Sunday, 15 March 2020

What would be the effect of setting aside the declaration of slum during the pendency of suit?

 When a law is enacted by a legislature, though without
competency, it remains on Statute book till a court of competent
jurisdiction declares it invalid and, once it does so, it declared
nonest for all purposes, exception being made in favour of
prospective overruling, where the declaration of invalidating is
directed to take effect from a future date. However on a
declaration of a slum, being set aside, we do not agree with the
view taken in Smt. Teresa that once the declaration of a slum is set
aside, the very effect of it is washed away and, consequently, there
was no prohibition against filing of the suit without permission of
the competent authority. On the contrary, we concur with the
view of the learned Single Judge in case of Smt. Hasira that a suit
instituted without complying with requirement of Section 22 is
not maintainable and the decree therein becomes illegal in
absence of such permission. A decree which has attained finality,

cannot be reopened on a subsequent decision setting aside that
declaration of area as slum.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2926 OF 2001
WITH
CIVIL APPLICATION NO.741 OF 2018

Satish Shahu Bane Vs  Dattatraya Tanaji Padam 

CORAM : PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI DANGRE, J.

PRONOUNCED ON: 18TH NOVEMBER, 2019.


JUDGMENT:- [Per: Smt. Bharati Dangre, J.]
1. By Order dated 19th October, 2001, the matter was directed
to be placed before the larger Bench in light of the contrary views
taken by two learned Single Judges of this Court on the issue of
the effect of a declaration under Section 4 of the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971 being set aside after institution of a suit and its effect on the
maintainability of a suit.
2. In case of Abdul Basu v. Smt. Teresa Rozario & Ors. (WP
848/1980) decided on 8th July 1985, the Single Judge of this
Court (B.C. Gadgil, J.) held that once the notification under
Section 4 of the Maharashtra Slum Act is set aside, the very effect
of it is washed away and, consequently, there was no prohibition
against filing of the suit without permission of the competent
authority. The necessary fact involved in the case disclose that a
suit came to be filed by Respondent No.2 against the Petitioner
for eviction on the allegation that Abdul Basu had fallen in arrears
of rent of residential premises in Mumbai. The notice issued by
Teresa to clear the arrears did not yield any result and the suit
came to be filed in December, 1977. No Written Statement was
filed by the Defendant, though he was served, nor did he put his
presence when the suit was fixed for hearing. Resultantly, suit
proceeded ex-parte and a decree of eviction was passed on 12th
April, 1979. Teresa executed the decree and secured possession

on 10th May, 1979. On 22nd May, 1979, Abdul filed a
Miscellaneous Notice against the ex-parte decree and raised an
objection that there was no permission obtained from the
competent authority as contemplated under Section 4 of the Act
of 1971 and the suit was, therefore, not maintainable. The
Miscellaneous Notice, setting aside the ex-parte decree on the
ground of lacunae pointed out, resulted in filing of revision which
was allowed on 5th February, 1980. The Revisional Court based
its decision on a factual aspect that the Notification dated 9th
September, 1977 declaring the premises as Slum Area was
quashed and set aside on 7th December, 1979. In an Appeal filed
under the Slum Act, the ex-parte decree was therefore confirmed.
In the backdrop of these facts, the learned Single Judge (B.C.
Gadgil, J) held that once the Notification is set aside, its effect
gets withered away and the bar created for instituting the suit
with the previous permission of the competent authority loses its
sanctity.
3. The second judgment is in case of Smt. Hasira v. Safiah
d/o. ARI Fitwalla & Ors. reported in (1986) Mah. R.C.J. 527)
(Writ Petition No.3331/1980) decided by another learned Single
Judge (Justice R.R. Jehagirdar) on 31st July 1986. The facts in the
backdrop of which the said judgment was delivered divulge that
the declaration under the Slum Act, 1971 was made on 26th
November 1977 and a suit came to be instituted on 21st March

