P.K. Thipperudrappa Vs. the State of Karnataka - Court Judgment

Excerpt:

.....energy in the instance case is capable of being possessed, transmitted, delivered and used, and, to some extent, stored. on careful analysis of the facts constituting the appellant companys activity of providing broadband connectivity to its subscribers under service level agreement entered into by it with them, it is found that the appellant company has given its subscribers the right to use its ofc network and also to use and consume the light energy created by it artificially for the purpose of carrying their data/information and it has been collecting from them an ascertained sum of money towards the same. indian sale of goods act, 1930 section 3 & karnataka value added tax act, 2003, section 2(15): meaning of the term goods - activity of providing broad band connectivity by the appellant company to its subscribers, whether amounts to sale of light energy taxable under section 3 of the kavt act ? held, light energy is artificially created by the assessee company with its net work. artificially created electrical light energy which is used for transmission of data of the subscribers of the appellant/assessee company through its ofc network is good within the meaning of..........with any notice calling upon him to show cause why the land in question should not be declared as a slum area for the purpose of that act. this fact is not denied on behalf of the respondents.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 areas (improvements 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 on the ground that the said notifications were violative of the principles of natural justice in that they had not been afforded an opportunity of making representations against them. the court while un holding the validity of sections 3, 9, 12 (1) (a) and (b) of that act, which had been challenged as unconstitutional had struck down the three notifications, 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.....

Judgment:

ORDER

1. In this petition under Article 226 of the Constitution, the petitioner has challenged the notification issued under Section 3(1) of the Karnataka Slum Areas (Improvements and Clearance) Act, 1973 (Slum Act) whereby certain land belonging to him had been notified as a slum area.

2. On behalf of the petitioner, Minajagi, learned counsel, submitted that before promulgation of the said notification, which affected his civil rights to property, it was the duty of the authority concerned to have afforded him an opportunity to show cause against such declaration. In support of this submission, he relied on certain enunciations of the Supreme Court in the case of Govt. of Mysore v. J. V. Bhat, : [1975]2SCR407 , which was a case arising under the Mysore Slum Areas (Improvements and Clearance) Act, 1958, wherein also a similar notification had been issued under Section 3 thereof, the provisions of which are in pari materia with the provisions of the Act concerned herewith. It seems to me that this contention is well founded and must be accepted as correct.

3. The petitioner has alleged that before the issuance of the impugned notification under Section 3 of the Slum Act, he had not been served with any notice calling upon him to show cause why the land in question should not be declared as a slum area for the purpose of that Act. This fact is not denied on behalf of the respondents.

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 Areas (Improvements 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 on the ground that the said notifications were violative of the principles of natural justice in that they had not been afforded an opportunity of making representations against them. The Court while un holding the validity of Sections 3, 9, 12 (1) (a) and (b) of that Act, which had been challenged as unconstitutional had struck down the three notifications, 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 to 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 that the 'audio alteram partem' rule could be imported. 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'.

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. NMA 93 MNI 75 dated 15th April 1975 and gazetted 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 petitioner to make a representation against any such declaration and after considering such a representation on its merits. In the circumstances, the parties will bear their own costs.

6. Petition allowed.