pvr 1 app324-04 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.324 OF 2004 IN WRIT PETITION NO.608 OF 2004 1.Maruti V. Mane & Anr. ...Appellants vs. 1.Smt.Ramkali Sitaram Kushawaha & Ors. ...Respondents --- Mr.R.V.Govilkar, for Appellants. Mr.R.S.Datar, for Respondent nos.4 to 6. Mr.G.D.Utangale, for Respondent no.75. --- CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATED: 14th February,2011 P.C.: 1. By this appeal, the appellants challenge order dated 16.2.2004 passed by the learned Single Judge of this Court in Writ Petition (L) pvr 2 app324-04 no.2129 of 2003. That petition was filed by Respondent nos. 1, 2 and 3 challenging the order and the notification issued under Section 14(1) of the Maharashtra Slum Areas (Improvement, clearance and redevelopment) Act,1971 (hereinafter referred to as the Act ). The subject matter of the petition was a piece of land bearing CTS no.101 and 101/1 to 18 and a structure standing thereon situated at Anand Nagar, Sanman Singh Marg, Bhandup (West), Mumbai. The original petitioners claim to be the lessees in respect of the land admeasuring 1633 sq.yards and the owners of the structures of four chawls constructed on that land. According to the judgment of the learned Single Judge, by notification dated 16.8.1995 which was published in the Government Gazette on 31.8.1995 the said property was declared as slum area under Section 4 of the Act. A notification under Section 4 of the Act was followed by a show cause notice dated 29.11.1996 under Section 14(1) of the Act, calling upon the petitioners to show cause as to pvr 3 app324-04 why the said property should not be acquired for the purpose specified in the show cause notice. The petitioners raised objection to the said acquisition. The objection raised by the petitioners was that the notice under Section 14 of the Act has been issued without complying with the requirement of Section 5 of the Act. It appears that after a lapse of five years, another notice under Section 14(1) of the Act was issued on 17.6.2001 which was replied to by the petitioners by their reply dated 30.6.2001 raising the same objection. It appears that the petitioners had also challenged the declaration made under Section 4 of the Act, but their challenge to that declaration failed because the Tribunal rejected their appeal and this Court also rejected their petition. Thereafter, on 30.5.2003 an order under Section 14 of the Act was issued on the basis of the show cause notice dated 2.12.1996. That order was challenged before this Court mainly on the ground that before making an order under Section 14 of the Act, the pvr 4 app324-04 Authorities have to comply with the provisions of Section 5 of the Act and as admittedly in the present case, the order under Section 14 of the Act has been made without complying with the provisions of Section 5 of the Act, the order made under Section 14 of the Act is illegal. On behalf of the Respondents, it was claimed that a general notification under Section 3B of the Act has been issued in relation to all the slums in the city of Bombay including the slum in question and therefore, compliance of requirements of Section 5 of the Act before making order under Section 14 of the Act is not necessary. It was also contended, relying on the provisions of Development Control Regulation no. 33(10), that once notification under Section 3B of the Act is issued, action under Section 14 of the Act can be taken. The learned Single Judge has, however, held that merely by issuing notification under Section 3B of the Act, compliance with the provisions of Section 5 of the Act before making an order under Section 14 pvr 5 app324-04 of the Act is not dispensed with. He also rejected the contention urged on the basis of Development Control Regulation no.33/10. The learned Single Judge, thus, allowed the petition and set aside the order made under Section 14 of the Act. The present appeal is filed by three persons who are occupying the structures which is, according to the petitioner, owned by them. 2. We have heard the learned Counsel appearing for both the side. The learned Counsel appearing for appellants supported the order. He has also relied on the judgment of the Division Bench of this Court in the case Om-Sai Darshan Co-operative Housing Society Vs. State of Maharashtra passed in Notice of Motion no.698 of 2005 on 26.4.2006. 3. Now from the rival submissions and the record following can be taken as admitted and established position:- (i) The property which is subject matter pvr 6 app324-04 of this appeal has been declared to be a slum under the provisions of Section 4 of the Act. (ii) A notification under Section 3D of the Act has been issued in relation to that land including other lands generally which has been published in the Maharashtra Government Gazette dated 9.4.1998. (iii) Admittedly no notice under Section 5 of the Act has been issued in relation to the suit property. (iv) A declaration under Section 3C of the Act has not been issued. 