Bombay High Court
Shri. Tukaram Sopanrao Mulik vs The State Of Maharashtra And Ors on 28 April, 2017
Bench: R.M. Savant
Reserved Judgment in WP-8949-15 & group matters.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8949 OF 2015
1. Slum Rehabilitation Authority, ]
Pune and Pimpri Chinchwad Area Pune, ]
Having its office at Mutha Chamber-II, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
2. The Chief Executive Officer, ]
Of SRA Pune and Pimpri Chinchwad Area, ]
Pune, having its office at Mutha Chamber-II, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]..Petitioners
Versus
1. Smt. Kantabai Vasant Ahir ]
Age- 66 years, occupation household ]
2. Shri. Santosh Vasant Ahir ]
Age- 33 years, Occupation business ]
3. Shri. Gaurishankar Vasant Ahir ]
Age- 31 years, Occupation business, ]
4. Shri. Nilesh Vasant Ahir ]
Age 29 years, Occupation business, ]
Respondent No.1 to 4 residing at ]
Matru Chhaya Hsg. Society, Near Agakhan ]
Palace, Pune-Ahmednagar Road, ]
Yerwada, Pune 411 006. ]
5. Mrs. Radhika Sandip Choudhary ]
Age-adult, Occupation Housewife, ]
R/at - SBI Colony, Court Road, Paratwada, ]
Taluka - Achalpur, District - Amravati. ]
6. Mr. Vasudeo Ramanna Pujari, ]
adult, Occupation Business, ]
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7. Mr. Chandrakant Ramanna Pujari ]
Age-adult, Occupation business, ]
Having address at 28/1A/1, Wadgaon Sheri ]
Taluka-Haveli, District Pune. ]
8. Mr. Sanjay Vijay Pabashettiwar, ]
Age-adult, occupation service, ]
Having address at 28/1A/1, ]
Wadgaon Sheri, Taluka Haveli, Dist. Pune. ]
9. Mr. Suresh Tejbahaddur Thakur, ]
Age-adult, Occupation business, ]
Having address at Wadgaon Sheri, Ramwadi ]
Taluka - Haveli, District Pune. ]
10. Shri. Tukaram Sopanrao Mulik, ]
Age - 60 years, Occupation - Business, ]
Having address at S. No.289, Ramwadi, ]
Mulik Vasti, Wadgaon Sheri, Pune. ]
11. The President, ]
Maharashtra Slum Area (I.C. & R.) ]
Tribunal, Mumbai . ]..Respondents
ALONGWITH
WRIT PETITION NO.8948 OF 2015
1. Slum Rehabilitation Authority, ]
Pune and Pimpri Chinchwad Area Pune, ]
Having its office at Mutha Chamber-II, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
2. The Chief Executive Officer, ]
Of SRA Pune and Pimpri Chinchwad Area, ]
Pune, having its office at Mutha Chamber-II, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]..Petitioners
Versus
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1. Smt. Kantabai Vasant Ahir ]
Age- 66 years, occupation household ]
2. Shri. Santosh Vasant Ahir ]
Age- 33 years, Occupation business ]
3. Shri. Gaurishankar Vasant Ahir ]
Age- 31 years, Occupation business, ]
4. Shri. Nilesh Vasant Ahir ]
Age 29 years, Occupation business, ]
Respondent No.1 to 4 residing at ]
Matru Chhaya Hsg. Society, Near Agakhan ]
Palace, Pune-Ahmednagar Road, ]
Yerwada, Pune 411 006. ]
5. Mrs. Radhika Sandip Choudhary ]
Age-adult, Occupation Housewife, ]
R/at - SBI Colony, Court Road, Paratwada, ]
Taluka - Achalpur, District - Amravati. ]
6. Mr. Vasudeo Ramanna Pujari, ]
adult, Occupation Business, ]
7. Mr. Chandrakant Ramanna Pujari ]
Age-adult, Occupation business, ]
Having address at 28/1A/1, Wadgaon Sheri ]
Taluka-Haveli, District Pune. ]
8. Mr. Sanjay Vijay Pabashettiwar, ]
Age-adult, occupation service, ]
Having address at 28/1A/1, ]
Wadgaon Sheri, Taluka Haveli, Dist. Pune. ]
9. Mr. Suresh Tejbahaddur Thakur, ]
Age-adult, Occupation business, ]
Having address at Wadgaon Sheri, Ramwadi ]
Taluka - Haveli, District Pune. ]
10. Shri. Tukaram Sopanrao Mulik, ]
Age - 60 years, Occupation - Business, ]
Having address at S. No.289, Ramwadi, ]
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Mulik Vasti, Wadgaon Sheri, Pune. ]
11. The President, ]
Maharashtra Slum Area (I.C. & R.) ]
Tribunal, Mumbai . ]..Respondents
ALONGWITH
WRIT PETITION NO.8947 OF 2015
Shri. Tukaram Sopanrao Mulik ]
Age 60 years, occupation business, ]
Having address at S. No.28, Ramwadi, ]
Mulik Vasti, Wadgaon Sheri, Pune. ]..Petitioner
Versus
1. The State of Maharashtra ]
(At the instance of the Slum Tribunal, ]
Bandra, Mumbai) ]
(to be served upon the Govt. Pleader, ]
High Court, Bombay) ]
2. Slum Rehabilitation Authority, ]
Pune and Pimpri Chinchwad Area Pune. ]
Having its office at Mutha Chamber, ]
S.B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
3. The Chief Executive Officer, ]
Of SRA Pune and Pimpri Chinchwad Area, ]
Pune, having its office at Mutha Chamber, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
4. Smt. Kantabai Vasant Ahir ]
Age- 66 years, occupation household ]
5. Shri. Santosh Vasant Ahir ]
Age- 33 years, Occupation business ]
6. Shri. Gaurishankar Vasant Ahir ]
Age- 31 years, Occupation business, ]
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7. Shri. Nilesh Vasant Ahir ]
Age 29 years, Occupation business, ]
Respondent No.1 to 4 residing at ]
Matru Chhaya Hsg. Society, Near Agakhan ]
Palace, Pune-Ahmednagar Road, ]
Yerwada, Pune 411 006. ]
8. Mrs. Radhika Sandip Choudhary ]
Age-adult, Occupation Housewife, ]
R/at - SBI Colony, Court Road, Paratwada, ]
Taluka - Achalpur, District - Amravati. ]
9. Mr. Vasudeo Ramanna Pujari, ]
adult, Occupation Business, ]
10. Mr. Chandrakant Ramanna Pujari ]
Age-adult, Occupation business, ]
Having address at 28/1A/1, Wadgaon Sheri ]
Taluka-Haveli, District Pune. ]
11. Mr. Sanjay Vijay Pabashettiwar, ]
Age-adult, occupation service, ]
Having address at 28/1A/1, ]
Wadgaon Sheri, Taluka Haveli, Dist. Pune. ]
12. Mr. Suresh Tejbahaddur Thakur, ]
Age-adult, Occupation business, ]
Having address at Wadgaon Sheri, Ramwadi ]
Taluka - Haveli, District Pune. ]..Respondents
ALONGWITH
WRIT PETITION NO.8946 OF 2015
Shri. Tukaram Sopanrao Mulik ]
Age 60 years, occupation business, ]
Having address at S. No.28, Ramwadi, ]
Mulik Vasti, Wadgaon Sheri, Pune. ]..Petitioner
Versus
1. The State of Maharashtra ]
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(At the instance of the Slum Tribunal, ]
Bandra, Mumbai) ]
(to be served upon the Govt. Pleader, ]
High Court, Bombay) ]
2. Slum Rehabilitation Authority, ]
Pune and Pimpri Chinchwad Area Pune. ]
Having its office at Mutha Chamber, ]
S.B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
3. The Chief Executive Officer, ]
Of SRA Pune and Pimpri Chinchwad Area, ]
Pune, having its office at Mutha Chamber, ]
S. B. Road, Near Chaturshrungi, ]
Shivajinagar, Pune 411 016. ]
4. Smt. Kantabai Vasant Ahir ]
Age- 66 years, occupation household ]
5. Shri. Santosh Vasant Ahir ]
Age- 33 years, Occupation business ]
6. Shri. Gaurishankar Vasant Ahir ]
Age- 31 years, Occupation business, ]
7. Shri. Nilesh Vasant Ahir ]
Age 29 years, Occupation business, ]
Respondent No.1 to 4 residing at ]
Matru Chhaya Hsg. Society, Near Agakhan ]
Palace, Pune-Ahmednagar Road, ]
Yerwada, Pune 411 006. ]
8. Mrs. Radhika Sandip Choudhary ]
Age-adult, Occupation Housewife, ]
R/at - SBI Colony, Court Road, Paratwada, ]
Taluka - Achalpur, District - Amravati. ]
9. Mr. Vasudeo Ramanna Pujari, ]
adult, Occupation Business, ]
10. Mr. Chandrakant Ramanna Pujari ]
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Age-adult, Occupation business, ]
Having address at 28/1A/1, Wadgaon Sheri ]
Taluka-Haveli, District Pune. ]
11. Mr. Sanjay Vijay Pabashettiwar, ]
Age-adult, occupation service, ]
Having address at 28/1A/1, ]
Wadgaon Sheri, Taluka Haveli, Dist. Pune. ]
12. Mr. Suresh Tejbahaddur Thakur, ]
Age-adult, Occupation business, ]
Having address at Wadgaon Sheri, Ramwadi ]
Taluka - Haveli, District Pune. ]..Respondents
Mr. P. S. Dani, Senior Advocate i/by Mr. Vijay Killedar for the
Petitioners in Writ Petition No.8949 of 2015, Writ Petition No.8948 of
2015 and for Respondent No.2 in Writ Petition No.8946 of 2015, Writ
Petition No.8947 of 2015.
Mr. Y. S. Jahagirdar, Senior Advocate i/by Mr. S. A. Inamdar for the
Petitioners in Writ Petition No.8946 of 2015 and Writ Petition
No.8947 of 2015.
Mr. A. Y. Sakhare, Senior Advocate i/by Mr. P. V. Dube for the
Respondent Nos.1 to 9 in Writ Petition No.8949 of 2015 and Writ
Petition No.8948 of 2015 and for Respondent Nos.4 to 12 in Writ
Petition No.8946 of 2015 and Writ Petition No.8947 of 2015.
CORAM : R. M. SAVANT, J.
RESERVED ON : 23.03.2017
PRONOUNCED ON : 28.04.2017
JUDGMENT
1 Rule in all the Petitions, with the consent of the Learned
Counsel for the parties made returnable forthwith and heard.
2 The above Petitions take exception to the order dated
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12.03.2015 passed by the Learned President of the Maharashtra Slum
Areas (I.C. & R.) Tribunal in Appeal No.25 of 2014 and Appeal No.24 of
2014. By the said order, the said Appeals came to be partly allowed and
the Slum Rehabilitation Area Declaration Order dated 24.05.2006 issued
under Section 3C and the Slum Clearance Order under Section 3D of the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (hereinafter referred to as "the Slum Act") to the extent of the
area of 1045.50 sq.mtrs. came to be set aside. However the said
Declaration and Clearance order was sustained in so as the area of 4123
sq.mtrs. is concerned.
