Back
IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
Imam Mirasaheb Nadaf .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 2977 of 2001, decided on 12-8-2004.
Advocates appeared :
Abhay Patki, for petitioner.
Milind More, A.G.P., for respondent Nos. 1 to 4.
Since the notification on the face of it does not disclose necessary requirement under Section 4(1) of the said Act having been complied with, undoubtedly, the authorities could have produced materials on record to establish that such requirements had been complied with and it was necessary for the lower appellate authority to analyse the same so as to arrive at the finding whether there was sufficient materials on record for the authorities to arrive at the satisfaction regarding absence of basic amenities as per the requirement of statutory provisions for the purpose of declaration of the area to be a slum area by the said notification. The lower appellate authority having dismissed the appeal without considering the relevant issues in the matter, has clearly acted illegally rendering its judgment to be bad in law.
For the reasons stated above, it is apparent that the lower appellate authority without deciding the relevant issues, which were specifically raised in the matter, had proceeded to dispose of the appeal and, therefore, the impugned order cannot be sustained and is liable to be quashed and set aside, and the matter is to be remanded to the lower appellate authority to decide the above referred issues, which were specifically raised by the petitioner, after hearing both the parties and in accordance with the provisions of law. The petition, therefore, succeeds and the impugned judgment and order is hereby quashed and set aside and the matter is remanded as stated above, and the rule is made absolute in above terms with no order as to costs.
Maharashtra Slum Areas (Improvement, Clearance, Re-development) Act, 1971 - Section 4(1) - Declaration of slum area by Notification. - Satisfaction of authority regarding compliance of Section 4(1) of Act for purpose of declaration of slum area is mandatory. - Mere reproduction of some of the expressions from the statutory provisions, without referring to the factual situation in the area, cannot disclose satisfaction of the authority regarding compliance of prerequisites under the said provisions of law.
Since the notification on the face of it does not disclose necessary requirements under Section 4(1) of the said Act having been complied with undoubtedly, the authorities could have produced materials on record to establish that such requirements had been complied with, and it was necessary for the lower appellate authority to analyse the same so as to arrive at the finding whether there was sufficient materials on record for the authorities to arrive at the satisfaction regarding absence of basic amenities as per the requirements of statutory provisions for the purpose of declaration of the area to be a slum area by the said notification. The lower appellate authority having dismissed the appeal without considering the relevant issues in the matter, has clearly acted illegally rendering its judgment to be bad in law.
2.The petitioner challenges the judgment and order dated 11th October, 2001 passed in Appeal No. 22 of 2001 by the Maharashtra Slum Areas (I.C. R.) Tribunal, Mumbai. The challenge to the impugned order is on the two grounds. Firstly, that the petitioner had raised the specific plea as regards the non-compliance of the mandatory requirements under section 4(1) before issuing the declaration under the Maharashtra Slum Areas (Improvement, Clearance Redevelopment) Act, 1971 (hereinafter called as "the said Act") in relation to the area in question and the lower Appellate Authority failed to consider the same and thereby failed to exercise its jurisdiction in that regard, which is otherwise required to be exercised. Secondly, that the lower Appellate Authority also failed to decide the issue pertaining to the non-service of the notice relating to the said declaration which was required to be served in terms of the procedure prescribed for that purpose under the Maharashtra Slum Areas (Improvement, Clearance Redevelopment) (Other Manner of Publication of Declaration) Rules, 1971, (hereinafter called as "the said Rules")
3.Few facts relevant for the decision are that the notification under section 4(1) of the said Act came to be issued in relation to the various areas including the area comprised of the property No. 129/11, of the petitioner on 18th March, 1978. Sometimes in November, 1998, some unknown persons commenced measurement of the petitioner's property, and on inquiry with them, the petitioner came to know about the said declaration. The petitioner, after obtaining a copy of the said notification filed an appeal before the Tribunal on 28th June, 1999 along with the application for condonation of delay as the appeal was otherwise required to be filed within 30 days from the date of issuance of the said notification. After hearing both the parties, the Tribunal condoned the delay holding that the respondents had not established that the petitioner was aware about the declaration of the area in question as the slum area at any date earlier to the date disclosed by him as the date of date of the knowledge about the said declaration. The said order, was passed on 18th January, 2001. The respondents did not challenge the said order and it attained finality for all purposes. The Tribunal, however, after hearing both the parties on merits, dismissed the appeal holding that it is the contention of the respondents that the notice was issued to the petitioner though the records in respect of issuance of such notice are not traceable besides the notice was published at the Khotkuwa Road under panchanama, and secondly that the family members of the petitioner have entered into an agreement with the respondent Slum Rehabilitation Authority in relation to an alternative accommodation and that therefore, the petitioner has no locus standi to file an appeal.
4.The impugned order is sought to be assailed on the grounds stated above, while it is sought to be contended on behalf of the respondents that already more than 23 years have elapsed from the date of the notification and the petitioner was served with the substituted service of the notice of notification and the panchanama in that regard clearly establishes the same and that the family members of the petitioner having been benefited under the scheme and all these points having been considered by the lower Appellate Authority, there is no case for interference in the impugned order in exercise of the writ jurisdiction.
5.As rightly submitted by the learned Advocate for the petitioner, bare reading of the impugned order discloses that the lower Appellate Authority completely ignoring the contentions raised by the petitioner before it, has proceeded to dispose of the matter on totally extraneous grounds, and that by itself would justify setting aside of the impugned order and remanding
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
