judgement:
Appeal No. 153 of 1955.
Appeal by Special Leave from the judgment and decree dated August 30, 1954, of the Allahabad High Court in Civil Revision Application No. 540 of 1951, arising out of the judgment and decree dated March 31, 1951, of the Court of the Additional Civil Judge, Mathura, in Suit No. 19 of 1950.
G. C. Mathur, for the appellants.
C. B. Aggarwala and Ganpat Rai, for the respondent.
December 5.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave against the decision of the High Court of Judicature at Allahabad passed in revision under section 115 of the Code of Civil Procedure.
The landlord who was the plaintiff in the trial court is the appellant before us and the tenant who was the defendant is the respondent.
The facts of this appeal are that in 1938 the respondent took on rent the accommodation in dispute which is termed a ' tal ' on a monthly agreed rent of Rs. 21 4 as.
and was using the same for the purpose of stacking timber.
A portion of it was a covered godown which had three walls and a kucha roof.
On January 28, 1950, the appellant made an application to the House Allotment Officer under section 3 A of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U. P. III of 1947) (hereinafter termed the Act) for the fixation of " reasonable annual rent " of the accommodation in dispute.
He therein alleged that in January 1949 he had " constructed anew " a big godown 80 x 25 x 11 feet according to the instructions of the respondent and expended a fairly large sum of money on it and was therefore entitled to a monthly rent of Rs. 165.
The House Allotment Officer fixed on February 18, 1950, the rent at Rs. 35 736 per mensem which on review was raised on May 25, 1950, to Rs. 40 per mensem.
He held that the accommodation was not a newly constructed accommodation as the respondent had been a tenant from 1938.
He determined the increase of rent on the basis of the building that was added by the new construction.
He also held that: " The cost of land, the floor area of godown and rent of other similar premises would be irrelevant as all of these existed before new construction and were included in rent before new construction ".
The appellant thereupon instituted a suit on the ground of inadequacy of the reasonable annual rent under section 5(4) of the Act alleging that he had constructed the portion of the accommodation " anew " and put up ferro concrete roof 80 x 25 feet and that the construction was undertaken at the request of the respondent who had agreed to pay enhanced rent but had refused to do so; that although the House Allotment officer, Mathura, had fixed the rent of the accommodation at Rs. 35 which wag subsequently raised to Rs. 40 per mensem, the proper rent should not be less than Rs. 115 per mensem and therefore prayed for the enhancement of " reasonable annual rent ".
The defence was that there was no construction at the request of the respondent but it had been undertaken in order to put up another storey on the top of the old building; that as far as the accommodation in possession of the respondent was concerned there was no new construction of accommodation after June 30, 1946; that the ferro concrete roof had in no way benefited him, on the other hand the space at his disposal had diminished because of the number of pillars constructed and the lowering of the roof.
He also pleaded that the suit was not maintainable under the Act and that no suit could be filed " after the order of the House Allotment Officer ".
The relevant issues raised were : (1)" Whether the suit is not maintainable in view of any provisions of the Act No. 3 of 1947 ? (2)Whether the suit after the fixation of rent by the House Allotment Officer is not maintainable ? 737 (5) What should be the reasonable and proper rent of the accommodation in suit ? " The learned Additional Civil Judge found that the suit was not barred because of the Act; that the suit against the order of the House Allotment Officer was maintainable; that newly constructed accommodation on the whole was bigger and more spacious than the old kacha hall and that the accommodation had increased and after taking into consideration the amount spent on the construction be increased the " reasonable adequate rent " to Rs. 55 8 0.
Against this decree of the learned Judge the respondent took a revision to the High Court under section 115 of the Code of Civil Procedure.
The High Court was of the opinion that if the accommodation was a new construction erected after June 30, 1946, the suit was maintainable and the High Court could not interfere with the finding of the Civil Judge as to the amount of rent.
If on the other hand, the construction was an old one, the suit did not lie and the agreed rent would continue to be payable.
It also held that the construction on the upper storey was a new construction but as far as the accommodation in the occupation of the respondent was concerned the construction could not be called new construction and therefore B. 3 A was not applicable and as no suit lay at the instance of the landlord to have the agreed rent enhanced, the tenant was only liable to pay the agreed rent and no more.
The revision petition was therefore allowed and the suit of the appellant was dismissed.
The main controversy raised between the parties was whether the High Court could, in revision under section 115 of the Code of Civil Procedure, interfere with this decision of the trial court.
The respective contentions were these: The appellant contended that it was within the jurisdiction of the Additional Civil Judge to decide the question of the date of construction of the accommodation and in doing so he could decide rightly or wrongly as the matter was within his 93 738 jurisdiction and therefore the High Court had no power to interfere merely because in its opinion the decision was erroneous.
