Syed Shah Mohammed Quadri, J.
1. In these writ petitions, notifications dt. 11-9-87 issued by the Municipal Corporation of Hyderabad, the third respondent, under Section 3 (2) of the Andhra Pradesh Slum Improvement (Acquisition of Land), Act, Act No. XXXIII of 1956 (for short 'the Act') are challenged. W.P. Nos. 16075, 17100 and 4890/87 , relate to acquisition of the slum known as "Gangidi Yellareddy Compound" (for short 'G.Y. Compound'), Zeera, Secunderabad. W.P.Nos. 15330, 16202 and 17869/87 relate to acquisition of the slum known as Unnikota, Kavadiguda. As the facts in all the W.Ps. are common, it would be sufficient to refer to the facts as stated in the affidavit accompanying W.P.No. 16075/87.
2. The petitioners in the said writ petition are claiming to be owners of houses bearing Municipal Number 6-6-252 to 254, Zeera, Secunderabad on the basis of the partition deed dated 1-7-1972. According to them, the houses in question are their ancestral properties. They are paying municipal taxes assessed on the said houses. The houses were leased to about 24 tenants. The area is situated in Zeera, Secunderabad and is know as G.Y. Gudem by the local political leaders. It is stated that basic amenities like drainage and roads are available to the residents of the said area. In 1983, the petitioners came to know that the area was going to be declared as slum area. So they represented to the Tahsildar, Musheerabad in September 1983 the fact that they are the owners of the properties and the area is having basic amenities and requested for dropping the proceedings. The tenants formed themselves into a society with the help of the local political leaders and the society is known as "Uppalamma Weaker Helpers Association" which is making attempts to have the area declared as slum on the promises said to have been given to them that after such declaration the tenants will be given pattas. The petitioners, it is stated, made several representations which were referred to the District Social Welfare Officer, by the Collector on 11-6-1984. The District Social! Welfare Officer gave a report that the area should not be deleted from the declaration under the Act. Thereafter, they made further representations giving ownership particulars and requested to drop further action. Thereafter, it is stated that they learnt that the proceedings were dropped.
3. On 20-11-1984, another representation was made to the Additional Special Deputy Collector Land Acquisition, the 2nd respondent herein and the third respondent, which was followed by a further representation. The third respondent held a meeting on August 20, 1986 and appointed several committees for reporting as to the necessity of declaring these areas as slum areas with the exception of G.Y. Compound which was directed to be declared as slum immediately. Questioning that action, the petitioners filed W.P.No. 13973/86 in the High Court, which was dismissed as premature on January 30, 1987 on the ground that the notification under Section 3(1) of the Act was not issued by then. Notification under Section 3(1) of the Act was issued on February 25, 1987 and was published in the gazette on March 12, 1987 declaring the area as slum area. The notification was challenged in W.P.No. 3981/87 in the High Court. Observing that the grounds raised in the writ petition can be agitated before the authority in reply to notice under Section 3(2) of the Act, the writ petition was dismissed on July 24, 1987. It is stated that the 3rd respondent has issued notice under Section 3(2) of the Act to acquire the land in question. The petitioners submitted objections to the said notice along with documents and explained the factual position in detail. The case was heard on September 8, 1987 and on September 10, 1987 order was passed by the 3rd respondent rejecting all the contentions without examining them. It is contended that the said orders passed by the 3rd respondent are vague and without any consideration of material. After the said order, notification under Section 3(2) of the act was issued on September 11, 1987 and was published in the Official Gazette on September 24, 1987. It is the validity of the notifications issued under Section 3(2) of the Act that is assailed in this and other writ petitions.