3 The above Writ Petition No.8949 of 2015 and Writ Petition
No.8948 of 2015 have been filed by the Slum Rehabilitation Authority,
Pune ("SRA" for the sake of brevity) challenging the said orders dated
12.03.2015. The remaining two Petitions i.e. Writ Petition No.8946 of
2015 and 8947 of 2015 have been filed by the owner of the lands in
question one Tukaram Sopanrao Mulik challenging the same order dated
12.03.2015 passed by the Slum Tribunal. Since the challenge in all the
above Petitions runs parallel and since the Petitions involve common
questions of fact and law, they are heard together.
By the consent of the Learned Counsel for the parties, Writ
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Petition No.8949 of 2015 is treated as the lead matter.
4 The lands involved in the above Petitions are Survey Nos.27
and 28 at Wadgaon Sheri (Ramwadi), Mulik Vasti, Pune admeasuring
4123 sq.mtrs. The said lands were occupied by structures. The said land
came to be declared as slum by a notification issued under Section 4(1)
of the Slum Act. The said declaration was published by the Competent
Authority in the Government Gazette on 10.11.1983 and copy thereof
was made available for perusal of the public by affixing the same at
conspicuous places in the said area and panchanama to that effect came
to be prepared.
5 The Slum Rehabilitation Authority for Pune, Pimpri and
Chinchwad area i.e. SRA came to be established under Section 3A of the
Slum Act on 30.06.2005. After its establishment, the SRA prepared a
Slum Rehabilitation Scheme for the city of Pune which was under
Section 3B of the Slum Act. The said Slum Rehabilitation Scheme inter-
alia defined the constitution of the SRA, its scope and powers under the
Slum Act, its obligations towards the slum dwellers as also towards the
owners and the developers. After its establishment, the SRA conducted a
survey to inter-alia prepare a list of eligible and ineligible slum dwellers
from amongst the persons who had their structures on the land in
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question. The SRA accordingly carried out a detailed survey by visiting
the site. The Respondent Nos.1 to 9 herein who have their structures on
the lands in question participated in the said survey and showed their
willingness to be the part of the said scheme. In pursuance of the said
survey, the first list of slum dwellers came to be published on 18.04.2006
by affixing the same at a conspicuous place in the said area. In terms of
the Government Resolution dated 08.09.2001, a notice came to be
published on 12.05.2006 calling for objections from the aggrieved slum
dwellers in respect of the list prepared of the eligible slum dwellers by
the SRA vide Annexure-II. The Respondent Nos.1 to 9 herein whose
structures are situated on the lands in question approached the SRA vide
their objections dated 26.05.2006, 21.06.2006, 20.07.2006 and
07.08.2006. After considering the objections of the Respondent Nos.1 to
9, the SRA published another list on 16.05.2007. In the said list the
Respondent Nos.1 to 9 herein were declared as eligible.
6 The SRA thereafter in its capacity as a slum rehabilitation
authority passed an order under Section 3C of the Slum Act whereby an
area admeasuring 5168.50 sq.mtrs. ( i.e. 4123 sq.mtrs.) already declared
as slum, plus 1045.50 sq.mtrs out of the said land bearing Survey Nos.27
and 28 came to be declared as a Slum Rehabilitation Area by order dated
24.05.2006. The said Slum Rehabilitation Area Declaration Order issued
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under Section 3C of the Slum Act was published in daily newspaper
"Lokmat" on 28.05.2006 as also in the Gazette on 01.06.2006. The said
notification was thereafter served upon the concerned persons not only
by publishing the same but also by affixing the same on the front side of
the structures of the Respondent Nos.1 to 9 on 13.06.2006. Hence by
affixing the same and by publishing the same in the daily newspaper
"Lokmat" the SRA, can be said to have complied with the requirement of
serving the notice on the affected parties. The SRA thereafter added an
additional area of about 7212.50 sq.mtrs which is adjacent to the area
already declared as a Slum Rehabilitation Area which additional area was
also of the ownership of the same owner.
7 Thereafter a Slum Clearance Order came to be issued on
01.09.2009. The same was in respect of 4123 sq.mtrs. already declared as
Slum Rehabilitation Area plus 1045.50 sq.mtrs. which was an undeclared
area and the additional area of 7212.50 sq.mtrs. which is the adjacent
land belonging to the owner i.e. the Respondent No.10. The said Slum
Clearance Order was published in the Government Gazette on
10.09.2009 and was also published in daily newspaper "Pudhari" in its
edition dated 12.09.2009. The said order was also pasted on the
conspicuous part of the locality and panchanama to the said effect was
drawn on 15.10.2009. It is pursuant to the said Slum Clearance Order
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that the developers i.e. M/s. Mulik Developers started the work of
rehabilitation on the said property. In view of the fact that the
Respondents were not vacating their structures, a notice came to be
issued to them under Section 33 of the Slum Act which notice was dated
03.09.2014 calling upon the Respondent Nos.1 to 9 to vacate and hand
over possession of their structures so as to facilitate implementation of
the rehabilitation scheme for the slum dwellers on the said plot of land.
The issuance of the said notice has triggered of the filing of the Appeals
by the Respondents against the declaration of the Slum Rehabilitation
Area dated 24.05.2006 issued under Section 3C and the Slum Clearance
Order dated 01.09.2009 issued under Section 3D of the Slum Act. The
Appeals filed on 22.04.2013 by the Respondent Nos.1 to 9 were
numbered as 25 of 2014 and 26 of 2014 respectively. The Appeals were
principally founded on the fact that it is only in respect of an area
declared as slum under Section 4(1) that a declaration could be issued in
respect of a Slum Rehabilitation Area and consequently a Slum Clearance
Order could be passed. It was also the case of the Appellants i.e.
Respondent Nos.1 to 9 herein that the said declaration of the Slum
Rehabilitation Area has been issued without notice to the persons like the
Appellants and without their consent. It was the case of the Appellants
that they were lessees in respect of the area of 5000 sq.ft. in the said plot
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of land since 1960 and that the Appellant Nos.6 to 9 were tenants of the
landlord and were therefore required to be issued a notice and their
consent was required to be obtained. It was also the case of the
Appellants that the Slum Clearance Order dated 01/09/2009 has been
issued without hearing them. It was the case of the Appellants that they
became aware of the declaration of the Slum Rehabilitation Area and the
issuance of the Slum Clearance Order when in the Civil Suit No.97 of
2013 filed by them against the SRA, the Advocate for the SRA filed the
documents in question for the first time. It was the case of the Appellants
that they thereafter applied for certified copies of the said documents
which were inter-alia declaration of the Slum Rehabilitation Area and the
Slum Clearance Order on 18.03.2013 and obtained the same on
22.03.2013. It was therefore the case of the Appellants that the Appeal as
filed by them after obtaining the certified copies was within time. The
Appellants also questioned the declaration of an additional area of
1045.50 sq.mtrs. as Slum Rehabilitation Area and questioned the said
declaration on the ground that before taking any such drastic action the
Appellants were required to be heard. The Appellants also questioned the
implementation of a Slum Rehabilitation Scheme on the plot of land on
the ground that the owners did not have the consent of 70% of the
occupants as required. The Appellants also contended that in terms of the
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information they had got under the Right to Information Act, their
structures were not within the Slum Area declared as such and therefore
the SRA did not have the jurisdiction and power to remove the structures
of the Appellants and implementation of the Slum Rehabilitation Scheme
on the additional area of 1045.50 sq.mtrs. The Appellants had therefore
sought the quashing of the declaration of the Slum Rehabilitation Area
Order dated 24.05.2006 as also the Slum Clearance Order dated
01.09.2009 passed by the Chief Execution Officer of the SRA.
8 On behalf of the SRA, a reply affidavit dated 31.01.2015
came to be filed by the Additional Chief Executive Officer Shri. Sudhakar
Deshmukh. In the said reply the facts antecedent to the declaration of the
Slum Rehabilitation Area have been stated. It was stated that an area
survey was carried out. In the said survey the actual conditions existing
on site were reported. It was stated that on being satisfied that conditions
contemplated under Section 4(1) were satisfied that CEO, SRA had
passed the Slum Rehabilitation Area Declaration Order on 24.05.2006. It
was further stated that the objection of the Appellants in respect of their
eligibility was considered and that the Appellants were held to be
eligible. It was further stated in the said affidavit that pursuant to the
declaration of the Slum Rehabilitation Area a Slum Clearance Order came
to be issued on 01.09.2009 in respect of the said Slum Rehabilitation
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Area. The publication of the said Slum Clearance Order was adverted in
the affidavit. It was therefore the case of the SRA in the said affidavit that
no relief could be granted to the Appellants in the said Appeal as the
procedure required to be followed by the SRA was followed as such by
the SRA prior to the declaration of the Slum Rehabilitation Area as also
the issuance of the Slum Clearance Order.
9 On behalf of the Opponents in the said Appeals, the owner
Shri. Tukaram Sopanrao Mulik filed his reply dated 21.02.2015. In the
said reply, the facts antecedent to the issuance of the declaration of the
Slum Rehabilitation Area under Section 3C(1) of the Slum Act are
mentioned. It was averred in the said affidavit that the amended
provisions of the Slum Act as contained in Chapter I-A are applicable. The
affiant has referred to the suit filed by the Appellants being Civil Suit
No.97 of 2013 challenging the Slum Clearance Order dated 01.09.2009
in which suit an application was made for interim reliefs on 05.09.2014
which application was rejected by the Learned Civil Judge Senior
Division, Pune on 09.09.2014 the affiant therefore prayed that no relief
could be granted to the Appellants in the above Appeal and that the said
Appeal was required to be dismissed.
10 On the basis of the pleadings of the parties, the Slum
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Tribunal framed the following issues :-
"(i) Whether the Appellants proved that they are persons
aggrieved as contemplated under Section 12(4) of the
Slum Act ?
(ii) Whether the Respondents have adopted the due
process of law while issuing the impugned order dated
01.09.2009 ?"
The parties in support of their respective assertions produced a number
of documents. The Respondents herein i.e. the Appellants before the
Tribunal filed a copy of the Civil Suit No.365 of 2000, the proposal
submitted by the owners to the SRA on 20.09.2005 for an area
admeasuring 4123 + 1045.50 = 5168.50 sq.mtrs., the letter dated
25.11.2005 issued by the Assistant Commissioner of the Municipal
Corporation informing the Appellants that they do not fall in the area
declared as slum, the amendment application filed in Civil Suit No.365 of
2000 by the owners i.e. the original Plaintiffs to incorporate the averment
that the Respondents herein are in a private property and not in a slum,
the copy of the agreements entered into by the owners with the slum
dwellers, the slum declaration dated 16.05.2005, the rent receipts in
respect of the payment made in Civil Suit No.365 of 2000, notice
published in newspaper "Jagruti Times", copy of the notice issued by the
Respondents i.e. the Appellants in the Appeal to the SRA dated
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27.11.2012. On behalf of the SRA, the documents showing that the
Respondents i.e. the Appellants are eligible, the various declarations and
the notifications issued under Section 3C and 3D of the Slum Act, the
order dated 01.09.2009 calling upon the Respondents to vacate and hand
over possession of their structures were placed on record on behalf of the
SRA herein i.e. Respondent Nos.1 and 2 to the Appeal.
11 The Tribunal on the basis of the material on record and
especially having regard to the report of the Assistant Commissioner,
Pune Municipal Corporation informing the Appellants that they do not
come within the area declared as slum held that the Appellants i.e. the
Respondents herein are aggrieved persons under Section 12(4) of the
Slum Act. In so far as the second issue is concerned, the Tribunal
adverted to the fact that since the dispute is as regards the order dated
01.09.2009, the said order discloses that the same has been issued in
respect of Survey Nos.27 and 28 out of which 4123 sq.mtrs. is the
declared slum area and 1045.50 sq.mtrs. is the undeclared area. The
Tribunal then adverted to the fact of the Slum Clearance Order under
Section 3D read with Section 12 by which SRA had called upon the
Respondents herein i.e. the Appellants to hand over their structures. The
Tribunal therefore ventured to consider whether before passing the said
order the SRA had complied with the procedure which was required to be
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followed. The Tribunal then adverted to Section 36 of the Slum Act which
provides for the manner in which notices under the Slum Act are required
to be issued. The Tribunal held that since before passing of the order
dated 01.09.2009 it was necessary to issue notice under Section 36 to the
Appellants and since the Appellants are held to be eligible slum dwellers
as per the admission of the Respondent Nos.1 and 2 in their written
statement, the Respondent Nos.1 and 2 were therefore bound to issue
notice to the Appellants and an opportunity of hearing was required to be
given to the Appellants before passing the order under challenge. The
Tribunal observed that such a procedure was not followed by the SRA as
is revealed from the documents filed on record. The Tribunal further
observed that since the report of the Assistant Municipal Commissioner
records that the structures of Vasant Dagadu Ahir, Chandrakant Ramanna
Pujarim, Vijay Baburao Pabashettiwar, Suresh Tejbahadur Thakur are not
covered by the declaration. The Tribunal held that the SRA had not
complied with Section 36 of the Slum Act in the matter of issuing notices
to the Appellants who were not covered by the declaration of the slum.
The Tribunal whilst answering issue No.3 came to a conclusion that the
order under challenge i.e. order dated 01.09.2009 was liable to be
quashed and set aside in respect of only the non-declared area i.e.
1045.50 sq.mtrs. Hence the Tribunal by the impugned judgment and
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order dated 12.03.2015 has partly allowed the Appeal filed by the
Respondents herein and resultantly quashed and set aside the Slum
Declaration Area Order dated 24.05.2006 and the Slum Clearance Order
dated 01.09.2009 only in respect of the non-declared area i.e. 1045.50
sq.mtrs. out of Survey Nos.27 and 28 situated at Ramwadi, Wadgaon
Sheri, Pune. As indicated above, it is the said judgment and order dated
12.03.2015 passed by the Learned President of the Slum Tribunal which
is taken exception to by way of the above Petitions.
12 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL MR.
P. S. DANI ON BEHALF OF THE PETITIONERS i.e. SRA :-
I) That the Tribunal has mis-interpreted and misconstrued the
provisions of the Slum Act whilst coming to a conclusion that notices
under Section 36 of the Slum Act were required to be issued to the
Respondents and that they were required to be heard prior to the
issuance of the declaration of the Slum Rehabilitation Area under Section
3C as also the Slum Clearance Order under Section 3D of the Slum Act.
II) The Tribunal has failed to appreciate that the statutory scheme as
comprised in Chapter I-A which comprises of Section 3A to 3Z-2 stands in
contradistinction to the provisions of Chapter II of the Slum Act.
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III) That the declaration of slum area under Section 4(1) of the Slum
Act has no application in so far as the declaration of the Slum
Rehabilitation Area under Section 3C is concerned.
IV) That the word "Slum area" in Section 3C is used in its generic
sense and does not have any connection with the "slum area" as posited
in Section 2(ga) of the Slum Act.
V) That no pre-decisional hearing was required to be granted prior to
the declaration of Slum Rehabilitation Area within the Slum
Rehabilitation Scheme being issued having regard to the manner in
which Section 3B and 3C are structured. The power conferred on the
CEO, SRA is legislative in nature and therefore the principles of natural
justice in the matter of affording an opportunity of hearing prior to
issuance of declaration are not attracted. Reliance is placed on the
judgment of the Apex Court reported in (1989) 3 SCC 396 in the matter
of Sundarjas Kanyalal Bhatija Vs. Collector, Thane, Maharashtra and
others.
VI) That it is not necessary for an area to be declared as slum area
under Section 4(1) for it to be declared as a Slum Rehabilitation Area so
as to implement a Slum Rehabilitation Scheme in the said area. In
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support of the said contention reliance is placed on the judgments of the
Division Benches of this Court reported in 2005(3) ALL MR 889 in the
matter of Amba Chawl Wadi Rahiwasi Seva Sangh Vs. Municipal
Corporation of Greater Mumbai and others, 2006(5) ALL MR 323 in
the matter of Om-Sai Darshan Co-operative Housing Society and
another Vs. State of Maharashtra and others and the reported
judgment of a Division Bench of this Court dated 14.07.2010 in the
matter of Sayed Anwar Gaffar and others Vs. Administrator and
Divisional Commissioner, Konkan Division and others.
VII) That the Tribunal has mis-interpreted and misconstrued Section 36
of the Slum Act so as to read into it that any notice issued under the Slum
Act has to be served on the affected party. It was submitted that the said
Section 36 only stipulates the manner in which a notice/order under the
Slum Act has to be issued to the affected party and therefore cannot be
interpreted to mean that every notice under the Slum Act has to be issued
to the affected party when a particular provision does not provide for the
same.
VIII) That the Tribunal after coming to a conclusion that the
Respondents are eligible slum dwellers has thereafter erred in holding
that they are an aggrieved party within the meaning of Section 12(4) of
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the Slum Act and therefore ought to have been issued a notice under
Section 36 when all that is required to be done by the proponents of the
Slum Rehabilitation Scheme is to rehabilitate the Respondents in the said
scheme.
IX) That the interpretation as sought to be given by the Tribunal to the
provisions of Section 3C and 3D of the Slum Act would result in the said
provisions being impossible to implement as every affected party would
have to be given a notice when the said provisions do not contemplate
any such procedure that is required to be followed. The same would also
result in delay being caused in implementing a Slum Rehabilitation
Scheme.
13 The Learned Senior Counsel Mr. Y. S. Jahagirdar appearing
for the Petitioners in the companion Writ Petitions would adopt the
submissions of the Learned Senior Counsel Mr. P. S. Dani but in addition
thereto would contend that the procedure as provided for in Section 3C
and 3D has been followed prior to the issuance of the declaration of the
Slum Rehabilitation Area and prior to the Slum Clearance Order issued
under Section 3D of the Slum Act. That save and except the Respondents,
the rest of the occupants have vacated their structures to facilitate the
implementation of the Slum Rehabilitation Scheme and in fact have now
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been rehabilitated in the rehab building constructed under the said
scheme.
14 SUBMISSIONS OF THE LEARNED SENIOR COUNSEL MR.
A. Y. SAKHARE ON BEHALF OF THE RESPONDENTS :-
A) That no land or area can be declared as a Slum Rehabilitation Area
unless the same is declared as a slum area under Section 4(1) of the
Slum Act.
B) That in the instant case, the land on which the Petitioners have
their structures i.e. land admeasuring 1045.50 sq.mtrs. could not be
made part of the Slum Rehabilitation Area as the same is undisputedly an
undeclared area.
C) That the Tribunal was therefore right in quashing the declaration of
Slum Rehabilitation Area as well as the Slum Clearance Order in so far as
the area of 1045.50 sq.mtrs. is concerned.
D) That the declaration of a Slum Rehabilitation Area under Section
3C could not have been issued without hearing the Respondent Nos.1 to
9. In support of the said submission, reliance is sought to be placed on
the unreported judgment of a Learned Single Judge of this Court in Writ
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Petition No.2488 of 2011 in the matter of Jagnnath Hanumant
Sonawane and others Vs. Slum Rehabilitation Authority and others
dated 11.05.2011.
E) That for an area to be declared as a Slum Rehabilitation Area the
parameters laid down in clause (4) of Section 3B of the Slum
Rehabilitation Scheme are required to be satisfied. In the instant case,
there is nothing on record to indicate that the Slum Rehabilitation Area
has satisfied itself that the area of 1045.50 sq.mtrs. qualifies to be
declared as a Slum Rehabilitation Area.
F) That in declaring the area of 1045.50 sq.mtrs. as Slum
Rehabilitation Area when the said area does not satisfy the conditions
mentioned in the said Slum Rehabilitation Scheme would amount to a
colourable exercise of power on the part of the SRA. Reliance is placed on
the Division Bench judgment of this Court reported in 2015(2) Mh.L.J.
899 in the matter of Reserve Bank Employees Snehdhara Co-op.
Housing Society Ltd. Vs. State of Maharashtra and others.
G) When the entire exercise of declaring the area of 1045.50 sq.mtrs.
as Slum Rehabilitation Area and thereafter including the area of 7212.50
sq.mtrs. which is adjoining land in the Slum Clearance Order is to favour
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the land owner as one son of the owner is a sitting MLA and other son is
a Municipal Corporator in the Pune Municipal Corporation.
H) That in the alternative, in the event this Court comes to the
conclusion that in so far as the area of 1045.50 sq.mtrs. which is declared
as a Slum Rehabilitation Area, the principles of natural justice are not
required to be followed, this Court would then remand the matter back to
the Slum Tribunal to consider as to whether the parameters as laid down
in the Slum Rehabilitation Scheme are satisfied as the Slum Tribunal has
not considered the said aspect whilst deciding the Appeal.
CONSIDERATION
15 A reading of the impugned judgment and order of the Slum
Tribunal discloses that what has weighed with the Slum Tribunal whilst
setting aside the declaration issued under Section 3C in so far as the area
of 1045.50 sq.mtrs. as also the Slum Clearance Order issued under
Section 3D is the fact that the Respondent Nos.1 to 9 were aggrieved
persons and were not issued a notice before the declaration of the Slum
Rehabilitation Area and the Slum Clearance Order. Hence incidental to
the said issue is the issue whether the principles of natural justice,
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namely in the matter of the Respondent Nos.1 to 9 being issued a notice
and being heard were required to be complied with before issuance of the
declaration of the Slum Rehabilitation Area and the Slum Clearance
Order. Since the said issue can be adjudicated having regard to the
relevant provisions of the Slum Act, it would be necessary to refer to the
said relevant provisions. The said provisions are Section 2(ga), Section
2(h-c), Section 2(h-d), Section 4 and Section 36 of the Slum Act. The
same are reproduced hereinunder for the sake of ready reference.
However it is required to be noted that the said provisions appear in
Chapter I, II and VII of the Slum Act.
"2. Definitions. - In this Act unless the context otherwise
requires,-
(a) ...........................
(b) ...........................
(c) ...........................
(d) ..........................
(e) ..........................
(f) ...........................
(g) ......................
(ga) "Slum areas" means any area declared as such by the
Competent Authority under sub-section (1) of section
4] [and includes any area deemed to be a slum area
under section 4A];
(h-c) "Slum Rehabilitation Authority" means the Slum
Rehabilitation Authority or Authorities appointed by
the State Government under section 3A;
(h-d) "Slum Rehabilitation scheme" means the Slum
Rehabilitation Scheme notified under section 3B];"
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"4. Declaration of Slum Areas.- [(1) Where the
Competent Authority is satisfied that-
(a) any area is or may be a source of danger to the health,
safety or convenience of the public of that area or of its
neighborhood, by reason of the area having inadequate or
no basic amenities, or being insanitary, squalid,
overcrowded or otherwise; or
(b) the buildings in any area, used or intended to be used
for human habitation are
(i) in any respect, unfit for human habitation; or
(ii) by reasons of dilapidation, overcrowding, faulty
arrangement and design of such buildings, narrowness or
faulty arrangement of streets, lack of ventilation, light or
sanitation facilities or any combination of these factors,
detrimental to the health, safety or convenience of the
public of that area,
the Competent Authority may, by notification in the Official
Gazette, declare such area to be a slum area. Such
declaration shall also be published in such other manner
(as will give due publicity to the declaration in the area) as
may be prescribed.]
"36. Service of notice, etc.- (1) Every notice, order or
direction issued under this Act shall, save as otherwise
expressly provided in this Act, be served-
(a) by giving or tendering the notice, order or direction
[or] by sending it by registered post to the person for
whom it is intended; or
(b) if such person cannot be found, by affixing the notice,
order or direction on some conspicuous part of his last
known place of above or business, or by giving or tendering
the notice, order or direction to some adult member or
adult servant of his family or by causing it to be affixed
on some conspicuous part of the building or land, if any, to
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which it relates.
(2) Where the person on whom a notice, order or direction
is to be served is minor, service upon his guardian or upon
any adult member or adult servant of his family shall be
deemed to be the service upon the minor.
(3) Every notice, order or direction, which by or under this
Act is to be served as a public notice order or direction or as
a notice, order or direction which is not required to be
served on any individual therein specified shall, save as
otherwise expressly provided, be deemed to be sufficiently
served if a copy thereof is affixed in such conspicuous part
of the office of the Competent Authority or in such other
public place during such period, or is published in such
local newspaper or in such other manner, as the Competent
Authority may direct."
16 Section 2(ga) as above therefore defines what is a "Slum
area", means any area declared as such by the Competent Authority
under sub-section (1) of Section 4. In so far as Section 2(h-c) is
concerned, the said Section defines the "Slum Rehabilitation Authority",
means an Authority appointed by the State Government under Section
3A. In so far as Section 2(h-d) is concerned, it defines "Slum
Rehabilitation Scheme", means the Scheme notified under Section 3B. In
so far as Section 4(1) is concerned, it posits that if the Competent
Authority is satisfied that any area is or may be a source of danger to the
health, safety or convenience of the public of that area or of its
neighbourhood, by reason of the area having inadequate or no basic
amenities, or being insanitary, squalid, overcrowded or otherwise; or any
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building in any area, used or intended to be used for human habitation
can declare the said area to be a slum area. Sub Section (3) of Section 4
postulates that any person aggrieved by a declaration made under sub-
section (1) may, within thirty days from the date of such declaration in
the Official Gazette, appeal to the Tribunal. In so far as Section 22 is
concerned, it provides for the consequences which would flow from the
declaration issued in respect of an area being a slum area. In the said
Section also certain restrictions have been imposed in respect of the
institution of any suit or proceeding for obtaining any decree or order for
the eviction of an occupier from any building or land in a certain area.
The said Section also imposes restrictions in so far as the execution of any
decree or order in any building or land in such area or for recovery of
arrears of rent or compensation from such occupier. In so far as Section
36 is concerned, it deals with the manner in which notice, order or
direction issued under the Slum Act have to be served.
17 The Slum Act was substantially amended by Maharashtra Act
IV of 1996. The Statement of Objects and Reasons as contained in the Bill
set out the reasons for amending the Slum Act. It is stated in the said
Statement of Objects and Reasons that although the schemes in the Slum
Act have helped in improving the hygiene and environment in the slum
areas, the problem of slum development has, to a large extent, remained
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unresolved. The State Government therefore constituted a study group
under the Chairmanship of Shri. Dinesh Afzalpurkar with a view to find
out a permanent solution to the problem and to provide for the
rehabilitation of the slum and hutment dwellers through reconstruction.
Pursuant to its appointment the study group submitted a report to the
State Government making certain suggestions which inter-alia include
the establishment of an independent authority for the said purpose which
is now the "Slum Rehabilitation Authority" (SRA). It is pursuant to the
said recommendations that the Slum Act came to be amended so as to
incorporate Chapter I-A therein which consists of Section 3A to 3W.
18 In so far as the present controversy is concerned, Sections 3A
to 3D of Chapter I-A are central to it and the same are therefore required
to be reproduced hereinunder :-
3A. Slum Rehabilitation Authority for implementing
Slum Rehabilitation Scheme.- (1) Notwithstanding
anything contained in the foregoing provisions, the State
Government may, by notification in the Official Gazette,
appoint an authority to be called the Slum Rehabilitation
Authority for such area or areas as may be specified in the
notification; and different authorities may be appointed for
different areas.
(2) Every Slum Rehabilitation Authority shall consist of a
Chairman, a Chief Executive Officer and fourteen other
members, all of whom shall be appointed by the State
Government.
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[(2A) Every Slum Rehabilitation Authority appointed under
sub-section (1) shall be a body corporate by the name of
"The ......................Slum Rehabilitation Authority" and shall
have perpetual succession and common seal; with power to
contract, acquire, hold and dispose of property, both
movable and immovable, and to do all things necessary for
the purposes of this Act, and may sue and be sued by its
corporate name.]
[(3) The powers, duties and functions of the Slum
Rehabilitation Authority shall be,-
(a) to survey and review existing position regarding slum
areas;
(b) to formulate schemes for rehabilitation of slum areas;
(c) to get the Slum Rehabilitation Scheme implemented;
(d) to do all such other acts and things as may be necessary
for achieving the objects of rehabilitation of slums.]
(4) The terms and conditions of appointment of the non-
official members of the Slum Rehabilitation Authority shall
be such as may be specified by the State Government.
(5) The Slum Rehabilitation Authority may appoint
Committees consisting of its members and experts to
facilitate its working and speedy implementation of the
scheme prepared under section 3B.
3B. Slum Rehabilitation Scheme.- (1) The State
Government, or the Slum Rehabilitation Authority
concerned with the previous sanction of the State
Government, shall, prepare a general Slum Rehabilitation
Scheme for the areas specified under subsection (1) of
section 3A, For Rehabilitation of slums and hutment
colonies in such areas.
(2) The General Slum Rehabilitation Scheme prepared
under sub-section (1) shall be published in the Official
Gazette, by the State Government or the concerned Slum
Rehabilitation Authority, as the case may be, as the
Provisional Slum Rehabilitation Scheme for the area
specified under section 3A(1), for the information of
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general public, inviting objections and suggestions, giving
reasonable period of not less than thirty- days, for
submission of objections and suggestions, if any, in respect
of the said Scheme.
(3) The Chief Executive Officer of the Slum Rehabilitation
Authority shall consider the objections and suggestions, if
any, received within the specified period in respect of the
said Provisional Scheme and after considering the same,
and after carrying out such modifications as deemed fit or
necessary, finally publish the said scheme, with the
approval of the State Government or, as the case may be,
the Slum Rehabilitation Authority in the Official Gazette, as
the Slum Rehabilitation Scheme.
(4) The Slum Rehabilitation Scheme so notified under sub-
section (3) shall, generally lay down the parameters for
declaration of any area as the slum rehabilitation area and
indicate the manner in which rehabilitation of the area
declared as the slum rehabilitation area shall be carried
out. In particular, it shall provide for all or any of the
following matters, that is to say,-
(a) the parameters or guidelines for declaration of an area
as the slum rehabilitation area;
(b) basic and essential parameters of development of slum
rehabilitation area under the Slum Rehabilitation
Scheme;
(c) provision for obligatory participation of the landholders
and occupants of the area declared as the slum
rehabilitation area under the Slum Rehabilitation
Scheme in the implementation of the Scheme;
(d) provision relating to transit accommodation pending
development of the slum rehabilitation area and
allotment of tenements on development to the
occupants of such area, free of cost.
(e) scheme for development of the slum rehabilitation
areas under the Slum Rehabilitation Scheme by the
landholders and occupants by themselves or through a
developer and the terms and conditions of such
development; and the option available to the Slum
Rehabilitation Authority for taking up such
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development in the event of non-participation of the
landholders or occupants;
(f) provision regarding sanction of Floor Space Index and
transfer of development rights; if any, to be made
available to the developer for development of the slum
rehabilitation area under the Slum Rehabilitation
Scheme;
(g) provision regarding non-transferable nature of
tenements for a certain period, etc.
[(5) For the purposes of this Chapter, the State Government
may register any person or an association of persons, or a
partnership firm registered under the Partnership Act, 1932
(IX of 1932) or a company registered under the Companies
Act, 1956 (1 of 1956), as a Developer in the prescribed
manner.]
3C. Declaration of a slum rehabilitation area.- (1) As
soon as may be after the publication of the Slum
Rehabilitation Scheme, [the Chief Executive Officer] on
being satisfied that circumstances exist in respect of any
area, justifying its declaration as slum rehabilitation area
under the said scheme, may by an order published in the
Official Gazette, declare such area to be a "slum
rehabilitation area". The order declaring slum rehabilitation
area (hereinafter referred to as "the slum rehabilitation
order"), shall also be given wide publicity in such manner
as may be specified by [the Slum Rehabilitation Authority].
(2) Any person aggrieved by the slum rehabilitation order
may, within four weeks of the publication of such order
prefer an appeal to the Special Tribunal; and the decision of
the Special Tribunal shall be final.
[(3) On the completion of the Slum Rehabilitation Scheme,
the Slum Rehabilitation Area shall cease to be such area.]
3D. Application of other Chapters of this Act to Slum
Rehabilitation Area with modification.- On publication of
the Slum Rehabilitation Scheme under sub- section (1) of
section 3B, the provisions of other Chapters of this Act shall
apply to any area declared as the slum rehabilitation area,
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subject to the following modifications, namely:-
(a) Chapters II and III shall be omitted;
(b) in Chapter IV,-
(i) section 11 shall be omitted;
(ii) in section 12,-
(A) for sub-section (1), the following sub-section shall be
substituted, namely :-
"(1) As soon as may be, after '[the Chief Executive Officer]
has declared any slum area to be a slum rehabilitation area,
[he] shall make a clearance order in relation to that area,
ordering the demolition of each of the buildings specified
therein, and requiring each such building to be vacated
within such time as may be specified in the clearance
order.";
(B) sub-sections (2) and (3) shall be omitted;
(C) for sub-section (4), the following Sub-Section Shall be
substituted namely :-
"(4) Any person aggrieved by the clearance order may,
within four weeks of the publication of such order prefer an
appeal to the Special Tribunal; and the decision of the
Special Tribunal shall be final."
(D) in sub-section (5), for the word "Tribunal" in both the
places where it occurs, the words "Special Tribunal" shall be
substituted;
[(E) in sub-section (7), for the words "Competent
Authority" the words "Chief Executive Officer" shall be
substituted;
(F) in sub-section (8), for the words "Competent Authority"
the words "Chief Executive Officer" shall be substituted;
(G) in sub-section (9), for the words "Competent
Authority", wherever they occur, the words "Chief
Executive Officer" shall be substituted;
(H) in sub-section (10),-
(a) for the words "Competent Authority" the words "Slum
Rehabilitation Authority" shall be substituted;
(b) in the proviso,-
(i) for the words "Competent Authority" the words "Slum
Rehabilitation Authority" shall be substituted;
(ii) for the word "Tribunal" the words "Special Tribunal"
shall be substituted;
(iii) for section 13, the following section shall be
substituted, namely.-
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"13. Power of Slum Rehabilitation Authority to develop
slum Rehabilitation area.- (1) Notwithstanding anything
contained in sub-section (10) of section 12, the Slum
Rehabilitation Authority may, after any area is declared as a
Slum Rehabilitation Area, if the landholders or occupants of
such area do not come forward within a reasonable time,
with a scheme for re-development of such land, by order,
determine to re-develop such land by entrusting it to any
agency for the purpose.
(2) Where on declaration of any area as a Slum
Rehabilitation Area the Slum Rehabilitation Authority, is
satisfied that the land in the Slum Rehabilitation Area has
been or is being developed by the owner in contravention
of the plans duly approved, or any restriction or conditions
imposed under sub-section (10) of section 12, or has not
been developed within the time, if any, specified under such
conditions, it may, by order, determine to develop the land
by entrusting it to any agency recognised by it for the
purpose: -
Provided that, before passing such order, the owner shall be
given a reasonable opportunity of showing cause why the
order should not be passed.";
(c) in Chapter V,-
(i) in section 14, in sub-section (1),-
[(A) for the portion beginning with the words "Where on
any representation" and ending with the words "clearance
area" the following portion shall be substituted, namely;
"Where on any representation from the Chief Executive
Officer it appears to the State Government that, in order to
enable the Slum Rehabilitation Authority to carry out
development under the Slum Rehabilitation Scheme in any
Slum Rehabilitation Area";]
(B) after the proviso, the following proviso shall be added,
namely :-
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"Provided further that, the State Government may delegate
its powers under this sub-section to any officer not below
the rank of Commissioner.";
(ii) in Section 15,-
(A) for sub-section (3), the following sub-section shall be
substituted namely:-
"(3) Where the land has been acquired for the Slum
Rehabilitation Authority, the State Government shall, after
it has taken possession thereof, by notification in the
Official Gazette, upon such conditions as may be agreed
upon between Government and Slum Rehabilitation
Authority, transfer the land to the Slum Rehabilitation
Authority and thereupon the Slum Rehabilitation Authority
may entrust, in accordance with the provisions of section
3B(4), the word of development of such area to any other
agency as provided in sub-section (1) of section 13, or to a
Co-operative Housing Society of the occupants of such
rehabilitation area or occupants of any other area which
has been declared as Slum Rehabilitation Area;
(B) for sub-section (4), the following sub-section shall be
substituted, namely:-
"(4) The Slum Rehabilitation Authority may, subject to such
terms and conditions as the State Government considers
expedient for securing the purposes of this Act, transfer by
way of lease such land to the Co-operative Housing
Societies of such occupants.";]
[(iii) in section 17,
(A) for the words "Competent Authority", wherever they
occur, the words, "Chief Executive Officer", shall be
substituted
(B) for the words "Tribunal", in both the places wherever it
occurs, the words "Special Tribunal" shall be substituted;
[(iv).in section 18,
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(A) for the words "Competent Authority", wherever they
occur, the words. "Chief Executive Officer", shall be
substituted
(B) for the words "Tribunal", in both the places where it
occurs, the words "Special Tribunal" shall be substituted;
[(v) in section 19, for the words "Competent Authority", at
both the places where they occur, the words "Chief
Executive Officer" shall be substituted;
(vi) in section 20, including in the marginal note, for the
words "Competent Authority", wherever they occur, the
words "Chief Executive Officer" shall be substituted;
(vii) in section 21, for the words "Competent Authority" the
words "Chief Executive Officer" shall be substituted;]
(d) in Chapter VI,-
(i) sections 22, 23, 23A and 26 shall mutatis mutandis
apply to the slum rehabilitation area;
(ii) for sections 24 and 25, the following section shall be
substituted, namely :-
"24. Allotment of tenements to occupants.- (1) Where an
occupant of any premises in an area declared as a slum
rehabilitation area has vacated, or is evicted from such
premises, on the ground that, the premises are required for
the purpose of development under Slum Rehabilitation
Scheme, such occupant may, within such time as may be
prescribed, file a declaration with the Slum Rehabilitation
Authority that he desired to be rehabilitated in that area
after its redevelopment under the said Scheme.
(2) On the receipt of such declaration, the Slum
Rehabilitation Authority shall register his declaration in the
prescribed manner and on completion of the development
of the area and reconstruction of the buildings in the said
area under the Scheme, give notice to the registered
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occupants by affixing it in some conspicuous part of the
building and sending it by post to the address which may
have been registered with the Slum Rehabilitation
Authority by such occupants and in such other manner as
may be determined by the Slum Rehabilitation Authority,
that the building is likely to be or is ready for occupation
from a specified date, and that they should vacate transit
accommodation, if any, given to them, and occupy the
building so erected within a period specified in the notice.";
(e) in Chapter VII,-
[(i-a) ***]
(i) in section 28, for the words "slum area" the words "slum
rehabilitation area" shall be substituted;
(ii) in section 34, for the words "slum area" in both the
places where they occur, the words "slum rehabilitation
area" shall be substituted;
[(iii) ***]
(iv) in section 37, for the words "clearance area" the words
"slum rehabilitation area" shall be substituted;
(v) in section 38, in sub-section (1),-
(i) the words and figure "of the provisions of section 8 or"
shall be deleted;
(ii) for the words "clearance area" the words "slum
rehabilitation area" shall be substituted;
(vi) in section 41, after the words "Competent Authority"
the words "Slum Rehabilitation Authority" shall be inserted;
(vii) in section 42,-
[(A) after the words "in respect of any matter which" the
words "Slum Rehabilitation Authority" shall be inserted;]
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(B) for the word "Tribunal" the words "Special Tribunal"
shall be substituted;
(viii) in section 43, after the words "Competent Authority"
the words "Slum Rehabilitation Authority" shall be inserted;
(ix) in section 44, for the word "Tribunal" wherever it
occurs, the words "Special Tribunal" shall be substituted;
(x) in section 44 A,-
(A) in sub-section (2) for the word "Tribunal", wherever it
occurs the words "Special Tribunal" shall be substituted;
(B) in the marginal note, for the word "Tribunal" the words
"Special Tribunal" shall be substituted;
(xi) throughout section 45, including in the marginal note,
for the words "the Tribunal", wherever they occur, the
words "the Special Tribunal" shall be substituted;
(xii) for section 47, the following section shall be
substituted, namely:-
"47. Cesser of corresponding laws.- Where any area is
declared to be a slum rehabilitation area then as from the
date of such declaration, the provisions of any municipal
law or other law, corresponding to the provisions of this
chapter, for slum development in relation to such slum
rehabilitation area, in force immediately before the said
date shall, save as otherwise provided in this chapter, cease
to be in force in such slum rehabilitation area, but so long
only as the said declaration remains in force."
19 Hence in so far as Section 3A is concerned, it provides for the
appointment of an authority to be called the SRA for such area or areas
as may be specified in the notification. The powers, duties and functions
of the SRA have been mentioned. The said powers, duties and functions
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are inter-alia following :-
"(a) to survey and review existing position regarding slum
areas;
(b) to formulate scheme for rehabilitation of slum areas;
(c) to get the Slum Rehabilitation Scheme implemented;
(d) to do all such other acts and things as may be
necessary for achieving the objects of rehabilitation
of slum."
20 In so far as Section 3B is concerned, it provides for
preparation of a general Slum Rehabilitation Scheme. The said Section
provides for the scheme to be published in the Official Gazette initially as
a provisional Slum Rehabilitation Scheme for the areas covered by
Section 3A. The said provision also postulates the information to the
general public, inviting objections and suggestions. It is after considering
the objections and suggestions by the Chief Executive Officer of the SRA
and after carrying out such modifications as deemed fit or necessary, the
final scheme is to be published in the Official Gazette as the Slum
Rehabilitation Scheme. Sub-Section (4) of Section 3B provides that the
Slum Rehabilitation so notified under sub-section (3) shall, generally lay
down the parameters for declaration of any area as the slum
rehabilitation area and indicate the manner in which rehabilitation of the
area declared as the Slum Rehabilitation Area shall be carried out. The
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said Slum Rehabilitation Scheme is to provide inter-alia for the following
matters :-
"(a) the parameters or guidelines for declaration of an area
as the slum rehabilitation area;
(b) basic and essential parameters of development of slum
rehabilitation area under the Slum Rehabilitation
Scheme;
(c) provision for obligatory participation of the landholders
and occupants of the area declared as the slum
rehabilitation area under the Slum Rehabilitation
Scheme in the implementation of the Scheme;
(d) provision relating to transit accommodation pending
development of the slum rehabilitation area and
allotment of tenements on development to the
occupants of such area, free of cost.
(e) scheme for development of the slum rehabilitation
areas under the Slum Rehabilitation Scheme by the
landholders and occupants by themselves or through a
developer and the terms and conditions of such
development; and the option available to the Slum
Rehabilitation Authority for taking up such
development in the event of non-participation of the
landholders or occupants;
(f) provision regarding sanction of Floor Space Index and
transfer of development rights; if any, to be made
available to the developer for development of the slum
rehabilitation area under the Slum Rehabilitation
Scheme;
(g) provision regarding non-transferable nature of
tenements for a certain period, etc."
21 In so far as Section 3C is concerned, it provides for
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declaration of Slum Rehabilitation Area. The said declaration can be
issued as soon as may be, after the publication of the Slum Rehabilitation
Scheme after the Chief Executive Officer is satisfied that circumstances in
respect of any area, justifying its declaration as slum rehabilitation area
under the said scheme exists, may by an order published in the Official
Gazette declare such area to be "the slum rehabilitation area".