In other words, this question was merely one of the facts in issue between the parties unconnected with jurisdiction.
He also contended that the House Allotment Officer having decided in his favour the question of the date of construction which section 3 A of the Act authorises him to decide, his right to bring the suit was established and therefore the High Court could not in revision under section 115, Code of Civil Procedure, go into the correctness of that decision.
The respondent 's counsel on the other hand submitted that the decision of the court as to the date of construction was in this case a jurisdictional fact i.e. a fact which went to the root of the jurisdiction of the court because unless the accommodation was held to have been a new construction made after June 30, 1946, the appellant would be bound by the agreed rent and would have no right of suit under section 5(4) and the court would have no jurisdiction to entertain the suit.
In order to decide the question at issue, it is necessary at this stage to refer to the scheme of the Act.
The object of the Act was to control letting and the rents of residential and nonresidential accommodations.
"Accommodation" was defined in section 2(a) as follows: 2.(a) "accommodation means residential and non residential accommodation in any building or part of the building and includes. . . . " Reasonable annnal rent " is defined in section 2(f): 2.(f) " Reasonable annual rent in the case of accommodation constructed before July 1, 1946, means (1)if it is separately assessed to municipal assessment, its municipal assessment plus 25 per cent thereon ; (2)if it is a part only of the accommodation so assessed, the proportionate amount of the municipal assessment of such accommodation plus 25 per cent.
thereon ; (3) if it is not assessed to municipal assessment 739 (i)but was held by a tenant on rent between April 1, 1942, and June 30, 1946, fifteen times the rent for the one month nearest to and after April 1, 1942, and (ii)if it was not so held on rent, the amount determined under section 3 A and in the case of accommodation constructed on or after July 1, 1946, means the rent determined in accordance with section 3 A ".
As to how reasonable annual rent of a building was to be determined was provided for in section 3 A: S.3 A " (1) In the case of any accommodation constructed after June 30, 1946, or falling under subclause (ii) of clause (3) of sub _ section (f) of section 2, the District Magistrate may, on the application of the land lord or the tenant, determine the reasonable annual rent thereof.
(2)In determining the reasonable annual rent under sub section (1) the District Magistrate shall take into account (a)if the accommodation was constructed after June 30, 1946, the cost of construction and of maintenance and repairs of the accommodation, its situation and any other matter, which in the opinion of the District Magistrate, is material and (b) if it is accommodation (i) falling under clause (2) or sub clause (1) of clause (3) of sub section (f) of section 2, the principles therein ,set forth, and (ii)falling under sub clause(1) of clause (3) of subsection (f) aforesaid, the principles set forth in clause (a) of sub section (1) of section 6.
(3)Subject to the result of any suit filed under sub section (4) of section 5, the rent fixed by the District Magistrate under this section shall be the annual reasonable rent of the accommodation." " Agreed rent " was defined in section 5(1) of the Act to be. . . . the rent payable for any ac commodation to which this Act applies shall be such as may be agreed upon between the landlord and the tenant.
" Section 5(4) of the Act provided: 740 " If the landlord or the tenant, as the case may be, claims that the annual reasonable rent of any accommodation to which the Act applies is inadequate or excessive, or if the tenant claims that the agreed rent is higher than the annual reasonable rent, he may institute a suit for fixation of rent in the Court of the Munsif having territorial jurisdiction, if the annual rent claimed or payable is Rs. 500 or less, and in the Court of the Civil Judge having territorial jurisdiction if it exceeds Rs. 500, provided that the Court shall not vary the agreed rent unless it is satisfied that the transaction was unfair, and in the case of lease for a fixed term made before April 1, 1942, that the term has expired ".
Section 6 provided for the procedure as follows (1) " In determining the amount of annual or monthly rent in any suit under section 5 the court shall take into account (a)in the case of accommodation constructed before July 1, 1946, the pre war rent, the reasonable annual or monthly rent, the prevailing rent on the date of the suit for similar accommodation in the locality, the cost of maintenance and repairs of such accommodation and any material circumstances proved by the plaintiff or the defendant, (b)in the case of accommodation constructed on or after July 1, 1946, the cost of construction and of maintenance and repairs of accommodation, its situation and any other circumstance which the court may consider material.
(2)No appeal shall lie from any decree or order of the Munsiff or the Civil Judge in a suit brought under sub section (4) of section 5: Provided that (except as regards the rate of rent but no further) the decree or order so passed shall not operate as res judicata between the parties or their representatives in interest in any suit or proceedings under any other law It is not necessary to refer to other sections of the Act.
The Act therefore in the preamble sets out the objects of the Act.
