacant land. There
B is no provision in the Act requiring the Competent Authority to observe
even the rudimentary norms of natural justice before making the statutory
declaration. The Authority is not obligeJ to give notice to anyone and it
need not hear any person who is likeJy to be affected by the declaration. The
_ State Government too, is under no obligation to follow any set procedure
prior to amending the Schedule so as to include new lands therein. The
pewer conferred by Sections 3(1) and 4(1) of the Act is similarly uncontrolled
c and arbitrary. [ 145 Jl..D]

2.4. In the instant case, massive encroachinents on private properties
have Jed to the virtual deprivation of the title of rightful oWners of those
properties. The Act penalises such owners for no fault of theirs and that
. too. Without giving them an opportunity to -be beard. The fact th:t the_
power to make the requisite declaration under the Act is vested in officers
D of the higher echelons makes no difference to , this position and is not a
palliative to the prejudice which is inherent in the situation. [14S F.G]

3.1. It is impossible to llnder!'tand the scheme of the Schedule to the
Act or to discover any rational basis behind it is difficult to understand as
. to why certain lands-which are under acquisition for the purposes of the
1d:abarashtra Housing Board and the Bombay Municipal Corporation have
E been included in the Schedule and other lands similarly situated have _not
been so included. Some or 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. [147 E·F]

3.2. No criterion or standard is laid down in order to enable the State
F 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 or a legislative
poWer which;- in the very nature of things cannot stipulate for servico of
notice to the pers.ons affected by the amendment. This power of amendment
of the Schedule is not even conditioned by the fact that the lands added tO
the SchetJ.ute must have unauthorised structures standing thereon. The State
Government is free to pick and choose any land and put it in the Schedule.
G
This kind of conferment of uncanalised discretion is strciwn all over
the Act. [147 G·H ; 148 A]

3.3. It is therefore clear that each part of the definition of 'vacant
land' in section 2{f) of the Act is violative of the provisions of Articles 14
and 19 (1) (f) of the Constitution. The Act had to satisfy the requiremenls
H of Art. 19 (I) (f) so long as it was a p_1rt of the Constitution. [148 B·CJ

_J
MAllARAS!lTRA v. K.S. DURGULE i3~

(4) It may be noted that until the Competent Authority passes an A
order under section 4(1) calling upon an occupier to vacate a land, even a
trespasser or an unauthorised occupier can continue to be in possession of
th eland, lf he is granted permission to occupy the land under section 3(1),
he cannot be evicted at all, for the sirnPte reason that the order of eviction
under section 4(1} can be passed only if a person is in occupation of a land
contrary to the provisions of section 3. Even the eviction of a trespasser
from the land can afford no solace to its rightful owner because, the Act
does not contain any provision whereby the land can be returned to him
B
after it is freed from unauthorised occup1tion. If the owner himself has
erected an unauthorised structure, the Act does not provide as to what is to
happen to the land after he is evicted therefrom. [148 D-F]

(5) The Statement of Objects and Reasons of the F1rst Amendment
Act shows that the provision for levying penalty was introduced into the
Act in order that occupants of lands on which there were unauthorised c
structures 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 pub1ic 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 quite incongruous that while the true owner is prevented from taking
legal proceedings to recover any rent or compensation from persons who had
D
trespassed upon his land, the State Government can recover penal charges
from th,! trespassers.. Moreover, the Statement of Objects and Reasons of
the Second Amendment Act shows that the Government had carried out
substantial environmental improvements on vacant lands and had.sponsored
a scheme for building semi-permanent houses thereon. They intended to
give to the occupants of such structures security of tenure subjuct only to
the condition of regular repayment by them of the loans given by the
financial institutions. The true owners of lands are totally ignored in this E
scheme of things, even if they are victims and not the authors of 11n-
authorisod co11Structions. [148H ; 149A-B ; F.G]

(6) The unconstitutionality of the Act cannot be 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) (bJ and 4(1).
They do not make a similar provision before permission is granted or
refuse<J under section 3(1) of the .o\ct. But, even, the Rules do not lay down
any guidelines for the exercise of the discretition which is conferred upon the
' Competent Authority by section 2 (f) (b) or section 4(1) of the Act. [146E-F]

(7) The Act does not violate the provisions of Art. 31(1) of tho G
Constitution as it then stood. It does not provide for transfer of ownership
of vacant lands to the State or to a corporation owned or contro1led by
the State; nor does it vest in the- State the right of the owner or occupier
of vacant lands to recover rent or compensation for use and occupation of
such lands. [ISOA-B]

