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Mahajot Sahai Vs. Competent Authority Under the Slum Areas (improvement and Clearance) Act, 1956 and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petn. Nos. 109 and 110 of 1968
Judge
Reported inAIR1971Delhi57
ActsConstitution of India - Article 226; Slum Areas (Improvement and Clearance) Act, 1956 - Sections 3, 9, 9(1)and 30
AppellantMahajot Sahai
RespondentCompetent Authority Under the Slum Areas (improvement and Clearance) Act, 1956 and ors.
Appellant Advocate Yogeshwar Dayal, Adv
Respondent Advocate R.N. Tikku, Adv.
Cases ReferredPhillips v. Commissioner
Excerpt:
.....under section 9(1) in respect of only some but not all buildings in the slam area--validity of.; slum area declared under section 3(1) consists of four kinds of buildings, namely, (1) those which can be repaired under section 4, (2) those which are beyond repair and have to be demolished under section 7, (3) those which are to be preserved under the proviso to section 9(1) and (4) those which are to be demolished as a group of buildings under section 9(1) being in the 'clearance area'. 'clearance area' is thus a part but not the whole of a slum area.; (ii) constitution of india, articles 226, rule of natural justice modified in cases of urgency,; as a rule, the audi alteram partem rule of natural justice requires that a person should be heard before an order affecting his civil rights..........no. 110 of 1968 are owners of houses situated in those parts of old delhi which were declared as slum areas on 20th april 1957 by a notification issued under section 3 of the slum areas (improvement and clearance) act, 1956 (hereinafter called the act). on 30-6-1961, houses nos. 1812 to 1845 including the houses of the petitioners in puce katra being a part of the slum areas notified on 20th april 1957 were declared to be a clearance area by a notification issued under section 9(1) of the act (annexure c to writ petition). on 22-10-1965, a clearance order (annexure d to the writ petition) was passed under section 10(1) of the act calling upon the petitioners and other owners to demolish their houses in the clearance area within six weeks. the clearance order was confirmed by the.....
Judgment:

V.S. Deshpande, J.

1. The petitioner in this and the connected writ petition No. 110 of 1968 are owners of houses situated in those parts of Old Delhi which were declared as slum areas on 20th April 1957 by a notification issued under Section 3 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter called the Act). On 30-6-1961, houses Nos. 1812 to 1845 including the houses of the petitioners in puce Katra being a part of the slum areas notified on 20th April 1957 were declared to be a clearance area by a notification issued under Section 9(1) of the Act (Annexure C to writ petition). On 22-10-1965, a clearance order (Annexure D to the writ petition) was passed under Section 10(1) of the Act calling upon the petitioners and other owners to demolish their houses in the clearance area within six weeks. The clearance order was confirmed by the Administrator of the Union Territory on 29-11-1965 under S. 10(2) of the Act (Annexure E). On 24-11-1966, the Competent Authority (Assistant Commissioner (Slums) Delhi Municipal Corpn.) wrote to the petitioner informing them that if the petitioners fail to vacate the premises in respect of which the clearance order was passed by the Competent authority and confirmed by the Administrator, the Competent authority shall enter the said premises and get them demolished under Section 10(5) and recover the cost of the demolition from the petitioners under Section 10(6) of the Act. The appeals filed by the petitioners against these orders under Section 30 of the Act were also dismissed on 7-12-1967 by the Judicial Secretary acting for the administrator.

2. The legality of the above-mentioned orders is impugned by the petitioners on the following grounds:-

(i) Under Section 9(1) of the Act, a clearance order has to cover 'all the buildings' in the slum area as declared under Section 3 of the Act. thereforee, the declaration of only the houses Nos. 2812 to 2845 as clearance area by the order dated 30-6-1961 was ultra virus the Act,

(ii) According to the rules of natural justice, the petitioners were entitled to a hearing before the orders declaring the petitioner's houses as a clearance area or at any rate before the slum clearance orders were passed in respect of these houses.

and

(iii)There was no material in the possession of the Competent authority justifying the declaration of the petitioners' houses to be a clearance area under Section 9(1). The order was thereforee bad.

3. These contentions are considered below Serialtim.

(i) The relevant part of the scheme of the Act is as follows: The Slum Areas (Improvement and Clearance) Act, 1956 was enacted for two main purposes, namely, (1) the improvement and clearance of slum areas and (2) for the protection of tenants in such areas from eviction. The latter object is not relevant in the present case. Under Section 3 of the Act, the Competent authority satisfied by reports from its officers or other information in its possession is authorised to declare any area as a slum area if the buildings in that area are unfit for human habitation or are detrimental to safety, health or morals. Such slum areas may either be improved or cleared. Improvement is a method directed towards particular buildings in the slum area. It may be mad either by repairs or by demolition under Ch. Iii of the Act.