In section 2(a) it defined the meaning of 741 the word accommodation ' to mean residential and non residential accommodation in any building or part of the building and in section 2(f) it laid down in three parts what the reasonable annual rent was, one part dealing with accommodation constructed before July 1, 1946, and assessed to municipal assessment, the second part with accommodation so constructed and not assessed to municipal assessment but held by a tenant between April 1, 1942, and June 30, 1946, and the third part with accommodation constructed on or after July 1, 1946, and these last two were to be determined in accordance with the provisions of section 3 A which empowered the District Magistrate to do so.
Sub section (1) of this section gave power to the District Magistrate to determine the reasonable annual rent in the case of accommodation constructed after June 30, 1946, or falling under cl.
(ii) of sub section
3 of section 2 (f) i.e. if it was not assessed to municipal assessment though constructed before July 1, 1946, and was not held by a tenant between April 1, 1942, and June 30,1946.
Subsection 2 of section 3 A laid down the factors to be taken into consideration in determining the reasonable annual rent and under sub section 3 the rent so fixed was to be the annual reasonable rent of the accommodation but this was subject to the result of a suit filed under section 5(4).
Therefore under section 3 A the District Magistrate was entitled to determine the amount of reasonable annual rent when either of the two facts on which his power depended was shown to exist i.e. (1) the accommodation was constructed after June 30, 1946, or (2) although it existed previously it was not assessed to municipal assessment and had not been held by a tenant on rent between April 1, 1942, and June 30, 1946.
The District Magistrate 's power to determine the rent under section 3 A therefore was not confined to accommodation constructed after June 30,1946, alone.
The rent determined by the District Magistrate under section 3 A was the reasonable annual rent under the Act subject to the result of any suit filed under sub section
(4) of section 5.
A wrong decision by the District Magistrate under section 3 A or an order made by him in excess of his 742 powers under that section could be rectified by a suit under section 5(4).
This provision of the Act i.e. section 5(4) provided for three classes of suits, one by a landlord that the reasonable annual rent was inadequate and (2) by the tenant that the annual rent was excessive and (3) also by the tenant that the agreed rent was higher than the reasonable annual rent.
Hence under this section the appellant landlord 's right of suit was restricted to challenging the inadequacy of the reasonable annual rent but he could not sue for varying the agreed rent.
The appellant in the present case brought his suit on the around of inadequacy of the reasonable rent as determined under section 3 A and consequently its maintainability depended on the determination of the jurisdictional fact i. e. date of its construction, whether it was before or after June 30, 1946, on the decision of which would depend his right to bring the suit; because if there was no new construction, the agreed rent would be operative and the appellant would have no right of suit under section 5(4) of the Act.
Consequently, by wrongly deciding this question the court would be entertaining a suit by the landlord for enhancement of the agreed rent and thereby assuming jurisdiction it did not possess and the landlord would be circumventing the restriction on his right to sue for enhancement of agreed rent which the law did not allow.
As the issues raised show the learned Additional Civil Judge was alive to the fact that the maintainability of the suit depended on the determination of this question.
The appellant had specifically alleged that the accommodation had been constructed after June 30, 1946, a fact which was denied by the respondent.
That gave rise to the first two issues and the learned Civil Judge held: " I am therefore of the opinion that portion of the building in suit which has been newly replaced must be treated as a new accommodation, and hence this Court can determine its rent under the provisions of section 5(4).
In view of the fact that it is a new 743 accommodation no question of agreed rent arises and the landlord can bring a suit for fixation of rent ".
Two facts therefore stand out clearly in the judgment of the trial court (1) that it was the existence of a newly constructed accommodation which gave jurisdiction to the court to determine its reasonable annual rent and (2) that as it was a newly constructed accommodation, the question of agreed rent did not arise.
The High Court, in our view, approached the question quite correctly when it stated that the question for determination was whether the accommodation had been constructed before or after June 30, 1946, and that if it was constructed before that date the suit was incompetent and if after, the suit would lie.
The contention raised by the appellant in this Court was that the decision of the trial Court as to whether the accommodation was constructed before or after July 1, 1946, cannot be challenged in revision in the High Court and he relied on the following observation of Lord Esher, M. R., in the Queen vs Commissioner for Special Purposes of the Income Tax (1): " When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider, what powers it will give that tribunal or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist.
The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, (1) , 319. 744 they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.
In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
These observations which relate to inferior courts or tribunals with limited jurisdiction show that there are two classes of cases dealing with the power of such a tribunal (1) where the legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exists or is shown to exist.
The difference is that in the former case the tribunal has power to determine the facts giving it jurisdiction and in the latter case it has only to see that a certain state of facts exists.
