Case Note & Summary
The writ petition under Article 226 of the Constitution of India was filed by Hushna Bano Mohamed Shakir Shaikh challenging an ex-parte order dated 9 December 2004 passed by the Secretary, Slum Rehabilitation Authority (SRA), and an order dated 15 October 2009 of the High Power Committee, which had rejected her claim for a permanent residential tenement under the slum rehabilitation scheme of Respondent No.6 Society. The dispute arose out of the redevelopment of a slum area in Bandra (East), Mumbai, declared under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The petitioner had been residing in a hutment prior to 1993, and her name was included at Serial No.293 in Annexure II, the list of eligible slum dwellers issued by the Additional Collector on 19 July 2002, with her structure marked as censused or protected. The residents formed a cooperative society, Respondent No.6, and executed an agreement with the developer, Respondent No.5, on 24 July 2002 for redevelopment, wherein the petitioner was signatory at Serial No.93. She was given transit accommodation in October 2002 and later, in September/October 2005, the society handed over Room No.10, C Wing, as permanent alternate accommodation, but the petitioner could not shift due to lack of amenities and complained. She later discovered that Respondent No.7 claimed to be the allottee of the same room. While pursuing her complaint before the High Power Committee, she learned for the first time that her name had been deleted from Annexure II by an order dated 9 December 2004 passed by the Secretary, SRA, on the ground that her structure was not on site, based solely on a developer's letter. The High Power Committee rejected her application on 15 October 2009, observing that she had already been allotted Tenement No.405 in C Wing of rehab building No.3 and was not entitled to another tenement. The core legal issues were whether the deletion order violated natural justice and whether the petitioner was entitled to an independent tenement. The petitioner argued that she was never given notice or heard before deletion, and that her name at Sr. No.293 was separate from the person at Sr. No.294, so both were entitled to distinct accommodations. The society and developer contended that the petitioner's name was validly cancelled, that her name also appeared at Sr. No.294 and a tenement was allotted to her accordingly, and that she had handed over possession to her brother-in-law. The court examined the record and found that the petitioner and Respondent No.8 (at Sr. No.294) were distinct eligible occupants entitled to separate accommodations. The order dated 9 December 2004 was passed without notice or hearing, at the instance of the developer, in gross violation of natural justice. The affidavits of the society were riddled with inconsistencies regarding which building number and which person possessed the tenement. The court set aside the order dated 9 December 2004 and held that the petitioner was entitled to independent and distinct permanent alternate accommodation in her own right. The writ petition was allowed in her favor.
Headnote
A) Administrative Law - Natural Justice - Violation of Principles of Natural Justice - Constitution of India, Article 226; Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The Secretary (SRA) deleted the petitioner's name from the list of eligible slum dwellers (Annexure II) by an ex-parte order dated 9 December 2004 at the instance of the developer without giving any notice or hearing to the petitioner. Held that the order was passed in gross violation of the principles of natural justice and is required to be set aside. (Paras 12, 16)
B) Slum Rehabilitation - Eligibility of Dwellers - Right to Permanent Alternate Accommodation - Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The petitioner's name appeared at Sr. No. 293 in the list of eligible slum dwellers issued by Additional Collector, indicating her structure was censused/protected. The Secretary (SRA) had no authority to cancel such eligibility without following due process. Held that the petitioner is entitled to independent and distinct permanent alternate accommodation in her own right. (Paras 4, 12, 16)
C) Evidence - Inconsistent Stand of Parties - Adverse Inference - The society and developer took contradictory positions in affidavits before High Power Committee and this Court regarding allotment of tenement No. 405, building number, and possession. Such inconsistencies undermined their credibility. (Paras 13-15)
Issue of Consideration
Whether the order dated 9 December 2004 passed by the Secretary (SRA) deleting the petitioner's name from Annexure II without notice was valid, and whether the petitioner was entitled to independent permanent alternate accommodation under the slum rehabilitation scheme.
Final Decision
The writ petition was allowed. The order dated 9 December 2004 passed by the Secretary (SRA) deleting the petitioner's name from Annexure II was set aside being in gross violation of principles of natural justice. The petitioner was declared entitled to independent and distinct permanent alternate accommodation in her own right under the slum rehabilitation scheme.