Clearance on the other hand is directed towards a group of buildings under Section 9(1) unless any building which is not unfit for human habitation or dangerous or injurious to health is excluded from clearance under the proviso to Section 9(1). The actual operation of clearance of buildings in the clearance area is effected under S. 10 of the Act. It will be seen, thereforee, that Ss. 3, 9 and 10 of the Act deal with progressively diminishing areas as follows:

(a) Section 3 first carves out the slum area from the larger area. The slum area is 'any area' the buildings in which are either unfit for human habitation or are detrimental to safety, health or morals. The significance of the word any underlined is to indicate that part of the general area which is separated from the general area to be marked off from as a slum area if the conditions for declaring it as a slum area are satisfied.

(b) Under Section 9(1) 'any slum area,' the most satisfactory method of dealing with the buildings in which is to demolish them, is marked off from the rest of the slum area to be declared as a clearance area. Here also the word any underlined points to that part of the slum area which is to be marked off from the rest of the slum area for 'demolition of all the buildings in the area'. The distinction between a slum area declared under Section 9(1) is important. The slum area declared under Section 3 consists of for kinds of buildings, namely, (1) those which can be repaired under Section 4; (2) those which are beyond repair and have to be demolished under S. 7; (3) those which are to be preserved under the proviso to Section 9(1) and (4) those which are to be demolished as a group of buildings under the principal part of Section 9(1). But the clearance area under Section 9(1) comprises only those building which are included in category No. (4) above. The buildings in categories 1, and 2 and 3 above are included in a slum area under Section 3 but are excluded from the clearance area under Section 9(1).

The argument of the petitioners is that the words 'slum area' used in S. 3 and S. 9(1) mean the same thing, namely the whole of the slum area which is declared under Section 3. The only support for this argument is the fact that the same words 'slum area' are used to denote both the slum area under Section 3 and the clearance area under Section 9(1). But as shown above, the clearance area is only a part of the slum area and cannot be the whole of it. For , from the definition of the 'slum area in Section 3, it is clear that all the buildings in the slum area are not to be demolished as a group of buildings.

On the contrary, the three categories of buildings referred to in Sections 4 and 7 and the proviso to Section 9(1), though comprising the slum area, are not to be demolished as a group of buildings. This is why the definition of 'slum clearance' in Section 2(i) meaning the clearance of any slum area (i.e. any part of a slum area) by the demolition and removal of the buildings there from is different from the definition of a 'slum area' in Section 3. The definition of 'Slum Clearance' fits in with the declaration of a 'clearance area' under Section 9(1). The two concepts of a slum area and a clearance area are thus distinct from each other. The latter is only a part of the former but not the whole of it. The contention of the petitioners that a clearance area must include the whole of the slum area and cannot be restricted to a part of it is, thereforee, contrary to the clear meaning of Sections 3 and 9 as stated above. The contention is, thereforee, negatived.

(ii) In the slum area, the buildings are either unfit for human habitation or are detrimental to safety, health or morals. The better part of the slum area is capable of improvement. The worse part of the slum area is to be declared as a clearance area so that the buildings therein may be demolished as a group. The declaration of such buildings as a clearance area and their demolition after a clearance order are, thereforee, acts which have a certain urgency about them. For, they deal with buildings which are unfit for human habitation or are detrimental to safety, health or morals. The continuance of these buildings cannot to tolerated. They have to be demolished as quickly as possible. In view of this urgency, the general rule of natural justice that a person should be heard before his civil rights are affected (audi alteram partem) is modified so that the interest of urgency is reconciled with the interests of the person whose rights are to be affected by the urgent operations. In a long line of cases dealing with demolition order, beginning with Cooper v. Wandsworth Board of Work, (1863) 14 Cb (NS) 180, it has been held that the audi alteram partem rule is satisfied if an order is passed first and an opportunity is given later to the person against whom in the order is passed for showing cause why the order should not be enforced against him. For, the real prejudice is cause not by the mere passing of the order but by the execution of it. If the affected person is heard after the order is passed but before the order is executed against him, the interests of natural justice are satisfied. Byes, J. observed as follows at pp. 194 and 195.

'This is a case in which the Wandsworth District Board have taken upon themselves to pull down a house, and to saddle the owner with the expenses of demolition, without notice of any sort. There are two sorts of notices which may possibly be required ............. one, a notice of a hearing, that the party may be heard if he has anything to say against the demolition; the other is a notice of the order, that he may consider whether he can mitigate the wrath of the board, or in any way modify the execution of the order'.

