Law Web: 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.

Citation: 2020(5) MHLJ 245

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