IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5101 of 2000 Between: ..... PETITIONER AND .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner:MR.S.SRINIVAS REDDY Counsel for the Respondent No.: . The Court made the following: Form-NIC-OGS/WP{ } THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION No.5101 of 2000 O R D E R: The petitioners question the Notification No.469, dated 19.11.1999 issued under Sec.3(1) of the Andhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956 (hereinafter referred to as ‘the Act’) declaring the area called Nazeer Bagh Slum (Kachiguda ‘X’ Roads), Ward No.3, Block No.5, MCH Circle No.III, wherein 70 families are residing, as a slum area, and also question the Notification No.528, dated 29.12.1999, deciding to acquire the said disputed slum area under Sec.3(2) of the Act, as illegal and arbitrary, violative of principles of natural justice, apart from being violative of fundamental rights guaranteed to the petitioners under Article-14 of the Constitution of India, by issuing a Writ of Certiorari, quashing of the said notifications. 2. It is the case of the petitioners that the petitioners are the owners and possessors of premises bearing Door Nos.3-5-1138/8 to 72 in Ward No.3, Block No.5, MCH Circle No.III, near Kachigua ‘X’ Roads, Hyderabad, the total extent of the area is 1209 sq.yards, having purchased the same through registered sale deeds dated 08.01.1954 and 23.02.1962. The 2nd petitioner is the wife of the 1st petitioner. Petitioner Nos.3 and 4 are the daughters of the 1st petitioner. 3. It is stated that the 1st petitioner was executing works for R & B Department and used to engage the labourers and with a view to accommodate them, he constructed single room pucca tenement during 1958 to 1962 to provide shelter to the said labourers. Most of the labourers were agriculturists and they used to vacate the tenements during agricultural season and with passage of time most of the tenants became permanent residents and have been paying rents to the petitioners. While so, a local rowdy sheeter instigated the tenants not to pay rents to the petitioners, as a result, the 1st petitioner filed eviction petitions against the tenants in the year 1976. Some of tenants vacated the premises pursuant to eviction orders and some of tenants have refused to pay the rents or vacated the premises, therefore, the 1st petitioner filed rent control cases on the file of the Principal Rent Controller, City Civil Court, Hyderabad seeking their eviction. 4. It is stated that out of 1209 sq.yards, the 1st petitioner owns 425 sq.yards, his wife-2nd petitioner owns 651.6 sq.yards and an extent of 72.5 sq.yards and 60 sq.yards respectively was gifted to petitioner Nos.3 and 4 vide registered gift deeds dated 14.08.1986 and 27.05.1985. At the instance of the tenants as well as the local rowdy sheeter Mr.T.Gyaneswar to declare the said area as slum area, the 1st respondent issued a Notification No.175, dated 21.06.1990 under Sec.3(1) of the Act, declaring an extent of 989.07 sq.yards as slum area. Out of the total area of 1209 sq.yards, the 1st petitioner constructed a permanent residence for himself in an extent of 230 sq.yards. Since the building constructed by the 1st petitioner is not sufficient to accommodate his sons, daughters and family members, they are residing in rented premises. 5. It is stated that pursuant to the earlier notification issued under Sec.3(1) of the Act, proceedings were initiated to acquire the said land under Sec.3(2) of the Act and when a show cause was issued, the petitioners submitted their explanation in 1991, stating that the petitioners are the absolute owners and the said notification under Sec.3(1) of the Act and the proposal to acquire the said land under Sec.3(2) of the Act are without any enquiry or without any personal inspection, and therefore, the legal requirements to declare the said area as a slum do not exist and therefore, the earlier notification published in A.P.Gazette No.172, dated 31.03.1992 under Sec.3(2) of the Act as well as the notification issued under Sec.3(1) of the Act were questioned by the petitioners in W.P.No.5864 of 1992 on various grounds and the said writ petition was allowed on 22.09.1999, setting aside both the notifications. After disposal of the said writ petition, the present impugned notifications under Sec.3(1) and (2) were issued, without any application of mind and against the observations of this Court made in WP.No.5864 of 1992. 6. It is further stated that the 1st respondent issued show cause notice dated 03.12.1999 under Sec.3(2) of the Act, received by the petitioners on 09.12.1999, calling upon the petitioners to submit their explanation within 15 days as to why the land in question shall not be acquired. It is stated that as their counsel was not available, the petitioners sought four weeks time to file their explanation, vide their letters dated 23.12.1999 and 24.12.1999. It is stated that the 1st and 2nd petitioners filed their explanation on 04.02.2000 and 3rd and 4th petitioners filed their explanation on 08.02.2000. But without considering their request to grant of 4 weeks time for filing their explanation/objections, the notification under Sec.3(2) of the Act, dated 29.12.1999 was issued. It is the case of the petitioners that there was no enquiry and no legal requirements to declare the area in question as a slum area, and therefore, both the notifications are illegal and unsustainable. 