In the present case the appellant asked for a determination of reasonable annual rent under section 3 A on the ground that the accommodation was constructed after June 30, 1946, and the House Allotment Officer therefore had power to determine the reasonable annual rent.
In order to give jurisdiction to the civil court there bad to be in existence a reasonable annual rent as defined under section 2(f) whether it fell within its first two clauses or was determined under section 3 A. The reason.
able annual rent could be varied at the instance of the landlord or the tenant on the ground of its inadequacy or excess but the landlord could not.
bring a suit to vary the agreed rent nor could the court entertain such a suit although it was open to the tenant to do so and the court could at his instance entertain 745 such a suit.
The proceedings before the civil court are not by way of an appeal from any order under section 3 A made by the District Magistrate.
Section 115, Code of Civil Procedure, empowers the High Court, in cases where no appeal lies, to satisfy itself on three matters: (a) that the order made by the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to exercise its jurisdiction; (e) that in exercising the jurisdiction the court has not acted illegally, that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.
Per Sir John Beaumont in Venkatagiri Ayyangar vs Hindu Religious Endowment Board, Madras (1).
Therefore if an erroneous decision of a subordinate court resulted in its exercising jurisdiction not vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of its jurisdiction the case for the exercise of powers of revision by the High Court is made out.
In Joy Chand Lal Babu vs Kamalaksha Chaudhury (2), the subordinate court gave an erroneous decision that the loan was a commercial loan and therefore refused to exercise jurisdiction vested in it by law and the Privy Council held that it was open to the High Court to interfere in revision under section 115.
Sir John Beaumont said at p. 142: " There have been a very large number of decisions of Indian High Courts on section 115, to many of which their Lordships have been referred.
Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate court does not by itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub section
(c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, (1)(1949) L.R. 76 I.A. 67, 73.
(2) (1949) L.R. 76 I.A. 131.
94 746 or failing to exercise a jurisdiction so vested, a case for revision arises under sub section
(a) or sub.s.
(b), and subs.
(c) can be ignored.
The cases of Babu Ram vs Munnalal (1) and Hari Bhikaji vs Naro Vishvanath (2), may be mentioned as cases in which a subordinate court by its own erroneous decison (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess; and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result.
In the present case their Lordships are of opinion that the High Court, on the view which it took that the loan was not a commercial loan, had power to interfere in revision under sub section
(b) of section 115 ".
In Keshardeo Chamria vs Radha Kissen Chamria (3) both these judgments of the Privy Council as also the previous judgments in Rajah Amir Hassan Khan vs Sheo Baksh Singh (4 ) and Balakrishna Udayar vs Vasudeva Aiyar (5) were reviewed and it was held that section 115 of the Code of Civil Procedure applies to matters of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it.
Thus if a subordinate court had jurisdiction to make the order it made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, then the High Court has no power to interfere.
But if on the other hand it decides a jurisdictional fact erroneously and thereby assumes jurisdiction not vested in it or deprives itself of jurisdiction so vested then the power of interference under section 115 becomes operative.
The appellant also relied on Rai Brij Raj Krishna vs section K. Shaw and Bros. (6) where this Court quoted with approval the observations of Lord Esher in Queen vs Commissioner for Special Purposes of the Income Tax(7) and The Colonial Bank of Australia vs Willan where Sir James Co] ville said : (1)(1927) I.L.R. 49 All. 454.
(3)[1953] S.C.R. 136.
(5)(1917) L.R. 44 I.A. 261.
(7)(1888) , 319.
(2) Bom.
(4) (1884) L.R. 11 I.A.237.
(6) ; (8) , 443. 747 " Accordingly the authorities. . . establish that an adjudication by a Judge having jurisdiction over the subject matter is, if no defect appears on the face of it, to be taken as conclusive of the facts stated therein and that the Court of Queen 's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential has been erroneously found ".
But these observations can have no application to the judgment of the Additional Civil Judge whose jurisdiction in the present case is to be determined by the provisions of section 5(4) of the Act.
And the power of the High Court to correct questions of jurisdiction is to be found within the four corners of section 115.
If there is an error which falls within this section the High Court will have the power to interfere, not otherwise.
The only question to be decided in the instant case is as to whether the High Court had correctly interfered under section 115 of the Code of Civil Procedure with the order of the Civil Judge.
As we have held above, at the instance of the landlord the suit was only maintainable if it was based on the inadequacy of the reasonable annual rent and for that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation and if the court wrongly decided that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it and the matter fell within the rule laid down by the Privy Council in Joy Chandlal Babu vs Kamalaksha Chaudhury (1).
The High Court had the power to interfere and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.