4. The 1st respondent did not file any counter.
5. Common counter was filed by respondents 2 and 3 by the Commissioner, Municipal Corporation, Hyderabad stating that S.No. 215 of Bakaram Village is a Government Abadi land and denying the allegations made by the petitioners regarding the ownership of the land and availability of basic amenities. It is asserted that the whole area is a slum and has to be set right immediately failing which it will lead to many diseases on account of the most in hygienic condition of the place for want of improvement in many ways. It is stated that several representations were made objecting to the acquisition of the slum area Known as G.Y.Compound, Zeera. It is stated that under the Act the 3rd respondent is not empowered to drop the acquisition proceedings. Notification under Section 3(1) of the Act pursuant to Government Order in Memo No. 924/F2/87 M.A. dated 29-9-86 was issued directing the Commissioner to take necessary action under the Act. Before issuing the said memo, the Government appointed officers committee to inspect and to submit report as to whether the said G.Y.Compound along with other slum has to be acquired. After inspection and on consideration of the report of the officers committee, notification under Section 3(1) of the Act was issued. The whole area covered under the notification is most in hygienic and low lying area, without proper important amenities like water, latrines, drainage etc., and the same is badly exposed to endangering the human life. If this slum is not taken up and improved, there is every likelihood of diseases spreading from this spot. On the basis of these averments, the acquisition or the areas in question is supported. It is stated that in 1978, the Municipal Corporation of Hyderabad initiated action for identifying the slum areas in the twin cities of Hyderabad and Secunderabad. Initially about 450 slum areas were identified and action was initiated for improvement of slums as required under the Act. In the year 1979, the Director of Urban Community Development got a survey conducted in which about 224 slums in Secunderabad were identified. The G.Y.Compound slum is one among them. In G.O.Ms. No. 19 Municipal Administration dated 16-1-1986 the 1st respondent appointed officers committee to review the position of the existing slums and to recommend the deletion of the improved areas from the existing slums and for recommending new areas by identifying slums which are brought to the notice of the committee. The committee inspected all the slum areas including the slum in question but for some reason or the other, the committee could not finalise its report. The 1st respondent again issued G.O. 213 M.A. dated 28-4-1986 reconstituting the officers committee. The Committee including the commissioner inspected the slum areas especially the 224 slums which were identified by the Special Officer of the M.C.H. and submitted its report to the Government. The Government, after considering the report of the committee communicated its decision in Memo. No. 924/F2/86-1 dated 29-9-1986 observing that in view of the existing conditions and report of the officers' committee and the commissioner M.C.H. the Government has decided to include G.Y. compound area in the list of slums. Thereafter, the 3rd respondent got prepared and issued a preliminary notification under Section 3(1) of the Act, which was challenged by the petitioners in W.P.Nos. 13973/86 and 3981/87 which were dismissed. It is further submitted that the show cause notices were issued under Section 3(2) of the Act to the interested persons-including the writ petitioners. On 10-9-1987. The 2nd respondent, after hearing the arguments of objectors, passed orders to publish the notification under Section 3(2) of the Act It is submitted that the order passed by the 2nd respondent are perfectly valid and legal. The respondents prayed that the writ petition be dismissed.
6. The Law Officer, in the counter affidavit filed for the 4th respondent stated that the writ petition does not disclose any valid and sufficient ground for the issuance of the writ prayed for and that the writ petition is not maintainable. He denied all the allegations in the affidavit of the petitioner. It is stated that the notification was issued by the 3rd respondent and that the 4th respondent has nothing to do with the said notification except complying with the provisions of the Act. It is stated that the allegations in the affidavit of the petitioners are already answered by the 3rd respondent.
7. The petitioners have filed a reply affidavit denying the facts stated in the counter affidavit and reiterating the facts and the contentions stated in the affidavit accompanying the writ petition.
8. Uppalamma Weaker Section Welfare Association represented by its Secretary was impleaded as 5 respondent on its application in W.P.M.P.No. 25362/87. It is stated inter alia in the affidavit accompanying the said petition that the petitioner is a Society registered under the Andhra Pradesh (Telangana Area) societies Registration Act, 1350 F. and the said society was formed with the object of looking after the welfare of 137 families who are in possession of their respective pieces of land in S.No. 215 Bakaram and residing in the slum area known as G.Y. compound. They are living in one room tin sheds, in filthy, insanitary condition with the hope that the State will do something to provide the basic amenities for a decent life. The women living in the colony have no privacy at all. There are only two latrines both for men and women which were constructed by the Society in the year 1983. The women have to wait in long queue at the water tap and there are no roads in the area. There is inadequate street lighting which was provided sometime in 1986. It is stated that the petitioners have not made out any case for interference of this Court under Article 226 of the Constitution of India. It is stated that one Yella Reddy is the owner of the land. Temporary huts were constructed by the residents. However, it is stated that it is a Government land and not a private land. It is alleged that the residents are being harassed by the sons of the said Yella Reddy and others. They have filed cases against them for eviction from the huts in the Rent Controller Court, which are pending. It is also stated that the question whether the petitioners are having title to the land cannot be decided in the proceedings under Article 226 of the Constitution of India. It is maintained that the area is squalid and that there are no basic amenities, drainage facilities and the roads. The area is low lying, insanitary and not fit for human living. The facts stated in the counter of respondents 2 and 3 have been reiterated. It is added that the notification has been issued for purpose of achieving the objectives set out in Articles 38(1), 39 (e) and (f) of the Constitution of India. In these circumstances, it is prayed that the writ petition may be dismissed.
