864

IN THE HONOURABLE SUPREME COURT OF INDIA

AT DELHI


Petition No. ____/2014
Petition filed under Article 32 of the Constitution of India



Dharavi Slum Dwellers Association and others..Petitioner
v.
State of Maharashtra................................Respondent



MEMORIAL ON BEHALF OF THE PETITIONER



ii

Counsel for the Respondent
TABLE OF CONTENTS

INDEX OF AUTHORITY.iii
STATEMENT OF FACTS.....iv
STATEMENT OF JURISDICTION.v
ISSUES FOR CONSIDERATIONvi
SUMMARY OF ARGUMENTS...vii
ARGUMENTS ADVANCED.1
ISSUE I) WHETHER THE NOTIFICATION ISSUED IS IN VIOLATION OF
PRINCIPLES OF NATURAL JUSTICE..........................1
PRAYER..7




iii

INDEX OF AUTHORITIES

BOOKS AND TREATISES
1. M.P. Jain, Principles of Administrative Law, Lexis (Nexis Butterworths Wadhwa
Nagpur: Gurgaon) sixth edition, 2010
CASES
1. Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621
2. Frome United Breweryes v. Bath Justices (1926 AC 586)
3. Maula Bux And Etc. v. State Of West Bengal And Others, AIR 1990 Cal 318.
4. Daud Ahmed v. District Magistrate Allahabad & Ors. (AIR 1972 SC 896 & 899)
5. Municipal Corporation, Ludhiana Vs. Inderjit Singh (2008) 13 SCC 506
6. CST v. Subhash & Co., (2003) 3 SCC 454
7. A. K. Kraipak v. Union [1970](1) SCR 4571
8. Government Of Mysore & Ors vs J. V. Bhat, Etc. 1975 AIR 596,
9. Olga tellis Olga Tellis & Ors vs Bombay Municipal Corporation, 1986 AIR 180.
10. The Municipal Corporation of v. Shri Bhikanlal Nanakchand Sharma 2007 (109) Bom
L R 430
11. S.L. Kapoor v. Jagmohan, [1981] 1 S.C.R. 746,766


iv

STATEMENT OF FACTS

Maharashtra legislature passed Bombay Slum Areas (Improvement and Clearness) Act, 2010.
It created a Slum Area Authority to enforce the law. Authority was given powers to declare
any area as slum area, if certain conditions exist to its satisfaction. The Act provided that
ones an area is declared as slum area all residents have to apply to the authority for the
registration of their property , and also to furnish such details as authorities may require. Act
further provided that after declaration of an area as slum area no alteration or additions can be
made to any building without the written permission of the Authority.

Under S.12 of the Act, Authority is also empowered to declare any slum area as a clearance
area. If it is satisfied that is the best way to deal with the slum conditions existing in the area
it may also order the demolition of all buildings and structures within the areas.

Exercising its power, Authority declared certain area of Dharavi Slum as a Clearance area
and ordered the demotion of all the buildings therein without any notice and hearing to the
residents.

Dharavi Slum Dwellers Association has challenged the notification directing the demolition
as unconstitutional.

Hence the present matter before the court.




v

STATEMENT OF JURISDICTION

The counsel for the petitioner most humbly submits to the jurisdiction of Honble Supreme
Court of India, at Delhi under Article 32 of the Constitution of India.

vi

ISSUES FOR CONSIDERATIONS

ISSUE I: WHETHER THE NOTIFICATION IS UNCONSTITUTIONAL AS IN VIOLATION OF PRINCIPLES
OF NATURAL JUSTICE?

vii

SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE NOTIFICATION IS UNCONSTITUTIONAL AS IN VIOLATION OF
PRINCIPLES OF NATURAL JUSTICE?

Audi Aulteram Partem is a basic principle of natural justice. The principle of Audi Alteram
Partem has been violated in the present case as no notice and hearing being granted. Notice is
required to be given even if the law/statute is silent or authorises demolition without notice.
Requirement of Notice can be excluded only in exceptional circumstances which is not the
present case. Moreover, the Burden of Proof to prove exceptional circumstance is on the
Administrators. The requirement of notice is not futile in the present circumstance. Even if it
is futile notice is required to be given so that justice is seem to be done. Notice is required to
be granted to occupants also. Humanitarian grounds should be considered.


1

ARGUMENTS ADVANCED
ISSUE I: WHETHER THE NOTIFICATION IS UNCONSTITUTIONAL AS IN VIOLATION OF
PRINCIPLES OF NATURAL JUSTICE?

i. Audi Aulteram Partem is a basic principle of natural justice.

