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2014 DIGILAW 740 (BOM)

Amravati Municipal Corporation v. Vijay Mills

2014-03-19

B.P.DHARMADHIKARI, S.B.SHUKRE

body2014
JUDGMENT B.P. Dharmadhikari, J. 1. Judgment delivered by the learned Single Judge of this Court on 12-10-1999 in Writ Petition No. 1055/1999 is, questioned by the appellants in this Letters Patent Appeal. The Letters Patent Appeal came to be admitted on 22-10-1999 and on 16-10-2000, this Court granted interim stay in terms of prayer clause (a), thereby staying the operation and effect of the judgment of the learned Single Judge. Shri Kalmegh, learned counsel for the appellants points out that Writ Petition under Articles 226 and 227of the Constitution of India was filed by a local authority/planning authority for Amravati Municipal Corporation area and by a Competent Authority under the provisions of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as "the 1971 Act" for short). The appellant No. 2 is a Competent Authority empowered under section 3of the 1971 Act. In exercise of that power, and after recording satisfaction under its section 4, a Notification was published in Government Gazette on 11-11-1993, notifying the area covered by respondent No. 1-Textile Mill as Slum Improvement area. That Notification was questioned by filing an appeal under section 4 belatedly on behalf of respondent No. 1. The Maharashtra Slum Areas Tribunal, Mumbai vide its judgment delivered on 31-7-1997 allowed said Appeal No. 87/1996. Appeal has been allowed basically on the ground that slum has been declared on lands which vests in State Government. State Government is found to be constitutionally obliged to provide necessary services to the residents of said area. 2. Shri Kalmegh, learned counsel states that as per section 4(4)(3) of the 1971 Act, appeal ought to have been filed within a period of 30 days, and there is no provision for condonation of delay. However, ignoring this position, the appeal was entertained and has been allowed. 3. The learned Single Judge in impugned order mentions both the contentions raised before him on behalf of the appellants, however, considers only one of it and the writ petition has been dismissed after recording a finding that the appellants lack locus to challenge the said judgment dated 31-7-1997. 4. 3. The learned Single Judge in impugned order mentions both the contentions raised before him on behalf of the appellants, however, considers only one of it and the writ petition has been dismissed after recording a finding that the appellants lack locus to challenge the said judgment dated 31-7-1997. 4. To explain how locus standi in this situation needs to be liberally understood, the appellants have invited our attention to the judgment of Hon'ble Apex Court reported at AIR 1975 SC 2092 , Bar Council of Maharashtra vs. M.V. Dabholkar and others and Division Bench judgment of this Court reported at 2012 (3) Mh.L.J. 860 , Prashant Amrutrao Tayde vs. Hon'ble Minister for Cooperation and Textile Mumbai and others. 5. Shri Kalmegh, learned counsel points out that admittedly the area notified as slum under section 4 is situated within the limits of the appellant No. 1 Municipal Corporation and being a Planning Authority as also an Authority responsible for providing municipal services in that area, the Municipal Corporation is aggrieved by setting aside of said notification. He further submits that appellant No. 2 is basically an Officer on the establishment of the appellant No. 1 Municipal Corporation. He has been recognized as the Competent Authority under section 3 with particular purpose. The said authority after due application of mind has found area congested and squalid therefore, it was declared to be a slum. No fault is found with this satisfaction or facts recorded therein are not found to be incorrect. Only because the area of Vijay Mills has later on vested in State Government, the Tribunal has drawn distinction between Government land and private land. By inviting our attention to the Scheme of 1971 Act, it is urged that there is no distinction between Government land or private land in said enactment. Therefore, a non-existent reason has been assigned by the Tribunal while allowing the appeal. 6. Our attention is also drawn to section 4(3) of the 1971 Act, particularly last sentence thereof added by way of an amendment, with contention that as the appeal has been filed after expiry of 30 days, the Tribunal lacks jurisdiction to look into it. It is contended that in any case the Tribunal ought to have first condoned the delay and thereafter taken up the matter on merits. 7. Shri Pathan, learned A.G.P. appearing on behalf of respondent Nos. It is contended that in any case the Tribunal ought to have first condoned the delay and thereafter taken up the matter on merits. 