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2019 DIGILAW 2541 (BOM)

Satish Shahu Bane v. Dattatraya Tanaji Padam

2019-11-18

BHARATI H.DANGRE, PRADEEP NANDRAJOG

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JUDGMENT : Bharati Dangre, J. 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. 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.,1986 MahRCJ 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., (2002) 6 BCR 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. 4. During the course of hearing, our attention was invited to the judgment in case of Hari S. Yadav Vs. Hiralal Prabhu Yadav & Anr., (2002) 6 BCR 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. 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. 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 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. 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, 1875 (1) Ch 426 D, 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, (1936) AIR 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. 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.