The State Of Maharashtra v. Shri Mahadeo Pandharinath Dhole And Ors. Opponents.

(per Pratap, J.):—

2. By this petition under Articles 226 and 227 of the Constitution, the petitioner-the State of Maharashtra seeks to challenge the legality and validity of the order dated 22nd July 1974 passed by the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Tribunal (herein-after the Tribunal) in appeal No. 3 of 1973 preferred before it by respondent No. 1 herein under section (4)3 of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, against the declaration dated 16th August 1973 made by the Competent Authority under which declaration the property in dispute was declared to be a slum area.

3. This petition involves consideration of some of the provisions of three State enactments viz., the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as the 1966, Act, the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, hereinafter referred to as the 1971, Act and the Maharashtra Slum improvement Board Act, 1973, hereinafter referred to as the 1973, Act.

4. Circumstances under which dispute involved in the present petition area have been as follows. Situated in Poona City were two plots viz., Final Plot Nos. 55 and 56 at Mangalwar Peth. These two plots were amalgamated and on amalgamation, the same wore constituted as C.S No. 449, Mangalwar Peth, Poona. The said property was the ancestral property of respondent No. 1 herein and his uncle. Area of the aforesaid property was divided into eleven sub-plots and in the final decree partition proceedings, sub-plot Nos. 5 to 8, 10 and 11 came to be allotted to the share of respondent No. 1 herein Mahadeo Pandharinath Dhole. This allotted property is the subject-matter of this petition. On 8th July 1966, the State Government sanctioned a development plan relevant for the purposes of this petition. This development plan was sanctioned under the provisions of section 31 of the 1966 Act and the same came into effect from 15th August 1966. Under the said plan, the property in dispute herein stood reserved for a play-ground.

5. Sometime later in the year 1971, the State Legislature enacted the 1971 Act mentioned hereinabove. This 1971 Act was enacted with a view to make better provision for the improvement and clearance of slum areas in the State and their re-development and for matters connected therewith, vide the preamble to the said Act. Thereafter, the State Legislature enacted yet another statute viz., the 1973 Act aforesaid. This 1973 Act received the assent of the President on 26th April 1973. The aims and objects of the said Act can best be seen from its very preamble which runs as follows:—

“WHEREAS, several slums have sprung up and continue to exist in the various areas of the State;

AND WHEREAS, despite continued efforts by legal authorities, Housing Boards, Improvement Trusts and other bodies to remove the slums, and to rehouse and resettle the slum dwellers in housing colonies and the like, it has not been possible to keep pace with the necessities of the situation;

AND WHEREAS, existing slums are becoming a source of danger to the health, safety and convenience of the slum dwellers and also to the surrounding areas, and generally a source of nuisance to the public;

AND WHEREAS, until such time as those slums are removed and the persons settled and housed in proper buildings, it is necessary to provide the basic necessities, such as water, sanitary arrangements, light, etc., to the slum dwellers; and for the purpose of more effectively and most speedily providing these amenities, it is now expedient to set up a Slum Improvement Board; and to provide for matters connected with the purposes aforesaid. It is hereby enacted in the Twenty-fourth year of the Republic of India as follows:—

6. On 16th August 1973, the Competent Authority herein declared the property in dispute herein to be a slum area under section 4 of the 1971 Act. This declaration was challenged by respondent No. 1 herein by preferring against the same on 11th September 1973 an appeal, being Appeal No. 3 of 1973, to the Tribunal under the provisions of section 4(3) of the 1971 Act. At the hearing of the said appeal, the Tribunal framed a preliminary issue as follows:—

“Do respondents prove that the declaration under section 4(1) of the Act of 1971 as amended by the Act 1973, read with section 45(2) of the Act of 1973 remains unaffected by the reservation under the Development plan and is capable of being enforced under both these Acts, inspite of the said reservation sanctioned by the Government under M.R & T.P Act, 1966?”.