No one shall be condemned unheard, is one of the basic principles of natural justice which is
known as audi alteram partem.
1

The principles are four in number
2
:
(a) that every person whose civil rights are affected must have a reasonable notice;
(b) that he; must have reasonable opportunity of defence;i.e. opportunity of adequately stating
his case, and correcting or contra-dicting any relevant statement prejudicial to-his case.
3

(c) the hearing must be impartial; and
(d) the authority must act in good faith, reasonably and never arbitrarily.
If any action of an authority is not just, fair and reasonable then it is in violation of Article 21
also.
4


ii. The principle of Audi Alteram Partem has been violated.
The audi alteram rule was held to be applicable by implication, to a case of deprivation of a
right in property.
5

In Maula Bux And etc. v. State Of West Bengal, a provision was held to be unconstitutional
because it excluded the need for a notice before an order of demolition. It has been held that
action of demolition without notice is illegal.
6
In case of non-issuence of notice, which
violates the principles of natural justice, an administrative authority may decide the case de
novo with proper notice. Violation of the principles of natural justice vitiates order.
7


1
Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621
2
Frome United Breweryes v. Bath Justices (1926 AC 586)
3
Maula Bux And Etc. v. State Of West Bengal And Others, AIR 1990 Cal 318.
4
Supra note 1
5
Daud Ahmed v. District Magistrate Allahabad & Ors. (AIR 1972 SC 896 & 899)
6
Municipal Corporation, Ludhiana Vs. Inderjit Singh (2008) 13 SCC 506
7
CST v. Subhash & Co., (2003) 3 SCC 454
2

In the present case, certain slum areas have been declared clearance area and the order of
the demotion of all the buildings therein without any notice and hearing to the residents have
been passed which deprives the occupants of the rights under principle of natural justice.

iii. Notice is required to be given even if the law/statute is silent or authorises demolition
without notice.

The rules of natural justice operate in areas not covered by any law validly made, that is, they
supplement it. They are not embodied rules and their aim is to secure justice or to prevent
miscarriage of justice.
8
Hence, even if law is silent principles of natural justice may apply.

When the law is silent on requirement of notice or hearing, there are two possible approaches
to the question:
1. to hold that the provisions of the statute are themselves unconstitutional
2. the statutory provisions themselves are not unconstitutional though the notifications
issued under them may be struck down because they do not provide a reasonable
opportunity to the affected parties to be heard.
As there is a presumption of constitutionality, of statutes it is the latter course that appears to
us to be the proper approach. Hence, the statutory provisions themselves are not
unconstitutional though the notifications issued under them may be struck down.
9


Even where the statute (Section 314 of the Bombay Municipal Corporation Act) expressly
provided for removal of enchroachment without notice, it was still it was considered as a
mere enabling provision and not of compulsive character. It cannot be read to mean that, in
total disregard of the relevant circumstances, the administrator must cause the removal of an
encroachment without issuing previous notice. The primary rule of construction is that the
language of the law must receive its plain and natural meaning. Discretion is given to cause
an encroachment to be removed with or without notice which has to be exercised in a
reasonable manner.
10



8
A. K. Kraipak v. Union [1970](1) SCR 4571
9
Government Of Mysore & Ors vs J. V. Bhat, Etc. 1975 AIR 596,
10
Olga tellis Olga Tellis & Ors vs Bombay Municipal Corporation, 1986 AIR 180.
3

Hence in the present case also, even though Section 12 of the Bombay Slum Areas
(Improvement and Clearness) Act, 2010 was silent on the issuance of notice, it was required
by the principles of natural justice. All that was necessary was to hear objections, checked by
spot inspections where needed, before taking a decision.
11


iv. Requirement of Notice can be excluded only in exceptional circumstances.

Although it to the discretion of the Commissioner whether or not to give notice, it has to be
exercised reasonably.
12
The normal course of due process of law requires issuance of notice
before taking any action. Taking action of demolition without notice is an exception which
can be resorted to only in cases of grave urgency which requires action to be taken
forthwith.
13
The principle of natural justice can be excluded by way of exception and not as a
general rule. There are situations which demand the exclusion of the rules of natural justice
by reason of diverse factors like time, place, the apprehended danger and so on.
14


The ordinary rule which regulates all procedure is that persons who are likely to be affected
by the proposed action must be afforded an opportunity of being heard.

