Case Note & Summary
The petitioners, a proposed co-operative housing society of slum dwellers and its chief promoter, filed a writ petition under Article 226 of the Constitution seeking declarations that the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ('Slum Act') prevails over Section 36A of the Maharashtra Land Revenue Code, 1966 ('MLR Code') and that a slum rehabilitation scheme can be implemented on land declared as a slum rehabilitation area under Section 3C of the Slum Act even if such land is owned by a member of a Scheduled Tribe. They also sought to quash a notification dated 7 August 2012 which made slum redevelopment subject to permission under the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974 ('Restoration Act'), and a communication dated 26 February 2013 which questioned the legality of the petitioners' proposal on the ground that the land was owned by a Scheduled Tribe member. The plot of land bearing CTS No. 677/A (part) and 610/A/1C (part) at Malad (East), Mumbai, owned by adivasis, was declared a slum rehabilitation area by the Slum Rehabilitation Authority ('SRA') under Section 3C of the Slum Act. The petitioners submitted a slum rehabilitation proposal, but the SRA did not process it further after the Controller of Slums raised an objection regarding adivasi land ownership. In its reply, the SRA acknowledged that the land belonged to adivasis and that it needed to first examine the legality of implementing the slum scheme on such land. The court heard arguments from senior counsel for the petitioners, who contended that the Slum Act being a complete code overrides other laws, and from the respondents who defended the requirement of permission under the Restoration Act. The judgment text provided is incomplete and does not contain the final decision, ratio decidendi, or operative directions. The matter was reserved on 4 May 2016 and pronounced on 28 July 2016.
Issue of Consideration
Whether a slum rehabilitation scheme under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 can be implemented on land owned by a member of a Scheduled Tribe in light of the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974 and Section 36A of the Maharashtra Land Revenue Code, 1966.
Law Points
- Slum Act prevails over Restoration Act
- Slum Act has overriding effect
- Section 36A of MLR Code does not bar slum scheme on tribal land
- Slum Act is a complete code
- Slum rehabilitation scheme can be implemented on any land declared under section 3C
- Occupancy/competent on Slum Rehabilitation Area does not extinguish tribal ownership
Case Details
2016 LawText (BOM) (07) 35
Writ Petition No. 2270 of 2014
S. C. Dharmadhikari, Dr. Shalini Phansalkar-Joshi
Dr. Milind Sathe, Ms. Shamima Taly i/b. M/s. S. Mahomedbhai and Co. for the petitioners; M. D. Naik, AGP for respondent no. 1; Jagdish G. Reddy (Aradwad) for respondent nos. 2 and 3
1. Jai Ganesh SRA CHS (prop.), 2. Arun Shantaram Sakpal
1. State of Maharashtra, 2. Chief Executive Officer, Slum Rehabilitation Authority, 3. Deputy Collector, Slum Rehabilitation Authority, 4. Controller of Slums, Greater Mumbai
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India seeking declaration that the Slum Act prevails over Section 36A of the Maharashtra Land Revenue Code, 1966 and that a slum rehabilitation scheme can be implemented on land owned by a member of a Scheduled Tribe; also seeking quashing of notification and communication that imposed requirement of permission under the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974, and for directing the Slum Rehabilitation Authority to process the slum rehabilitation proposal.
Remedy Sought
The petitioners sought a declaration that the Slum Act prevails over Section 36A of the MLR Code, that a slum rehabilitation scheme can be implemented on adivasi land, and a writ of certiorari to quash the notification dated 7 August 2012 and communication dated 26 February 2013 insofar as they subjected the slum scheme to permission under the Restoration Act.
Filing Reason
The Slum Rehabilitation Authority was not processing the petitioners' slum rehabilitation proposal solely because of an objection raised by the Controller of Slums that the land belonged to adivasis and that it was necessary to examine the legality of implementing the scheme on such land given the provisions of the Restoration Act.
Issues
Whether the provisions of the Slum Act will prevail over the provisions of Section 36A of the Maharashtra Land Revenue Code, 1966 insofar as there is any conflict between them.
Whether a Slum Rehabilitation Scheme can be implemented on land declared as a Slum Rehabilitation Area under Section 3C of the Slum Act even if such land is owned by a member of a Scheduled Tribe.
Whether the notification dated 7 August 2012 issued by the Slum Rehabilitation Authority and the communication dated 26 February 2013 are illegal and invalid insofar as they make redevelopment on slum rehabilitation area subject to permission under the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974.
Submissions/Arguments
The petitioners argued that the Slum Act is a complete code and overrides other laws, including the Restoration Act and the MLR Code, and that no separate permission is required under the Restoration Act once an area is declared under Section 3C of the Slum Act.
The respondents contended that the land in question was owned by members of the Scheduled Tribes and therefore it was necessary for the Slum Rehabilitation Authority to first examine the legality of implementing a slum rehabilitation scheme on such land; they relied on the notification and the communication to assert that permission under the Restoration Act was required.
Judgment Excerpts
the provisions of the Slum Act will prevail over the provisions of section 36A of the MLR Code insofar as there is any conflict between the provisions
a Slum Rehabilitation Scheme can be implemented on land declared as a Slum Rehabilitation Area under section 3C of the Slum Act even if such land is owned by a member of a Scheduled Tribe
the SRA does not dispute the factual position as set out by the petitioners. It also does not dispute that the subject property belongs to Adivasis and the SRA is required to first consider as to whether on Adivasi lands, a slum rehabilitation scheme can be implemented or not
Procedural History
The writ petition was filed under Article 226 of the Constitution. The respondents waived service and rule was made returnable forthwith. The matter was heard on 4 May 2016 and reserved for judgment, which was pronounced on 28 July 2016. The Slum Rehabilitation Authority had earlier issued a notification on 7 August 2012 under Section 3C of the Slum Act declaring the property as a slum rehabilitation area while noting that the provisions of the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974 were applicable and necessary permission should be taken. The petitioners’ proposal dated 8 January 2013 was not being processed due to an objection regarding adivasi land ownership raised by the Controller of Slums on 26 February 2013.
Acts & Sections
- Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971: Section 2(h-b), Section 3C, Section 37(1-B)
- Maharashtra Land Revenue Code, 1966: Section 36A
- Maharashtra Restoration of Land to Scheduled Tribe Act, 1974:
- Constitution of India: Article 226
- Maharashtra Regional and Town Planning Act, 1966: Sections 44, 45, 46, 51, 53, 54, 55, 56, 135, 136