In Vestry of St. James v Feary, (1890) 24 Qbd 703 , Lord Coleridge, C. J. observed as follows:

'There is an appeal to the County Council, and that is the remedy which the respondent ought to have adopted. It is contended that there must be some opportunity of questioning the propriety of the order made by the vestry, and I agree that the case of (1863) 14 Cb (NS) 180 is an authority for that proposition. Such an opportunity may be given in one of two ways-in the first place, before the vestry do anything they may give notice to the person whom they require to execute the works, and he may object; or, secondly, they make the order, and if they do that they must give the person affected notice of such order. It is enough if an opportunity is given of questioning the propriety of the order.'

The result of these and many other decisions is summed up by a learned author as follows:

'The general rule, which was applied in a variety of legislative contexts, might be satisfied if an opportunity was available of obtaining a full review of the initial decision or of making other representations before the order became finally operative or was enforced.' (S. A. de Smith-Judicial Review of Administrative Action, Second Edn. page 141).

The American decisions take the same view. In North American Cold Storage Co. v. Chicago, (1908) 211 Us 306, the validity of a Municipal ordinance providing for the summary seizure and destruction of food in cold storage unfit for human consumption was challenged on the ground that the food owner was not given an opportunity to be heard prior to the seizure and destruction of the food. The challenge was negatived in the following words at p. 320:

'What is the emergency which would render a hearing unnecessary? We think when the destruction of food which is not fit for human use the emergency must be one which would fairly appeal to the reasonable discretion of the legislature as to the necessity for a prior hearing, and in that case its decision would not be a subject for review by the Courts ............... due process is not denied the owner or custodian by the destruction of the food alleged to be unwholesome and unfit for human food without a preliminary hearing,'

The principle of the above decision has been applied even to tax cases in which the right of the United States to collect its internal revenue by summary administrative proceedings has been upheld. In Murrya's Lessee v. Hoboken Land and Improvement Co. 18 How 272 (U. S. 1855) it was observed that:

'Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary proceedings'.

It was thought that the decision in the Murray's case was based on the peculiar relationship of a collector of revenue to his government. But as was later explained by Brandies, J. in Phillips v. Commissioner, (1931) 283 Us 589,

'the underlying principle in that case was not such relation, but the need of the government promptly to secure its revenues.'

Under Section 30 of the Act, any person aggrieved by any notice, order or direction issued by the Competent authority is given right to appeal to the Administrator within a period of 30 days. On the admission of such an appeal, all the proceedings to enforce the notice, order or direction and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal. No such appeal shall be decided unless the appellant has been heard or has had a reasonable opportunity of being heard in person or through a legal practitioner. The result is that immediately a notice is issued or an order is passed under the Act, the petitioners had the right to file an appeal against it under Section 30. According to the scheme of the Act, the hearing given to the person aggrieved immediately follows the issue of a notice or an order. In the light of the Judicial decisions referred to above, such an opportunity to be heard by the Administrator satisfies the requirements of the audi alteram partem rule of natural justice inasmuch as the notices and orders are concerned with buildings in slum areas and clearance areas which have to be dealt with urgently. We, thereforee, find that no principle of natural justice is violated by the procedure laid down in Sections 3, 9 and 30 of Act. This contention of petitioners also, thereforee, fails.

(iii) The material on which the competent authority proceeded against the petitioners in respect of their houses is available on the record of this itself. At Annexure Ra is the notice under Section 4(1) in which the various defects in the houses of the petitioners were brought to the notice of the petitioners and they were called upon to effect improvement therein. The reply given by the petitioner Ram Nath on 30-8-1957 was that he was unable to effect the improvements while Mahajot reported only partial compliance. Thereupon the Deputy Commissioner (Slums) along with the Special Engineer (Slums) and the Assistant Commissioner (Slums) visited these houses on 30-3-1961 and recorded an inspection note which is at Annexure Rc, the relevant portion of which is as follows:

'The building inspected in the puce Katra comprising of houses Nos. 2814 to 2845 is indeed in very dangerous condition and may collapse any time, if there are heavy rains or an earthquake or even otherwise. At one or two places the building has already collapsed to some extent. Since this is a very congested area, not only is the present condition of the building dangerous for the lives of its occupants but also for those living in the surrounding buildings which are in good condition'. This incidentally explains why the clearance order was not passed in respect of the surrounding buildings which were in a good condition. The petitioners had a full opportunity to show to the Administrator in the appeal that the observations made in the inspection note were not justified. But in the appeal before the Administrator in the appeal that the observations made in the inspection note were not justified. But in the appeal before the Administrator the petitioners urged only the legal grounds. On merits, they could not perhaps deny that their houses were in such a dangerous condition that there was no alternative but to demolish them as a group. We find, thereforee, that a full opportunity to show cause against the notices and the orders issued under the Act was available and was in fact availed of by the petitioners, and there was, thereforee, no reason to complain on this account.

4. The Writ Petitions are thereforee dismissed but without any order as to costs.

5. Writ petitions dismissed.


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