(8) The Act doe! not ail:lOunt to a measure of requisition and is not 11
134 SUPREME COtJRT PEPORTS [1985] 2.s.c.R]

A bad for the reason that it provides for requisition without payment of
compensation. It is straining the language of 1he Act to hold that it
provides, directly or indirectly, for requisition of private property, The Act
does not transfer the right to possession of vacant lands to the State its
agents or its instrumentalities. Therefore the Act does not offend ag;inst
the provisions of Article 31(2) of the Constitution as it then stood. Since
that Article is not attracted, no question can arise of the invalidity of the
Act on the ground men:ioncd in Article 31(5), na1ncly that the Act had not
B
received the asserit of the President. [ilOC-D]

(9) In so far as the question of legislative competence is concerned,
the High Court was right in holding that the State Legislature had the
competence to pass the Act under Entries 18, 64 and 65 of List JI. [llOE]

CIVIL APPELLATE JURISDICfl•,N : Civil Appeal Nos. 386, 529 &
c 532 of 1980.

From the Judgment and Order dated the 8th Fobruary, 1980
of the Bombay High Court in Miscellaneous Petitions Nos. 1340 of
1977, 141 of 1977 and 1535 of 1976.

D IN C.A. 386 OF 1980.

Dr. L.M. Singhvi, O.P. Rana, R.P. Vyas, M.N. Shroff and
Abhishek Manu Singhvi for the Appellant.·
K.K. Singhvi, Anil Gupta and Brij Bhushan, for Respondent.
IN CIVIL APPEAL NO. 529 AND 532 OF 1980.
E
Barish Salve, J.B. Dadachanji and D.N. Mishra for the Appel-
lants in C.A. 529.
S.B. Bhasme, S.S. Khanduja and A.K. Galati for the Respon-
dent in C.A. 529 of 1980.
F Y.H. Maeda/a, B.P. Singh and Ranjit Kumar for the Respon-
dent in CA. 532 of 1980.

The Judgment of the Court was delivered by
CHANDRACHUD, C.J. These appeals by the State of Mahara- '
G shtra arise out of a judgment dated Fabruary 8, 1980 of the High
Court of Bombay in a group of writ petitions which were filed
under Article 226 of the Constitution. By those writ petitions, the
petitioners, who are respondents herein, challenged the validity of
the Maharashtra Vacant Lands (Prohibition of Unauthorised Occu-
pation and Summary Eviction) Act, LXVI of 197 5 and the legality
H of certain orders passed thereunder. We will refer to the aforesaid
,, MAHARASHTRA v. K.S. DURGULE ( Jhandrachud, O.J.)

Act as '"the Act". The Act replaced an ordinance, bearing a
similar title, which was promulgated by the Governor of Mahara-
shtra on November 11, 1975. The Act was amended twice, first by
Act No. XXXVII of 1976 and then by Act No. VII of 1977. We
135

A

' will refer to these two these two Acts as 'the First Amendment Act'
and 'the Second Amendment Act'.
B
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 of 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. 1340of1977. The petitioners in that petition are c
the owners of a plot of land which is part of survey No. 154,
Bandra, Greater Bombay, admeasuring about !100 square meters.
Though the petitioners had obtained possession of the plot in about
1964 under an agreement of sale, they became owners thereof
under a deed of sale dated, September 20, 1974. The plot is asses-
sed to non-agricultural assessment and to property tax by the Bom- D
bay 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 19M and 1970. The two-storeyed structure is iu
the occupation of the petitioners while the one-room tenements have
been let out by them. These structures having been put up by the
petitiollers without the requisite permission, the Bombay Municipal
Corporation called up them to demolish the same. Thereupon, the
owners of various plots of land comprised in Survery No. 154
formed an Association through, which they requested the Standing
Committee of the Bombay Municipal Corporation to regularise
-' the constructions The Association was, however, informed that its F
request could not be granted because, the Government was consi-
dering a proposal for the acquisition of the land for the purpose
of an industrial estate. The Association then approached the Special
Land Acquisition Officer requesting that the land be released from
acquisition. The Land Acqusition Officer informed the Association
that Survey No 154 had been released from acquisistion by a noti- G
fication dated September 14, 1964.