7. The respondents filed counter stating that they have followed the relevant procedure in issuing the impugned notifications and there is no violation of principles of natural justice or violation of fundamental rights guaranteed to the petitioners. The respondents are not aware about the so called history of the litigation between the petitioners and the so called tenants/occupiers as to how they came into possession of the said land. The Government issued orders in G.O.Ms.No.213 MA dated 28.04.1986 Housing Municipal Administration & Urban Development (N-II) Department, reconstituting the Officers Committee to review the position of the existing slums and for recommending new areas to be included as slums, and the said committee inspected various slums including the slum in question and listed out 207 slums and the slum in question i.e. Nazeer Bagh Slum was shown at Sl.No.37 in the said list. The total slum area is 1176 sq.yards and there are 67 families. 8. It is stated that as the earlier notifications issued under Sec.3(1) and (2) were set aside, keeping it open for the respondents to proceed further in accordance with law, the respondents proceeded further and conducted an enquiry and thereafter alone, the present notification under Sec.3(1) was published in A.P.Gazette No.469, dated 19.11.1999. It is stated that after disposal of the said W.P.No.5864 of 1992 on 22.09.1999, two additional commissioners, i.e. Additional Commissioner (Works and Planning) and Additional Commissioner (UCD) were deputed to inspect the site and to submit a report. Based on their inspection and report only, the area in question was declared as a slum. It is stated that slum dwellers are residing in 810.02 sq.yards out of 1209 sq.yards, and the petitioners are residing in an area of 180 sq.yards and the remaining is covered with small roomed tenements with 3 ft. width land, which is in occupation of slum dwellers. Though the area in occupation of slum dwellers is not in low lying area and also not squalid, but it is very much congested and insanitary and about 70 families consisting of 350 members with only two latrines are residing without any proper drainage facility. Even the drainage pipeline is broken at one place and foul smell emanates causing health hazard to the inmates of the slum as well as neighbourhood. After examining the report of the two additional commissioners alone, the 1st respondent being satisfied, issued the first impugned notification dated 19.11.1999 under Sec.3(1) of the Act and thereafter issued second impugned notification dated 29.12.1999 under Sec.3(2) of the Act after affording reasonable opportunity. It is stated that as there is no violation of principles of natural justice and non-application of mind in issuing the impugned notifications. 9. It is stated that in fact a show cause notice dated 03.12.1999 asking the petitioners to submit their objections, if any, as to the classification of the land proposing to acquire, was issued calling upon to submit explanation within 15 days which was served on 08.12.1999 on the petitioners, but no explanation/objections were submitted and hence the notification under Sec.3(2) of the Act was published in A.P.Gazette No.528, dated 29.12.1999. It is stated that petitioners have only sent their applications on 23.12.1999 and 24.12.1999 requesting four weeks time to submit their objections on the ground that their advocate is out of station. It is stated that no explanation/objections were submitted before the issuance of the notification dated 29.12.1999. 10. Heard the learned counsel appearing for the petitioners as well as the learned counsel appearing for the respondents and considered the material available on record. 11. The learned counsel appearing for the petitioners submits that as per the earlier judgment of this Court in W.P.5864 of 1992, dated 22.09.1999, the respondents did not conduct any enquiry for declaring the area in question as a slum under Sec.3(1) of the Act and there is no material whatsoever available before them to satisfy that the area in question is source of danger to public health, safety, convenience of its neighbourhood by reason of the area being low lying, insanitary, squalid or otherwise for issuance of said notification under Sec.3(1) of the Act. In so far as the notification under Sec.3(2) of the Act is concerned, it is contended that even according to the counter, the show cause notice dated 03.12.1999 was served on the petitioners on 08.12.1999 and 15 days expires only by 23.12.1999, but whereas the Commissioner has taken a decision on 22.12.1999 itself deciding to acquire the said land and declared the area as slum area which was published on 29.12.1999. It is stated that in the notification No.528, dated 29.12.1999, underneath the schedule, the signature of the Commissioner and place were mentioned and the date was mentioned as 22.12.1999, and therefore, the notification issued under Sec.3(2) of the Act is without giving any opportunity of 15 days clear notice. 12. It is further stated that there are cases between the landlord and the tenants and the issuance of notifications under Sec.3(1) and (2) are nothing, but depriving the petitioners’ fundamental rights to enjoy their property. 13. The relevant Sec.3 of the Act is extracted hereunder for the sake of convenience: Sec.3: Power to acquire land: (1) Where the Government are satisfied that any area is or may be a source of danger to the public health, safety or convenience of its neighbourhood by the reason of the area being low lying, insanitary, squalid or otherwise, they may, by notification in the Andhra Pradesh Gazette declare such area to be a slum area; (2) Where the Government are satisfied that it is necessary to acquire any land in a slum area for the purpose of clearing or improving the area they may acquire the land by publishing in the Andhra Pradesh Gazette a notice to the effect that they have decided to acquire it in pursuance of this Section; Provided that, before publishing such notice the Government shall call upon the owner of, or any other person who, in the opinion of the Government, is interested in such land to show cause why it should not be acquired, and after considering the cause if any shown by any person interested in the land, the Government may pass such orders as they deem fit. Explanation:- Cause shown by the person interested in the land may be against the declaration of the area as a slum area under sub-section (1) as well against the necessity to acquire the land for purposes of clearing or improving the area. (3) Where a notice as aforesaid is published in Andhra Pradesh Gazette, the land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Government free from all encumbrances. (4) The Government may, by order authorize any authority or officer subordinate to them to exercise all or any of the powers conferred and perform all or any of the duties imposed on them by this section, subject to such conditions and restrictions as may be specified in the order. 14. It is not in dispute that the petitioners earlier filed W.P.5864 of 1992 questioning the notifications issued under Sec.3(1) and 3(2) of the Act in respect of the same property in question, and this Court held that the Commissioner is entitled to look into such material as he may wish to do so in reaching the proper conclusion as to the desirability of issuing the notification declaring an area to be a slum area, and the Commissioner is not precluded from looking into the report of the Officers Committee but the records in this case does not show that the Commissioner relied upon any material whatsoever before deciding as to the desirability of declaring the land in question to be a slum area. The satisfaction may be subjective satisfaction, but such satisfaction can be arrived at only on the material available on record. As there was no material before the Commissioner to issue notifications under Sec.3(1) and the Commissioner did not file any affidavit explaining the circumstances suggesting as to how the satisfaction has been arrived at, and the record does not disclose the availability of any material whatsoever before the Commissioner as on the date when the notification under Sec.3(1) was approved by him in 1999, the notification issued under Sec.3(1) was set aside, and consequently, the notice issued under Sec.3(2) was also set aside, keeping it open for the respondents to proceed further in the matter, in accordance with law, if the area in question continues to be a source of danger to public health, safety, convenience of neighbourhood for the reason that it is low lying, insanitary, squalid or otherwise. It is also observed that any such notifications require to be made, must be on the objective assessment on the material available on record. 15. The Division Bench of this Court in the case of Dr.Shyam Sunder Prasad vs. Commissioner, M.C.H.[1] after noticing the facts that there are permanent and semi-permanent structures available on the property belonging to the landlord and the tenants in occupation of the same are the lessees and paying the rents, held that there is not even a whisper that the area in which a large complex is there, is either low lying, insanitary or squalid. There was material to show that the area is developed and further developments are proposed by expanding the hospital and the allied units by vacating the tenants and on the instance of the tenants, the trade unions exerted influence on the Government and the Municipal Corporation of Hyderabad and got initiated the untenable proceedings under the Act. It is stated that there was no dispute with regard to landlord and tenant relations, therefore, such members are outside the purview of the Act. Basing on the facts of the said case, as there was no material or exigencies to declare the area as a slum, the notification was held to be illegal, and accordingly, set aside. 16. The facts of the above case are distinct and do not apply to the facts on hand, as in the said case there was no dispute with regard to relationship of landlord and tenant and the landlords have developed the property and for expansion only, the tenants are sought to be evicted and therefore, it was held that there is no material satisfying the Commissioner that the area was source of danger to the public health, safety or convenience of neighbourhood by the reason of the area is being low lying, insanitary, squalid or otherwise. 17. The learned counsel appearing for the petitioner submits that some eviction petitions were ordered, against which the tenants filed rent appeals and the rent appeals were allowed, and civil revision petitions filed by the landlord were dismissed, and against which Special Leave Petitions are said to have been filed and are pending. I am of the opinion that in the absence of impleadment of the so called tenants and in the absence of any material particulars furnished in the writ petition with regard to the admitted/proved relationship of landlord and tenants, it may not be just and proper to consider the said contention as to whether there exists relationship of landlord and tenant. Even according to the petitioner, the eviction orders are set aside by the appellate Court, which are confirmed by the High Court. Therefore, it cannot be said that there exists any landlord and tenant relationship as on date unless the Supreme Court reverses the judgments in civil revision petitions. Therefore, the afore said judgment of the Division Bench of this Court has no application to the facts of the case on hand. 18. The only question that arise for consideration in the present matter is whether there exist any material for the satisfaction of the Commissioner that the area in question is or may be source of danger to the public health, safety or convenience to its neighbourhood by reason of area being low lying, insanitary, squalid or otherwise for the issuance of such a notification declaring the area in question to be a slum under Sec.3(1) of the Act. 19. If the area is a source of danger to the public health, safety and convenience of its neighbourhood by reason of the area being low lying, it can be declared as slum area and the reason for insanitary also it can be declared as slum area. Therefore, the reasons for declaring the said area for the satisfaction of the authority that the area is or may be a source of danger to the public health, safety or convenience to the neighbourhood must be a reason of anyone of the following viz. that the area being low lying, the area being insanitary, the area being squalid or otherwise. In the instance case, it is the case of the respondents that the area being insanitary and the same has become the source of danger to the public health, safety or convenience to its neighbourhood. 