Kantabai Vasant Ahir vs Slum Rehabilitation Authority

The Appeals were partly allowed by the Tribunal.

The aforementioned orders dated 24.05.2006 and

01.09.2009 were set aside only in respect of 1045.50 sq.

mts. out of 5168.50 sq. mts. The order of the Tribunal was

challenged by Respondent Nos. 1 and 2 in the High Court by

filing a Writ Petition. The owner of the land, Respondent

No.3 also filed a Writ Petition in the High Court questioning

the legality of the order of the Tribunal. The High Court

allowed both the Writ Petitions and set aside the order of

the Tribunal. The High Court further declared that the slum

rehabilitation area declaration and the slum clearance order

would apply to the entire area of 5168.50 sq. mts.

Dissatisfied with the judgment of the High Court, the

Appellants are before us.

2. Respondent No. 3 is the owner of the land in Survey

Nos.27, 28 and 29 admeasuring 12,381 sq. mts. at

Wadgaon Sheri, Pune. An area of 4123 sq. mts. in Survey

Nos. 27 and 28 was declared as a “Slum” under Section 4(1)

of the Slum Rehabilitation Act, 1971 on 10.11.1983.

Pursuant to the recommendation made by Afzalpurkar

[2] Committee to establish an independent authority for

rehabilitation of slum dwellers, the Act was amended

incorporating Chapter I-A by Act 4 of 1996.

3. Respondent No.3 filed RCS No.365 of 2000 seeking

eviction of Appellant No.1’s husband. Initially, Respondent

No.3 averred in the suit that the Appellants were required to

be evicted after permission was granted by the competent

authority since the area occupied by Appellants was

declared as a slum area. Respondent No.3 filed an

Application for amendment of the plaint in which it was

stated that the permission of the competent authority to

initiate eviction proceedings against the Appellants was not

required as the area under occupation of the Appellants was

not a slum area. The Application for Amendment was

allowed by the Small Causes Court, Pune by an order dated

06.02.2006.

4. On 24.05.2006, Respondent No.1 passed an order

declaring 5168.50 sq. mts. in Survey Nos.27 and 28 (Part) at

Wadgaon Sheri (Ramwadi), Pune as a slum rehabilitation

area. It was mentioned in the said order that 4123 sq. mts.

[3] falling within Survey Nos.27 and 28 (Part) was already

declared as a slum area on 10.11.1983. By adding 1045.50

sq. mts. of undeclared area with 4123 sq. mts. of declared

area, the area of the Scheme was shown as 5168.50 sq.

mts. Thereafter, an order was passed by Respondent No.2

under Section 3D read with Section 12(4) of the Act on

01.09.2009 declaring 5168.50 sq. mts. in Survey Nos. 27

and 28 (Part) as Slum Clearance Area. The Appellants filed

C.S.No.97 of 2013 before the City Civil Court, Pune, for

declaration that the property in dispute was not a slum area

and that Respondent No.1 lacked jurisdiction to declare the

area as a slum. Respondent No.1 appeared before the court

and produced the Orders dated 24.05.2006 and 01.09.2009

passed under Section 3C and 3D of the Act. Thereafter, the

Appellants filed Appeal Nos. 24 and 25 of 2014 questioning

the Orders dated 24.05.2006 and 01.09.2009. As stated

above, the Tribunal partially allowed the Appeals and set

aside the Orders dated 24.05.2006 and 01.09.2009 to the

extent of 1045.50 sq. mts. of land.

5. The Appellants were found by the Tribunal to be

occupants of tenements in the disputed area and therefore,

[4] are persons aggrieved as contemplated under Section 3C(2)

of the Act. The Tribunal concluded that the Appellants were

not given sufficient opportunity as provided in Section 36 of

the Act before the order dated 24.05.2006 was passed. By

holding that 1045.50 sq. mts. was not a declared area, the

Tribunal set aside the Orders dated 24.05.2006 and

01.09.2009.

