Ramkali Sitaram Kushawaha & others vs Deputy Collector (ENC) and Competent Authority & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(Bom) 249

IN THE HIGH COURT OF BOMBAY
Khadeparkar R.M.S., J.
Ramkali Sitaram Kushawaha others.... Petitioners.
Versus
Deputy Collector (ENC) and Competent Authority others.... Respondents.
Writ Petition (L) No. 2129 of 2003, decided on 16-2-2004.
Advocates appeared :
R.S. Datar, for petitioners.
Pradeep Jadhav, A.G.P., for respondent Nos. 1 to 3.
R.V. Govilkar, for respondent Nos. 4 to 73.
S.G. Surana, for respondent No. 74.

Headnote:Maharashtra Slum Areas (Improvement, Clearance, Re-development) Act, 1971 - Sections 3(B)(c), 5(1), 11 and 14(1) - Land acquired under Section 14(1) of Act - Action under Section 14(1) cannot precede action either under Section 5 or under Section 11 of Act - General Scheme of Rehabilita- tion/Development Control Regula- tions declared under Section 3-B of Act - Declaration not dispense with requirement of declaration under Section 3-C of Act - Declaration of area as "Slum" - Area cannot be deemed to be "slum rehabilitation area". - Mere declaration of a general scheme for rehabilitation of slum areas under Section 3-B ipso facto would not amount to declaration of any specific area as the slum rehabilitation area and for the same reason, slum rehabilitation scheme declared under Section 3-B cannot be made applicable to an area in the absence of compliance of the provisions of Section 3-C(1) of the said Act to such area. At the same time, mere publication of general scheme of rehabilitation would not bring any area within the scope of Section 3-D. For the purpose of applicability of Section 3-D it would be necessary for the concerned authority to declare the area to be slum rehabilitation area under Section 3-C(1) of the said Act. In the absence of compliance of the provision under Section 3-C(1), question of applicability of Section 3-D does not arise. Undisputedly, the respondents have not issued any declaration under Section 3-C in respect of the area in question and the same has not been declared as the slum rehabilitation area under Section 3-C of the said Act. Only the area which is qualified to be declared as slum area under Section 4 of the said Act or any other area in which implementation of slum rehabilitation scheme is necessary then such area can be treated as slum rehabilitation area. This merely lays down the guideline for identifying any area for the purpose of declaration of the same as the slum rehabilitation area and by itself does not declare any area to be a slum rehabilitation area. It is to be noted that the Government Resolution dated 9th April, 1998 is a Notification issued in relation to the general scheme for rehabilitation of the slum areas and by itself does no declare any area as slum rehabilitation area. In fact, all sub-clauses under clause 3 of the Government Resolution lay down the guideline which can be the basis for identifying an area wherein rehabili- tation scheme can be implemented and by themselves they do not declare any area to be a slum rehabilitation area. Indeed, under no circumstances clause 3 of the Government Resolution dated 9th April, 1988 can be said to be declara- tion of any area as slum rehabilitation area as the said notification has been issued under Section 3-B(3). A notification issued under a provision in a statute or in exercise of powers under the provisions of law in a statute, cannot travel beyond the scope of powers given to the authority to issue such notification. Section 3-B is confined to formulation of general scheme for rehabilitation of slum area. The said Act specifically requires a separate notification under Section 3-C for the purpose of declaration of an area as the slum rehabilitation area.

JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the rule made returnable forthwith and taken up for final disposal.

2. The petitioners challenge the order and the notification issued under section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, hereinafter called as "the said Act", contending that the same are in contravention of the provisions of the said Act.

3. The subject matter of the dispute relates to the piece of land bearing CTS No. 101 and 10171 to 1-8 and a structure, standing thereon situate at Anand Nagar, Sanman Singh Marg, Bhandup (West) of village Kanjur, Taluka Kurla, Mumbai Suburban District. The petitioners claim to be the lessees in respect of the said land admeasuring 1633 sq. yards and the owners of the structures of four chawls constructed therein. By Notification dated 16th September, 1976, the said property was sought to be declared as the slum area under section 4 of the said Act. However, in Appeal No. 38 of 1982, by an order dated 28th October, 1983, the said declaration was set aside. Thereafter by notification dated 16th August, 1995 published in the Government Gazette dated 31st August, 1995 the said property was again declared as the slum area under section 4 of the said Act. The same was followed by Show Cause Notice dated 29th November, 1996 under section 14(1) of the said Act calling upon the petitioners to show cause as to why the said property should not be acquired for the purpose specified in the show cause notice. The petitioners objected to the said acquisition by reply dated 20th December, 1996. It was specifically contended that the respondents had not issued any notice under section 5 of the said Act prior to the proposed action for acquisition of the area under section 14(1) of the said Act. Nearly after a lapse of five years therefrom, another notice under section 14(1) was sought to be issued on 17th June, 2001 which was also replied by the petitioners by their letter dated 30th June, 2001 again reiterating that there had been no notice issued under section 5(1) of the said Act before issuance of Show Cause Notice dated 7th June, 2001. Meanwhile the petitioners also filed appeal under section 4(3) challenging the declaration under section 4 of the said Act. However, the same was dismissed by the Tribunal by its order dated 8th March, 2002. The Writ Petition No. 6890 of 2002 preferred by the petitioners against the order of the Tribunal was also rejected by this Court by an order dated 1st July, 2003. Thereafter, the impugned notification came to be issued on 30th May, 2003 on the basis of the show cause notice dated 2nd December, 1996. Hence, the present writ petition.

4. It is the contention of the petitioners that the respondents could not have proceeded to acquire the land under section 14 of the said Act without complying with the provisions of law comprised under section 5(1) of the said Act, and in that regard reliance is placed in the unreported decision in the matter of (Balraj Tulsidas Pillai and others v. State of Maharashtra and others)1, in Writ Petition No. 826 of 1998 delivered by me on 20th August, 2003. The respondents on the other hand seek to justify the order and the notification by referring to section 3-D read with the G.R. dated 9th April, 1998 and the Development Control Regulation No. 33(10) issued under the Maharashtra Regional and Town Planning Act, 1966, hereinafter called as "the Planning Act" and placing reliance in the decision in the matter of (Pooja Enterprises and another v. C.E.O., S.R.A., Mhada, Mumbai and others)2, reported in 2000(3) Bom.C.R. (O.O.C.J.)421 .

5. Upon hearing the learned Advocates for the parties and on perusal of the records, the following questions arise for consideration:

(a) Whether the Government is empowered under the said Act to acquire the land under section 14(1) thereof without complying with the provisions of

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2004 Supreme(Bom) 249

Cases Referred (1)