7. On the said preliminary issue, the Tribunal returned a negative finding. The Tribunal held that the declaration of the property in question as a slum area under section 4(1) of the 1971 Act as amended by the 1973 Act was incapable of being enforced and the said declaration can have no legal effect and consequence in view of the prior reservation of the property for the purposes of a play-ground under the 1966 Act. In this view of the matter, the Tribunal allowed the appeal of respondent No. 1, set aside the impugned declaration made by the Competent Authority and directed the contesting respondents to pay the costs of the appeal. It is this appellate order of the Tribunal that is challenged in this petition by the State of Maharashtra.

8. In support of this petition, we have heard the learned Assistant Government Pleader Mr. A.C Agarwal. The contesting respondent No. 1 Mahadeo Pandharinath Dhole is represented by his learned Advocate Mr. M.A ???. Respondent No. 4, the Poona Municipal Corporation, is represented by its learned Advocate Mr. A.V Savant. The other respondents, though served, have not chosen to appear. But it may be noted that these respondents are none else than the Maharashtra Housing Board (respondent No. 2), Competent Authority (respondent No. 3), President and Members of the Maharashtra Slum Areas Tribunal (respondent No. 5). It may also at this stage be mentioned that Mr. A.V Savant, the learned Advocate for respondent No. 4, the Poona Municipal Corporation, supports this petition and the contentions raised on behalf of the State of Maharashtra. The main contest is between the State of Maharashtra and respondent No. 1, Mahadeo Pandharinath Dhole.

9. Mr. A.C Agarwal, the learned Assistant Government Pleader appearing for the State of Maharashtra, contended that the impugned appellate order of the Tribunal is based on a misreading and misconstruing of the provisions of the aforesaid three enactments and the said order is not sustainable in law. He contended that the declaration made by the Competent Authority was legal and valid and the challenge to the said declaration by respondent No. 1 in his above-referred to appeal therefrom was without any substance and the said appeal was liable to be dismissed and the declaration made by the Competent Authority was liable to be confirmed. On the other hand, Mr. M.A Rane, the learned Advocate for respondent No. 1, supported the appellate order passed by the Tribunal. He submitted that the said order is justified in law and the same deserved to be confirmed.

10. After hearing the rival submissions and contentions of the respective Advocates and after going through the impugned Judgment and Order of the Appellate Tribunal and after considering the relevant provisions of the aforesaid three enactments, we are of the view that the appellate order of the Tribunal is not sustainable and is liable to be set aside and the declaration made by the Competent Authority was justified and deserved to be confirmed. We find ourselves unable to agree with the reasoning and conclusions reached by the Tribunal. We also find that at certain stages, the reasoning of the Tribunal is confusing and rather difficult of comprehension. The ultimate order of the Tribunal cannot be sustained.

11. It is difficult to appreciate the conclusion of the Tribunal that declaration of the property as a slum area goes against the development plan or countermands the same and is calculated to interfere with the provisions of the development plan. The declaration itself does not per se lead to any such conclusion as reached by the Tribunal in this case. Even in law, the declaration does not, in our view, have the effect of evading or going against or countermanding the development plan in question. No provision of any of the aforesaid three enactments has been brought to our notice to show that the declaration made by the Competent Authority in this case extinguishes the development plan even to the extent covered by the declaration. Indeed, as we shall presently see, there are provisions in the aforesaid three enactments which indicate that a declaration as of the impugned nature in this case can be made despite inclusion of the property in the development plan. Provisions in the said Acts also indicate that inclusion of the property in the development plan for a particular purpose is not of such an enternal or sacrosanct character as not to be thereafter in any manner touched ??? affected by any other law for the time being in force. Declaration by the Competent Authority can co-exist with the inclusion of the property in the development plan and can also, under certain circumstances, co-exist with the reservation of the said property for a particular purpose in the development plan. It is not as if once a property is included in the development plan for a particular purpose, the property cannot be later on touched for any other purpose. To adopt the reasoning and to accept the conclusion of the Tribunal in this case would indeed be equivalent to putting a stop and a total halt to progress and development and persisting in the maintenance of status quo qua the property in question, irrespective of changes taking place in the area or the locality in question, irrespective of changes taking place qua the very property in question and irrespective of the aims and objects with which other and further laws are enacted by the State Legislature having effect on the property in question.