6. The High Court reversed the Order of the Tribunal after

a detailed consideration of the provisions of the Act and the

facts of the case. The High Court held that a declaration of

an area as a slum area under Section 4(1) of the Act is not

required before proceedings are initiated under Chapter I-A

of the Act. The High Court declared that the Slum

Rehabilitation Authority was discharging legislative

functions while exercising powers under Sections 3A to 3D

of the Act. The High Court was of the further opinion that

no pre-decisional hearing prior to the issuance of

declaration by the SRA under Section 3C of the Act is

necessary. Moreover, the Appellants were not entitled to

hearing as they were neither owners nor long term lessees.

The scope of Section 12 of the Act as construed by the

[5] Appellants was not accepted by the High Court. The

interpretation of Section 36 by the Tribunal was not

accepted by the High Court. The Special Rules and

Regulations governing the Slum Rehabilitation Scheme in

the present case were relied upon to conclude that

encumbered area can also be declared as rehabilitation

area. The plea of mala fide made by the Appellants was

also rejected by the High Court.

7. Mr. Guru Krishna Kumar, learned Senior Counsel

appearing for the Appellants submitted that the Act applies

only to slum areas. He further contended that the Order

dated 24.05.2006 passed under Section 3C of the Act and

the Order dated 01.09.2009 passed under Section 3D of the

Act are unsustainable. He submitted that a notification

under Section 4 of the Act is a prerequisite for initiation of

steps under Chapter I-A. As there is no notification under

Section 4 in respect of 1045.50 sq. mts., the entire

proceedings under Section 3C and 3D are vitiated. He

argued that the High Court committed an error in relying

upon the judgments of the High Court of Judicature at

[6] Bombay which pertained to Development Control

Regulations.

8. Mr. Shyam Divan, learned Senior Counsel for

Respondent Nos.1 and 2 defended the judgment of the High

Court. He argued that the judgment of the High Court is in

accord with the provisions of the Act. Chapter I-A, Sections

4, 12 and 36 have been correctly interpreted by the High

Court. He also relied upon the Special Rules and

Regulations for Slum Rehabilitation Scheme applicable to

Pune and Pimpri Chinchwad Municipal Corporation/ City

Area to submit that even encumbered lands can be part of

the Slum Rehabilitation Area. He further submitted that the

Tribunal committed an error in holding that Appellants were

entitled for a notice before the order under Section 3C was

passed. He contended that there is no necessity of a

notification of an area as a slum area under Section 4

before a declaration is made under Section 3C of the Act.

9. Mr. P.S. Patwalia, learned Senior Counsel appearing for

Respondent No.3 brought to our notice that all the slum

dwellers except the Appellants have shifted to transit

[7] accommodation. The entire Scheme has been held up

by the Appellants who belong to three families. He also

stated that even the Appellants shall be entitled to get

ownership flats after the development is completed. He

further submitted that the judgment of the High Court is in

the interest of the other slum dwellers who were occupying

tenements in the Slum Rehabilitation Area.

10. It is necessary to refer to the relevant statutory

provisions for a better understanding of the dispute.

Section 2(ga) defines slum area as any area declared as

such by the competent authority under sub-section (1) of

Section 4. Slum Rehabilitation Area, Slum Rehabilitation

Authority and Slum Rehabilitation Scheme are defined in

Section 2 (h-b), (h-c) and (h-d). Section 4(1) which falls

under Chapter II deals with declaration of slum areas as

follows:

4. Declaration of slum areas

1 [(1) Where the Competent Authority is satisfied that–

1 Sub-section (1) was substituted by Mah.23 of 1973, s. 102, Sch.II.

[8]

(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 neighbourhood, 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.]

[9] 2 [Explanation.- For the purpose of clause (b), the expression “buildings” shall not include,-

(a) cessed buildings in the island City of Mumbai as defined in clause (7) of section 2 of the Maharashtra Housing and Area Development Act, 1976, or old buildings belonging to the Corporation;

(b) buildings constructed with permission of the relevant authority at any point of time;

(c) any building in an area taken up under the Urban Renewal Scheme.]

11. The relevant portion of Section 12 which is as under :

“12. Clearance order

(1) As soon as may be after the Competent

Authority has declared any slum area to be a

clearance area, it 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

2 Explanation added by Mah.11 of 2012, s. 7 (w.e.f. 19-6-2012).

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order], and shall submit the [clearance order] to

the Administrator for confirmation.”

12. Chapter I-A was inserted by Act 4 of 1996. Section

3A(1) provides for appointment of Slum Rehabilitation

Authority for such area or areas as may be specified in the

notification. Sub-section (3) of Section 3A which deals with

the powers, duties and functions of the Slum Rehabilitation

Authority is as under:

“ 3[(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.]”

13. The Slum Rehabilitation Authority shall prepare or

amend the general slum rehabilitation scheme for the areas

specified in Section 3A(1) for rehabilitation or relocation of 3 (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.

[11] protected occupiers and other occupiers of the buildings in

such areas in exercise of power conferred by Section 3B.

The procedure to be followed for preparation of the Slum

Rehabilitation Scheme is dealt with in Section 3B. Section

3C empowers the Chief Executive Officer to declare any

area as Slum Rehabilitation Area after the publication of the

Slum Rehabilitation Scheme. Section 3C(2) enables an

aggrieved person to prefer an appeal against the Slum

Rehabilitation Order to the Special Tribunal. Section 3D of

the Act provides that on publication of the Slum

Rehabilitation Scheme under Sub-section (1) of Section 3B,

the provisions of the other Chapters of the Act shall apply to

any area declared as a Slum Rehabilitation Area subject to

the modifications mentioned therein. To the extent

necessary, it is relevant to note that Chapter II stands

omitted. Section 12 was substituted as follows insofar as it

applies to Chapter I-A

"(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

[12] 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."

14. Section 36 of the Act is as follows:

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 which it relates.

[13] (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.

15. Certain amendments were carried out to Chapter I-A

by Act 38 of 2018. As the Orders under Section 3C and 3D

were passed in 2006 and 2009 and the decisions of the

[14] Tribunal and the High Court were prior to the amendment,

we proceed to adjudicate this matter by interpreting the

provisions of the Act as they stood prior to the amendment

made by Act 38 of 2018.

16. The main contention of the Appellants is that 1045.50

sq. mts. of land was not declared as a slum area under

Section 4 of the Act which is sine qua non for initiation for

proceedings under Chapter I-A of the Act. There is no

dispute that the declared area is only to an extent of 4123

sq. mts. The entire area of 5168.50 sq. mts. was declared as

a Slum Rehabilitation Area under Section 3C which falls in

Chapter I-A. As stated above, Section 3D provides that

Chapter II has no application to orders passed under

Chapter I-A. Section 4(1) of the Act is in Chapter II.

Therefore, it is not necessary that an area should be notified

under Section 4 as slum area before proceedings under

Chapter I-A are initiated. Hence, we do not agree with the

Appellants that a notification under Section 4 is a pre-

requisite for orders to be passed under Sections 3C and 3D

of the Act.

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17. Another submission made on behalf of the Appellants

is that the Slum Clearance Order dated 01.09.2009 is

vitiated as it is contrary to Section 12 of the Act. The basis

for the said argument is that the clearance is made in

respect 5168.50 sq. mts. which includes 1045.50 sq. mts.

un-declared area. Section 12 as substituted by Section 3D

of the Act enables the Chief Executive Officer to make a

Clearance Order to a slum area after it has been declared to

be a Slum Rehabilitation Area. The submission of Mr.

Kumar, learned Senior Counsel for the Appellants is that the

words “slum area” have been defined in Section 2(ga) to

mean any area declared as such by the competent authority

under Section 4(1). In the absence of a declaration of a

slum area under Section 4(1), no action can be initiated

under Section 3D of the Act. Mr. Divan, learned Senior

Counsel appearing for Respondent Nos.1 and 2 submitted

that the phrase “any slum area” in Section 12 is used in

general parlance. He relied upon Section 2 of the Act which

starts with the following “in this Act unless the context

otherwise requires”. In the context of Chapter I-A of the

Act, the phrase “slum area” used in Section 12(1) cannot

[16] have the same meaning as found in Section 2(ga). The

Slum Clearance Order is passed under Section 3D and

Section 12(1) after an area is declared as a Slum

Rehabilitation Area under Section 3C. Chapter I-A is a self-

contained code dealing with Slum Rehabilitation Schemes.

The words “any slum area” in Section 12 are used in generic

sense. Therefore, we do not accept the submission made

on behalf of the Appellants that “any slum area” in Section

12 is only that area which has been notified under Section

4(1) of the Act. Section 4 of the Act not being applicable to

proceedings under Chapter I-A is a relevant factor to hold

that the context warrants such interpretation.

18. The order dated 24.05.2006, passed under Section 3C

of the Act was held to be vitiated by the Tribunal due to

non-compliance of Section 36 of the Act. The manner of

service of every notice, order or direction issued under the

Act is provided under Section 36. A plain reading of

Section 3C of the Act discloses that the declaration of a

Slum Rehabilitation Area requires to be published in the

official gazette. The Slum Rehabilitation Order under Section

3C shall also be given wide publicity. An appeal to the

[17] special Tribunal, against the Slum Rehabilitation Order, can

be availed by any aggrieved person. Pursuant to the

publication of the Slum Rehabilitation Scheme on

28.11.2005, a survey was conducted by the Slum

Rehabilitation Authority to prepare a list of eligible slum

dwellers. It has been stated in the counter affidavit filed by

Respondent Nos. 1 & 2 that the Appellants participated in

the said survey and showed willingness to be a part of the

scheme. A list of eligible slum dwellers was published on

18.04.2006 and names of the Appellants were found in the

list which was published by affixing the same at a

conspicuous place in the area on 12.05.2006. After the

order dated 24.05.2006 was passed, the Appellants

submitted objections on 26.05.2006, 21.06.2006,

20.07.2006 and 07.08.2006. Thereafter, the Appellants filed

appeal No.24 of 2014 under Section 3C (2) of the Act,

challenging the order dated 24.05.2006 which was partially

allowed.

19. There is no requirement of issuance of notice prior to

the declaration under Section 3C. The Tribunal committed

an error in relying upon Section 36 to hold that the

[18] appellants were entitled to a notice before order dated

24.05.2006 was passed. Section 36 only deals with the

manner in which notice issued under the Act is to be served.

No complaint of violation of principles of natural justice can

be made by the Appellants as there is no violation of the

procedure prescribed in Section 3C. That apart, the remedy

resorted to by the Appellants under Section 3C(2) resulted

in their favor. There is no prejudice caused to the

Appellants. The complaint of the Appellants that they should

have been given an opportunity before the order dated

24.05.2006 was passed cannot be entertained.

20. Clause (d) of the Special Rules and Regulations for

Slum Rehabilitation Scheme under the jurisdiction of Slum

Rehabilitation Authority for Pune and Pimpri Chinchwad area

is as follows:

“D) Definition of slum and Rehabilitation

Area:

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

[19] 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 until for

human habitation 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 pubic 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.

21. It is clear that even encumbered area shall be declared

as a rehabilitation area provided the Slum Rehabilitation

Authority requires the said area for implementation of the

[20] Scheme. Admittedly, the disputed area of 1045.50 sq. mts.

is adjacent to the declared area and is required for effective

implementation of the Scheme. The contention of the

Appellant that the declaration of 1045.50 sq. mts. under

Section 3C of the Act is in colourable exercise of power is

not acceptable. In view of the aforementioned findings, it is

not necessary to deal with other contentions.

22. The Appeals are dismissed accordingly.

..…................................J. [L. NAGESWARA RAO]

..…….............................J. [HEMANT GUPTA]

New Delhi, October 18, 2019.

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