The High Court held that the Civil Judge had wrongly decided that the construction was of a date after June 30, 1946, and therefore fell within section 3 A.
In these circumstances the appeal must fail and is dismissed with costs throughout.
Appeal dismissed.
(1) (1949) L.R 76 I.A. 131.

dataset_name: IN-Abs

summary:
Landlord and Tenant Accommodation Agreed monthly rent New construction Enhancement of rent House Allotment Officer 's findings Power of the civil courts to interfere U. P. Templeton Control of Rent and Eviction Act, 1947 (U.P. 3 of 1947), SS.
2(a)(f) 3A, 5(4), 6.
In 1938 the respondent took on rent from the appellant the accommodation in dispute on a monthly rent of Rs. 21 4as.
On January 28, 1950, the appellant made an application to the House Allotment Officer under section 3A of the U.P. Temporary Control of Rent and Eviction Act, 1947, for an increase in rent, on the allegation that according to the instruction of the respondent lie had made a new construction in January, 1949.
The 734 Officer considered that the accommodation was not a newly constructed one as the respondent had been a tenant from 1938, but he increased the rent to Rs. 40 per mensem on the basis of the building that was added by the new construction.
The appellant thereupon instituted a suit under section 5(4) Of the Act for the enhancement of " reasonable annual rent ".
The respondent 's defence inter alia, was that the new construction was undertaken in order to put up another storey on the top of the old building, that so far as the accommodation in his possession was concerned there was no new construction of accommodation after June 30, 1946, and that, therefore, the suit was not maintainable.
The trial court found that as a result of the new construction the accommodation had increased and was of the opinion that the portion of the building which had been newly replaced must be treated as a new accommodation and hence the, court could determine its rent under section 5(4).
In revision, the High Court held that though the construction on the upper storey was a new construction, so far as the accommodation in the occupation of the respondent was concerned the construction could not be called a new one and therefore section 3A of the Act was not applicable.
Accordingly the revision petition was allowed and the suit was dismissed.
On appeal by special leave to the Supreme Court it was contended for the appellant that the House Allotment Officer having decided in his favour the question of the date of construction which section 3A of the Act authorised him to decide, the High Court could not in revision go into the correctness of the decision ; and, in any case, it was within the jurisdiction of the trial court to decide the question of the date of construction and in doing so it could decide rightly or wrongly, and as the matter was one of fact the High Court had no power to interfere under section 115 Of the Code of Civil Procedure.
Held:(1) that a wrong decision made by the House Allot ment Officer under section 3A of the Act or an order made by him in excess of his powers under that section could be rectified by a suit under section 5(4) of the Act; and (2)that the maintainability of the suit brought under section 3A of the Act depended on the determination of the jurisdictional fact i.e., date of construction of the accommodation, whether it was after June 30, 1946, and if the court wrongly decided that fact and thereby assumed jurisdiction not vested in it, the High Court had the power to interfere under section 115 of the Code of Civil Procedure, and once it had the power it could determine whether the question of the date of construction was rightly or wrongly decided.
Joy Chand Lal Babu vs Kamalaksha Chaudhury, (1949) L.R. 76 I.A. 131, relied on.
Queen vs Commissioner for Special Purposes of the Income Tax, ; Venkatagiri Ayyangar vs Hindu Religious Endowment Board, Madras, (1949) L.R. 76 I.A. 67 and Keshardeo Chamria vs Radha Kissen Chamria, [1953] S.C.R. 136, considered.
735 Rai Brij Raj Krishna vs section K. Shaw and Bros., [1951] S.C.R. 145, distinguished The relevant provisions of the Act are set out in the judg ment.


judgement:
Civil Appeal No. 1401 of 1991.
From the Judgment and Order dated 26.10.1987 of the Karnataka High Court in W.A. No. 607 of 1982.
S.R. Bhat and Prabir Chaudhury (NP) for the Appellants.
A.B. Rohtagi, M. Veerappa, R.L. Bhardwaj and Vishnu Mathur for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The Karnataka Slum Areas (Improvement and Clearance) Act, 1973, which received the assent of the President on 1st October, 1974, is an Act to provide for improvement and clearance of slums in the State of Karnataka.
Section 3 of the Act empowers the Government to declare certain areas as slum areas.
If the Government is satisfied that any area which is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighbourhood by reason of the area being low lying, unsanitary, squalid, over crowded or otherwise, the Government may by notification declare the areas as 'slum area '.
Under Section 11, when the Government is satisfied on a report from the competent authority that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and demolition of the buildings in the area, it may, by notification, declare the area to be the 'slum clearance area '.
The Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the Karnataka Government declaring an extent of one acre in Timber Yard slum by the side of Main Road, Cottonpet, Bangalore, as 'slum area '.