Law Points
- principles of natural justice
- audi alteram partem
- slum rehabilitation
- eligibility of slum dwellers
- ex-parte cancellation void
- permanent alternate accommodation
- supplementary annexure II cannot be issued without notice
- developer's role in deletion
- inconsistency in society's stand
- adverse inference
- separate entitlement for distinct occupants
Case Details
2012 LawText (BOM) (07) 119
Writ Petition No. 242 of 2012
Dr. D.Y. Chandrachud, R.D. Dhanuka
Shakuntala A. Mudbidri, Madhubala Kajale, J.G. Reddy, S.G. Surana, Soniya S. Miskin
Smt. Hushna Bano Mohamed Shakir Shaikh
The State of Maharashtra, Maharashtra Housing and Area Development Authority, Additional Collector (Encroachment) and Collector of Slum District Mumbai, Slum Rehabilitation Authority, Housing Development & Improvement India Private Limited, Smt. Indira Gandhi Rahiwashi Sewa Sangh (SRA) Society, Faizal Uloom Madarasa and Masjid (Regd.), Shabbir Hussain
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Nature of Litigation
Petition under Article 226 of the Constitution of India seeking to quash orders of Slum Rehabilitation Authority and High Power Committee and for declaration of entitlement to permanent residential tenement under slum redevelopment scheme.
Remedy Sought
Petitioner (slum dweller) sought declaration that ex-parte order dated 9 December 2004 and order dated 15 October 2009 were unlawful, and she is entitled to permanent alternate tenement and possession.
Filing Reason
Petitioner's name was deleted from eligibility list without notice; High Power Committee rejected her claim for independent permanent accommodation despite her earlier eligibility.
Previous Decisions
On 19 July 2002, Additional Collector included petitioner in eligible list. On 9 December 2004, Secretary (SRA) ex-parte deleted petitioner's name. On 15 October 2009, High Power Committee rejected petitioner's application for permanent alternate accommodation, holding she had already been allotted one tenement.
Issues
Whether the order dated 9 December 2004 passed by the Secretary (SRA) deleting petitioner's name from Annexure II without notice was valid?
Whether the petitioner was entitled to a separate permanent alternate accommodation independent of the tenement alleged to be allotted to respondent no.8?
Submissions/Arguments
Petitioner's name in eligible list could not be cancelled without notice and hearing; order passed solely on developer's letter, violating natural justice; separately, petitioner's structure existed and she was independently eligible; the tenement no. 405 was allotted to respondent no.8, not to her; she is entitled to distinct accommodation.
Petitioner's name was cancelled by order dated 9 December 2004; her name also appeared at Sr. No.294 and that tenement was allotted to her; petitioner already handed over possession to her brother-in-law; she is not entitled to another tenement.
Respondent no.8 was allotted tenement no.405 in building no.2 by letter dated 9 February 2004 and is in physical possession in his own right.
Ratio Decidendi
An order deleting the name of an eligible slum dweller from the list of persons entitled to permanent alternate accommodation under the slum rehabilitation scheme, passed without notice and hearing, violates the principles of natural justice and is void. A person whose name appears independently in the eligibility list is entitled to separate accommodation, and such entitlement cannot be arbitrarily cancelled at the instance of the developer without due process.
Judgment Excerpts
We are of the view that the name of the petitioner has been illegally deleted by the Secretary (SRA) without complying with the principles of natural justice. The Petitioner is entitled to independent and distinct permanent alternate accommodation in her own r
It is thus clear that the petitioner and respondent no. 8 were both found to be eligible to be allotted separate and distinct permanent alternate accommodation in respect of censused or protected structures held by them.
No notice nor hearing was given by the Secretary (SRA) to the petitioner before deleting the name of the petitioner from annexure II and before passing the impugned order dated 9 December 2004.
Procedural History
Prior to 1993, the petitioner resided in a hutment in Indira Nagar Chawl, Bandra (East). The property was declared a slum under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. On 19 July 2002, the Additional Collector (Encroachments) and Controller of Slums issued Annexure II, listing eligible slum dwellers, with the petitioner at Serial No.293 and her structure marked as censused or protected. On 24 July 2002, about 70% of the slum dwellers executed an agreement with the developer (Respondent No.5) for redevelopment; the petitioner was a signatory at Serial No.93. In October 2002, the petitioner was handed over transit accommodation Tenement No.107. In September/October 2005, the society handed over permanent alternate accommodation Room No.10, C Wing, but the petitioner complained of lack of amenities and did not shift. On 9 December 2004, the Secretary (SRA) passed an ex-parte order deleting names of 34 hutment dwellers from Annexure II, including the petitioner, relying on a developer's letter that structures were not on site. The petitioner was unaware of this order. She made complaints to the CEO, SRA on 15 July 2008, 28 January 2009, 25 February 2009, and 12 March 2009. On 12 March 2009, she filed an application (No.606 of 2009) before the High Power Committee seeking permanent allotment. The Committee heard the matter and, by order dated 15 October 2009, rejected her application, observing that she had already been allotted Tenement No.405 in C Wing of rehab building No.3. Aggrieved, the petitioner filed the present writ petition in 2012 under Article 226 of the Constitution.
Acts & Sections
- Constitution of India: Article 226
- Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971:
