Karnataka High Court
National Textile Corporation (Apkk & M) ... vs Deputy Commissioner on 6 October, 2023
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WP No. 41 of 2014
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO. 41 OF 2014 (GM-SLUM)
BETWEEN:
1. NATIONAL TEXTILE CORPORATION (APKK & M) LTD.,
A GOVERNMENT COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956 AND A SUBSIDIARY OF
NATIONAL TEXTILE CORPORATION LTD., NEW DELHI
HAVING ITS SOUTHERN REGIONAL OFFICE AT
'NTC HOUSE' 35/B, SOMASUNDARAM MILLS ROAD
COIMBATORE
REPRESENTED BY ITS DEPUTY GENERAL
MANAGER(ESTATES)
SRI P. R. KANDASWAMY
AGED ABOUT 59 YEARS,
2. MAHABOOB SHAHI KULBARGA MILLS
Digitally
signed by B (M.S.K MILLS), GULBARGA,
NAGAVENI
A UNIT OF NATIONAL TEXTILE CORPORATION
Location: High
Court Of (APKK & M) LTD., BANGALORE,
Karnataka
REPRESENTED BY ITS DEPUTY MANAGER(HR)
SRI N. NARAYANAPPA.
AGED ABOUT 54 YEARS,
...PETITIONERS
(BY SRI. PRADEEP SAWKAR, ADVOCATE)
AND:
1. DEPUTY COMMISSIONER,
GULBARGA DISTRICT
GULBARGA-585103.
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WP No. 41 of 2014
2. STATE OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560001.
REPRESENTED BY ITS CHIEF SECRETARY
3. KARNATAKA STATE SLUM CLEARANCE BOARD,
NO.55, RISILDHAR ROAD,
OPPOSITE KRISHNA FLOUR MILLS,
SESHADRIPURAM,
BANGALORE-560020.
REPRESENTED BY ITS CHAIRMAN.
4. GULBARGA MAHANAGARA PALIKE,
PLOT NO.50 KANTA COLONY,
GULBARGA-585103.
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SMT. ARCHANA TIWARI, AAG A/W
SRI.GOPALKRISHNA B. YADAV, HCGP FOR R1 & R2;
SRI. K D. BANTANUR, ADVOCATE FOR R3;
SRI.KRUPA SAGAR PATIL, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE NOTIFICATION NO.
GENAKO/OTHERS/1/426/2009-10 DATED 21.10.2011
(ANNEXURE-L) PASSED BY RESPONDENT NO.1: DECLARE THAT
THE RESPONDENTS HAVE NO LEGAL RIGHT TO DEAL WITH THE
SCHEDULE PROPERTY UNDER THE PROVISIONS OF THE
KARNATAKA SLUM AREAS (IMPROVEMENT AND CLEARANCE)
ACT, 1973.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.09.2023, COMING ON FOR
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WP No. 41 of 2014
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT MADE
THE FOLLOWING:
ORDER
In this writ petition, the petitioners are assailing the notification dated 21.10.2011 (Annexure-L) issued by the respondent No.1, interalia sought for declaration that the respondents have no legal right to deal with the Schedule Property under the provisions of Karnataka Slum Areas (Improvement and Clearance) Act, 1973 (hereinafter referred to as 'the Act').
2. Brief facts for adjudication of the writ petition are that, the petitioner No.1 is a Government Company, owning subsidiary by National Textile Corporation Limited. Petitioner No.2 is Textile Mill. It is averred in the writ petition that, the Government of India has nationalized many Textile Mills which were running sick and such sick mills were taken over as -4- NC: 2023:KHC-K:8033 WP No. 41 of 2014 per the provisions under Sick Textiles Undertaking (Nationalization) Act, 1974. These Sick Textiles Undertakings were transferred and under the Control of National Textile Corporation, New Delhi, a Government Company. Pursuant to the formation of National Textile Corporation Limited, a subsidiary of National Textile Corporation Limited suffered loss and accordingly, a reference was made to the BIFR and case has been registered as PSU/C/534/1992 under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (for short hereinafter referred to as 'SICA Act') by order dated 12.01.1993 declaring that, the petitioner No.1-Company is a 'Sick Industrial Company' and as such, after enquiry, by order dated 07.02.2002, the BIFR sanctioned a Revival Scheme for rehabilitation of National Textile Corporation Limited. It is further stated in the writ petition that, after sometime, the scheme sanctioned in respect of the -5- NC: 2023:KHC-K:8033 WP No. 41 of 2014 petitioner No.1, was sought to be modified by the BIFR along with other eight subsidiaries of National Textile Corporation Limited, New Delhi as per Annexure-B. Asset Sale Committee was formed under the Scheme and thereby called for tenders for sale of different portions of land belonging to the petitioners and part of the land and buildings were sold as per Sale Deeds dated 24.07.2004 produced at Annexure- C, D, E, F and G.