It would appear from the contentions of the petitioners in the
aforesaid writ petition that there are two main tarred roads, two
tarred by-lanes, two Municipal Primary Schools, one High School H
!36 SUPREME COURT PBPORTS [!98Sl 2 s.c.ft.
A and one Municipal dispensary iu the area comprised in Plot No.
154. Besides, the head office of the Central Consumer Co-operative
Society is also situated in one of the buildings situated on that plot
of land. The structure standing on the plot are alleged to be of a
permanent nature. In any event, it seems clear that they are pro-
vided with essential civic amenities like water and electricity. The
B land belonging to the petitioners was declared by the Competent
Authority as "Vacant Land" in exercise of the powers conferred
upon it by section 2 (f) (b) of the Act.

The constitutionality of the Act was challenged by the respon·
c dents on the ground that it violates the fundamenial rights conferred
upon them by Articles 14, 19(1) (f) and 51 of the Constitution, that
the Legislature lacked the legislative competence to pass the Act and
that, the Act delegated excessive and uncanalised powers to the
Executive to pa;s orders under its provisions.

D The long title of the Act shows that it was passed in order to
prohibit unauthorised occupation of vacant lands in urban areas in
the State of Maha.rashtra and to provide for summary eviction of
persons from such lands and for matters connected therewith. Accor-
ding to the preamble of the Act, it had become necessary to take
certain measures because the number of unauthorised occupants on
vacant lands in urban areas was increasing rapidly and 'was causing
E
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 Metro·
politan Region on November 11, 1975 which was the date on which
F the Ordinance was promulgated, The Act confers power on the
State Government to bring its provistons 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.
G
Sections 3 and 4 of the Act around which a large part of the
argument tevolves read thus :

"3. Prohibition against unauthorised Oceupation of vacant land.

(1) No person shall, on or after the appointed date, occupy
ll a11y vacant land or continue in occupation of any vacant land
MAtiARASHtRA v. K.S. DtiRGULE (Chandraciiud, C.J.) 1~7

in any urban area or erect any shelter or enclosure or other A
structure on such land for the purposes of residence or
ot:; "wise without the express permission in writing of the
Municipai C::11missioner in a corporation area, of the
Chief Officer in a muncipal area and elsewhere, of the
• Collector, or except in accordance with any law for the
time being in force in such urban area.
B
(2) No person shall on or after the appointed date
abet a v person in occupying any vacant land or in conti-
nuing to occupy such land in any urban area, or in erecting
any shelter, enclosure or other structure on such land for
the purposes of residence or otherwise in contravention of
the provisions of sub-section (1), or shall receive or collect c
from the occupier of such vacant land any amount whe-
ther by way of rent compensation or otherwise or shall in
, ny manner whatsoever operate in relation to the unau-
t..orised occupation of such vacant land.

Provided that, the State Governmnnt or any Officer or D
authority specified by it in this behalf, shall have a right to
receive or collect from the occupier of such vacant land
such reasonable amount by 'way of penal charges as may be
determined, by general or special order, by the State
Government, till such time as the structure erected in con-
E
travention of the provisions of sub-section (1) is removed
from the land. Payment of any such amount shall not
create or confer on the unauthorised occupant any right of
occupation of such land or structure. Such amount if not
paid on demand shall be recoverable as an arrear of land
revenue. The amount so collected shall, as far as possi-
F
ble, be utilised for purposes connected with the eviction,
rehabilitation and improvement of conditions of unautho-
rised occupants of vacant lands."

"4. Power of Competent Authority to evict persona from unau-
thorised occupation of vacant !ands. G

(I) Notwithstanding anything contained in any law
for time being in force, if the Competent Authority, either
on application or suo motu, has reason to believe that any
person is occupying any vacant land in an urban area in
contravention of the provisions of section 3, it may by H
i38 SUPREME COUl\i REPORTS [I 985] 2 s.c.il.
t
A order require such person to vacate the land forthwith or
by certain time intimated to such person, aud to ren10ve
all pr<;>perty therefrom, and if such person fails to comply
with the order to vacate the land and to remove all pro-
perty therefrom, he may be summarily evicted from such
land by the Competent Authority, and aqy property
B which may be found thereon may be ordered by the
Competent Authority to be forfeited to such authority as
State Government may by general or special order sp~cify
and be removed from the vacent land. For the purposes
of eviction and removal of any such property, the Compe-
tent Authority may take, or cause to be taken such steps
c 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-sec-
D tion 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 proparty
therefrom under sub.section (I) shall be final and conclu-
E sive, and shall not be called in question in any Court.

(3) A person who 1s found to be on any vacant land
belonging to, or vesting in, another person shall, unless the
c'ontrary is proved by him to the satisfaction of the Compe-
tent Authority, be deemed to be in occupation of such va-
F cant land in contravention of the provisions of section 3."