After considering the objections, another notification dated 30.12.1977 was issued under Section I(1) of the Act declaring 978 the entire land as 'slum clearance area '.
However, on January 20, 1981, the Government issued notification under Section 3(1) cancelling the earlier notification dated 30.12.1977 and re declaring an extent of 14 1/2 guntas only as 'slum area '.
The notification dated 20.1.1981 had been challenged by the appellants mainly on the grounds that it is in violation of the principle of natural justice and Article 14 of the Constitution has been violated.
It was contended that slum dwellers who are affected by the Government 's action have not been given an opportunity of being heard and they have been denied equality by denying basic human needs since a major part of the slum area has been excluded from the operation of the scheme.
The single Judge of the High Court took the view that the appellants had no locus standi to challenge the impugned notification and even on merits there was no case.
The Division Bench of the High Court agreed on the question of locus standi and without going into the merits confirmed the judgment.
The appellants have approached this Court under Article 136 of the Constitution of India.
We have granted special leave to appeal.
The learned counsel for the appellants relying on the decisions of this Court in section P. Gupta vs Union of India, [1982] 2 SCR 365 and Olga Tellis vs Bombay Municipal Corporation, [ 1985] Suppl.
2 SCR 51 vehemently contended that the High Court has erred in holding that the petitioners have no locus standi.
He also submitted that in view of the purpose of the legislation and the scheme contemplated thereunder once action has been taken declaring a larger area as 'slum clearance area ', any change thereafter which would directly affect the slum dwellers could not be taken without giving the affected persons an opportunity of being heard and, there is, therefore, the clear violation of the principle of natural justice.
It was also urged that there is no specific provision under the statute enabling the Government to rescind the notification and assuming that it exists, there was no proper exercise of the power.
Mr. Rohtagi, counsel appearing on behalf of the 3rd respondent, submitted that the first notification dated 17.1.1977 was challenged by the owners of the land in a writ petition as they were not heard as required and the fresh notification have been issued on the assurance given before the Court that they would be heard.
It was pointed out that there was no need to hear the owners or occupiers at the stage of issuing the notification under Section 3(1) of the Act and Section 11 979 does not confer any Statutory right to the occupiers.
Relying on Section 21 of the General Clauses Act, it was maintained that the power to withdraw or rescind the notification was inherent and the authority who is empowered to issue the notification is entilitled to rescind the same.
It was also pointed out that there had been dispute over the title of the land in question that civil litigation was in progress and that the earlier declaration was made without proper basis.
Action has been taken by the owners against the tenants for eviction and orders have been obtained in their favour and the petitioners have no case and are not entitled to any relief.
The counsel for the State adopted these arguments.
The first question that falls for consideration is whether the appellants can challenge the action of the Government.
This question need not detain us when the law is now settled that in such situation even a public interest litigation would lie.
The first appellant Association represents the interests of the slum dwellers and the second appellant himself is one of the residents in the area.
The action of the Government on the averments made affects a class of persons and if that group of persons is represented by the Association, they have a right to be heard in the matter.
Where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter as held by this Court in Bandhua Mukti Morcha vs Union of India & Ors., ; We are, therefore, of the view that the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court.
We shall now consider the argument that the State Government had no power to rescind the notification issued under Sections 3 and 11 in the absence of any specific provision in the Act.
Section 21 of the General Clauses Act is in pari materia with Section 10 of the Karnataka General Clauses Act.
This Section reads: "21.
POWER TO ISSUE TO INCLUDE, POWER TO ADD TO, AMEND, VARY OR RESCIND NOTIFICATIONS,ORDERS, RULES OR BYE LAWS.
Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add 980 to, amend, vary or rescind any notifications, orders, rule or bye laws so issued.
" Under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it.
It is always open to the Government to rescind the notification.
We shall refer to the decisions of this Court in State of Kerala vs K. G. Madhavan Pillai, ; ; State of M. P. vs, V. P. Sharma, [ ; and Lt. Governor of H. P. vs Sri Avinash Sharma,[1970] 2 SCC 149.
In these cases arising under the Land Acquisition Act, the issue before the Court was whether the Government could exercise powers only under Section 48 of the Land Acquisition Act to withdraw a notification for acquisition made under Section 4(1) of the Act.
When the Government issued successive notifications under Section 6 covering different portions of the land notified for acquisition under Section 4(1), the validity of the last of the notification was challenged on the ground that a notification under Section 4(1) could be followed only by one notification under Section 6.