3. The petitioners further averred that, the quarters belonging to the Petitioner No.2, was occupied by employees despite issuance of eviction notice and thereby, the petitioners have launched proceedings against such tenants under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in MA Nos.19-21 of 2006 and 23-25 of 2006 before the competent District Court, Gulbarga and these appeals were disposed of by the -6- NC: 2023:KHC-K:8033 WP No. 41 of 2014 District Court vide order dated 23.08.2006 and 27.11.2006. Feeling aggrieved by the same, the tenants/respondents in the aforesaid appeals approached this Court in W.P.No.570 of 2007 and connected matters and this Court by order dated 21.08.2007 dismissed the petitions as per Annexure- H. It is further stated in the writ petition that, the petitioners were served with Preliminary Notification dated 20.01.2011 (Annexure-J) issued by the respondent No.1, stating that 4 acres, 21 guntas of land i.e. scheduled property belonging to the petitioner was proposed to be declared as 'Slum Area' under Section 3(1) of the Act. Thereafter, the petitioners filed a reply dated 01.10.2011, objecting for proposed action by the respondent No.1 as per Annexure-K. It is the grievance of the petitioners that, the respondent No.1 without considering the objection filed by the petitioners, has passed final notification -7- NC: 2023:KHC-K:8033 WP No. 41 of 2014 dated 21.10.2011 (Annexure-L), declaring the land measuring 4 acres, 21 guntas of land including building in Sy.No.18/1-2 of Hirapur village, Kalaburgi as 'Slum Area' under Section 3(1) and 11 of the Act. Feeling aggrieved by the same, the petitioners have presented this writ petition.
4. I have heard Sri Padeep Sawkar, learned counsel appearing for the petitioners; Smt. Archana Tiwari, learned Additional Advocate General appearing along with Sri G.B.Yadav, learned High Court Government Pleader for the respondent-State; Sri K.D. Bantanur, learned counsel appearing for the respondent No.3 and Sri Krupa Sagar Patil, learned counsel appearing for the respondent No.4.
5. Sri Pradeep Sawkar, learned counsel appearing for the petitioners contended that, the impugned notification suffers from infirmity as the respondent-Government has no authority under law to -8- NC: 2023:KHC-K:8033 WP No. 41 of 2014 issue the impugned Final Notification as the Schedule Property was subject matter under Section 22 and 34 of SICA Act, so also after the rehabilitation process initiated by the BIFR, to revive the Textiles Mills, the provisions of SICA Act is Special Act, which over rides the Act and therefore, the impugned notification is liable to be set aside.
6. Nextly, Sri Pradeep Sahukar, submitted that, the petitioners have initiated eviction proceedings against the unlawful tenants in the premises in question and the said proceedings was confirmed by this Court in W.P.No. 570 of 2007 and connected writ petitions and therefore, he contended that, the impugned notification passed by the respondents is liable to be set aside. Learned counsel, further, invited the attention of the Court to Section 3 of the Act, and argued that, the satisfaction arrived at by the respondent-Government under Section 3 of the -9- NC: 2023:KHC-K:8033 WP No. 41 of 2014 Act is contrary to the language employed under Section 3 and accordingly, sought for interference of this Court. He also drew the attention of the Court to Section 11 of the Act and submitted that respondent- Government ought to have issued prior notice to the petitioners before making declaration as per impugned notification and as such, respondent-Government has not followed the principles of natural justice, contained under Section 11 of the Act. Accordingly, he emphasized for quashing the impugned notification by this Court.