Sections 4-A, 4-B and 4-C were inserted into the Act by
the Secand Amendment Act. Those sections read thus :-
•
"4-A. Permi.<Jion jJr renovr:Uion of structures on. u1c'lnt lan.ds
G as a temporary measur8e in certain c-ircumstancr-s.

(I) Notwithastanding anything contained in sections 3
and 4, where any occupier of a structure on a vacant land,
in respect of which penal charges are collected from him
under section 3, or any occupier is by an order made under
H sub-section (I) of section 4 required to vacate any vacant
MAiiARASHTRA v. K.S. DURGULE (Chandrachud, O.J.) 139

land and to remove all property (including any structures) A
therefrom, desires to renovate the structure at his risk and
expense as a temporary measure, he may seek the previous
permission of the Controller of Slums to do so. On receipt
of any application for such permission, if the Controller of
Slums is, after such inquiry as he deems fit to make, satis-
fied that the structure is not fit for human habitation and
B
the proposed renovation is necessary to make it so fit tem-
porarily, he may, subject to such conditions as he may
impose grant the required permission.

(2) Where any structure is renovated in accordance
with the permission granted under sub-section (I), the c
Competent Authority shall not evict the occupier of the
structure so renovated, till such time as the Controller of
Slums may specify :

Provided that if, in the opinion of the Controller of Slums,
occupier has at any time committed a breach of any of the D
conditions subject to which the permission was granted, he
may cancel the permission granted and direct the Compe-
tent Authority to take necessary action against the occupier
under section 4 forthwith for his eviction and forfeiture and
removal of his property.
E
4-B. Recovery ,~f dues of financing institutions, which render
assUJtance for renovation of structures.

(1) Where an occupier of any structure referred to in
section 4A has availed of any financial assistance for renova-
-'
J
tion of the structure from any financing institution recogni-
sed by the State Government in this behalf, the Controller
F

of Slums may, at the request of the financing institution,
collect on behalf of that institution the amount of loan
advanced to the occupier by that institution in such instal-
ments and at such intervals, and remit the amount so
collected to the institution in such manner, as may be G
directed by the State Government.

(2) If any such occupier fails to pay any amount due
to the financing institution on or before the due date, the
Controller of Slums may send to the Collector, a certificate
under his hand indicating therein the amount which is due H
140 SUPREME COURt REPORTS t1985] 2 s.c it

.A 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 bas been served ·with a
B notice by the Controller of slums calling upon him to pay
the amount due by a specified date.

4-0. Powers of Oont1·ol/er of Slums unrkr sections 4A and 4B
exercisable by authori8ed officer also.

c For the purposes of section 4A and section 4B, "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
D 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 imprison-
ment for a period of three years and fine. Section 8 of the Act
provides that no court shall have jurisdiction to entertain any pro-
ceeding, civil or criminal, in respect of the eviction of any person
E from any vacant Ian\! under the Act or in respect of any order made
or action taken by the Competent Authority in the exercise of the
powers conferred by the Act or to grant any stay or injunct10n in
respect of such order or action. This section further provides if any
suit or other proceeding in respect of the eviction of any person
from any vacant land is pending 011 the appointed date in any court,
F it shall abate.

The 'expression "Vacant Land" is defined in section 2 (f) of
the Act. The original definition was replaced by the First Amend-
ment Act after which the section reads as follows :

G
"2 (f)-'vacant land', in relation to any urban area,
means--

(a) all lands in such area, whether agricultural or non·
agricultural, which are vacant and arc not built upon
H on the appointed date ;
MAHARASHTRA v. K.S. DURGULE (Chandrachud,C.J.) 141

(b) all lands in such area on which any structure has been .A
or is being constructed otherwise than in accordance
with any law regulating the construction of such struc-
ture and which the Competent Authority may, from
time to time, by an order in writing, specify and dec-
lare to be vacant lands by announcing by beat of drum
or other iuitable means on or in the vicinity of such
lands, and the declaration so made shall be deemed to B
be notice to all those who are occupying such lands
that all such lands shall be vacant lands for the pur-
poses of this Act ;
and includes, in particular, all lands specified in the Sche-
dule to this Act. c
The State Government may, from time to time, by an
order, published in the Official Gazette amend that Schedule
by adding thereto any land or lands specified in that order
or by modifying or transferring any entry in that Schedule.''
D
On December 3, 1971 a Proclamation . of Emergency was
issued by the President of India under Article 352 of the Constitu-
tion on the ground that a grave emergency existed whereby the
·security of India was threatened by external aggression. Another
proclamation of Emergency was issued under the same Article on
June 25, 1975 on the ground that the security of India wa sthrea-
tened by internal disturbance. On June 27, 1975, the President E
issued an order under Article 359 (I) suspending the right to move
any Court for the enforcement of the fundamental rights conferred
by Articles 14, 21, and 22 of the Constitution for the period during
whkh the above two Proclamations of Emergency were in force.
On August 1, 1965, the Constitution (Thirity-eighth Amendment) F
Act, 1977 was passed whereby, clause 1A was inserted in Article 359
with retrospective effect. The ordina.nce 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. G