22 In so far as Section 3D is concerned, it postulates that on
publication of the Slum Rehabilitation Scheme under sub-section (1) of
Section 3B, the provisions of other Chapters of the Act shall apply to any
area declared as a slum rehabilitation area, subject to the modifications
as set out in the respective Sections. The said Section also provides that
Chapter II and III stand omitted in respect of the Slum Rehabilitation
Area. Hence in so far as the Slum Rehabilitation Scheme is concerned,
some of the Chapters/provisions of the Slum Act are required to be
omitted and some are required to be substituted or modified as the case
may be. Against a Slum Clearance Order issued under Section 3D an
Appeal is provided to the Special Tribunal.
23 As indicated above, Section 4 which confers power on the
Competent Authority to declare any area as slum area if the requisites for
the same as mentioned in Section 4 are satisfied is placed in Chapter II of
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the Slum Act. The said Chapter II also contains Section 4A under which a
deeming fiction is given to the declaration of any slum improvement area
to be a declaration made under Section 4 of the Slum Act. In so far as
Chapter III is concerned, the said chapter contains the provisions as
regards the power of the Competent Authority to carry out the
improvement works which are mentioned in Section 5A which is placed
in the said chapter. The said chapter III inter-alia contains the provisions
to regulate the manner in which the slum improvement work can be
carried out. In so far as Chapter IV is concerned, the said chapter contains
the provisions which provide for slum clearance and redevelopment. In so
far as Chapter V is concerned, it relates to the powers of acquisition
which are vested in the State Government under Section 14 of the Slum
Act. Under the said provision, the State Government has power to acquire
land if on any representation from the Competent Authority it appears to
the State Government that, in order to enable the Authority to execute
any work of improvement or to redevelop any slum area or any structure
in such area, it is necessary that such area, or any land within adjoining
or surrounded by any such area should be acquired by the State
Government. The said chapter also contains the provisions for
determination of compensation, the apportionment of compensation and
the determination of compensation by the Competent Authority. Then
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comes Chapter VI which inter-alia contains the provisions which restrict
action to be taken or any suit or proceeding to be initiated without the
permission of the Competent Authority. Thereafter in Chapter VII
miscellaneous provisions in respect of powers for eviction vested in the
Competent Authority and the Appeal provisions as also the manner in
which service of notice, order or direction is to be effected as also the bar
of jurisdiction as also the provisions relating to the Tribunal etc.
24 As indicated above, in the earlier part of this judgment, the
Slum Act was amended pursuant to the report of the study group, which
recommended the constitution of an independent authority to oversee the
implementation of the slum redevelopment projects. It is with the said
object that the provisions as contained in Chapter I-A have been framed.
25 Having run through the gamut of the provisions as
contained in the Slum Act, it would now be necessary to consider
whether a pre-decisional hearing is required to be granted prior to
declaring any area as a Slum Rehabilitation Area. Before proceeding to
deal with the said issue, it would be relevant to refer to the judgment of a
Learned Single Judge of this Court in Jagannath Hanumant Sonawane's
case (supra). In the said judgment, a contention was raised that the
power under Section 3C vested in the CEO, SRA is legislative in nature
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and therefore the principles of natural justice are not required to be
followed. The Learned Single Judge has concluded the said issue as
follows :-
"I am inclined to hold that the power exercised by the CEO,
SRA, in making an order for declaration of Slum, even if it
were a legislative function, would partake the character of
a non-legislative function inasmuch as the declaration of
Slum Rehabilitation Area applies only to certain specified
property/properties as opposed to all properties in general
in Greater Mumbai."
Hence as can be seen from the above extract of the said judgment, the
Learned Single Judge on the basis of the judgments of the Apex Court
which were cited in the said case on behalf of the Respondents, came to a
conclusion that even if the power of the SRA to declare any area as a
Slum Rehabilitation Area were a legislative function, the same would
partake the character of non-legislative function. The following
judgments of the Apex Court were cited before the Learned Single on
behalf of the Respondent No.3 in the said case in support of the
contention that the power exercised by the CEO, SRA is legislative in
nature.
1) Tulsipur Sugar Co. Ltd. Vs. Notified Area committee,
Tulsipur reported in (1980) 2 SCC 295.
2) Union of India Vs. Cynamide India Ltd. reported in
(1987) 2 SCC 720.
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3) Shri. Sitaram Sugar Company Limited Vs. Union of
India reported in (1990) 3 SCC 223.
26 The Learned Single Judge it seems was persuaded to take the
view that the said power partakes the character of a non-legislative
function for the following reasons :-
i) That the possibility of arbitrariness or extraneous considerations
weighing with the CEO, SRA in the matter of declaring any area as a
Slum Rehabilitation Area cannot be ruled out.
ii) That an Appeal being provided under Section 3C is a pointer to the
fact that the said power was not legislative in nature as otherwise there
would be no question of a Tribunal sitting in judgment over the decision
of the CEO, SRA.
iii) That by Circular dated 16th October 2010 for declaration of Slum
Rehabilitation Area, which Circular provides that the owner has to be
given a hearing.
iv) The contention urged on behalf of the SRA, that it does not support
the contention of it being a legislative power as urged by the Learned
Senior Counsel appearing on behalf of the Respondent No.3.
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After holding as above, namely that the power vested in the CEO, SRA
partakes the character of a non-legislative function, the Learned Single
Judge has proceeded to consider whether the principles of natural justice
are required to be followed and to what extent. The Learned Judge has
concluded that though hearing is required to be granted, the said hearing
cannot be restricted to the land owner and would have to be extended in
case of a registered lease of say 99 or 999 years to the persons whose
names appear on the property card as in the said circumstance the lessee
for all practical purpose is the owner of the property. The Learned Single
Judge has lastly observed that the hearing has to be given to all the
persons whose names appear in the property card. Hence the opportunity
of hearing has been restricted by the Learned Single Judge to the persons
whose names appear in the property card. In the said case the Learned
Single Judge held that the power of issuing a declaration under Section
3C even if it were a legislative function the same partakes the character
of a non-legislative function.
27 As indicated above, Section 3B confers power on the State
Government or the Slum Rehabilitation Authority (SRA) to prepare a
general Slum Rehabilitation Scheme for the areas specified in sub-section
(1) of Section 3A. The said Slum Rehabilitation Scheme is to be published
in the Official Gazette as a provisional Slum Rehabilitation Scheme
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inviting objections and suggestions from the members of the public
within the time frame stipulated therein, it is after considering such
objections and suggestions that the scheme is to be finalized after
carrying out such corrections and modifications as deemed fit or
necessary. After the scheme is finalized it is to be published in the Official
Gazette as a Slum Rehabilitation Scheme for the area or areas specified
therein. The preparation of the scheme and its finalization is therefore
akin to the preparation and finalization of a Development Plan under the
Maharashtra Regional and Town Planning Act, 1966. There can be no
dispute about the fact that a Development Plan has statutory force.
Applying the same analogy, it would have to be held that a final Slum
Rehabilitation Scheme would have statutory force. There is no dispute
about the fact that such a scheme has been promulgated for the city of
Pune and has come into force on 15.11.2005. The guidelines for
declaring an area to be the Slum Rehabilitation Area have been
mentioned in the said scheme.
28 In so far Section 3C is concerned, it confers power on the
CEO, SRA to declare any area as a Slum Rehabilitation Area under the
Slum Rehabilitation Scheme, on being satisfied that circumstances exist
justifying such declaration, the same is done by the CEO, SRA by issuing
an order. The said Section itself provides for an Appeal, as under Section
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3C(2) any person aggrieved by the Slum Rehabilitation Area Declaration
Order may within four weeks of the publication of such order prefer an
appeal to the Special Tribunal. In so far as Section 3D is concerned, a
Slum Clearance Order can be issued by the CEO under the said provision
in respect of an area which is declared as a Slum Rehabilitation Area
under Section 3C. The said power is to be exercised for removal of the
structures. As indicated above even against such an order an aggrieved
person can file an Appeal to the Special Tribunal.
29 Hence, firstly under Section 3B we have a provisional Slum
Rehabilitation Scheme which is published and after following the process
of inviting objections and suggestions it is finalized and is published in
the Official Gazette. Hence before finalization of the Slum Rehabilitation
Scheme there is an opportunity made available to a person to submit his
objections and suggestions. After publication of such a Slum
Rehabilitation Scheme, the CEO, SRA can declare any area as a Slum
Rehabilitation Area under the said scheme by an order passed under
Section 3C. Any person aggrieved by the said order can challenge the
same before a Slum Tribunal. Hence, in so far as the Slum Rehabilitation
Declaration Order is concerned, an Appeal is provided to any person
aggrieved by the same. The said provision therefore provides a post
decisional hearing to an aggrieved party. The legislature as can be seen
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from the said provision has advisedly provided a post decisional hearing
as a pre-decisional opportunity has already been granted in so far as the
Slum Rehabilitation Scheme under Section 3B(1) of the Slum Act is
concerned. Hence though the Slum Rehabilitation Area Declaration Order
may be made applicable to a particular area or land, the said area or
land is covered by the general Slum Rehabilitation Scheme and since it is
only after such declaration that the provisions of the Slum Act become
applicable to the area declared as a Slum Rehabilitation Area, therefore
the power exercised by the CEO, SRA, of declaring any area or land as a
Slum Rehabilitation Area is essentially a legislative function. The
distinction which was sought to be made by the Apex Court in the case of
Cynamide India Ltd's case (supra) between legislative and non-legislative
function was based on the two provisions of the Essential Commodities
Act and Drugs (Prices Control) Order, 1979. In Shri. Sitaram Sugar
Company Limited's case (supra), the Apex Court sought to make a
distinction on the basis whether the act is of general application, in which
case the Apex Court held that it would be a legislative activity. In my
view, the distinction drawn in the aforesaid judgments between what is a
legislative function and what is a non-legislative function would have no
application in the context of the statutory scheme contained in Sections
3B and 3C. Having regard to the statutory scheme as encompassed in
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Section 3B and 3C, it is not possible to reach such a conclusion. It would
therefore have to be held that in declaring any area under the scheme as
a Slum Rehabilitation Area, the CEO, SRA is essentially carrying out a
legislative function, the fact that an Appeal is provided against such a
declaration or order would not detract from the fact that the function is
essentially legislative in character. The legislature in fact by providing an
Appeal has provided a safeguard against any arbitrary exercise of power
by the CEO, SRA.
30 In the said context a useful reference could be made to the
judgment of the Apex Court in Tulsipur Sugar Co. Ltd's case (supra). The
said case concerned the extension of the limits of the Town area under
the U. P. Town Areas Act, 1914 in exercise of the power conferred by
Section 3 thereof. The Apex Court held that the power of the State
Government to make a declaration under Section 3 of the Act is
legislative in character because the application of the rest of the
provisions of the Act to the geographical area which is brought within the
limits of the Town Area is dependent upon such declaration. The relevant
paragraphs of the said judgments are reproduced hereinunder :-
"The power of the State Government to make a declaration
under Section 3 of the Act is legislative in character because
the application of the rest of the provisions of the Act to the
geographical area which is declared as a town area is
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dependent upon such declaration. Section 3 of the Act is in
the nature of a conditional legislation. Dealing with the
nature of functions of a non-judicial authority, Prof. S. A. De
Smith in Judicial Review of Administrative Action (3 rd Edn.)
observed at p. 163:
"However, the analytical classification of a function may be
a conclusive factor in excluding the operation of the audi
alteram partem rule. It is generally assumed that in English
law the making of a subordinate legislative instrument need
not be preceded by notice or hearing unless the parent Act
so provides."