7. Lastly, Sri Pradeep Sawkar, learned counsel contended that, before issuing impugned notification, the respondent-authorities must have secured report from the respondent-Board or by any other authority and in the absence of the same, the impugned notification suffers from infirmity. To buttress his arguments, he refers to judgment of the Hon'ble
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 Supreme Court in the case of Maharashtra Tubes Ltd vs. State Industrial & Investment Corporation of Maharashtra Ltd and another reported in (1993) 2 SCC 144 and in the case of M/s. Jain INK Manufacturing Company vs. Life Insurance Corporation of India and another reported in (1980) 4 SCC 435. Accordingly, he sought for interference of this Court.
8. Per contra, Smt Archana Tiwari, learned Additional Advocate General, appearing for the respondent-State sought to justify the impugned notification. It is contended by the learned Additional Advocate General that, the respondent-authorities have issued notification under Section 3 of the Act, on 20.01.2011 (Annexure-R2), based on the report made by the competent authority dated 29/30.06.2009 (Annexure-R1) and further contended that, as the said notification has been issued declaring that, the subject
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 land-Siddarth Nagar as 'Slum Area' and Preliminary Notification was issued on 20.01.2011 as per Annexure-R2. She further contended that as there is no objection filed by any party/person feeling aggrieved by the issuance of the Preliminary Notification, by the Deputy Commissioner, Gulbarga under Section 3(11) of the Act, had issued Final Notification on 21.10.2011 (Annexure-R3) and therefore, she contended that, the petitioners have no legal right to make any claim in respect of the subject matter of the property involved in the writ petition. She further contended that, if the petitioners had title over the property in question, the petitioners would have filed objections to the Preliminary Notification immediately and the objections was filed belatedly after lapse of 8 months, whereas in the Preliminary Notification, 15 days stipulated period was given for filing objections. Therefore, declaration made under
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 Section 3(11) of the Act is just and proper and accordingly, she sought for dismissal of the writ petition.
9. Sri Krupa Sagar, learned counsel appearing for the respondent-Corporation argued that, the General Body Meeting of the Corporation was held on 21.01.2010 and in the said meeting, a Resolution has been passed, declaring the Slum Areas in the city and thereafter, approached the Deputy Commissioner, Gulbarga District for necessary action and therefore, he contended that, the petitioners have no legal right under the Act to challenge the impugned notification. Accordingly, he sought for dismissal of the writ petition.
10. Having heard the learned counsel appearing for the parties, it is not in dispute that, the petitioners have produced the copy of modified Sanction Scheme by the BIFR, according to which, the petitioners'
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 Textile Mill was fallen under the modified scheme as per Annexure-B. The general terms and conditions to revive the petitioners' industry is enumerated therein. It is not in dispute that, the SICA Act is a special enactment, over rides the provisions under the Act. The Hon'ble Supreme Court in the case of M/s.Jain Ink Manufacturing Company (supra), at paragraphs 12 and 13 held as follows:
"12. Lastly, it was argued that apart from the Rent Act, Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as the "Slums Act"), which also would have to be construed as a special Act applying only to such places which are declared to be slums under the Act, would override the provisions of both the Rent Act and the Premises Act. This argument appears to us to be without substance. The Slums Act was passed as far back as 1956 and the Premises Act was subsequent to the Slums Act and would, therefore, prevail over the Slums Act. Relevant portion of Section 19 of the Slums Act may be extracted thus:
"19. (1) Notwithstanding anything contained in any other law for the time being in force, no
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 person shall, except with the previous permission in writing of the competent authority,--
(a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964 any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area;"
13. A perusal of Section 19 of the Slums Act clearly shows that it is in direct conflict with the Premises Act which expressly provides for the forum for evicting persons in unauthorised occupation of premises which fell in Section 2 of the Premises Act. The Premises Act being subsequent to the Slums Act, as amended in 1964, and again being a special Act having a very limited sphere, must necessarily override the Slums Act on the same lines of reasoning as we have indicated in the case of the Rent Act. For these reasons, therefore, the last contention put forward by the counsel for the appellant is also overruled. The High Court had also overruled all these preliminary objections more or less on the same reasons as given by us though not in such details."