On January 8, 1975, the President of India .issu~d 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 durin(l which the said two proclamations of emergency H
142 SUPREME COURT REPORTS [1985] 2 S.C.R.

A were in force. The First Amendment Act was passed on ·August
3, 1976 while the Second Amendment Act was passed 011 :fai,iu~rt;J ·
25, 1977. . . <' ,.....
The Proclamation of Internal Emergency was revoked by the
President of India on. March 21, 1977 while the proclamation of
B 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 {i) of Article 19 was omitted from the Constitution and
by section 2(b), consequential amendments were made in clause (5)
of Article 19. By section 8 of the said Act, Article 31 was omitted
c froin the Constitution. By section 34, a new chapter, 'namely,.
Chapter IV, headed "Right to Property'', was inserted in Part XII
of the Constitution, containing Article' 300-A.

As a result of these constitutional provish>ns, the Act would
be void and would cease to have. effect from March 27, 1977 if it
D infringes the fundamental rights conferred by Articles 14 and 19 of
the Constitution. If it infringed Article 31 (I) of the Constitution
on the ground that the provisions of Article 19 (!) (f) were violated,
the Act would be void and would cease to have effect from March
27, 1977. If the State Legislature had no legislative competence to
pass the Act or the Act infringed the provisions of clauses 2 or 3 of
E
Article 31, the Act would be void from its inception. ·Putting it
briefly, the Act or any of its provisions· would be_ void or would
cease to have effect, as the case may be, from diverse dates depen-
ding upo·n the violation of the particular Article or Articles of the
Constitution involved herein. · ·,
F
Since the statutory concept of 'vacant land' ~s defined in. .y
Section 2 (f) of the Act permeates the entire Act anl is, as ii were,
the· quintessence of the Act, respondents concentrated their atten-
tion in the High Court on challenging the vires and legality of that
definition. They succeeded in that challenge for the wighty reasons
G given by the High Court, which we adopt, except with some minor
variations., Indeed, if the draft<man were to gi~e to the framing of
the Act even· a part of the care and concern bestowed upon it by
the High Court, though not at the same length, many an impediment
in upholding the validity of the Act could have been cleared without
much difficulty. If we were to deal again with the manifold chal-
f
ff len~es made to the validity of the Act 1 we will be repeatinll, more
-
MAHARASHTRA v. K.S. DURGULE (Chandra~hud, C.J.) 143

·or< \,ss what the High Court has said. Therefore, we propose to
,· oi~ll uf'°n some of the fundamental objections to which the .Act is
1

open arid: some of the more serious infirmities from which its pro-
visions suffer.

. Coming first to the definition of 'vacant land', Section 2 (f) as
amended retrospectively by the first Amendment Act divides vacant B
' lands into four categories : (I) lands which are in fact vacant, 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 Compe-
tent Authority may specify and declare to be vacant lands by
announcing by beat of drum or other suitable ll1eans ; (3) lands c
specified in ..the Schedule to the Act; and (4) lf!nds · i!lcluded 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 ;1and' in Section
2 (f) of the Act means plots of land with defined boundaries which
are generally recognised· for revenue and survey purpo s'es. Section
D
2(f) (b) requires two conditions to be satisfied in order that a land
can be described as a. vacant land ; Firstly, th er" 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. ·
E
The Act confers upon !lie Competent Authority the discretion
to declare a land as a vacant land without laying down any guide-
lines to control that discretion. The Competent Authority has the
freedom to pick and choose lands on which there are unauthorised
structures and declare some of them as vacant lands and leave other
similarly situated untouched. The second recital in the preamble to F
the Act on which reliance is placed by the State Government as
affording a guideline .to the Competent Authority for making a
declaration that a certain land is a vacant land cannot serve that
purpose. That recital reads thus :