12. The Tribunal is not right in giving total overriding effect to the 1966 Act and in the process refusing to give effect to the 1971 and the 1973 enactments. The correct approach should be to reconcile the provisions of the aforesaid three enactments and to place upon the concerned provisions of the said enactments a harmonious construction so as to effectuate, as far as possible, the objects and the purpose of all the aforesaid three enactments. It is not as if these three enactments cannot be reconciled with each other. It is also not as if their aims and objects cannot be reconciled with each other. It is not as if the three enactments cannot stand together. We do not find any such direct confrontation or conflict between these enactments so as to conclude, as the Tribunal seems to do, that the 1971 and the 1973 Acts virtually nullify the provisions of the 1966 Act.

13. The Tribunal is also not right in holding that consequent upon the impugned declaration, the property stands converted for a non-public or a private purpose or that it stands converted into a residential site for a private purpose. In this behalf, the legal effect and consequences of the impugned declaration have not boon correctly considered and appreciated by the Tribunal. The declaration does not result in converting the property of one kind into a property of a different kind. It only declares the properly to be a slum area. It does not cancel its reservation in the development plan for a play-ground. Nor does the declaration prevent the property being ultimately made to fulfil the purpose of the play-ground in question. It was open to the authorities to declare a particular property to be a slum area, to then declare the same to be a clearance area and to thereafter re-develop the same into a play-ground, for which last purpose the property was reserved in the development plan. Reservation of the property as a play-ground in the development plan under the 1966 Act does not prevent the same from being declared as a slum area nor is there any bar to providing basic amenities to the slum dwellers on the said properly pending finding of alternative sites for rehabilitating them. A temporary phase qua the property in question does not and cannot obliterate the object consequent upon reservation of the property as a play-ground in the development plan. In our view, declaration as of the instant nature does not nullify or run counter to the development plan in question. Nor does the development plan and the reservation therein of the property in question as a play-ground prevent or debar the appropriate authority from declaring the same to be a slum area covered by the provisions also of the 1971 and 1973 enactments.

14. Indeed, the very provisions of the Town Planning Act, 1966, do not justify the conclusion reached by the Appellate Tribunal in this case. Section 38 of the 1966 Act itself categorically lays down that at least once in ten years from the date on which a development plan has come into operation, the planning authority may and shall, at any time when so directed by the State Government, revise the development after carrying out if, necessary, a fresh survey and preparing an existing-land-use map of the area within its jurisdiction. This, therefore, is a strong indication that the development plan is not sacrosanct for all times to come as the Tribunal in this case seems to feel. Indeed, the development plan requires to undergo a second look at least every ten years and if a second look requires any change in the development plan, a revision accordingly thereof is competent. Yet a further indication that a development plan is not unchangeable or sacrosanct is also available from the provisions of section 50 of the 1966 Act. Under the said section 50, the appropriate authority, if satisfied that the land is not or no longer required for the public purpose for which it is designated or recovered in the development plan, the said authority may move the planning authority or the State Government, as the case may be, to sanction deletion of such reservation from the development plan and if so moved, then the planning authority or the State Government, as the case may be, may make an order sanctioning the deletion of such reservation from the development plan. Thus, a property once reserved for a particular purpose in a development plan can also be deleted from the said development plan.

15. Sections 38 and 50 aforesaid thus themselves lead to an inference that there are certain in-built provisions in the 1966 enactment itself which can, if given effect to result, in revision of the development plan and even deletion of a particular reservation from the development plan. Deviation from or countermanding of the development plan is thus contemplated by the very 1966 enactment under which the development plan is prepared and finalised. Then again, we have in section 127 of the 1966 Act provision whereunder there can even occur lapse of reservation under circumstances mentioned in the said section. If any land reserved for any purpose in the development plan is not acquired by agreement within ten years or if proceedings for its acquisition are not commenced within such period, the owner may serve a notice on the authority in question to that effect and if within six months of the service of the said notice, the land is not acquired or no steps taken for its acquisition, the reservation.