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11. It is also useful to refer the judgment in the case of Maharastra Tubes Ltd., (supra), the Hon'ble Supreme Court at paragraphs 6 and 7 held as follows;
"6. On the other hand, the 1985 Act was enacted, as its preamble manifests, with a view to timely detection of sick or potentially sick companies owning industrial undertakings, the identification of the nature of sickness through experts in relevant fields with a view to devising suitable remedial measures through appropriate schemes and their expeditious implementation. Here the emphasis is to prevent sickness and in cases of sick undertakings to prepare schemes for their rehabilitation by providing financial assistance by way of loans, advances or guarantees or by providing reliefs, concessions or sacrifices from Central or State Governments, scheduled banks, etc. The basic idea is to revive sick units, if necessary, by extending further financial assistance after a thorough examination of the units by experts and only when the unit is found to be no more capable of rehabilitation, that the option of winding up may be resorted to. It is for that reason that Section 22(1) provides that during the pendency of (i) an inquiry under Section 16 or (ii) preparation or consideration of a scheme under Section 17 or (iii) an appeal under Section 25, no proceedings for winding up of the concerned industrial company or for execution,
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 distress or the like shall lie or be proceeded with in relation to the properties of that concern unless BIFR/appellate authority has consented thereto. The underlying idea is that every such action should be frozen unless expressly permitted by the specified authority until the investigation for the revival of the industrial undertaking is finally determined. It is thus crystal clear that the main thrust of this special legislation is at revival or rehabilitation of the sick industrial undertaking and it is only when it is realised that the same is not feasible that the option of winding up of the unit can be resorted to.
7. It will be seen from the above discussion that both the 1951 Act and the 1985 Act are special statutes, each having a different objective, the emphasis in the case of the former being on giving of financial assistance to entrepreneurs for setting up industries while in the case of the latter it being to revive or rehabilitate industries which have on account of economic or other related reasons gone sick. No doubt the latter Act also contemplates giving of financial assistance for revival or rehabilitation of a sick industrial undertaking but that is by way of a remedy or as a measure at revival of the sick unit".
12. The Hon'ble Supreme Court in the case of K.S.L.Industries Limited vs. Arihant Threads Limited and Others reported in (2015) 1 SCC 166,
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 wherein, the question before the Hon'ble Supreme Court was with regard to the provisions under SICA Act with that of the provisions under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and at paragraph 53, it is held as follows:
"53. Having answered the reference, we hold that the provisions of SICA, in particular Section 22, shall prevail over the provision for the recovery of debts in the RDDB Act. In these circumstances, as already directed by the two-Judge Bench [KSL and Industries Ltd. v. Arihant Threads Ltd., (2008) 9 SCC 763] of this Court, the judgment and order dated 23-2-2006 [Arihant Threads Ltd. v. Stressed Assets Stabilisation Fund, WPs (C) Nos. 2041-42 of 2006, decided on 23- 2-2006 (Del)] of the High Court of Delhi is set aside. As far as the writ petitions are concerned, whether on the ground that Section 22 of SICA acts as a bar to the recovery proceedings under the RDDB Act or whether the protection of SICA is not available to the appellant Company since the recovery proceedings under the RDDB Act had been concluded, the writ petitions would have to be dismissed and are accordingly dismissed. The present appeal is allowed."
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13. Applying the aforementioned principles to the case on hand, the petitioners' Textile Industry has been declared as sick under the SICA Act, which undoubtedly prevail over the provisions of the Act and therefore, I find force in the arguments advanced by the learned counsel appearing for the petitioners.