4. what is challenged in the petition is order made under Section 14 of the Act. Section 14 of the Act reads as under:- 14. Power of State Government to acquire land. (1) Where on any representation from the Competent Authority it appears to the State Government that, pvr 7 app324-04 in order to enable the Authority [to execute any work of improvement in relation to any slum area or any building in such area or] to redevelop any clearance area, it is necessary that any land within adjoining or surrounded by any such area should be acquired the State Government may acquire the land by publishing in the Official Gazette, a notice to the effect that the State Government has decided to acquire the land in pursuance of this section: [Provided that, before publishing such notice, the State Government, or as the case may be, the Collector may call upon by notice the owner of, or any other person who, in its or his opinion may be interested in, such land to show cause in writing why the land should not be acquired with reasons pvr 8 app324-04 therefore, to the Collector within the period specified in the notice, and the Collector shall, with all reasonable despatch, forward any objections so submitted together with his report in respect thereof to the State Government and on considering the report and the objections, if any, the State Government may pass such order as it deems fit.] [(1A) The acquisition of land for any purpose mentioned in sub- section (1) shall be deemed to be a public purpose.] (2) When a notice as aforesaid is published in the Official Gazette, the land shall, on and from the date on which the notice is so published, vest absolutely in the State Government free from all encumbrances. pvr 9 app324-04 Perusal of the above quoted provision makes it clear that when on the basis of a representation made by a competent authority the State Government is satisfied that in order to enable the competent authority to execute any work of improvement in relation to any slum area, that area should be acquired by the State Government, then after following the procedure laid down by Section 14 of the Act, the land can be acquired. It is, thus, necessary that for the purpose of making valid order under Section 14 of the Act, a satisfaction has to be recorded by the Competent Authority as also by the State Government that in any slum area the work of improvement is to be carried out. So far as carrying on the work of improvement in a slum area by a competent authority is concerned, the provisions of Section 5 of the Act are relevant. Section 5 of the Act reads as under:- 5.Power of Competent Authority of execution of works of improvement. (1) Where the Competent Authority is pvr 10 app324-04 satisfied that any slum area or any part thereof is capable of being improved, at a reasonable expense, so as not be a source of danger to the health, safety or convenience of the public of that area, it may serve upon the owner or owners and every mortgages of the properties in that area or any part thereof a notice informing them of its intention to carry out such improvement works as in its opinion are necessary and asking each of them to submit his objections or suggestions, if any, to the Competent Authority, within thirty days from the date of such notice. A copy of such notice shall also be displayed at some conspicuous places in the area for the information of the occupiers thereof and for giving them also an opportunity to submit their objections or suggestions, if any. On such display of the notice, the owners, occupiers and all other persons concerned shall be deemed to have been duly informed of the matters stated therein. pvr 11 app324-04 (2) After considering the objections and suggestions received within the time aforesaid, from the owners, occupiers and other persons concerned, the Competent Authority may decide and proceed to carry out the improvement works with or without modifications or may postpone them for a certain period or cancel the intention to undertake the works. Perusal of the above quoted provisions of Section 5 of the Act shows that when a Competent Authority is satisfied that any slum area is capable of being improved at a reasonable expenses, it has to issue notice to the owner to raise objection if any. After considering the objection raised the competent authority can carry out the development work. Thus, an order recording satisfaction that in any slum area any improvement work is to be carried out by the Competent Authority after issuance of notice to the owner, is a condition precedent for making an order under Section 14 of the Act. The Competent Authority has to issue notice to the owner to pvr 12 app324-04 raise objection to the intention of the Competent authority to carry out the improvement work. It cannot be forgotten that when a notice under Section 5 of the Act is issued, the property continues to be owned by the owner, and therefore, the owner cannot be prevented by anybody from carrying out the work which may be necessary to prevent the danger, which may be necessary for improvement. In any case, in this case, it is an admitted position that before order under Section 14 of the Act was made, no notice under Section 5 of the Act was issued to the owner. Obviously, therefore, making of order under Section 14 of the Act without complying with the requirements of Section 5 of the Act was not valid, and therefore, we do not find any error in the order of the learned Single Judge. 