Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 133 (BOM)

Prahlad Bansi Adsul v. State of Maharashtra

2011-02-02

ANOOP V.MOHTA, D.Y.CHANDRACHUD

body2011
JUDGMENT : (Dr. D.Y. Chandrachud, J.) Leave to amend so as to impugn the orders of the Administrator and Divisional Commissioner dated 29 September 2009 and 8 January 2010 granted. Verification dispensed with. Amendment be carried out during the course of the day. 2. The Petitioners had moved an application seeking the declaration of certain lands comprised in final plot Nos. 566/A, 566/B1, 566/B2 at Ram Panjwani Road, Mahim, Mumbai 400016, as a slum under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The Application was dismissed by the Joint Municipal Commissioner (Improvement) by an order dated 6 November 2007. The Petitioners challenged that order in a Petition under Article 226 of the Constitution. A learned Single Judge of this Court by a judgment dated 18 March 2008 disposed of the petition on the ground that since the Petitioners had an alternate remedy of an Appeal under Section 35, it would be open to the Petitioners to pursue that remedy. The Petitioners thereupon filed an Appeal before the Administrator and Divisional Commissioner, Konkan Division under Section 35. The Administrator & Divisional Commissioner dismissed the Appeal on 29 September 2009 holding that the application of the Petitioners that the land in their occupation be declared as a slum was dealt with by the Competent Authority under Section 4(1) and therefore an Appeal would lie before the Tribunal. After the order of the Administrator & Divisional Commissioner, the Petitioners filed an Appeal before the Tribunal. The Tribunal dismissed the Appeal by an order dated 7 October 2009 holding that an Appeal before the Tribunal lies under Section 4(3) only against the declaration of an area as a slum. Since there was no notification under Section 4(1), the Tribunal was of the view that the Appeal could not be entertained. The Petitioners thereupon once again filed an Appeal before the Administrator & Divisional Commissioner which was dismissed on 8 January 2010 in view of the previous order of the Divisional Commissioner dated 29 September 2009. 3. Counsel appearing for the Petitioners submitted that in the present case both the Administrator & Divisional Commissioner and the Tribunal have arrived at a conflicting view on the scope of the appellate remedy. Counsel submitted that the Administrator & Divisional Commissioner was in error in coming to the conclusion that an appeal would lie before the Tribunal. 3. Counsel appearing for the Petitioners submitted that in the present case both the Administrator & Divisional Commissioner and the Tribunal have arrived at a conflicting view on the scope of the appellate remedy. Counsel submitted that the Administrator & Divisional Commissioner was in error in coming to the conclusion that an appeal would lie before the Tribunal. Section 4(3) makes it clear that an appeal lies before the Tribunal only against the declaration of a slum. Since there is no declaration of slum in this case, an appeal would not lie before the Tribunal. On the other hand, Section 35 provides for a specific remedy of an appeal against an order or direction of the Competent Authority. 4. Section 4(1) of the Act provides for a declaration of a slum by the Competent Authority where it is satisfied that the conditions which are stipulated in that provision are satisfied. Sub-section (3) of Section 4 provides for an appellate remedy before the Tribunal to any person “aggrieved by a declaration made under subsection (1).” The declaration under subsection (1) is of an area as a slum. Subsection (3) does not provide for a remedy of an Appeal to the Tribunal if the Competent Authority comes to the conclusion that an area does not fulfill the requirements of subsection (1) and should not therefore be declared as a slum. In such a case, the remedy of a person who is aggrieved by the decision of a Competent Authority not to declare an area as a slum is an Appeal under subsection (1) of Section 35. Subsection (1) of Section 35 provides for an Appeal to the Administrator, at the behest of any person aggrieved by any notice, order or direction issued or given by the Competent Authority except as otherwise expressly provided in the Act. The Act does not provide for an Appeal against a decision of the Competent Authority not to declare an area as a slum under subsection (3) of Section 4. Hence the remedy of a person aggrieved by such a decision is to file an Appeal under subsection (1) of Section 35. 5. The manifest error on the part of the Divisional Commissioner was in holding that because the Competent Authority had assumed jurisdiction under subsection (1) of Section 4, therefore, an Appeal would lie to the Tribunal under subsection (3). 5. The manifest error on the part of the Divisional Commissioner was in holding that because the Competent Authority had assumed jurisdiction under subsection (1) of Section 4, therefore, an Appeal would lie to the Tribunal under subsection (3). Subsection (3) of Section 4 is clear and specific and an Appeal lies only against a declaration which is issued under subsection (1). Such a declaration is a declaration of a slum. Hence, where a Competent Authority has rejected a request for the declaration of an area as a slum and has consequently not issued a declaration, no Appeal would lie before the Tribunal. 6. For these reasons, we are of the view that in the present case, the Appeal that was filed by the Petitioners before the Administrator & Divisional Commissioner under Section 35 was competent and ought to have been entertained. The impugned orders of the Administrator and Divisional Commissioner dated 29 September 2009 and 8 January 2010 are accordingly set aside. The Administrator & Divisional Commissioner is directed to hear the Appeal filed by the Petitioners afresh and to pass orders thereon after hearing the concerned parties. 7. In view of the time that has elapsed, the Administrator and Divisional Commissioner is required to expedite the disposal of the Appeal and to endeavour to do so within a period of three months from the date on which a certified copy of the present order is placed before him. 8. The Petition is accordingly disposed in the above terms. There shall be no order as to costs.