• "AND WHEREAS the number of unauthorised occupants G
on vacant lands in the urban ·areas in the State was rapidly
increasing and was causing grave danger to the public
health and sanitation and peaceful life of inhabi.tants of
such areas."·

The Act does not contain any pro'tision wl11tsoever which is
'
/
144 SUPREME COURT REPORTS [1985] 2 s.c.R. _, '
' I

A directed at ensuring the public health and sanitation or the pea~fgt
life of the inhabitants of the concerned locality. Indeed, no.llti•f,,\'.s
farther removed from the true purpose and object of the Act than
· these considerations. The last item in the Schedule to the Act
includes all public roads and highways in Greater Bombay. These,
surely, cannot be regarded as constituting a grave danger to public
B health, sanitation or peaceful life of the citizens.

The circumstances which led tci the passing of the Act arc.
mentioned in the Statement of Objects and Reasons to the Ordinance
which are as follows ;
c
'•It was found. that the vacant lands in Greater Bombay and
similar other urban areas were rapidly being unauthorisedly
occupied by.squatters and traffickers in lands. The different
laws and various authorities constituted under these laws,
as well as· different procedures laid down by these laws, did
D not permit immediate demolition of unauthorised huts or
prevent the growth of unauthorised structures. The lengthy
procedure laid in the laws also prevented the authorities
from taking immediate 'preventive action. A law which
would simplify the procedure and reduce possibilities of
litigation, and adequately arm the law enforcing authorities
E such as Municipal Officers, Police Officers, Revenue
Officers and other officers of Government Department to
demolish the unauthorised huts· and houses was found im-
mediately necessary. Further, it was also necessary to take
drastic penal action against those who construct unauthori-
sed hutments or colonies of temporary sheds, and traffic in
.F lands and such structures or recover rents by letting out
such structures."

It is clear from this Statement that the evil which was sought
to be remedied 1Jy .the Ordinance, which was later replaced by the
Act, was not danger to public health or sanitation or to the peaceful
G 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 againt the
arbitrary exercise of the discretion conferred up on the Competent
JI Authority to declare a \and as a vacant land. It is true that ab11se of
MAHARASHTRA II. K.S. DUHOULE (Chandrachud, C.J.) 145

power is not to be assumed lightly but, experience belies the expec- A
tation 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,
I
the return filed on behalf of the State Government. The Act does
not prescribe any procedure which the Competent Authority is B
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 natural justice before mak-
ing the statutory declaration. The Authority is not obliged to give
1 notice to anyone and it need not hear any person who is likely to be
affected by the declaration. The State Government, too, is under C
no obligation to follow any set procedure prior to amending the
f
Schedule so as to include new lands therein. The power conferred
by Sections 3(1) and 4(1) of the Act is similarly uncontrolled and
arbitrary. Indeed, the hall-mark of this ill-conceived legislation is;
"No notice and no hearing"'. There can be cases, though their
category ought not be enlarged by Courts, wherein failure to afford D
to hearing before an adverse decision is rendered may not necessarily ;
vitiate that decision. But, in cases like those before us, a hearing :\'
preceding a decison is of the essence of the matter. It is notorious
as the Statement of Objects and Reasons of the Ordinance shows,
that, in Bombay, open lands have been trespassed upon by profes-
sional slumlords who have become a law into themselves. P~rhaps, E
they rise to the occasion by pandering to political needs and pres-
sures but that is beside the point. Massive encroachments on private
properties have led to the virtual deprivation of the title of rightful
owners of these properties. The Act penalises such owner for no
fault of theirs and, that too, without giving them an opportunity to
be heard. The fact that the power to make the requisite declara- F
tion under the Act is vested in officers of the higher echelons makes
• no difference to this position and is not a palliative to the prejudice
which is inherent in the situation.

· The judgment of the High Court cites a glaring instance of the G
arbitrary and undesirable consequences which follow upon orders
which are passed unilaterally, that is, without hearing the parties
affected by these orders. One of the petitioners before the High
Court was the owner of a hotel called Nakesh Punjab Hotel. He
held various licences which authorised him to run the hotel. There
was a dispute between him 11nd the Revenue Authorities as to t~ H
146 SUPREME COURT REPORTS (1985) 2 s.C.R.

A increase in the quantum of assessment, whereupon he ohtained an
interim injunction from the City Civil Court, Bombay. In the mean·
while, the Competent Authority issued a Declaration under Section
2(fl(b) of the Act declaring the plot of land on which the hotel
stood as a vacant land. Within a short time thereafter, the hotel +
was demolished.

