In WP 3838 OF 2021- BOM HC- Declaration of land as ‘Slum’ alters its character which affects  rights, title and interest of owners as well as occupiers: Bombay High Court states that such declaration should be mandatorily published in prescribed manner to give due publicity and right to contest it
Justice Arif S.Doctor [09-06-2023]

Read Order: Allan Sebastian D’Souza v. Maharashtra Slum Areas

Simran Singh

New Delhi, June 12, 2023: The Bombay High Court has held that upon assessing and declaring a land as a slum under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, the competent authorities (respondent 2) were bound to declare the same by way of a Notification in the Official Gazette and such a declaration was to be published in a manner which would give due publicity to the declaration in the area as well as the right to contest such a declaration.

The High Court was dealing with a petition in relation to impugning the order passed by the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal (Tribunal/ respondent 1] which had dealt with the character of the land of the petitioner, situated at Village Kanjur, Mumbai.

The Court was of the view that “the mandatory modes of publication prescribed in Rule 3 read with Section 4 of the Slums Act is not without good reason as the effect of a declaration of land as a slum has widespread ramifications which would affect the right, title and interest of both the owners and occupiers of such land.”

The Single Judge Bench of Justice Arif S. Doctor stated that “There is no doubt that the declaration of the said land as a slum alters the character of the said land. Consequently, the Petitioners’ right, title and interest as owners of the said land would also be gravely prejudiced. Thus, it is in the interest of justice, equity and good conscience that the Petitioners must necessarily be given an opportunity to contest the declaration of the said land as a slum. No prejudice can possibly be caused to the contesting Respondents if the delay is condoned, and the Petitioners Appeal is heard on merits. The Respondents shall have an opportunity to appear and contest the said Appeal if they so desire.”

In the matter at hand, the petitioner impugned the order passed by the Tribunal whereby petitioner’s application seeking condonation of delay in filing an Appeal under the provisions of Section 4(3) read with Section 45 (1A) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slums Act) was dismissed.

The petitioners in the said appeal had challenged the declaration of land situated at Village Kanjur, Mumbai as a slum (the said land). The said land belonged to petitioners’ father one Mr. Sebastian John D’Souza who was stated to have bequeathed the same to the petitioners by his last Will and Testament. It was thus that the petitioners claim to be the owners of the said land.

Sebastian D’Souza had constructed some chawls which were not on the land but only a small portion of an open passage ad-measuring 29.28 square meters leading to the rooms in the chawls which fell within the land. It was assessed by the Municipal Corporation of Greater Mumbai and all the basic amenities had been provided to the chawls.

In the year 2004, the petitioner had filed an eviction suit against an occupier of one of the structures, who in his written statement had annexed a copy of the Notification dated 13-10-1995 by which the said land had been declared as a slum under Section 4(1) of the Slums Act, a notification about which the petitioners had no intimation about.

The petitioners thereafter made an application dated 28-07-2006 to the Department of Archives, Government of Maharashtra for a certified copy of the said Notification which was received by the petitioner for the first time on 03-08-2006. Thereafter the petitioners on 29-08-2006 filed an Appeal under Section 4(3) of the Slums Act along with an Application for Condonation of Delay.  The said application for Condonation of Delay was accepted and the declaration of the said land as a slum was therefore set aside vide order dated 29-06-2012 and 09-04-2013

The respondents 3-30 being the occupants of the said land, filed a petition impugning the aforesaid orders on the ground that they were not provided an opportunity of being heard. The Tribunal was directed to decide the condonation of delay application afresh after hearing the parties which was thereafter, dismissed as a consequence, the petitioners were denied the opportunity to challenge the declaration of the said land as a slum. Hence, the present petition.

Issue for consideration was that whether the publication of a Notification issued under Section 4 of the Slums Act in the Official Gazette was adequately in compliance with Section 4 of the Slums Act and the Rules framed thereunder.

The Court answered the aforementioned issue in negative stating that Section 4 of the Slums Act provided that the Competent Authority on being satisfied that an area was required to be declared as slum for one or more of the reasons would, by a Notification in the Official Gazette declare such an area to be a slum area and such a declaration would be published in such other manner which would give due publicity to the declaration in the area as maybe prescribed. The ‘other manner’ of publication prescribed were to be found in Rule 3 of the Slum Rules which were distinct and separate from each other. “Therefore, the Competent Authority when declaring an area as a slum is mandatorily required to do each of the following:

a. Publish the declaration in one local newspaper having wide circulation in the relevant area.

b. Paste a copy of the declaration on the notice board in the office of the Competent Authority.

c. Display a copy of the said declaration in a conspicuous place in the area declared as a slum.

d. Make a proclamation of the substance of the said declaration in the area declared as a slum by beat of a drum.

e. Serve notice upon every owner and occupier of the property in the area declared as a slum (i) stating the effect of the declaration and (ii) specifying the time within which an aggrieved person may Appeal to the Tribunal under Section 4(3) of the Slums Act.”

The Bench stated that respondent 2 under the Slums Act, had neither disputed the fact that the notice under Rule 3 of the Slum Rules was not served upon the petitioner nor had they disputed the fact that the service of notice  upon a land owner was mandatory. The Bench also considered the contesting respondent’s contention of applicability of the presumption under Section 114 of the Evidence Act,1872 but stated that there existed sufficient material to rebut the said presumption.

In view thereof, the impugned order was set aside and Tribunal was directed to hear the appeal and decide the same on merits and in accordance with law.