14. Nextly, the petitioner-Corporation is a statutory body arising out of the provisions under the Sick Textiles Undertakings (Nationalization) Act, 1974, enacted on 01.04.1974, provides for acquisition and transfer of Sick Textiles Undertakings and right, title and interest of the owners in respect of the Sick Textiles Undertakings specified in the First Schedule and Sl.No.60 of the said Schedule refers to name of the petitioner No.2-Textile Mills. Under these factual aspects on record, Section 3 of the Act, provides definition for 'Declaration for Slum Areas'. Section 3 reads as under:
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3. Declaration of slum areas.- (1) Where the Government is satisfied, that,-
(a) any area is or is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighborhood, by reason of the area being low-lying, insanitary, squalid, over-crowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation are,-
(i) in any respects, unfit for human habitation; or
(ii) by reason of dilapidation, over crowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, detrimental to safety, health or morals, it may, by notification, declare such area to be a slum area.
(2) In determining whether a building is unfit for human habitation, for the purposes of this Act regard shall be had to its condition in respect of the following matters, that is to say,-
(i) repair,
(ii) stability,
(iii) freedom from damp,
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(iv) natural light and air,
(v) water-supply,
(vi) drainage and sanitary conveniences,
(vii) facilities for storage, preparation and cooking of food and for the disposal of waste water, and the building shall be deemed to be unfit as aforesaid, if it is so defective in one or more of the said matters that it is not reasonably suitable for occupation."
15. The language employed under Section 3 of the Act makes it clear that, unless the Government is satisfied, no declaration has to be made as 'Slum Area'. In the present case, respondents have not produced any material to show that, the respondent- authorities have secured material in advance with regard to declaration of property in question as 'Slum Area' and same has to be satisfied with the fulfillment of conditions stipulated in Section 3 of the Act. In that view of the matter, the impugned Final Notification issued by the respondent-Government is liable to be set aside.
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16. Section 11 of the Act, provides for power to declare any Slum Area to be Slum Clearance Area. Section 11 reads as under:
11. Power to declare any slum area to be slum clearance area.- (1) Where the Government, on a report from the Board or the prescribed authority or the local authority concerned or the State Housing Board or an officer authorised by the Government for this purpose is satisfied as respects any slum area that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and the demolition of all the buildings in the area, it may, by notification, declare the area to be a slum clearance area, that is to say, an area to be cleared of all buildings in accordance with the provisions of this Act:
Provided that before issuing such notification the Government shall call upon the owners of the lands and buildings in such slum area to show cause why such declaration should not be made and after considering the cause if any, shown by such owners, it may pass such orders as it may deem fit.
(2) Any part of the slum area or any building in the slum area which is not unfit for human habitation or dangerous or injurious to safety, health or morals
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 may be excluded from the notification under sub- section (1) if the Government considers it necessary. (3) The notification under sub-section (1) shall specify each of the buildings to be demolished and the area to be cleared.
17. Perusal of Section 11(1) Act indicates that, there should be a report from the respondent-Board to the respondent-Government to issue the declaration with respect to 'Slum Area'. The condition precedent for declaration with regard to Slum Area that there must be a report by the Board and in the absence of such report, no declaration could be made by the respondent-Government. That apart, proviso to Section 11(1) of the Act, provides for issuance of show cause notice and to extend fair opportunity of hearing to the owners of the land in question. Though there is specific provisions under the Act, provides for compliance of principles of natural justice, such exercise has not been done in the present proceedings
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 and therefore, following the declaration of law made by this Court, in the case of P.K.Thipperudrappa vs. State of Karnataka reported in ILR 1976, KAR 972 wherein, at paragraphs 4 and 5, it is held as follows:
4. In the case relied on behalf of the petitioner, the Supreme Court was concerned with the Constitutional validity of certain provisions of the Mysore Slum Area (Improvement and Clearance) Act, 1958. The respondents therein had also challenged the legality of certain notifications issued under Sections 3, 9, 12 (1)(a) and (b) of that Act, which had been challenged as unconstitutional had struck down the three notification, upholding the contention relative to absence of opportunity to the affected persons. In doing so, it is enunciated thus:
"Policies and schemes, framed under statutory provisions which affected rights of individuals could impose the obligations upon the authorities taking what were essentially administrative decisions at points at which they begin it impinge on specific individual rights. 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 imposed itself necessarily implied an obligation to hear before deciding
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 that the "audi alterm partem" rule could be imparted. The nature of the hearing would of course, vary according to the nature of the function and what its just and fair exercise require in the context of rights affected.