B 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 Maharawa Vacant Lands (Prohi·
bition 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 Compe-
tent Authority is required to serve a written notice upon any person
c 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)
D
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 y~ars after the Act was passed.
Besides, the Rules only provide for a notice to be given and objec-
tions to be considered before the passing of an order under
sections 2(f)(b) and 4(1). They do not make a similar provision
E before permission is granted or refused under section 3(1) of the
Act. But, what is of greater importance is that, even the Rules do
not lay down any guidelines for the exercise of the discretion which
is conferred upon the Competent Authority by section 2(f)(b) or
section 4(1) of the Act.

F Section 2(f)(b) suffers from yet another vice in that, it treats
•
all persons alike irrespective of how they are situated in the matter
of their involvement in the construction of unauthorised structures
and their interest therein. Classification requires division into
classes which~are marked by common characteristics. Such division
has to be founded upon a rational basis and it must be directed at
G subserving the purposes of the statute. Section 2(f)(b) and the other
cognate provisions of the Act make no distinction at all between
owners of lands who have themselves constructed unauthorised
structures and those others on whose lands unauthorised structures
have been constructed by trespassers. The latter class of owners
MAHARASHTRA v. K.S. DURGUI.B (Chandracfiud, C.J.) 147
their title to their property have been put by the Act on par with A
trespassers who, taking law into their own hand, defy not merely
private owners but public authorities.
Section 2(f)(b), also, suffers from the infirmity of according
equal treatment to unequals. Take a simple example: A plot of
land may be vacant in the true sense of the term, that is to say, B
wholly unbuilt upon. Another plot of land may have a· small
structure built upon it in accordance with the Municipal rules and
regulations.. The first plot of land attracts drastic provisions of the
Act merely by reason of the fact that nothing has been built upon it
at all, while the second plot of land is entirely outside the scope of
the Act for the reason that some tiny structure is standing thereon. c
Such a classification betrays Jack of rationale.

By the second part of the definition of 'vacant land' in section
2(f) of the Act, vacant land "includes, in particular, all lands speci-
fied in the Sehedule to the Act". The Schedule includes various
'lands' which are built upon, like the B.E.S.T. Depot (Entry 73), D
the Health Centre at Nawabwadi (Entry 75), · the. Pumping Station
at Vallabhbhai Patel Nagar (Entry 82), the School in Mulund
Village (Entry 130) and, last but not the least, all land occupied by
public roads and .highways in Greater Bombay (Entry 1555). 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 E
why certain lands which are under acquisition for the purposes of
the Maharashtra Housing Board and the Bombay Municipal Corpo-
ration have been included iii 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, F
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 G
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 th~ persons affected
by the amendment. This power of amendment of the Schedule is a.
148 SUPREME COURT REPORTS [1985] 2 s.c.R.
A
not even conditioned by the fact that the lands added to the
Schedule must have unauthorised structures standing thereon. The
State Government is free to pick and choose any land and put it in
the Schedule. This kind of conferment of uncanalised discretion is
strawn all over the Act.
B
Thus, each part of the definition of 'vacant land' in section
•
2(f) of the Act is violative of th'e provisions of Articles 14 and
19(1)(f) of the Constitution. Article 19(l)(f) has now lost its
relevance after the passing of the Constitution (Forty-fourth Amend-
ment) Act, 1978 by which clause (f) was deleted. But the Act had
to satisfy the requirements of that clause so long as it was a part of
c the Constitution.

It may be relevant at this stage to consider as to what is the x
ultimate fate of lands which are declared as vacant lands under
section 2(f). Until the Competent Authority passes an order under
section 4(1) calling upon an occupier to vacate a land, even a tres-
D passer or an unauthorised occupier can continue to be in possession
of the land. If he is granted permission to occupy the land under
section 3(1), he cannot be evicted at all, for the simple reason that
the order of eviction under section 4(1) can be passed only if a
person is in occupation of a land contrary to the provisions of
section 3. Even the eviction of a trespasser from the land can
• afford no solace to its rightful owner because, the Act does not
contain any provision-whereby the land can be returned to him
after it is freed from unauthorised occupation. If the owner him-
self has erected an unauthorised structure, the Act does not
provide as to what is to happen to the land after he is evicted
therefrom. •
F
By the provmo to section 3(2) which was inserted by the
First Amendment Act, power is conferred upon the State Govern-
ment or, an authority specified in that behalf, to receive and collect
from the occupiers of vacant lands a reasonable amout by way of
penal charges as may be determined by the State Government Such
G penal charges can be recovered until such time as the structure
erected on the land on contravention of section 3(I) of the Act
is removed. The Statement of Objects and Reasons of the First
Amendment Act shows that the provision for levying penalty was
introduced into the Act in order that occupants of lands on which
there were unauthorised structures and. who are allowed to con-
H tinue in pessession of the structures, do not continue to occupy
MAiiARASHfRA u. K.S. DURGULB (Chandrachud,iC.J.) 149