In repelling the contention, this Court incidentally observed at page 693 thus: "That the only way in which the notification under Section 4(1) can come to an end is by withdrawal under Section 48(1)" is not correct because "under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it and therefore it is always open to the Government to rescind a notification under Section 4 or under Section 6 and a withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end." In Lt. Governor of H.P. vs Sri Avinash Sharma, (supra) the Court observed at page 151 thus: "Power to cancel a notification for compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification under Section 21 of the General Clauses Act, the Government may cancel or rescind the notification issued under Sections 4 and 6 of the Land Acquisition Act.
But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government.
" In Lachmi Narain vs Union of India, ; , this 981 Court observed at page 808 thus: "Section 21, as pointed out by this Court in Gopichand vs Delhi Admn., [1959] Suppl.
2 SCR 87, embodies only a rule of constructions and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification.
" In State of Bihar vs D.N. Ganguly & Ors., ; , it was held that it is well settled that the rule of construction embodied in S.21 of the General Clauses Act can apply to the provisions of a statute only where the subject matter, context or effect of such provisions are in no way inconsistent with such application.
In that case, the question was where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under Section 10(1)(d) of the Industrial Disputes Act, can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose? The Court held the notification to be invalid and ultra vires pointing our that is would be necessary to examine carefully the scheme of the ACt, its object and all its relevant and material provisions before deciding the application of the rule of construction enunciate by Section 21.
After examining the relevant provisions of the Act, the Court said that once an order in writing is made by the appropriate government under Section 10(1)(d), the proceedings before the tribunal are deemed to have commenced and if the appropriate government has by implication the power to cancel its order passed under Section 10(1), the proceedings before the tribunal would be rendered wholly ineffective by the exercise of such power and Section 21 cannot be invoked.
In Kamla Prasad Khetan vs Union of India, ; , this Court considred the scope of Section 21 of the General Clause Act.
At page 1068, the Court observed thus: "The power to issue an order under any Central Act includes a power to amend the order; but this power is subject to a very important qualification and the qualification is contained in the words `exercisable in the like manner and subject to the like sanction and conditions (if any) '. . . . . .
The true scope and effect of the expression `subject to the like conditions (if any) ' occurring in Section 21 of the General Clauses Act has been explained.
" 982 Relying on these decisions, the learned counsel for the appellants contended that even if source of power could be traced under Section 21, the exercised of that power could only be in the same manner as provided and when a notification under Section 3(1) had been issued declaring certain areas as `slum area ', the power to rescind the notification and limit the extent could be exercised only after hearing the affected parties, for the Government to satisfy itself that what has already been declared does not come within the scope of the proposed scheme.
The object of the statute and the relief that was sought to be conferred are matters to be taken into consideration in such action.
It has been brought to our notice that about 100 persons had been living in the area under conditions which require the implementation of the scheme under the Act for their redressal and once steps have been taken in that direction any variation that could affect the occupants in the areas was required to be made only after giving them an opportunity of being heard.
It is thus maintained that there had been no proper exercise of the power assuming that the power is vested on the Government and there is clear violation of the principle of natural justice.
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made.
What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the body of persons appointed for the purpose.
It is only where there is nothing in the statue 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, that the audi alteram partem rule could be imported.
The Mysore Slum Areas (Improvement and Clearnance) ACt, 1958, this Court held in Government of Mysore & Ors.
vs J.V. Bhat etc.
; , thus: There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under section 3 or an area as a clearance area under section 9 or before taking action under section 10.
All these difficulties will be removed if the affected persons are given 983 an opportunity to be heard in respect of the action proposed.
" The Preamble to the present Act itself states that the Act is to provide for the improvement and clearance of slums in the State.
Under the existing law, it has not been possible effectively to check the increase and to eliminate congestion and to provide for basic needs such as streets, water supply, and drainage and to clear the slums which are unfit for human habitation.
To obviate this difficulty, it is considered expedient to provide for the removal of unhygenic and insanitary conditions prevailing in the slums for better accommodation and improved living conditions for slum dwellers for the promotion of public health generally.
These are the objectives sought to be achieved by the enactment which has been made in implementation of the Directive Principles of State Policy to improve public health.
It is, therefore, obvious that when a declaration has been made in implementation of the Directive Principles of State Policy to improve public health.
It is, therefore, obvious that when a declaration is made under section 3 and a further declaration is made under section 11, the inhabitants of the areas are affected and any further action in relation to the area which areas are affected and any further action in relation to the area which is declared to the `slum clearance area ' without affording such persons an opportunity of being heard would prejudicially affect their rights.
The right to be heard in the matter has been acquired by the earlier action of the authority in considering the area for the purpose of the scheme.
This is clear from the proviso to sub sec.
(1) of Section 11 of scheme.
This is clear from the proviso to sub sec.