9. Sri V. Venkataramana, the learned counsel for the petitioners submits that on 18-1-1982, Andhra Pradesh Ordinance 2 of 1982 was promulgated by the Governor of Andhra Pradesh. Section 67 of the said ordinance repeals the Andhra Pradesh Slum Improvement (Acquisition of Land) Act, 1956. The ordinance was operative only till the expiration of six weeks from the reassembly of the legislature but the repealed Act was not reenacted, so the impugned proceedings are without the authority of law.
(ii) The Government had nominated a committee to go into the question of declaring the areas as slum areas of which the commissioner was not a member, so the Commissioner has no authority to go into the question whether the area in question should be declared as slum area, so any action taken on the basis of the said recommendation is invalid in law. He further contended that the proposal to declare the slum was for extraneous considerations and, therefore, it is a malafide exercise of the power.
(iii) The order passed by the 3rd respondent Commissioner purporting to decide the objections of the parties is not a speaking order, therefore, the notification issued under Section 3 (2) of the Act consequent upon the said order is liable to the quashed.
10. Sri P.M. Gopala Rao, the learned counsel appearing for other writ petitioners contended that under Section 1(3) of the Act, a notification by the 1st respondent-Government is necessary, without which the Act cannot be applied to the Municipal Corporation of Hyderabad and as no such notification was issued, the Act is not applicable to the Municipal Corporation as such all the proceedings are without the authority of law.
(ii) The notification issued under Section 3(1) of the Act is mechanical and cyclostyled and clearly indicates that the authority has not applied its mind, therefore the consequent proceedings of acquisition is bad in law.
(iii) Before publishing the notification and declaration notifying the area as slum area, the Director of Municipal Administration or the Commissioner of Hyderabad Municipality has not consulted the Director of Town Planning as required under Rule 6, therefore the notification issued under Section 3 being in violation of the Rules, is liable to be quashed.
(iv) Without the application of the Act to the area within Municipal Corporationer of Hyderabad, the delegation of power under Section 3(4) in G.O. Ms. No. 45 dated 8-3-1963, is void.
(v) The provisions of the Act are violative of Article 14 of the Constitution of India.
(vi) In so far as Section 6 of the Act is concerned, it is repugnant to the provisions of the Land Acquisition Act as amended and therefore, the compensation for the lands acquired for improvement of slums which is also a public purpose, has to be paid under the provisions of the Land Acquisition Act but not under Section 6 of the Act.
(vii) The individual orders passed by the Commissioner are without any application of mind as they do not set out any reason.
11. Sri Subhashana Reddy the learned counsel for petitioners in W.P.No. 15330/ 87 while adopting the arguments of Sri V. Venkataramana and Sri P.M. Gopal Rao added that Exs. A.1 to A.16 filed by the petitioners show that they are the owners of the land in question and persons interested within the meaning of the Act. He has also asserted that the orders were passed by the Commissioner without taking into consideration of the objections inasmuch as there is no reference to the objections of the petitioners in the impugned order, so the impugned orders are liable to be quashed.
