Jaripatka Dalit Kalyan Mahila Mandal vs State of Maharashtra & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(Bom) 1239

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Daga V.C. Deshmukh S.B., JJ.
Jaripatka Dalit Kalyan Mahila Mandal .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 1679 of 1987, decided on 4-11-2003.
Advocates appeared :
S.M. Puranik, for petitioner.
Smt. Khade, A.G.P., for respondent 1 to 3.
S.K. Mishra, for respondent 4.
R.R. Pillai, for respondent 7.

Headnote:Civil Procedure Code, 1908 - Order XLI, Rule 3-A - Condonation of delay. - Condonation of delay is within jurisdiction of Court looking on facts of each case. In case in hand there is no justification for condonation as petition was filed eight years after notification and amendment of petition done after lapse of 24 years.
Maharashtra Slum Areas (Improvement, Clearance, Re-development) Act, 1971 - Section 4 - Notification under - Challenged by way of writ petition after eight years - Amendment therein sought after 24 years - Huge amount spent on development of slum in meantime - Inordinate delay and laches - Not explained - Petition liable to be dismissed. - The petitioners are seeking directions against the respondent No. 7 calling upon them to remove encroachment committed by them with directions to the State to provide them alternate site. Such relief cannot be granted in favour of the petitioners unless the Notification dated 3.8.1978 issued under the MHADA Act, 1976 is held to be bad and set aside. Here comes the question of delay and laches. Challenge to the Notification dated 8.1.1978 has been set up in the petition on 30.8.2002, practically after 24 years of the issuance of the Notification that too by amendment. Even if, it is assumed that once the amendment is allowed, it relates back to the date of presentation of petition, in that event challenge to the Notification could at the most, be said to be in the year 1986, when the writ petition was filed i.e. after eight years.

JUDGMENT - DAGA V.C., J.:—The petitioners, by this petition, are seeking a writ directing the respondents to remove encroachment on the land meant for public utility located in the Harijan colony being Plot Nos. 186, 187 and 111 at Jaripatka Nagpur.

The Facts And Submissions:

2.The petitioners during the pendency of the petition, amended this petition so as to challenge the Notification bearing No. SCM/NGP/78/3-8-78 dated 3-8-1978 issued under the provisions of Maharashtra Slum Area (Improvements, Clearance and Redevelopment) Act, 1971 ("the MHADA Act, 1976" for short) contending that the respondents could not have taken recourse to the provisions of the MHADA Act, 1976 but ought to have resorted to the provisions of Maharashtra Slum Areas (Improvements Clearances and Re-development Act, 1971 ("The Slums Act", 1971 for short) looking to the preambles thereof which clearly spell out that both legislations are meant for different purposes.

3.The learned Counsel for the petitioner contended that the object of the Slums Act, 1971 is to make better provision for improvement and clearance of slum areas in the State and for re-development and for protection of occupiers from eviction and distress warrants and for matters connected with the said purpose. Whereas, the object of the MHADA Act, 1976 is to unify, consolidate and amend the laws relating to housing repairing and reconstructing dangerous buildings and carrying out improvement works in slum areas and went on to contend that the action of the respondent State in resorting to the provisions of the MHADA Act, 1976 is arbitrary mala fide as such the same is liable to be quashed and set aside.

4.The learned Counsel for the petitioner also raised certain general contentions the reference of which is necessary since we propose to dispose of this petition on the preliminary objection raised by the learned A.G.P. appearing for the respondents, set out and dealt with hereinafter.

5.Per contra, the learned A.G.P appearing for the State and other respondents raised a preliminary objection contending that the challenges set out in the petition cannot be considered on merits since the petition suffers from delay and laches. He submits that a party seeking intervention and aid of the Court under Article 226 of the Constitution for enforcement of his right should exercise due diligence and approach the Court within a reasonable time after cause of action arises and if there has been delay or laches on his part, Court has undoubted discretion to deny the relief. He further submitted that the State Government and MHADA authorities have spent hugs amount for the development of the slum in question keeping in view their legal obligation under the MHADA Act 1976 and if this Court holds that the notification dated 3-8-1978 issued under the MHADA Act, 1976 is bad, then, the entire expenditure made on development of slum would be nothing but turn out to be a wasteful expenditure. He submits that the persons who have been settled as slum dwellers will also be seriously prejudicated, apart from the fact that they are not party to this petition. In his submission, no order adverse to their interest can be passed behind their back.

6.The learned A.G.P. passed into service list of dates to bring home his submission. The details of which are as under:

1. 3-8-1972 - The notification was issued under the MHADA Act, 1976 declaring the area in question as slum.

2. 30-8-1972 - The notification was published in the official Gazette of the State of Maharashtra.

3. 23-10-1978 - This petition was filed after six years without challenging above notification.

4. 30-8-2002 - Petition came to be amended to challenge notification issued under the MHADA Act, 1976 i.e. after 24 years.

7.The learned A.G.P. on the basis of above list of dates successfully established delay and laches in filing this petition and tried to support the action of the respondents on merits. He, thus, prayed for dismissal of the petition with costs.

CONSIDER

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