Shri Murlidhar Teckchand Gandhi ... vs Shri T.D. Joshi, President ...
2001 Latest Caselaw 345 Bom

ORDER

R.J. Kochar, J.

1. Cries of the slum dwellers for end of the life of drudgery were legislatively responded culminating in the enactment of the Maharashtra Slum Areas (Improvement, Clearing and Redevelopment) Act, 1971. Very often Executive proposed but the Judiciary had to dispose as the Executive was not strictly within the legislatively prescribed bounds. From 1976 the Executive decisions to declare the present area as a "slum area" were required to be struck down twice being in violation of the provisions of the Act. The first such declaration dated 16.9.1976 was set aside on 13.9.1983 by the Tribunal. The Second Notification dated 22.10.1986 again met with the same fate in the Tribunal on 19.1.1993. Still the residents living the miserable life of indigence did not lose their heart and continued to pursue their efforts in a hope to see the shadow of the Article 21 and at least the ghost of the Directive Principles through their roofless and holeful huts. This time they have succeeded upto the level of the Tribunal where the impugned declaration dated 21.8.1997 was upheld in the Appeal on 12.12.1997. The Landlord Petitioners are equally tenancious and naturally so as their whole property is at stake. They have questioned the legality and validity of the Appellate Tribunals Order which has not considered that the declaration was violative of principles of natural justice from the stage of issue of show cause notice. Shri Thorat, the learned Counsel for the Petitioner, has submitted that the Petitioner had provided the requisite amenities and that there was no case for declaration of the area as "slum area". According to the learned Counsel the matter is barred by the principles of res judicata and estoppel as in the past twice such declarations have been quashed and set aside and that there was no change in the circumstances to warrant third time declaration at the instance if the tenants/occupants who have not paid even a single paisa by way of rent from 1982. Shri Thorat has repeated that the Petitioners have provided all the required basic amenities but the Authorities have not considered the reply filed by the Petitioners, Shri Thorat has stressed that no particular defects were pointed out in the property. He has questioned the bona fides of the Authorities to issue the impugned declaration. The Authorities have mechanically issued the show cause notice which was a cyclostyled one and even the Tribunal has not applied its mind to the grounds of appeal and other submissions urged before the Tribunal causing serious prejudice and grave injustice to the Petitioners who are deprived of their valuable property in violation of their fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution of India. Shri Thorat has relied on the following judgments in support of his submissions:

(1) in the case of Ganesh P. Singh v. The Dy. Collector (Enc.) and Competent Authority Writ Petition 3026 of 1981, (Shri Jahagirdar, J.)

(2) in the case of Papaya Chinaya Muthwas v. State of Maharashtra and Anr. 1993 Mh.L.J. 1131, (Dr. B.P. Saraf).

2. Shri Govilkar, the learned Counsel for the Respondent Nos. 4 to 8, the Society and the tenants/occupants has strongly supported the impugned judgment and has submitted that inspite of three show cause notices there has been no basic amenities and that the on-the-spot inspection report prepared by the Authority has to be accepted as correct as the same was prepared in the presence of the petitioner No. 1 and the Chief Promoter and other office-bearers of the Society representing 339 occupants. The total absence of basic amenities have been recorded and that there is no septic tank for the outlet of the waste from the W.Cs. And that gutters, nallas are open and that the whole population was living the life of untold miseries, says the learned counsel. He stressed and submitted that this Court should not interfere with the impugned judgment and order of the Tribunal which is in the interest and welfare of the occupants.

3. Shri Meckwan, the learned Counsel for the Respondent Nos. 2 and 3 has also supported the impugned order.

4. In the third round of litigation the Competent Authority issued a preliminary notice dated 17.6.1997 specifically pointed out to the petitioners that the land on which they were claiming ownership had insufficient basic amenities available to the dwellers of the land. The following defects were specifically brought to the notice of the Petitioners:

(1) There is no planning in the construction. The chawl is constructed unauthorised, ill planned. The walls are in broken condition.

(2) The W.C. is not in good condition.

(3) There is no proper gutter arrangement and drainage system for the smooth flow of waste water.

(4) There is no ventilation

(5) No water and light connection have been provided by you.

(6) There is no street light pathways.

(7) Necessary permission from the B.M.C. authorities has not been obtained at the time of construction of the chawls.

The Petitioners were called upon to attend the office in that connection and to give their say. The Petitioners had submitted their reply through their Advocate by letter dated 30.6.1997 wherein various contentions were taken and the defects pointed in preliminary notice were flatly denied. The Petitioners submitted another reply through their another Advocate by letter dated 20.8.1997 wherein also several contentions were taken and the alleged absence of amenities was denied.

5. Not satisfied with the replies, the Competent Authority issued a declaration under Section 4(1) of the Act declaring the areas to be the slum areas. I do not find any substance in the contention of Shri Thorat that the Petitioners were not given any hearing and that their objections were not considered. According to me, the Competent Authority has to basically consider the factual and actual position in existence in the area and where such area requires to be declared as slum area under the Act. Besides, it was not for the first time that the Petitioners were facing threat of declaration of their land as slum area. Earlier on two occasions they escaped from the declaration on one or the other technical ground. From the defects which were pointed out it is very clear that there was absolutely no improvement of any nature to make the human life habitable in area. It is not mere words but there factual condition is material. Further, it is also not how many W.Cs. or toilets in number are pointed out by the petitioners as pointed out by the petitioners but again their usable conditions Are material. As is observed by the Tribunal that out of eight W.Cs. five were not at all in usable conditions. 1 do not want to describe the conditions of such toilets here. In the absence of septic tank and in the presence of open gutter one has to merely shudder to visualise under what conditions the people are living in the area and use such toilets I fail to understand why the Competent Authority would submit a false report describing the conditions in the area. Assuming that there is some degree of exaggeration as pointed out by Shri Thorat I still hold that such exaggeration would go for improvement of the locality and the living conditions of the people. If the Competent Authority has considered the reports and has come to its own conclusion on the basis of such inspection reports which also have been scrutinised by the Tribunal it is not for this Court to again go into all such minute details. The very fact that for 339 persons there are only 8 toilets out of which 5 are said to be not in proper conditions is a telling and woeful condition warranting the declaration of the property as a slum area. The provision of proper toilets is the foremost and fundamental human need which itself is lacking in the area. It is pertinent to note that the inspection report noting the defects was prepared in the presence of the petitioners and the occupants. The following two paragraphs from the judgment of the Tribunal would be and should be our eye opener. If the Executive of our Welfare State has acted to implement the legislative mandate they cannot be blamed even if there is some wrong here or there, as such wrong can always be condoned to achieve better right. Paragraphs 12 and 13 of the Tribunal's Judgment read as under:

12. ...On 14.8.1997, along with Appellant No. 1 and also the Chief Promoter of the said Co-op. Housing Society along with other office-bearers and occupants, inspection was taken. The Report clearly indicates that there are six chawls, having 63 rooms. Accordingly, there are 339 occupiers. The structures of the room has Brick Masonary Wall. The repair of the structure is being carried out by the slum dwellers themselves. On enquiry, it is revealed that the structures have been constructed by the slum dwellers themselves. Therefore, the Appellant cannot claim to be the owner of the structure. Each structure is having Manglore titled roof. The Plaster of the rooms of some of the occupiers have decayed and the roof of one of the tenants, Shri Arvind Gale have been noticed as dilapidated and broken. The roof of most of the structures are found to be decayed. There are 8 W.Cs. of which doors of W.C. Nos. 1 and 8 was at all put and of the six W.Cs., W.C. Nos. 6 and 7 were totally flooded with human excrete and a foul smell was noticed. There is no septic tank constructed for outlet from the W.Cs. In the absence of septic tank, the waste from the W.Cs. is drained into the open, touching the nalla, because of which, dirty smell is polluting the entire area.

13. During the course of inspection, the Appellant brought to the notice of the Investigating Team that some of the tenants have constructed the self contained W.Cs. in their houses. At that time, about 25 to 30 hutment/slum dwellers agreed that they have constructed the W.Cs. as there was no access and because, there is no septic tank constructed by the Appellant and therefore, there was no device for outlet of the waste from the W.C. being available. Hence the W.Cs., are not being used by the tenants/occupiers. Thus, out of 8 W.Cs. 5 cannot be used and two are kept without door and two being flooded with human excreta. It is impossible for the occupiers to enter in these W.Cs. The gutter being open, very narrow and therefore, it cannot be considered as gutter at all, because the waste water and excreta overflows from the said gutter. The

Inspection Report also submits that in front of the house of one Shri Narayan Yadav, there was accumulation of the waste water noticed and the house of Shri Narayan Yadav are proned to health hazard. The area is therefore, unfit for human habitation. Regarding Electricity and Water connection, there was no adverse remarks noticed in the said report. However, the internal roads are too narrow and not properly paved. It can be found that there is no internal streetlight. The height of the structure being less than 7 ft. Therefore, the possibility of having natural light was declined to the occupiers. Further, the whole area is smelling foul on account of disposal of the human excreta as well as waste water in the damaged gutter, being very narrow, is always noticed to be overflowing....

6. As far as the point of defects and want of basic amenities to be informed to the landlord is concerned, it has absolutely no merit as It was not that the petitioners were facing the show cause notice for the first time. Earlier they were informed twice and they were fully aware of the absence of the basic amenities which were statutorily required to be provided by the landlords. Besides, the report was prepared in the presence of the Petitioner and therefore, there was no necessity in particular to send him a special notice to make good the defects. In fact he never made any efforts to provide for basic human needs for a reasonable habitable conditions. In the earlier proceedings he was fully made aware of the conditions required to be complied with by the Petitioners. He had more than ample opportunity to take every necessary step to provide for the basic amenities to avoid third time the action by the Authorities, The Authorities and the Tribunal both have considered all the facts and circumstances under which the 339 occupants human being living in totally inhuman surroundings which are just stinking and which are simply unbearable. One has to remain present to describe the conditions. Bare reading of the on-the-spot-report should be enough for the Authorities to exercise the powers vested under this extra ordinary legislation for the welfare of the slums of which this Great Metropolis was proud of to have It was announced in T.V. Report of the D.D. that the Dharavi in Bombay won the Biggest Slum area in the whole Asia Presently we cannot wish away and eradicate the slums altogether like a magic wand and they are just unavoidable considering the lope-sided economic progress of the country. People from all over the country come to this City for livelihood and it is the greatest virtue of this City that it does not allow anyone who is prepared to do any work to sleep hungry. Unfortunately, however, this small island cannot house them all under good conditions. Therefore, slums have become inevitable and unavoidable evils. This statute has tried to make the conditions of the slum dwellers a little bearable and nothing more. Considering all the pros and cons and the facts and circumstances I do not find any good reason to interfere with the impugned judgment and order of the Tribunal. The Competent Authority has acted on the Inspection Report and the Tribunal has also not found any fault with the Report. There is nothing on record to discard the conclusions of the Competent Authority and the Tribunal in Appeal. This Court cannot sit in Appeal over the decision arrived at by both the Authorities below in the manner prescribed to accomplish the object of the Act. There is no miscarriage of justice to warrant exercise of extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is therefore, dismissed. Rule is discharged. No order as to costs.

Certified copy is expedited.