But as far as the unauthorised constructions are concerned immediate action for demolition is
not at all necessary because such constructions generally do not immediately or imminently
endanger the public at large and in those cases requirement of notice is to be followed and no
arbitrary and unreasonable action putting the person affected in dark should be taken.
15


v. Burden of Proof to prove exceptional circumstance is on the Administrators.
It must be presumed that, while vesting in the authority the power to act without notice, the
Legislature intended that the power should be exercised sparingly and in cases of urgency
which brook no delay. In all other cases, no departure from the audi alteram partem rule

11
Supra note 9
12
Supra note 10
13
The Municipal Corporation of v. Shri Bhikanlal Nanakchand Sharma 2007 (109) Bom L R 430
14
Supra note 10
15
Supra note 3

4

could be presumed to have been intended. Such circumstances of urgency must be known to
exist, when so required, the burden being upon those who affirm their existence.
Hence, the burden to prove the present circumstances as exceptional case is on the authorites.
vi. The requirement of notice is not futile in the present circumstance.
The contention that no notice needed be given because, there can be no effective answer to it,
ot it is practically futile betrays a misunderstanding of the rule of hearing, which is an
important element of the principles of natural justice.
16

A person may contend in answer to such a for demolition that (i) there was, in fact, no
encroachment or (iii) time may be granted for removal of the encroachment in view of
humane consideration arising out of personal, seasonal or other factors.
17
Even in a slum area
there may be buildings which may not have to be pulled down and they may be in quite good
condition. But if there is no provision for hearing the affected person he cannot bring this to
the notice of the concerned authority.

Hence, there can be no two opinions about the need to hear the affected persons before
declaring an area to be a slum area or an area as a clearance area or before taking action for
demolition.
18


Altenatively, Notice is required to be given even if it is futile.

J. Chinnappa Reddy, said: "In our view the principles of natural justice know of no
exclusionary rule dependent on whether it would have made any difference if natural justice
had been observed. The non-observance of natural justice is itself prejudice to any man and
proof of prejudice independently of proof of denial of natural justice is unnecessary.
19
Even if
such observance would have made no difference, the admitted or indisputable facts speaking
for themselves then also principle of natural justice must be followed.

16
Supra note 10
17
Ibid
18
Supra note 3
19
S.L. Kapoor v. Jagmohan, [1981] 1 S.C.R. 746,766
5

The proposition that notice need not be given of a proposed action because, there can
possibly be no answer to it, is contrary to the well-recognized understanding of the real
import of the rule of hearing. That proposition overlooks that justice must not only be done
but must manifestly be seen to be done and confuses one for the other.
20

Hence in the present case, notice and hearing must be granted whether or not the slum
dwellers can make any difference to the order.
vii. Notice is required to be granted to occupants also.
Before passing an order for demolition of a house the concerned authority must give an
opportunity to the owner and the occupant of the house to show cause against such an order
because such an order has drastic effect on property rights of these persons.
21
Hence even
though the slum dwellers may not be the owners and only occupants of the dwellings, they
are required to be given notice.
viii. Humanitarian grounds are required to be considered.
It is a fact that no person in his senses would opt to live on a pavement or in a slum, if any
other choice were available to him.
22
The slum dwellers may be illegal encroachers/
tresspassers but, their intention or object in doing so is not to "commit an offence or
intimidate, insult or annoy any person", which is the gist of the offence of 'Criminal trespass'
under section 441 of the Penal Code. They manage to find a habitat in places which are
mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to
exercise as to whether to commit an encroachment and if so, where. The encroachments
committed by these persons are involuntary acts in the sense that those acts are compelled by
inevitable circumstances and are not guided by choice.
23

Human compassion must soften the rough edges of justice in all situation. The eviction of the
pavement or slum dweller not only means his removal from the house but the destruction of
the house itself. And the destruction of a dwelling house is the end of all that one holds dear
in life.

20
Supra note 10
21
Municipal Corporation Ludhiyana v. Inderjeet Singh, (2008) 13 SCC 506
22
Supra note 10
23
Ibid
6

Therefore, the notification issued by the authorities under Section 12 of the Bombay Slum
Areas (Improvement and Clearness) Act, 2010 should be held unconstitutional as in violation
of the principles of natural justice.

7

PRAYER


In the light of the facts stated, issues raised, arguments advanced and authorities cited, it is
most humbly prayed before this Honourable Court that it shall allow the petition and declare-
The notification under Section 12 of Bombay Slum Areas (Improvement and
Clearness) Act, 2010 as unconstitutional.
And further grant any other order in favour of the Respondents as the Court may so deem fit
in justice, equity and good faith.


DATE: 2/4/2014 Counsel for the Petitioner

Counsel Code : 864