“x x x shall be deemed to have lapsed, and thereupon, the land shall be deemed to be released from such reservation, x x x and shall deeme available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan.”

16. Thus, even a lapse of reservation is contemplated by the 1966 Act itself. And when we go to section 128 of the 1966 act, we find that even diversion of the reserved public purpose under the development plan is provided for. Under this section 128, where any land is reserved for any purpose but the State Government is satisfied that the said land is needed, for a different public purpose, it may, not withstanding anything in the 1966 Act, acquire the said land under the provisions the Land Acquisition Act, 1894, and under Sub-section (3) of the said section 128, on the said land vesting in the State Government under section 16 or 17 of the Land Acquisition Act, as the case may be, the relevant plea.

“x x x shall be deemed to be suitably varied by reason of acquisition of the said land.”

17. It will thus be seen from the aforesaid four provisions (sections 38, 50, 127 and 128) of the 1966 Act itself that changes and variations in the development plan are very much contemplated. It is also seen that even a lapse of reservation is contemplated. It is also seen that even change of one public purpose to another public purpose is also contemplated. Different situations are provided for in the 1966 Act itself. Property reserved for one particular purpose, therefore, may not continue to remain reserved for all times for the same purpose. It can be acquired for any other purpose. The reservation can be revised. The reservation can also lapse. The reservation can also be deleted. The emerging situation is indeed one as should exist. As indicated, if progress and development is to take place, if changing situations have to be met with changing remedies and if there is not to be a total halt to the award march, law must make provisions for changed situations and, in this case, law has made such provisions. Conclusion of the Tribunal, however, leads to the result that once a reservation for a particular purpose always a reservation for the very same purpose. Such a conclusion can well hinder implementation of various welfare schemes by the State and would also compel various State authorities, public bodies and the society at large to meekly accept and submit to the status qua irrespective of anything else.

18. When we go to the 1971 and the 1973 Acts, we do not find anything therein inconsistent with our aforesaid view. Under section 47 of the 1971 Act, where any area is declared to be a slum area.

“x x x then as from the date of such declaration; x x x the provisions of any law corresponding to the provisions of this Act in relation to the slum are x x x shall, save as otherwise provided in this Act, cease to be in force in the slum area, x x x but so long only as the said declaration remains in force, x x x”

19. We then find a clear declaration in section 103 of the 1973 act to the effect that:

“The provisions of this Act shall be in addition to and not in derogation of any other Act, Ordinance or Regulation for the time being in force.”

20. Still more important is section 104 of the 1973 act. It would be best to extract and quote the same herein.

“104. The provisions of this Act shall not be taken to affect any property rights in any of the areas to which this Act applies; nor shall the provision by or under this Act of any amenities be deemed to legalise what is otherwise illegal by or under any other law for the time being in force.”

21. The aforesaid provision of section 104 makes it very clear that the 1973 Act will not affect any property rights nor will the said Act be deemed to legalise what is otherwise illegal. The rights of respondent No. 1 herein qua his property involved in the present dispute are thus not affected by virtue of the 1973 Act. Nor does this Act legalise anything which is otherwise illegal. In the circumstances, the impugned declaration declaring the property to be a slum area cannot adversely affect the property rights of respondent No. 1 herein nor can the said declaration give a successful legal colour and shape to something which is otherwise illegal. From this aspect, therefore, the 1973 Act cannot be said to adversely affect the rights of respondent No. 1 herein qua his property in question.

22. The two enactments viz., the 1971 and the 1973 Acts, are meant to provide for remedies of a nature basically intermediary in character. Taking cognizance of the large slum areas in certain parts of the State, the State Legislature thought it fit to pass legislation to make better provisions for the improvement and clearance of those areas as also for their re-development. The object of these two enactments is not to perpetuate slums but to regulate the same, clear the same and re-develop the property in question. The object also is to provide to the slum dwellers at large certain basic necessities such as water, sanitary arrangements, light etc. and these basic amenities are to be provided to the slum dwellers not as a matter of any permanent feature but indicated in the preamble to the 1973 Act:

“x x x until such time as these slums are removed and the persons settled and housed in proper buildings, x x x.”