20. The records that are reflected in the counter go to show that in the area of 810.02 sq.yards, 70 families are residing with total population of 350 members. Though the area is not in low lying, but it is stated that the area is very much congested and insanitary. There are about 70 families with 350 members are residing in a congested area with two latrines, and even the drainage pipeline is broken and foul smell is emanating causing health hazardous to the inmates of the slum as well as the neighbourhood. Two Additional Commissioners were appointed to conduct an enquiry and they have inspected the place on 01.11.1999 and submitted a report. Based on the report alone, the Commissioner came to the conclusion and issued the notification under Sec.3(1) of the Act. 21. I have perused the joint inspection report dated 01.11.1999 inspected by the two Additional Commissioners USD M.C.H and W&P, M.C.H along with the Director, M.C.H. A perusal of the said report goes to show that after disposal of the W.P.5864 of 1992, the Commissioner directed them to inspect the site and submit a report. The slum dwellers residing there are about 70 families and they are living in small quarters constructed long back without having sufficient civil amenities like drinking water, sewerage line and drainage facilities and living in very congested bye-lanes. Due to lack of proper accommodation and drainage facilities, foul smell is being exposed causing severe health hazard and becoming a source of danger to the inmates of the slum and also to the neighbourhood. The area is very much congested with very narrow lanes of about 3 ft. width with 70 families consisting total population 350 members, and for all the 70 families there are only two latrines without proper drainage facility and even the drainage pipe is broken and foul small is being exposed causing health hazardous to the inmates of the slum as well as neighbourhood. It is stated that unless the area is developed, their life will become miserable and therefore, they have recommended that if the Commissioner satisfies, a notification under Sec.3(1) may be issued so as to enable the respondents to provide basic amenities to the families living in the area. Based on the said report, the Commissioner issued the notification under Sec.3(1) of the Act. 22. In so far as the notification under Sec.3(2) is concerned, admittedly, show cause notice under Sec.3(2) dated 03.12.1999 in Form-III was issued by the Commissioner calling upon the petitioners to submit their explanation within 15 days as to why the said land shall not be acquired and the same was served on 08.12.1999 as is evident from the acknowledgments. The 15 days period expires by 23.12.1999. After waiting 15 clear days alone, a letter dated 24.12.1999 was addressed to the Secretary to Government, requesting him to arrange to forward the notification to the Commissioner, Printing Press, A.P.Hyderabad so as to enable him to publish the notification under Sec.3(2) of the Act. Merely because the proceedings contained the date 22.12.1999 for issuing the notification, admittedly, the notification was published on 29.12.1999 pursuant to the letter dated 24.12.1999 alone. However, till 29.12.1999, admittedly no explanation was submitted except making representation on 23rd and 24th December requesting four weeks time to submit explanation. 23. Under Sec.3(2) of the Act, there is no requirement to communicate the decision rejecting the request of the petitioner in granting four weeks time to submit explanation. The legal requirement is to issue a show cause notice, proposing to acquire the slum area and in the instant case 15 days notice has been issued and the notice dated 03.12.1999 was served on 08.12.1999 and 15 days expired by 23.12.1999 itself, but, however, till the issuance of the notification, there was no any explanation, therefore, it cannot be said that the notification under Sec.3(2) of the Act is illegal and arbitrary. 24. The Full Bench of this Court in the case of P.Apparao v. State (F.B)[2] upheld the constitution validity of the Act holding that: …….“It was then argued that the notifications declaring the respective areas as slum areas is an abuse of power and therefore bad. The contention has very little substance. It is true that it is common to empower administrative authorities like the Govt. to follow a given course of action when they were ‘satisfied’ that a prescribed state of affairs existed. Section 3 is worded on the same lines conferring on the Government what is called an exercise of discretion based on a subjective formula. At one time, the Courts were usually inclined to interpret such grant of power literally and in general refused to go behind the assertion of the competent authority that it was in fact honestly satisfied as to the existence of the conditions precedent to the exercise of the powers. The balance now has definitely shifted and the Courts now are less ready to accept the conclusiveness of the Government’s opinion on a question of law or fact. The task of the Court becomes easier if the statute grants power in subjective terms by reference to certain definite standards. The crucial question, however, always has been as to in what circumstances and to what extent will the High Court review the merits of the exercise of a statutory discretion, particularly when it is couched in subjective formula. One thing, however, is clear that