12. Sri Khader Ali Khan, the learned Standing Counsel for the Municipal Corporation of Hyderabad appearing for respondents 2 and 3, submits that the ordinance contemplates issuance of notification for bringing the ordinance into force and no notification bringing the ordinance into operation was issued, consequently the repeal of Section 67 never took effect, as such the impugned Act is very much in force, so the action taken pursuant to the Act is legal and valid. He further submits that by Act 35/81 the impugned Act was amended so as to include 'any municipal corporation in the State' by amending Section 1 (3), as such the Act is applicable to the Municipal Corporation of Hyderabad. It is contended that though Act 35/81 received the assent of the President on 15th May, 1981 and was published in the Gazette on 16-12-1981, it was given retrospective effect from 25-8-1981 and in view of this no further notification under Section 1 (3) of the Act is necessary to apply the Act to the Municipal Corporation of Hyderabad, therefore, the action of the third respondent in issuing the impugned notification is valid and legal under the Act. He argued that the Rules do not apply to the Commissioner, as such non-compliance of Rule 6 does not vitiate the notification under Section 3(1) of the Act; that no material was placed before the Commissioner to show that the area is not a slum area so the commissioner was justified in not referring to the objections and in not dealing with the same in his order, and that Section 3(1) declaration was made by the Government on the basis of the report of the committee, therefore there is sufficient material to show that the area is a slum area.
13. Sri V.V.S. Rao, the learned counsel for the 5th respondent adopts the contention of the learned Standing Counsel that the Ordinance was never brought into force and therefore the repeal in Section 67 never took effect and the Act remained in force and as such the proceedings cannot be challenged as being without authority of law. Having regard to the notification under Section 1(3) of the Act, he submits that though a notification is necessary, a presumption has to be drawn that all official acts have been done according to law. Regarding the non-compliance of Rule 6, Sri Rao submits that Section 3 itself does not enjoin consultation, therefore, even if there is non-compliance it does not vitiate the notification as the rule has to be treated only as directory and not mandatory. He finally submits that in earlier writ petitions, the writ petitioners did not challenge the validity of the Act, therefore it is not open to them to do so in these writ petitions.
14. Sri D. Goverdhanachari who appears for the impleaded respondent adopted the argument of the learned Standing Counsel and Sri V.V.S. Rao.
15. In view of the above noted contentions, the following points arise for consideration :
(i) Whether Ordinance 2 of 1982 came into force and if so, whether the impugned Act stood repealed by Section 67 of the Ordinance.
(ii) Whether under Sub-section (3) of Section 1 of the impugned Act issuance of notification is a pre-requisite for application of the Act to the area within the limits of Municipal Corporation.
(iii) Whether the authorities under the impugned Act have uncontrolled discretion to acquire the land in any slum area either under the impugned Act or under the Land Acquisition Act and, therefore, the Act is liable to be struck down as being violative of Article 14 of the Constitution.
(iv) Whether Section 6 of the impugned Act is repugnant to the provisions of the Land Acquisition Act, and whether the owners of the land acquired under the impugned Act are entitled to the compensation under the Land Acquisition Act.
(v) Whether the orders passed by the Commissioner suffers from the vice of non-application of mind and the notifications under Section 3 (1) of the Act declaring the area as slum and/or under Section 3(2) for acquisition of the said area are liable to be quashed.
16. We shall now deal with the first point viz., Whether Ordinance 2/82 came into force and, if so, whether impugned Act 33 of 1956 stood repealed by Section 67 and no Act having been passed after the expiry of the period of six weeks from the reassembly of the legislature reenacting or reviving the provisions of the Act 33 of 1956, can they be invoked by respondents 1 to 4.
17. Sri Khader Ali Khan, the learned Standing Counsel for the Corporation, submits that though the Ordinance was promulgated, it was never brought into force, so the repealing provision in Section 67 has not taken effect; consequently the Act remained in force.
18. It would be appropriate to read here Section 1 of the Ordinance which is in the following terms".
"(1) This Ordinance may be called the Andhra Pradesh Slum (Areas Improvement and Clearance) Ordinance, 1982.
(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force on such date as the Government may, by notification, appoint; and different dates may be appointed for different areas and for different provisions of this Ordinance:
Provided that any reference in any such provision to the commencement of this Ordinance shall be construed as a reference to the coming into force of that provision".