those lands without payment of any amount at all to public authori- A
ties. It appears that even after forfeiting the structures consequent
upon the passing of an order under section 4(1), the State Govern-
ment has been recovering compensation from unauthorised occu-
pants. 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 B
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 c
, 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
to the Controller of Slums for the requisite permission. The Con-
troller is empowered to grant the permission after making such
inquiry as he deems fit, if he is satisfied that the structure is not fit
for human habitation and the proposed renovation is necessary to D
make the structure temporarily fit. Once such permission is granted
and the structure is renovated, the Competent Authority is powerless
to evict the occupier of the structure until such time as the Control•
!er of Slums may specify. By section 4-B, which was also inserted
by the Second Amendment Act, financial assistance for renovating
structures can be made available by financial institutions recognised E
by the State Government. In cases where such financial assistance
is availed of, the financial institutions can request the Controller of
Slums to collect, on their behalf, the amounts of loans advanced to
the occupiers. The Statement of Objects and Reasons of the Second
Amendment Act shows that the Government had carried out sub-
stantial environment improvements on vacant lands and had
F
sponsored a scheme for building semi-permanent houses thereon.
• They intended to give to the occupants of such structures security of ·
tenure subject only to the condition of regular repayment by them
of the loans given by the financial institutions. The true owner of
lands are totally ignored in this scheme of things, even if they are
victims and not the authors of unauthorised constructions. It was G
not disputed in the High Court, nor before us, that for a period of
more than four years that the Act has been in force, not a single
unauthorised and Torcible occupier of a vacant land owned by a
private person was evicted, nor was a singie plot of land encroache<l
upon restored to its rightful owner,
Bo SUPREME COURT REPORTS (1985 2 s.c.il.

A We are in agreement with the High Court that the Act does
not violate the provisions of Art. 31(1) of the Constitution. It does
not provide for transfer of ownership of vacant lands to the State or
to a corporation owned or controlled by the State ; nor does it vest
in the State the right of the owner or occupier of vacant lands to
recover rent or compensation for use and occupation of snch lands.
B
We are, however, unable to accept the view of the High Court •
that the Act amounts to a measure of requisition and is bad for the-
reason that it provides for requisition without payment of compen-
sation. It is straining the language of the Act to hold that it pro-
vides, directly or indirectly, for requisition of private property. The
c Act does not transfer the right to possession of vacant lands to the f

State, its agents or its instrumentalities. Therefore, the Act does
not offend against the provisions of Article 31(2) of the Constitu-
tion. Since that Article is not attracted, no question can arise of
D the invalidity of the Act on the ground mentioned in Article 31(5),
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.
E
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 (I) (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
F 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
G costs in each -appeal at rupees two thousand.

We would like to point out before we close that the object of
the state legislature in passio g the Act was unquestionably laudable.
It is unfortunate that the legislation has travelled far beyond that
object. The State Government has failed in these proceedings not
because the legislature Jacks the legislative competence to pass the
a Act mainly because the provisions of ,the .Act are discriminatory.
MAHARASHTRA v. K.S. DURGULE (Chandrachud, C.J.) 151
The Act was paised during the period of Emergency when some of A
the safeguards available under Chapter Ill of the Constitution were
suspended. On the revocation of the Emergency, the Act ought to
have been amended or, better still, a new legislation ought to have
been introduced so as to comply with the provisions of the Constitu-
tion. We trust that, in the light of our judgment and the judgment
i of the High Court, the State Legislature will introduce a carefully
4
conceived legislation on the subject at an early date. The slumlords,
who have trespassed on public and private properties, must be B
evicted and expeditious steps taken to prevent them exploiting any
further the helpless member of the community who are virtually at
their mercy. Not only have these defiant law-breakers constructed
unauthorised structures on private and public properties but, as
stated in the Objects and Reasons of the Act, they have been
collecting extortionate rents from the tenants of such properties.
J Earlier the State Government acts the better . c

M.L.A. Appeals dismissed.

I!