Reference could also be made to the judgment of the Apex
Court in Sundarjas Kanyalal Bhatija's case (supra). The said case also
concerned the formation of a Municipal Corporation by issuance of a
notification under Section 3(3) of the Bombay Provincial Municipal
Corporation Act, 1949 known as the Kalyan Municipal Corporation by
merging the areas of Kalyan, Ambernath, Dombivali and Ulhasnagar. The
residents of Ulhasnagar who are mostly Sindhis uprooted from Sindh in
Pakistan on partition who had formed a federation challenged the draft
notification by a Writ Petition in the High Court. The Government in the
said Writ Petition assured the Court that representatives of the federation
would be heard, upon which the Petition was withdrawn. The State
Government considered the objections and decided to delete Ulhasnagar
from the area of the new Municipal Corporation to be established. The
residents of the Ambernath Municipal Area challenged the notification on
the ground of discrimination i.e. violation of Article 14. The federation of
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Sindhis supported the State Government. Before the Division Bench, the
judgment of the Division Bench in the matter of Village Panchayat
Chikalthane Vs. State of Maharashtra holding that the power under
Section 3 was legislative in nature was acted. The Division Bench of this
Court held that the exclusion of Ulhasnagar from the said notification
was arbitrary and against the purpose of the Slum Act.
The Division Bench however instead of quashing the
notification directed the State Government to publish a draft notification
for reconsideration of the matter. It gave liberty to the Writ Petitioners
and interveners to submit their representations and observed that this is
a fit case where reasonable opportunity of being heard should be given to
the parties. The matter was carried to the Apex Court by the persons who
were impleaded as interveners. The Apex Court held that the State
Government after following the gamut of process had notified the area of
the Municipal Corporation under Section 3(2) that decision had become
final. The Court cannot sit in judgment over the said decision. It cannot
lay down norms for exercise of the power. The Government whilst
exercising powers under Section 3 is not subject to the rules of natural
justice. The Apex Court further held that the rules of natural justice are
not applicable to legislative action, plenary or subordinate. Paragraphs 27
and 28 of the said report are material and are reproduced hereinunder :-
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"27 Reverting to the case, we find that the conclusion of
the High Court as to the need to reconsider the
proposal to form the Corporation has neither the
attraction of logic nor the support of law. It must be
noted that the function of the government in
establishing a Corporation under the Act is neither
executive nor administrative. Counsel for the
appellants was right in his submission that it is
legislative process indeed. No judicial duty is laid on
the government in discharge of the statutory duties.
The only question to be examined is whether the
statutory provisions have been complied with. If they
are complied with, then, the court could say no more.
In the present case the government did publish the
proposal by a draft notification and also considered
the representations received. It was only thereafter, a
decision was taken to exclude Ulhasnagar for the time
being. That decision became final when it was notified
under Section 3(2). The Court cannot sit in judgment
over such decision. It cannot lay down norms for the
exercise of that power. It cannot substitute even "its
juster will for theirs"."
28 Equally, the rule issued by the High Court to hear the
parties is untenable. The government in the exercise of
its powers under Section 3 is not subject to the rules of
natural justice any more than is legislature itself. The
rules of natural justice are not applicable to legislative
action plenary or subordinate. The procedural
requirement of hearing is not implied in the exercise
of legislative powers unless hearing was expressly
prescribed. The High Court, therefore, was in error in
directing the government to hear the parties who are
not entitled to be heard under law."
The principles that flow out of the judgments (supra) is that
the power becomes legislative in character when the application of the
provisions of the Act is dependent upon such declaration. In the instant
case only after the declaration is issued under Section 3C that Section 3D
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of the Slum Act becomes applicable and thereafter the other provisions
contained in the said Slum Act subject to amendments/modifications as
mentioned in Section 3D.
The Learned Single Judge in Jagannath Hanumant
Sonawane's case (supra) has also held that the pre-decisional hearing
would have to be provided to a "owner" or a long term lessee. It is
required to be noted that under Section 3C(2) an Appeal against a Slum
Rehabilitation Declaration Order can be preferred by "any person". Hence
when an Appeal can be preferred by any person under the statute, there
is no need to read into the statute a pre-decisional hearing restricted to a
particular class i.e. the owner or a long term lessee. Hence having regard
to the statutory scheme of Section 3B(1) and 3C(1) and (2) no pre-
decisional hearing is contemplated and the finding recorded by the
Learned Judge in Jagannath Hanumant Sonawane's case (supra) is
therefore recorded without noticing the said statutory scheme as
encompassed in the said two provisions.
Though this Court has reached a conclusion that no pre-
decisional hearing prior to issuance of a declaration of a Slum
Rehabilitation Area under Section 3C is necessary, however even
assuming that the judgment of the Learned Single Judge in Jagannath
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Hanumant Sonawane's case (supra) is to be applied, the Respondent
Nos.1 to 9 do not qualify as they do not fall within the persons who are
required to be given hearing namely, owner or a long term lessee. The
Respondent Nos.1 to 9 are neither of the two. The Respondent Nos.1 to 9
claim to be tenants whose suits are pending in the Rent Court. In my
view therefore on either count the Respondent Nos.1 to 9 are not entitled
to a pre-decisional hearing.
31 It is now necessary to deal with the contention urged on
behalf of the Respondent Nos.1 to 9 by the Learned Senior Counsel Shri.
A. Y. Sakhare that unless the land or area is notified under Section 4(1),
it cannot be declared as a Slum Rehabilitation Area. As indicated above,
the declaration of a land as a Slum Rehabilitation Area is issued under
Section 3C which is in Chapter I-A. The Slum Clearance Order is issued
under Section 3D read with Section 12(2). The said Section 3D is also
part of Chapter I-A. In so far as the Slum Clearance Order under Section
3D is concerned, the said Section itself provides that certain Chapters of
the Slum Act are not applicable and that certain provisions of the Slum
Act are applicable with modifications which are stated therein. In so far
as Section 4(1) is concerned, it is in Chapter II which has no application
in so far as Sections 3C and 3D are concerned. The logical corollary to the
same would be that there is no necessity of the land or area being first
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notified under Section 4 of the Slum Act as a Slum Area.
32 In the said context the Scheme as contained in Chapter I-A
also assumes significance, as indicated hereinabove, the provisional slum
rehabilitation scheme is prepared under Section 3B after inviting
objections and suggestions and it is finalized thereafter. The said
provisional scheme is therefore in the nature of a preliminary notification
which can be said to be analogous to Section 4 of the Land Acquisition
Act, 1894. After finalization of the Provisional Slum Rehabilitation
Scheme, it becomes applicable to the area or areas mentioned in Section
3A. It is after the Slum Rehabilitation Scheme is finalized under Section
3B that the CEO, SRA, is vested with the power to declare any area as a
Slum Rehabilitation Area under the scheme. Hence having regard to the
statutory scheme in Chapter I-A, the need for the land or area to be
declared as a slum area under Section 4 does not arise.
33 In the said context, a useful reference can be made to the
Division Bench judgments of this Court in Amba Chawl Wadi Rahiwasi
Seva Sangh's case (supra), Om-Sai Darshan Co-operative Housing
Society's case (supra) and Sayed Anwar Gaffar's case (supra) on which
reliance is placed by the Learned Senior Counsel appearing on behalf of
the SRA.
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34 In Amba Chawl Wadi Rahiwasi Seva Sangh's case (supra),
the issue that had arisen was whether the issuance of a notification under
Section 4 of the Slum Act was a pre-requisite for an area to be considered
a Slum Rehabilitation Area for the purposes of implementation of a Slum
Rehabilitation Scheme under Regulation 33(10) of the Development
Control Regulations 1991. In so far regulation 33(10) is concerned, a
'slum' means that area which is either censused or one which is declared
and notified under the Slum Act. It also provides that the slum shall also
mean areas pavement stretches notified as the Slum Rehabilitation Areas.
In the said case, Sections 33 and 38 of the Slum Act were invoked to evict
the slum dwellers who were impeding the implementation of the Slum
Rehabilitation Scheme under Regulation 33(10). A contention was raised
on their behalf that unless there was a notification under Section 4 of the
Slum Act declaring the said area to be a slum area the provisions of
Sections 33 and 38 of the Slum Act could not be invoked. The said
contention was negatived on the ground that the slums which were taken
up for implementation of the Slum Rehabilitation Scheme have been
censused prior to the year 1995. The Division Bench held that a reading
of the said Regulation 33(10) would indicate that if a slum is censused it
need not be declared and notified under the Slum Act. The Division
Bench concluded that the submission made by the Learned Counsel that
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only those areas which have been declared and notified as slums under
the Slum Act of 1971 or any previous legislation would qualify as a slum
is fallacious and therefore, cannot be accepted. Hence a Division Bench of
this Court has held that in so far as implementation of a Slum
Rehabilitation Scheme under Regulation 33(10) is concerned, there is no
requirement that the land has to be notified as a slum under Section 4(1)
of the Slum Act.
35 In Om-Sai Darshan Co-operative Housing Society's case
(supra), the issue was also as regards a Slum Rehabilitation Scheme
under Regulation 33(10) of the Development Control Regulations, 1991.
In the said case, a similar contention as urged in Amba Chawl Wadi
Rahiwasi Seva Sangh's case (supra) was sought to be urged, albeit with
a difference that there has to be a declaration under Section 3C(1) of the
Slum Act for an area to be declared as a Slum Rehabilitation Area. The
Division Bench held that a plain reading of Annexure II to Regulation
33(10) it is obvious that for sanction of a scheme governed by the said
Regulation in respect of a parcel of a land, it is not necessary to have a
declaration of the Slum Rehabilitation Area in the exercise of the powers
under Section 3C(1) of the Slum Act.
The Division Bench in Sayed Anwar Gaffar's case (supra), by
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relying upon paragraphs 19 and 20 of the judgment of the Division Bench
of this Court in Om-Sai Darshan Co-operative Housing Society's case
(supra) reiterated the proposition that for the purposes of a Slum
Rehabilitation Scheme under Regulation 33(10) a declaration under
Section 3C(1) of the Slum Act was not necessary. The relevant paragraph
of the said judgment in Sayed Anwar Gaffar's case (supra) is paragraph
8 which is reproduced hereinunder for the sake of ready reference :-
"8 Therefore, for the reasons indicated by the Division
Bench, it will not be possible to agree with Mr.
Rajyadhyaksha that if there is a declaration under
section 3B, then, the Authorities cannot resort to
Section 3D without first going through the mechanism
stipulated by section 3C. The Self-same arguments
canvassed must, therefore, be rejected."
36 Hence the said judgments are indicative of the fact that the
Regulation 33(10) and Section 3B are independent provisions for
implementation of the Slum Rehabilitation Scheme and are not
contingent upon a declaration issued under Section 3C(1) and Section
4(1) respectively of the Slum Act. The said judgments therefore support
the case of the Petitioners that the area or land is not required to be
notified under Section 4(1) or 3C(1) as the case may be for it to be
declared as a Slum Rehabilitation Area.