1979, while the declaration under the Slums Act was in force.
The said declaration was set aside on 30th April, 1982, on an
Appeal filed by the Plaintiff and in the backdrop of these facts,
the learned Single Judge held that before filing a suit against a
tenant, it was open for the Plaintiff to follow the requirement
under Section 22(1) of the Slum Act or challenge the declaration
declaring the area to be slum before the Slum Area Tribunal and
after getting the declaration, the suit could have been instituted
with the permission of the competent authority. The suit which
came to be filed when the declaration was in force without
obtaining permission of the competent authority contemplated
under sub-section (1) of Section 22 of the Slum Act was therefore
held to be not maintainable and the decree passed in the suit was
declared as illegal.
4. During the course of hearing, our attention was invited to
the judgment in case of Hari S. Yadav Vs. Hiralal Prabhu Yadav
& Anr. reported in 2002 (6) Bom.C.R. 177 decided on 4th April
2002 by another Single Judge (S. Rebello, J.), who had before
him the judgments in the case of Smt. Hasira and Smt. Teresa.
The learned Single Judge returned a finding that the said
judgments are delivered in two different factual scenario and
insofar as the case of Smt. Hasira is concerned, the decree had
become final and it is the obstructionist who pleaded that decree
is nullity and what was relevant was that the suit was decreed

when the area was declared as slum and there were no further
proceedings against the decree and it is in these circumstances, it
was noted that the decree was a nullity. It was held that the ratio
in Smt. Hasira has to be restricted to those cases where the decree
was passed and subsequently, the Notification is set aside and
there was no appeal against the decree. However, as far as Smt.
Teresa is concerned, the decree has not become final when the
Notification was set aside. In the facts of the case, the learned
Single Judge concluded that once a Notification is set aside and
the proceedings are pending, the bar created is lifted, i.e. the
impediment on the person instituting the suit without permission
of competent authority also gets dwindled and the suit can be
proceeded further. The learned Single Judge therefore held that
there was no conflict in the judgments in case of Smt. Hasira and
Smt. Teresa.
5. In the backdrop of the aforesaid legal scenario, we are called
upon to answer the issue to which we have made reference in the
promial part of our judgment.
6. With the assistance of learned counsel representing the
adverse parties, we have carefully perused the judgments
delivered by the two Single Judges of this court. It would be
apposite to reproduce Section 22 of the Maharashtra Slum Areas

(Improvement, Clearance and Redevelopment) Act, 1971.
“22. Proceedings for eviction of occupiers
[or for issue of distress warrants] not to be
taken without permission of competent
Authority
(1) Notwithstanding anything contained
in any other law for the time being in force, no
person shall except with the previous
permission in writing of the Competent
Authority, -
(a) institute, after commencement of the
Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971, any
suit or proceeding for obtaining any decree or
order for the eviction of any occupier from any
building or land [in a slum area or for recovery
of any arrears of rent or compensation from
any such occupier, or for both; or]
(b) when any decree or order is obtained
in any suit or proceeding instituted before such
commencement for the; eviction of an
occupier from any building or land in such
area [or for recovery of any arrears of rent of
compensation from such occupier, or for both]
execute such decree [or order; or]
[(c) apply to any Judge or the Registrar of
the Small Cause Court under Chapter VIII of
the Presidency Small Cause Courts Act, 1882,
in its application to the State of Maharashtra,
or to any Court of Small Causes under Chapter
IV-A of the Provincial Small Cause Courts Act,

1887, in its application to the State of
Maharashtra, for a distress warrant for arrears
of rent against any occupier of a house or
premises in a slum area.]”
7. We have already averred to the facts involved in the two
judgments which take diametrically opposite view in the light of
the peculiar facts involved. The controversy to be determined
and the short point of law which has been made over to us in the
reference is whether the embargo created in Section 22 of the
Slum Act would stand nullified by a subsequent declaration
thereby setting aside a declaration under Section 4 and whether
this declaration would relate back to a point of time when the suit
was filed without completing the formalities contemplated under
Section 22 of the Slum Act.
8. The Indian courts have applied the doctrine of ‘relation
back’ in certain contingencies. The doctrine, that an act done at a
later time is, under certain circumstances, treated as it occurred at
an earlier time. The said doctrine has been applied in service
jurisprudence and a number of legislations involving Hindu Law,
Labour Law, the Code of Criminal Procedure, etc. It is not an
inviolable principle with universal application but it is a tool in
the hands of the court as well as the law makers, who assist them
to do justice either while framing the laws or determining the
question of law. The said doctrine has frequent application to