(1) of Section 11 of the Act.
When any alternation is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action.
In this view of the matter it is to be held that when a notification is made rescinding the earlier notifications without hearing the affected parties, it is clear violation of the principle of natural justice.
Such action is exercise of the implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised subject to be quashed on this ground.
It shall be open to the Government to proceed after affording the slum dwellers an opportunity of being heard on the basis of the earlier notifications that were in force.
In the result, the appeal is allowed and the order of the High Court is set aside.
The impugned notification is quashed subject to the observations made.
We make no order as to costs.
Appeal allowed.

summary:
Under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the State Government declaring an extent of one acre in the city of Bangalore, as 'slum area '.
After considering the objections, another notification dated 30.12.1977 was issued under Section 11(1) of the Act declaring the entire land as 'slum clearance area '.
However, on January 20, 1981, the Government issued notification under Section 3(1) cancelling the earlier notification dated 3.12.1977 and re declaring an extent of 14 1/2 guntas only as 'slum area '.
The appellants, an Association representing the interest of slum dwellers and a resident of the area challenged notification dated 20.1.1981 on the ground that it was in violation of the principle of natural justice and Article 14 of the Constitution inasmuch as the slum dwellers affected by the Government 's action were not given an opportunity of being heard and were denied equality, since a major part of the slum area has been excluded from the operation of the scheme.
A Single Judge of the High Court held that the appellants had no locus standi to challenge the notification and that even on merits there was no case.
The Division Bench agreed on the question of locus standi but did not go into the merits.
975 The appellants filed an appeal by special leave before this Court, contending that the High Court had erred in holding that the petitioners had no locus standi, that in view of the purpose of the legislation and the scheme contemplated thereunder, once action had been taken declaring a larger area as 'slum clearance area ', any change thereafter which directly affected the slum dwellers could not be taken without giving the affected persons an opportunity of being heard and, there was, therefore, clear violation of the principle of natural justice, and that there was no specific provision under the statute enabling the Government to rescind the notification, and even assuming that it existed there was no proper exercise of the power.
On behalf of Respondent No. 3 it was submitted that there was no need to hear the owners or occupiers at the stage of issuing notification under Section 3(1) of the Act and Section 11 did not confer any statutory right on the occupiers, and that under Section 21 of the General Clauses Act, the power to withdraw or rescind the notification was inherent and the authority who was empowered to issue the notification was entitled to rescind the same.
The State adopted the contentions of Respondents No. 3.
Allowing the appeal, this Court, HELD: 1. 1.
Where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who, on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter.
[979E] Bandhua Mukti Morcha vs Union of India & Ors.
, ; , relied on.
section P. Gupta vs Union of India, [19821 2 SCR 365; Olga Tellis vs Bombay Municipal Corporation, [1985] Suppl.
2 SCR 51, referred to. 1.2.
The first appellant Association represents the interests of the slum dwellers and the second appellant himself is one of the residents in the area.
The action of the Government affects a class of persons and if that group of persons is represented by the Association, they have a right to be heard in the matter.
Even a public interest litigation would lie in such a situation.
Therefore, the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court.[979D, F] 976 2.1.
What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose.
It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard but, on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported.
1982F] 2.2.
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made.
[982E] 2.3.
When a declaration is made under Section 3 and a further declaration is made under Section 11, the inhabitants of the areas are affected and any further action in relation to the area which is declared to be 'slum clearance area ' without affording such persons an opportunity of being heard would prejudicially affect their rights.
The right to be heard in the matter has been acquired by the earlier action of the authority in considering the area for the purpose of the scheme.
This is clear from the proviso to sub section (1) of Section 11 of the Act.
When any alteration is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action.
[983D E] 2.4.
It is true that under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it, and it is always open to the Government to rescind the notification.
[980B] State of Kerala vs K. G. Madhavan Pillai, ; ; State of M.P. vs V.P. Sharma, [1966]3 SCR557; Lt. Governor of H.P. vs Sri Avinash Sharma, [ ; ; Lachmi Narain vs Union of India,[ ; ; State of Bihar vs D. N. Ganguly & Ors., [ ; and Kamia Prasad Khetan vs Union of India, ; , referred to.
But when a notification is made rescinding the earlier notifications without hearing the affected parties, it is clear violation of the principles of natural justice.
Such action in exercise of the implied 977 power to rescind cannot then be said to have been exercised subject to the like conditions within the scope of Section 21 of the General Clauses Act.
[983F] In the circumstances, the notification dated 20.1.1981 is liable to be quashed.
It shall be open to the Government to proceed after affording the slum dwellers an opportunity of being heard on the basis of the earlier notifications that were in force.
[983F G]