Again at page 601, "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 clearance area under Section 9 or before taking action under Section 10. All these difficulties will be removed if the affected persons are given an opportunity to be heard in respect of the action proposed"
(Emphasis supplied) Viewed in the light of the above principles, it is clear that the notification impugned herein cannot be sustained.
5. In the result, this petition succeeds and is accordingly, allowed. Consequently, the notification No.HMA 93 MNI 75 dated 15th April 1975 and gazatted on 24th April 1975 (Exhibit A) is hereby quashed in so far as it concerns the petitioner's land. It is needless to point out that it is open to the authority concerned to take further action in accordance with the Slum Act, after providing for a reasonable opportunity to the petitioner to make
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 representation against any such declaration and after considering such a representation on its merits. In the circumstances, the parties will bear their own costs."
18. The dictum of this Court in the case of P.K.Thipperudrappa, supra, categorically makes it clear that, the promulgation under Section 3 of the Act, shall be made only after issuance of notice/show- cause to the aggrieved party. The respondent- authorities have produced the report of the respondent-Board as per Annexure-R1 and the subject matter of the property has been shown as "Sarakari (NTC)". Form No.A annexed to Annexure-R1 stipulates that the property belongs to the petitioners. Even as on the date of preparation of the report by the respondent-Board, it is shown as "Sarakari (NTC)". However, in the report, sent by the respondent-Board, it is shown as Mahanagara Palike and there is no relevant material produced by the respondent- authorities to demonstrate how the respondent-
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 Corporation acquired the property in question and therefore, applying aforesaid principles to the case on hand, as there is no issuance of prior notice to the petitioners herein by the respondent-authorities, I am of the view that, impugned Notification is contrary to Section 3 of the Act as well as the law declared by this Court in case of P.K.Thipperudrappa (supra). It is to be noted that, Section 56 of the Act, provides for consent of occupier/owner of the land in question and in the absence of such material, even on this score also, the impugned Notification requires to be set aside.
19. The Hon'ble Supreme Court in the case of Dhananjaya Reddy vs. State of Karnataka reported in (2001) 4 SCC 9 at paragraph 26 held as follows:
26. Relying upon Nazir Ahmad's case and applying the principles laid down in Taylor v. Taylor, this Court
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 in Singhara Singh's case (supra) held: (AIR p.361, para 8) "The rule adopted in Taylor v. Taylor] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S.164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confession made to him."
20. Applying the principle made by the Hon'ble Supreme Court that where law requires a thing to be
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 done in a certain manner, it has to be done in that manner only. In the instant case, though Section 3 of the Act, stipulates issuance of notice to the owners of the land in question, the such thing has not been followed by the respondent-authorities before issuing the Preliminary Notification and on this score alone writ petition deserves to be allowed.
21. Having noticed the fact that, the impugned notification has been issued by the respondent- authorities without affording opportunity of hearing to the petitioners as well as taking decision to declare the property in question as 'Slum Area' is contrary to Section 3 and 11 of the Act vis-à-vis not providing opportunity of hearing to the petitioners amounts to colourable exercise of power and manifesting, amounts to arbitrary act, on the part of the respondent-authorities in view of declaration made by the Hon'ble Supreme Court in the case of Tata
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 Cellular Vs. Union of India reported in (1994) 6 SCC 651. Therefore, I am of the view that, impugned notification requires to be interfered with under Article 226 of Constitution of India.
22. For the foregoing reasons, the impugned Final Notification passed by the respondent- Government dated 21.10.2011 (Annexure-L) is contrary to the provisions of SICA Act, and Section 3 and 11 of the Act. In that view of the matter, the writ petition deserves to be allowed. In the result, I pass the following:
ORDER
i) Writ Petition is allowed;
ii) Notification dated 21.10.2011 (Annexure-L) issued by the respondent No.1 is set aside and the respondent No.1 has no authority under law to issue such declaration in contravention
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NC: 2023:KHC-K:8033 WP No. 41 of 2014 of provisions of the Act and observations made hereinabove.
Sd/-
JUDGE SB