19. It is seen that Sub-section (1) of Section 1 of the Ordinance deals with the short title and extent and commencement of the Ordinance. It is provided in Sub-section (3) that the ordinance shall come into force on such date as the Government may, by notification, appoint and different dates may be appointed for different areas and for different provisions of the Ordinance and that any reference in any such provision to the commencement of the ordinance shall be construed as a reference to the coming into force of that provision. This provision gives no room for any doubt. It is clear that unless notification is issued appointing a date of different dates for different areas and for different provisions of the ordinance, the ordinance cannot be said to have come into force. However, Sri Venkataramana submits that unless the ordinance comes into force, no notification can be issued under Sub-section (3) of Section 1. Therefore, submits the learned counsel, issuing of the notification is not necessary for bringing the ordinance into operation. He further submits that the very purpose of conferring power under Article 213 of the Constitution is to enable the Governor to issue ordinance while the Assembly is not in session and after the ordinance is promulgated, its operation more so repeal of the provision of the Act cannot be made to depend on issuing of the notification. He has relied on a decision of the Supreme Court in T.K. Musaliar v. Venkatachalam, A.I.R 1956 S.C. 246. In that case the question was whether the United State of Travancore and Cochin Administration and Adaptation Laws Ordinance (1 of 1124) was an existing law. Travancore Taxation on Income (Investigation Commission) Act (14 of 1124) was passed by the Travancore and Cochin Legislature on March 7, 1949. Section 1(3)of that Act provided that it would come into force on such date as the Travancore and Cochin Government might by notification in the Gazette appoint. No such notification was issued by the T&C Government after 1-7-1949 when the Travancore State and Cochin State integrated into the United State of Travancore and Cochin. On 1-7-1949 the United State of Travancore and Cochin promulgated Ordinance 1/1124 whereby all existing laws of Travancore were continued in force till altered, amended or repealed by competent authority and the 'existing law of Travancore' was therein defined to mean any law in force in the State of Travancore immediately prior to 1-7-1949. On July 26, 1949 a notification was issued under Section 1(3) by the United State of Travancore and Cochin bringing Act l4 of 1124 into force retrospectively from 22-7-1949. Holding that Section 1(3) of the Ordinance authorises the Government to bring the Act into force on a later date by issuing a notification, is an answer to the question "How could Section 1(3) operate to postpone the commencement of the Act unless that section itself was in force?" Their Lordships of the Supreme Court observed:
"Seeing, therefore, that it is Section 1(3) which operates to prevent the commencement of the Act until a notification is issued thereunder by the Government and that it is Section 1(3) which opersates to authorise the Government to issue a notification thereunder, it must be conceded that Section 1 (3) came into force immediately on the passing of the Act. There is, therefore, no getting away from the fact that the Act was an "existing law" from the date of its passing right upto 1 -7-1949 and was, consequently continued by Ordinance 1/1124".
20. The decision does not lay down that even without the notification by the Government under Section 1(3), the Act has come into force. What follows is that after passing of an Act, it becomes an "existing law" but it will be operative only from the date of issuing of the notification under the Act.
21. The learned counsel submits that the power to legislate and power to repeal a law is the power of the legislature and does not depend upon the executive action of the Government. In other words, the learned counsel submits, that when Section 67 of the Ordinance repealed the impugned Act, taking effect of the repeal cannot be made to depend on the executive action of the Government by issuing a notification under Section 1(3) of the Ordinance. He relies upon a decision of the Supreme Court in State of U.P. v. Hindustan Aluminium Corporation, A.I.R 1979 S.C. 1459. In that case the question was whether a piece of legislation has expired or is exhausted by the accomplishment of the purpose for which it was passed or whether on the state of things contemplated by the enactment having become stale, it loses its force and therefore it has to be declared as having been impliedly repealed. Answering that question the Supreme Court observed:
"It has to be appreciated that the power to legislate is both positive in the sense of making a law, and negative in the sense of repealing a law or making it inoperative. In either case, it is a power of the Legislature, and should lie where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and clear case, no doubt, an antiquated law may be said to have become absolute -the more so if it is a penal law and has become incapable of user by a drastic change in the circumstances. But the Judge of the change should be the legislature, and courts are not expected to under take that duty unless that becomes unavoidable and the circumstances are so apparent as to lead to one and only one conclusion. This is equally so in regard to the delegated or subordinate legislation".
This judgment does not support the contention of the learned counsel.
22. From the above discussion, it follows that Ordinance 2/82 was never brought into force a such Section 67 of the Ordinance did not come into operation so as to have the effect of repealing the impugned Act which remains on the Statute Book unaffected by Ordinance. The contention therefore fails.