contract to sale properties where the parties to sale enter into an
agreement for sale and, thereafter, a sale deed is executed and in
such case, the sale deed actually relates back to the agreement for
sale. The doctrine of relation back involves retro-activity by
parties but the underlying principle is that it cannot affect the
vested rights. The doctrine of relation back is frequently invoked
and made applicable to amendments under Order VI Rule 17 of
the Code of Civil Procedure. By applying the said doctrine, the
amendment in a plaint allowed at a subsequent point of time,
relates back to the stage of filing of the plaint and is considered to
be part of the original plaint.
9. We are, however, not in agreement with the submission
advanced by learned counsel, who has advanced a submission that
the effect of nullification of a declaration of a slum at a
subsequent point of time wipes out the lacuna which existed at
the time of inception of the suit i.e. when a suit for eviction was
filed without permission of the authority. The declaration in an
appeal that the area is not a slum, though would create an effect as
if there was no slum area which was ever declared, its effect would
not eclipse the effect of an embargo created under Section 22
while the suit was being filed. The condition precedent for filing
a suit for eviction contemplate compliance of the imperative
mandate laid down in Section 22(1) of the Slum Act of 1971 viz.
to take previous permission in writing of the competent authority

before instituting a suit, executing a decree or in preparing an
application for a distress warrant for arrears of rent. The said
provision is in the form of a mandate and contemplate the
permission of the competent authority before filing of the suit
and do not admit of any post facto permission. The fact that at a
subsequent point of time, the declaration of slum area is set aside
by a competent authority, the defect/lacuna in the suit which is
filed without permission of the competent authority cannot be
said to become non-est on setting aside of the notification
declaring the area to be slum. At the relevant point of time, when
the proceedings for eviction were instituted, the notification
declaring the area as slum being in existence, the compliance of
Section 22(1) was mandatory. The effect of the subsequent
declaration that an area is not a slum will not apply retroactively.
It is a different situation when an Act or a Statute is declared a
nullity and in such a situation, it confers no right, it imposes no
duties and it would afford no protection and it is in legal
contemplation inoperative as though it never had been passed. It
is a complete nullity and void since its inception to the extent that
it had never been brought on the statute book. No rights can be
built under it nor any liabilities can be enforced while it was in
existence. Thus, when a law enacted by the Legislature without
competence is declared to be unconstitutional, it is held to be
non-est for all purposes and it remains in force till a court of
competent jurisdiction adjudicate thereon and declares it void.

Once such a law is declared to be void/unconstitutional, it is
declared so with a retrospective effect since its inception and all
the actions thereunder are wiped away. When a legislature repeals
an enactment, it may ensure that the consequences of the actions
taken during the time when the legislation was in operation gets
saved through saving clause.
10. The same principle cannot be made applicable to a
Notification issued in exercise of powers conferred by a statute
which is subsequently set aside and does not have an effect of
nullifying the compliance contemplated under it, while it was in
existence. In present case when the suit was filed, the statute
contemplated prior permission of the competent authority and
since it was the mandate of the statute, a suit filed without such a
permission is bad in law. If a statute requires a particular thing to
be done in a particular manner then it has to be done in the same
manner and in no other way. This sound principle of law laid
down in Taylor v. Taylor, reported in (1875) 1 Ch.D 426,
necessarily prohibits the doing of the act in any other manner
other than that has been prescribed. The principle behind the
well accepted proposition followed by courts in India for several
decades is that the statutory provision might as well would have
been not enacted. It is followed in the case of Nazir Ahmad v.
King Emperor reported in AIR 1936 PC 253. Thus when a
declaration made under the statute declaring an area to be slum is

set aside, at a subsequent point of time, it cannot automatically be
held to be non-existent and if it was a condition precedent under
Section 22 of the Act to institute a suit, it will not have an effect
of wiping out the shortfall at that point of time when the suit was
instituted without permission of the competent authority. While
acting under the statute, which contemplates declaration of area
as a slum and all the constrictions which find place in form of
Section 22 as valid prerequisite for institution of suit, any other
mode is forbidden.
11. When a law is enacted by a legislature, though without
competency, it remains on Statute book till a court of competent
jurisdiction declares it invalid and, once it does so, it declared
nonest for all purposes, exception being made in favour of
prospective overruling, where the declaration of invalidating is
directed to take effect from a future date. However on a
declaration of a slum, being set aside, we do not agree with the
view taken in Smt. Teresa that once the declaration of a slum is set
aside, the very effect of it is washed away and, consequently, there
was no prohibition against filing of the suit without permission of
the competent authority. On the contrary, we concur with the
view of the learned Single Judge in case of Smt. Hasira that a suit
instituted without complying with requirement of Section 22 is
not maintainable and the decree therein becomes illegal in
absence of such permission. A decree which has attained finality,

cannot be reopened on a subsequent decision setting aside that
declaration of area as slum.
12. We answer the Reference accordingly. Writ Petition is
directed to be placed for orders before the appropriate court.
(SMT. BHARATI DANGRE, J.) (CHIEF JUSTICE)

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