5. So far as the reliance placed on the provisions of Section 3B and 3C of the Act are concerned, Section 3B relates to slum rehabilitation scheme. It empowers the State pvr 13 app324-04 Government and Slum Rehabilitation Authority to prepare a general slum rehabilitation scheme for rehabilitation of slums and hutment colonies in the specified areas. Sub-section 4 of Section 3B of the Act also indicates as to what should be the contents of rehabilitation scheme. Then comes Section 3C. It reads as under:- 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 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]. pvr 14 app324-04 (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. After Slum Rehabilitation Scheme is published, a declaration can be made declaring that area as slum rehabilitation area under the said Scheme, and that declaration has to be made after complying with the requirements of that section. Sub-section (2) of Section 3C of the Act also gives right of appeal to a person who feels aggrieved by the slum rehabilitation order. The consequence of making a declaration under Section 3C of the Act is that the provisions of Section 3D become applicable to that order. Because Section 3D of the Act lays down 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, subject to the following modifications. Thus, pvr 15 app324-04 once a slum rehabilitation scheme is declared under Section 3B and it is followed by the declaration under Section 3C, one of the consequence is that the following portion from Section 14 of the Act stands deleted:- in Section 14, in Sub-section (1)- the portion beginning with the words Where on any representation and ending with the words clearance area and the following portion stands substituted:- 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. Thus, the consequence is that before issuing an order under Section 14 of the Act its no longer necessary for the Authorities to comply with Section 5 of the Act. The scheme is obvious. Section 5 of the Act contemplates issuance of pvr 16 app324-04 notice to the owner so that objection can be raised to the intention of the Competent Authority to carry out development. The same purpose is served by the procedure that is to be followed under Section 3C of the Act, because Section 3C of the Act also contemplates an opportunity to raise objection being given. It is thus clear that the procedure under Section 14 of the Act is altered only when the declaration under Section 3C of the Act is made. In the present case, admittedly, declaration under Section 3C of the Act has not been made, and therefore, Section 14 of the Act will be applicable without any modification, and therefore, Section 5 of the Act will have to be complied with. 6. So far as the submissions based on Regulation no.33(10) are concerned, those provisions have been considered with reference to the observations of the learned Single Judge in the judgment impugned in this appeal in the pvr 17 app324-04 judgment of the Division Bench in the case Om- Sai Darshan Co-operative Housing Society referred to above. The observations made by the Division Bench makes it clear that there is no conflict between the provisions of Slum Act and the DC Regulation no.33(1)). What is observed by the Division Bench in paragraph 20 of that Judgment, in our opinion, is relevant, which reads as under:- 20. On plain reading of the Annexure to Regulation 33(10) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under section 3c(1) of the Slum Act. The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in clause II of Annexure to Regulation 33(10). Under the said annexure there can be a scheme for a viable stretch of pavement also. The learned Single pvr 18 app324-04 Judge deciding ramkali s case was not concerned with a scheme under D.C. Regulation No.33(10). The proposition laid down by him will have to be read as one confined to the situation before him. Question No.1 is therefore, answered in the negative. The question no.2 has been also answered in the foregoing paragraphs. In our opinion, for reading and interpretation of the provisions of the Slum Act one cannot rely on the provisions contained in DC Regulations which is a subordinate legislation under some other Statute though it may be a related Statute. Once we find that the intention of the Legislation is clear that an order for acquisition of land can be made only after calling for objections under Section 5 of the Act, in our opinion, we will not not justified in diluting that requirement by referring to subordinate Legislation made under some other enactment. 7. Taking overall view of the matter, pvr 19 app324-04 therefore, we do not find any patent error in the order of the learned Single Judge. The appeal, therefore, fails and is dismissed. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.)