23. The second point is whether the notification under Sub-section (3) of Section 1 of the Act is necessary to apply the Act to the areas within the Municipal Corporation of Hyderabad. If so whether there has been such a notification and the Act is applicable to the area in the twin cities of the Municipal Corporation of Hyderabad.
24. The submission of the learned Standing Counsel is that by Act 35 of 1981 the Act was made applicable to the Municipal Corporation retrospectively, therefore no further notification is necessary. This submission of the learned standing counsel., if I may say so, caused stupor. The learned Government Pleader did not dispute the contention that a notification under Sub-section (3) is necessary, but sought further time to find out from the Government as to whether any notification has been issued under Sub-section (3). Time having been granted, after taking instructions, today he submits that except the notification publishing the Amending Act 35 of 1981 , no further notification is issued under Sub-section (3). Sri V.V.S.Rao, however, submits that in the absence of notification, a presumption has to be drawn that the notification has been issued under Sub-section (3) of the Act Once as a fact it is stated that no notification is issued, the question of drawing presumption that a notification has been issued, does not arise.
25. To deal with the submission of the learned Standing Counsel, we may read here Section 1 of the Act.
"1 Short title, extent and commencement:
(1) X X
(2) X X
(3) It shall come into force in any municipality in the State on such date as the Government may, by notification in the Andhra Pradesh Gazette, appoint:
Provided that, before issuing such a notification the Government shall publish in the Andhra Pradesh Gazette a notice of their intention to do so fix a period which shall not be less than two months from the date of publication of the notice for the municipality concerned to show cause against the issue of the notification and consider its objections if any".
It will also be useful to notice Sub-section (3) of Section 1 as it stood before amendment and as it reads after amendment Unamended provision Amended provision (3) It shall come into force in any mu- (3) It shall come into force in an y munici-
nicipality in the State on such date as the pal corporation or municipatity in the
Government may by notification in the State on such date as the Governme nt may
A.P. Gatglte appoint. by notification in the A.P. Gazett e appoint.
From a comparison of the two Sub-sections extracted above, it is clear that till 25-8-1981 the Act was applicable to the Municipalities only and after 25-8-1981, it was made applicable to both Municipalities as well as Municipal Corporations in the State. Now a plain reading of Sub-section (3) of Section 1 makes it clear that the Act comes into force in any Municipality or Municipal Corporation in the State on such date as the government may notify. Application of the Act to any Municipal Corporations in the State, the Act cannot be applied to either a Municipal Corporation or Municipality depends upon the issuing of notification and appointing a date by the Government. Without a notification appointing a date or different dates with reference to each or all the Municipal Corporation or a Municipality in the State. This is further clear from the proviso appended to the Sub-section which requires that before issuing any such notification the Government shall publish in the A.P. Gazette a notice of their intention to bring into force the Act in any Municipality or Municipal Corporation in the State, and fix a period which shall not be less than two months from the date of publication of the notice for the Municipality or Municipal Corporation concerned, to show cause against the issue of the notification and consider its objections, if any. Therefore, it follows that unless the Government issue notice in the A.P. Gazette of their intention of applying the provisions of the Act to the Municipality or Municipal Corporation, giving two months time for filing objections and on receipt of objections, if any, consider them, they cannot issue a notification applying the Act and unless a notification is issued under Sub-section (3) of Section 1 of the Act in respect of a Municipal Corporation or Municipality the Act cannot be applied to it. These are pre-requisites of the application of the act to a Municipality or Municipal Corporation. In this case, admittedly neither any notice was issued under proviso to Sub-section (3) nor any notification was issued under the said Sub-section in respect of Municipal Corporation of Hyderabad, as such the Act could not be applied to the Municipal Corporation of the Twin Cities of Hyderabad and Secunderabad. Without any such notification, the irresistable conclusion would be that any proceedings taken under the Act are without the authority of law, and are liable to be quashed. I accordingly quash the notification issued by the respondents under Sections 3 (1) and 3(2) of the Act and all consequential orders passed thereunder.
26. In view of this finding, the other points mentioned above need not be considered as it is well settled that the court need decided no more than is necessary to dispose of the lis.
27. All the writ petitions are allowed accordingly with costs. Advocate's fee Rs. 250/ - in each.
28. The learned Standing counsel for the Hyderabad Municipal Corporation made an oral application to suspend the operation of this judgment for a period of four weeks.