23. The 1971 and the 1973 Acts are thus, to our mind, ad-hoc solutions to ad-hoc problems which problems have, to an extent, become inherent in the very growth, development and progress of modern towns and cities in the State. A dream situation would, of course, be total absence of any slums. But there seems to be a long way to go to realise the same. In the meanwhile, slums have arisen and do crop up. Necessity knows no law. But to accept these slums as they are would be the very negation of the duties of a modern welfare State. Since overnight clearance of slums appears to be a problem beyond the immediate reach of the State the State Legislature has rightly chosen the next rest step viz., to regulate and control the slums and to see to it that these do not become a source of danger to the health, safety and convenience not only of the slum dwellers but also the surrounding areas and to also see to it that these do not become a source of nuisance to the public. These are the very specific objects embodied in the preamble to the 1973 Act and for the fulfilment of which the said Act has been enacted.

24. The object of Town Planning Act is to make provision for planning the development and use of land, to make better provision for the preparation of development plan, to provide for the creation of new towns etc. The objects of the 1971 and the 1973 Acts is not, in our view, inconsistent with the object of the Town Planning Act, 1966. Indeed, the objects of the 1971 and the 1973 Acts are objects or steps in aid of the fulfilment of the objects and aims behind the Town Planning Act, 1966. The fulfilment of the objects and aims of the Town Planning Act, 1966, would become extremely difficult, if not well high impossible, if laws such as the 1971 and the 1973 Acts are not passes and implemented. Absence of laws such as the 1971 and the 1973 Acts can itself result in frustrating or defeating at least some of the objects of the Town Planning Act, 1966. These three enactments have, therefore, to be read harmoniously and have to be construed accordingly. They are modern solutions and remedies to the ever-emerging new problems of modern times. Though one may hope for the times when Acts such as the Slum Areas Act, 1971, and the Slum Improvement Board Act, 1973, outlive their existence and are no longer found necessary for the purposes of fulfilment of the modern welfare activities of the State and though one may also hope for the times when slum areas would be a thing of the past, still till atleast that stage arrives and is reached the community at large and citizens such as respondent No. 1 herein will have to accept and abide by the provisions of these laws.

25. In this view of the matter that we take, we hold that the impugned declaration under section 4(1) of the 1971 Act as amended by the 1973 Act remains unaffected by the reservation in question of the property herein under the development plan. We further hold that the impugned declaration is capable of being enforced despite reservation of the property in question under the development plan covered by the 1966 Act. Finding to the contrary by the Appellate Tribunal on the preliminary issue framed by it is reversed. The impugned declaration made by the Competent Authority is confirmed.

26. At this stage, Mr. M.A Rane, the ??? Advocate for respondent No. 1, submitted that 8 part from the legality and validity of the declaration in question, respondent No. 1 has certain other grievances even after accepting the aforesaid declaration. He, therefore, urged that respondent No. 1 should be given opportunity to set forth his grievances accordingly in his appeal before the Appellate Tribunal. Mr. Agarwal, the learned Assistant Government Pleader, could not possibly object to this opportunity claimed on behalf of respondent No. 1.

27. In the circumstances, while reversing the Appellate Tribunal's finding on the preliminary issue framed by it and while holding that the impugned declaration is legal and valid and while confirming the said declaration, the ??? will now have to be sent back to the Appellate Tribunal for consideration on merits and in accordance with law of such other grievances as respondent No. 1 herein may have to set forth before the said Tribunal.

28. In the result, this petition succeeds. The judgment and order dated 22nd July 1974 passed by the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Tribunal in Appeal No. 3 of 1973 is set aside and quashed. The declaration by the Competent Authority under section 4 of the 1971 Act is held to be legal and valid and binding upon respondent No. 1 and qua the property in question. The said declaration is Confirmed. The Tribunal aforesaid is Directed to now hear and decide on merits and in accordance with law such other grievances as respondent No. 1 may have to urge before the said Tribunal in his aforesaid appeal before it. Rule absolute. In the circumstances of the case, there will be no order as to costs.