Bombay High Court
Papaya Chinaya Muthwas vs State Of Maharashtra And Anr. on 10 February, 1993
Equivalent citations: 1993(3)BOMCR300
JUDGMENT B.P. Saraf, J.
1. By this writ petition, the petitioner has challenged the legality and validity of a notification dated 15-6-1988 issued by the Deputy Collector (ENC) and Competent Authority, Borivali under section 4(1) of the Maharashtra Slum Areas (Imporvement, Clearance and Redevelopment) Act, 1971 ("the Act"), declaring areas specified therein as a slum imporvement area and a communication dated 16-8-1988 addressed to the petitioner informing about the issue of the said notification. The challenge is on two grounds : First, that a similar notification issued on 21-4-1983 by the Competent Authority was set aside by the Appellate Tribunal constituted under the Act by judgment dated 19-10-1984 in Appeal No. 34 of 1984, on the ground that there were sufficient facilities available for the population residing over the property in question and, as such, declaration of the area as Slum Area was not justified : Second, that there is no change in the factual circumstances that existed at the time of passing of the earlier notification which was set aside by the Tribunal. That being so, the issue of fresh notification under the very same provision tentamounts to abuse of power under section 4(1) of the Act.
2. There is no dispute about the fact that in respect of the very same property a notification under section 4(1) of the Act had been issued by the Competent Authority earlier on 21-4-1983 which was set aside by the Tribunal on the ground that the conditions precedent for declaration of a particular area as slum area were not present. In that view of the matter, it may not be necessary to set out the facts of the case in details.
3. The contention of the respondents is that the fresh notice which was issued to the petitioner to show-cause against the issue of the impugned notification dated 15-6-1988 is based on fresh material which had come in its possession subsequent to the order of the Tribunal and that being so, there is no provision in the Act which prohibits the competent authority from taking fresh action under section 4(1) of the Act. The submission, in other words, is that the setting aside of the order by the Tribunal does not operate as fetters on the exercise of powers of the authority under this section for all times to come, if fresh developments take place which justify the declaration of the area as a slum area. So far as the second contention is concerned, the contention of the respondents is that they had material in their possession which fully justified the issue of the fresh notification under section 4(1). Reference was made in this connection to the Surveyor's report dated 26-2-1988 and a Joint Inspection report dated 29-4-1988.
4. To the second submission, the reply of the learned Counsel for the petitioner is that none of the alleged fresh material had ever been furnished to the petitioner. The notice in question was a stereo-typed notice. It was in fact, a verbatim copy of the notice issued on the earlier occasion. According to the petitioner, the notice should have contained the materials, if any, on the basis of which the fresh notification under section 4(1) was sought to be issued, which would have enabled the petitioner to furnish a proper reply.
5. I have carefully considered the rival submissions. Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, which deals with the powers of the Competent Authority to declare any area as Slum area, is as follows :
4.(1) Where the Competent Authority is satisfied that ---
(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 reason 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.
Sub-section (3) gives a right to a person aggrieved by the order under section 4(1) to file an appeal before the Tribunal and sub-section (4) deals with the power of the Tribunal while dealing with the appeal.
A plain reading of section 4 clearly goes to show that the power conferred on the Competent Authority is intended to be exercised for the protection of the health, safety and convenience of the public. If the conditions mentioned therein exist, the Competent Authority can exercise the power and declare the area as slum area. The decision of the Competent Authority under this section is definitely a finding of fact which is subject to appeal to the Tribunal and the decision of the Tribunal also is confined to the correctness of the findings of the Competent Authority on the then existing facts and circumstances. Once the Tribunal sets aside an order of the Competent Authority holding that the conditions justifying the declaration of slum area did not exist in respect of a particular area or premises, the order is final and binding on the Competent Authority. It shall not be at liberty to initiate fresh proceedings on the face of the Tribunal's order on the very same materials. If such a course is adopted, certainly the action of the Competent Authority would not be tenable in law and in a given case may even amount to abuse of the process of the law. But that is not so in the case before me. It is not a case of the Competent Authority that the second notification was issued on the same material on which earlier notification, which had been set aside by the Tribunal, had been issued. According to the Competent Authority, it had fresh material with it in the form of the Survey report, Inspection report etc. which clearly go to show that new situations have developed which justify a fresh order. If that is so, it is difficult to hold that the power under section 4(1) cannot be exercised in view of the earlier order passed by it having been set aside by the Tribunal. The earlier order can not operate as an absolute bar in all circumstances against exercise of power under section 4(1) of the Act in future. It will be a bar only to the limited extent as indicated above. In the instant case, if the contentions of the Competent Authority have substance, the earlier order of the Tribunal will not operate as a bar.
6. It is, therefore, necessary to turn to the next limb of the argument of the counsel for the petitioner that even if there are fresh materials with the Competent Authorty, the same must be disclosed to the petitioner to enable him to make effective representation. I find force in this submission of the petitioner. It cannot be disputed that the purpose of issuing a notice to the affected person is to give him an opportunity of correcting or contradicting anything prejudicial to him. Notice, therefore, implies notice of all relevant facts giving rise to the proposed action. It is necessary to put the affected person in possession of the full particulars of the case he is expected to meet. In the words of Lord Denning, "he must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them". In short, the notice and hearing to the aggrieved person must be real and fair. Applying these principle to the proceedings under section 4(1) of the Act, it is clear that if the Competent Authority wants an effective representation or reply from the aggrieved person, it should furnish or supply, as far as possible, alongwith the notice all necessary informations on the basis of which it intends to pass an order under section 4(1). That will meet the requirement of notice. That will also save much time and labour of the aggrieved person as well as of the Competent Authority, as otherwise, the aggrieved person will have to apply to the Competent Authority to furnish such information and in which event, definitely it will be bound to do so. The better course in such cases, therefore, will be to furnish all requisite informations alongwith the notice itself to enable the person concerned to make an effective representation. However, non-furnishing of all the informations alongwith notice per se will not invalidate the notice. In that event, the aggrieved person may ask for such informations and then the authority concerned shall be obliged to furnish the same.
7. In the instant case, on perusal of the notice, it is evident that the requisite material or information which is said to have come in to the possession of the Competent Authority subsequent to the earlier order had never been supplied to the petitioner. This definitely has affected the right of the petitioner to make a proper representation. The petitioner definitely feels aggrieved as even 2-3- years back he succeeded in getting similar notice set aside by the Tribunal by satisfying the Tribunal that the findings of the Competent Authority were not correct or justified. His apprehension that the fresh notice has been issued to nullify the effect of the appellate order of the Tribunal can not be lightly brushed aside as unfounded. It is, therefore, necessary that if there are fresh materials to justify reinitiation of action under section 4(1), the same should be communicated to the petitioner to enable him to verify the position and to make an effective representation, if he so desires.
8. In that view of the matter, the matter is remanded to the Competent Authority to give a fresh opportunity of hearing to the petitioner in the manner indicated above. All necessary informations may be furnished to the petitioner to enable him to make an effective representation and he may be given personal hearing in the matter, if he so desires. On consideration of the submissions of the petitioner and the material on record, the Competent Authority shall pass a speaking order. If it comes to a conclusion that the conditions specified in section 4(1) are present, it shall be at liberty to issue fresh notification under section 4(1) of the Act.
9. In the result, the writ petition is allowed. The impugned final notification dated 15-6-1988 under section 4(1) of the Act is set aside and the matter is remanded to the Competent Authority for fresh disposal in accordance with the directions indicated above.
10. Under the facts and circumstances of the case, I make no order as to costs.