Declaration Of Land As 'Slum' Has Widespread Ramifications On Rights Of Owners & Occupiers, Individual Notices Must Be Served: Bombay High Court

Observing that the declaration of a land as slum has widespread ramifications on the rights of the landowner, the Bombay High Court recently held that notice for such a declaration has to be mandatorily served on each owner and occupier of the land.Justice Arif S Doctor held that if serving a notice under Rule 3 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Rules, 1971 to each owner and occupant is impracticable, it can be dispensed with only after recording compelling reasons by the competent authority.“It is only in cases where, for some compelling reason that it is not practicable to serve individual notice upon every owner and occupier of the said land under Section 3(c) that service of such notice shall be dispensed with. This would however require the Competent Authority to have compelling reasons for not personally serving every owner and occupier of the said area. These reasons must be recorded and available (a) for good order and (b) in the event that want of such notice is called into question by any owner and occupier of the said area”, the court held.The court allowed a writ petition filed by two individuals against Maharashtra Slum Areas Tribunal’s order dismissing their application for condonation of delay in filing appeal. The court directed the tribunal to decide their appeal against declaration of their land as slum on merits.One Sebastian D’Souza, father of Allan and Edward D’Souza (petitioners) had constructed some chawls, a portion of which fell on the petitioners’ land situated in Kanjur East, Mumbai.The petitioners came to know that the area had been declared as slum in 1995 via a written statement filed by one of the residents of the chawl in their eviction suit against him. The petitioners claimed that they only became aware of the declaration in 2006, when they filed the eviction suit.The petitioners filed an appeal against the declaration along with an application for condonation of delay. The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal allowed their appeal.28 occupants of the land filed a writ petition against the tribunal’s order. The High Court directed the tribunal to decide the application for condonation of delay afresh after hearing the occupants. Thereafter, the petitioners impleaded the occupants, and the Tribunal dismissed the petitioners’ application for condonation of delay. Therefore, the petitioners filed the present writ petition.Senior Advocate Ashish Kamat for the petitioners submitted that the tribunal initially condoned the delay after recording a subjective satisfaction that the petitioners were neither given notice nor heard before the land was declared as slum. After the matter was remanded for a fresh hearing, the new respondents did not produce any material against this finding, he argued.The petitioners filed the appeal just over a month from the date on which they became aware of the notification. Hence, they acted promptly without any delay or latches, Kamat said. On merits, he said that the competent authority did not produce any material to show that a subjective satisfaction was arrived at before declaring the land as a slum. Further, the competent authority accepted that the petitioners had not been served notice. He argued that the position on merits has not changed after remand and there is nothing to show the notification has been published in the manner mandated in Rule 3 of the Slum Rules. Advocate Aseem Naphade for the occupants submitted that section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 did not contemplate any notice to be given to the landowner before declaration of land as a slum. He said that Rule 3(c) of the Slum Rules did not mandate a notice to be served upon the landowner as notice has to be served as far as practicable. Further, notice under Rule 3(c) to the landowner was an official act, he said. Thus, as per section 114 of the Indian evidence Act, it must be presumed that the statutory authority followed the prescribed procedure while making an order, he argued.Section 4 of the Slums Act provides that the competent authority may declare as area as slum by a notification in the official gazette and such a declaration shall be published in any other manner that will give it due publicity. Rule 3 of the Slum Rules provide the other manners that the declaration has to be published in.The court said that each of the modes of publication given in Rule 3 are distinct and separate. The competent authority has to comply with each mode and not any one or more of the modes, the court said. The court said that as per Rule 3, a component authority while declaring an area as a slum is mandatorily required to – i) publish the declaration in one local newspaper having white circulation in the relevant area, ii) paste copy of the declaration on the notice board of its office, iii) display copy of the declaration at a conspicuous place in the area, ...

Declaration Of Land As 'Slum' Has Widespread Ramifications On Rights Of Owners & Occupiers, Individual Notices Must Be Served: Bombay High Court

Amisha Shrivastava

Tags