37 The contention of the Learned Senior Counsel for the
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Respondents that since Section 12 in its application to Section 3D refers
to "slum area", the said reference would therefore necessarily be in the
context of the necessity of notification being issued declaring the said
area as a slum area. In my view, the use of the words 'slum area' in the
said Section 12 in so far as in its application to Section 3D is concerned is
in a generic sense and has no connection to the land or area being
notified under Section 4(1). Since the act concerns the slums and various
facets of their development that the said word is used. In any event,
acceptance of the contention of the Learned Senior Counsel would
militate against the scheme as encompassed in Chapter I-A and would
have the absurd result of notification being required to be issued under
Section 4(1) after the rehabilitation scheme is finalized under Section 3B
by following the gamut of process prescribed for the same, that could
never have been the intention of the legislature.
38 The Learned President of the Tribunal as can be seen from
the impugned judgment and order of the Tribunal has relied upon
Section 36 of the Slum Act to come to a conclusion that any notice/order
etc. has to be issued to the aggrieved parties. In my view, the Learned
President has misconstrued Section 36 of the Slum Act. The said Section
36 is a provision which one can find in various acts which provide the
manner in which a notice under the concerned Act is to be issued and
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served. A plain reading of the said provision would indicate that the said
provision i.e. Section 36 only provides the manner in which
notices/orders etc. under the Slum Act are to be issued. The said
provision cannot be construed to mean that every notice/order etc. is
required to be served on the party concerned when the particular
provision of the Slum Act does not contemplate any such service of notice
etc. In my view, therefore, the finding of the Learned President of the
Tribunal is based on a misconstruction of Section 36 of the Slum Act. As
indicated above, in the instant case, Section 3C only postulates a post-
decisional hearing under Section 3C(2) which can take place in the event
the person aggrieved files an appeal.
39 Now coming to the contention urged on behalf of the
Respondent Nos.1 to 9 that in declaring the area of 1045.50 sq.mtrs. on
which the structures are situated amounts to a colourable exercise of
power by the CEO, SRA. In the said context, a reference to the Special
Rules and Regulations for Slum Rehabilitation Scheme framed thereunder
would have to be made. The relevant clause is clause (D) of the said
Special Rules and Regulations and is reproduced hereinunder for the sake
of ready reference :-
"D) Definition of Slum and Rehabilitation Area :
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Where the CEO (SRA) is satisfied that any area is or may be
a source of danger to the health, safety or convenience of
the public of that area or of its neighbourhood, by person of
the area having inadequate or no basic amenities, or being
insanity, squalid, overcrowded or otherwise, or the
buildings in any area, used or intended to be used for
human habitation area, in any respect unfit for human
habitation, by reason of dilapidation, overcrowding, faulty
arrangement and design of such buildings, narrowness or
faulty arrangement of streets, lack of ventilation, light or
sanitation facilities or any combination of these factors,
detrimental to the health, safety or convenience of the
public of that area, is defined as Slum. This shall form the
basic parameter for declaration of the rehabilitation area.
Further that any such area, encumbered or unencumbered;
that the CEO (SRA) may require for implementation of SRS
proposal, shall be declared as rehabilitation area."
(emphasis supplied)
A reading of the said clause therefore discloses the basic parameters for
declaration of a Slum Rehabilitation Area under Section 3C. The said
clause further provides that any such area, encumbered or unencumbered
that the CEO, SRA may require for implementation of Slum Rehabilitation
Scheme proposal shall be declared as a Rehabilitation Area. Hence the
last three lines of clause (D) are an exception to the earlier part of clause
(D). By virtue of the last part even an unencumbered area which is
required for implementation of the Slum Rehabilitation Scheme proposal
can be declared as a Slum Rehabilitation Area. In the instant case, there
is no dispute about the fact that the structures of the Respondent Nos.1 to
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9 are situated on the said plot of land admeasuring 1045.50 sq.mtrs. The
said land is also adjacent to the land admeasuring 4123 sq.mtrs. on
which the 76 structures of the slum dwellers were located. It therefore
cannot be said that the said land is totally unencumbered. However the
fact remains that a power has been conferred on the CEO, SRA for
declaring any encumbered area a Slum Rehabilitation Area if according
to him the same is required for the implementation of the Slum
Rehabilitation Scheme proposal. In my view, therefore, the allegation of
there being a colourable exercise of power in declaring the said area of
1045.50 sq.mtrs. as Slum Rehabilitation Area is without any substance.
The CEO, SRA was well within his rights to declare the said area of
1045.50 Sq.mtrs. as a Slum Rehabilitation Area having regard to clause
(D) which lays down the parameters for the same.
In my view, the judgment of the Division Bench of this Court
in Reserve Bank Employees Snehdhara Co-op. Housing Society Ltd's
case (supra) would not further the case of the Petitioner in so far as the
allegation of colourable exercise of power is concerned. The said case
concerned the acquisition of land covered by the slum area under Section
14 of the Slum Act. The Division Bench in the facts of the said case
wherein the land admeasuring 4780 sq.mtrs. was sought to be acquired
wherein the area covered by the 42 structures was only 839.6 sq.mtrs.,
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held that the acquisition of the larger area was not bonafide as several
vital considerations like the extent of the slum area, in comparison to the
total area of the property, pendency of the civil disputes between the
Petitioner and the Respondent No.8 builder, reported compliances of
environmental improvement works claimed to have been carried out by
the Petitioner and the recommendations of the Collector and so on, have
been ignored. In the instant case, as indicated above, the CEO, SRA was
within his authority to declare any area which is encumbered or even
unencumbered as a Slum Rehabilitation Area, if he is satisfied that the
same is required for the purposes of Slum Rehabilitation Scheme. In the
instant case, there is no dispute that the structures of the Respondent
Nos.1 to 9 are situated on the land admeasuring 1045.50 sq.mtrs. The
power of the CEO, SRA as conferred by the regulations, coupled with the
fact that the structures of the Respondent Nos.1 to 9 are situated on the
said area of 1045.50 sq.mtrs. The facts in the instant case can be clearly
distinguished from the facts in the case before the Division Bench.
40 It was also contended on behalf of the Respondent Nos.1 to 9
by the Learned Senior Counsel that the exercise of power is malafide so
as to oust the Respondent Nos.1 to 9 and to favour the land owner i.e.
the Petitioner in the companion Writ Petitions. It was sought to be
contended that the adjacent area of 7212.50 sq.mtrs. has also been
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added as one of the sons of the Petitioner is a sitting MLA and the other
son is a Municipal Corporator. In the said context, it is required to be
noted that the Slum Clearance Area Declaration Order under Section 3C
has been issued on 24.05.2006. The Slum Clearance Order under Section
3D read with Section 12(1) has been issued on 01.09.2009. It is required
to be noted that the son of the owner has become an MLA in the year
2014, whereas the other son of the Petitioner has become a Corporator in
the year 2012. Hence when the said Slum Clearance Declaration Order
was issued and the order under Section 3D was passed, the sons of the
Petitioner were not holding any political office. Therefore it is far fetched
to attribute the inclusion of the area of 1045.50 sq.mtrs. as also the
additional areas of 7212.50 sq.mtrs. to the factum of the Petitioner's sons
playing a role in the same. It is required to be noted that the Respondent
Nos.1 to 9 are being offered permanent alternate accommodation which
is ready for occupation. However, the Respondent Nos.1 to 8 have not
chosen to accept the same, the Respondent No.9 has accepted the same
but is continuing with his challenge. Hence the contention of malafides
is therefore without any substance.
41 Now coming to the last contention which was urged by the
Learned Senior Counsel appearing on behalf of the Respondent Nos.1 to
9, namely that in the event, this Court is of the view that the principles of
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natural justice were not required to be followed in so far as the
declaration of the Slum Rehabilitation Area is concerned, then this Court
remand the matter back to the Slum Tribunal for consideration of the
aspect as to whether the parameters laid down in clause (D) are complied
with in so far as the area 1045.50 sq.mtrs. is concerned. In my view, there
is no warrant for any such remand as the same would result in an
exercise in futility. As indicated above, clause (D) itself incorporates an
exception whereby even an unencumbered area can be declared as a
Slum Rehabilitation Area if the CEO, SRA deems it appropriate to do so if
the same is required for the implementation of the Slum Rehabilitation
Scheme. In the instant case, there is no dispute about the fact that the
structures of the Respondent Nos.1 to 9 are situated on the area
admeasuring 1045.50 sq.mtrs. and in so far as the adjoining area
admeasuring 7212.50 sq.mtrs. is concerned, the Respondent Nos.1 to 9
have no truck with the said additional area. Hence, they cannot have any
grievance about the same. In so far as the area of 1045.50 sq.mtrs. is
concerned, the same can be said to fulfill the parameters as laid down in
clause (D) of the said guidelines for declaration of the Slum
Rehabilitation Area. In the reply / affidavit filed in the Appeals it has
been stated that a survey was carried out and the actual conditions
existing on site were reported and thereafter the said declaration was
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issued. However implicit in the said declaration is the subjective
satisfaction reached by the CEO, SRA, that the said land admeasuring
1045.50 sq.mtrs. is required for the implementation of the Slum
Rehabilitation Scheme. It appears that the Slum Rehabilitation Scheme
was in the process of being implemented and in fact about 76 slum
dwellers who were on the land admeasuring 4123 sq.mtrs. have already
been rehabilitated in the rehab building which is already constructed.
The implementation of the said scheme has not proceeded further as the
Respondents have not vacated their structures and accepted the
permanent alternate accommodation which is ready for their occupation
since long. It seems that even out of the Respondent Nos.1 to 9, one of
the Respondents i.e. Respondent No.9 Suresh Tejbahadur Thakur has
accepted the permanent alternate accommodation in the rehab building
but is continuing his challenge to the Slum Clearance Declaration as well
as the Slum Clearance Order. In my view, therefore, the said request of
the Learned Counsel cannot be acceded to.
42 For the reasons afore-stated, the impugned order dated
12.03.2015 passed by the Slum Tribunal in so far as it sets aside the Slum
Rehabilitation Area Declaration Order under Section 3C as also the Slum
Clearance Order under Section 3D to the extent of 1045.50 sq.mtrs. is
required to be quashed and set aside and is accordingly quashed and set
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aside. Resultantly the Slum Area Declaration and the Slum Clearance
Order would apply to the entire area of 5168.50 sq.mtrs. The above Writ
Petitions are accordingly allowed. Rule is accordingly made absolute in
the aforesaid terms with parties to bear their respective costs.
[R.M.SAVANT, J]
After Pronouncement of Judgment
At this stage, the Learned Counsel for the Respondent Nos.1
to 9 seeks stay of the operation of the instant judgment for a period of
twelve weeks so as to enable the said Respondents to approach the Apex
Court. In the facts and circumstances of the case, the operation of the
instant judgment is stayed for a period of twelve weeks from date.
[R.M.SAVANT, J]
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