7. Shri Pathan, learned A.G.P. appearing on behalf of respondent Nos. 2 and 3 supports the order of the Tribunal. 8. In reply, Shri Kalmegh, learned counsel submits that because of stay granted by this Court, the appellants have already undertaken improvement works and public funds are invested in that area. He points out that neither the Collector nor any other representative of the State Government or then any resident of the area has challenged the notification or has either approached this Court in the matter. He therefore, prays for quashing and setting aside of the order dated 31-7-1997. 9. The learned Single Judge has not looked into the contention of the present appellants that the appeal as filed before the Tribunal under section 4(3) of the 1971 Act was barred by limitation. The limitation of 30 days is provided vide amendment in the year 1986. The relevant amended portion reads "No such appeal filed after expiry of 30 days as aforesaid shall be entertained." Thus, it does not oblige aggrieved person to file appeal within 30 days only, but, it casts a mandatory obligation upon the appellate authority not to entertain an appeal which is filed after expiry of 30 days. In this situation, question is - Whether Tribunal has got any power to condone delay, if appeal is filed beyond 30 days? In present facts, we need not to go into that issue, as here the Tribunal has overlooked this fetter on its power and has proceeded as if the appeal is filed within 30 days. Had the Tribunal condoned the delay, the question whether it possess that power or not, may have been required to be gone into. 10. The other question is, Whether appellants have got locus to challenge the adverse orders of the Tribunal? Judgment of Hon'ble Apex Court in case of Bar Council of Maharashtra vs. M.V. Dabholkar (supra) (paragraph Nos. 26 and 27) clearly show that Bar Council which initiated disciplinary proceeding against an Advocate is found to be a person aggrieved so as to enable it to challenge an order passed in such disciplinary matters, if it is aggrieved thereby. Judgment of Hon'ble Apex Court in case of Bar Council of Maharashtra vs. M.V. Dabholkar (supra) (paragraph Nos. 26 and 27) clearly show that Bar Council which initiated disciplinary proceeding against an Advocate is found to be a person aggrieved so as to enable it to challenge an order passed in such disciplinary matters, if it is aggrieved thereby. We need not to delve more into the said judgment as it is considered by the later judgment of the Division Bench of this Court in case of Prashant Amrutrao Tayde vs. Hon'ble Minister for Cooperation and Textile Mumbai and others (supra). One of us (B.P. Dharmadhikari, J.) is party to that judgment. There this Court has in paragraph No. 20 has noted the later judgments of Hon'ble Apex Court also and found that the Hon'ble Apex Court has evolved three categories of persons to ascertain the locus standi. The first category is of the person aggrieved; Second is a stranger and third is a busybody or a meddlesome interloper. It is held that anybody belonging to third category is clearly distinguishable, as he interferes in things which do not concern him. Division Bench has then considered paragraph No. 38 of the judgment delivered by the Hon'ble 4 Judge Bench in Jasabhai Motibhai Desai vs. Roshan Kumar, (1976) 1 SCC 671 , to note that the distinction between the first and second category is not well demarcated. The first category has two concentric zones with solid central zone of certainty and a grey outer circle of lessening certainty, with an outermost nebulous fringe of uncertainty. The applicants falling in central zone are those whose legal rights have been violated, and therefore, stand in category of "person aggrieved". In the grey outer circle, the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in centrifugal direction. All persons in this outer zone are stated as "may not be persons aggrieved". In paragraph No. 13, it has noted that a broad and wide construction in the wake of public interest litigation has been countenanced in later judgments and public spirited persons having faith in rule of law are rendering great social and legal services by espousing cause of public interest. Such citizens cannot be ignored on a technical or a conservative yardstick of rule of locus standi. Such citizens cannot be ignored on a technical or a conservative yardstick of rule of locus standi. It has noted that said concept is much wider and it take in its stride any one who is not a mere busybody. 11. In present facts, the 1971 enactment has been brought into force to make better provision for improvement and clearance of slum areas in the State and their redevelopment and also for protection of dwellers therein from eviction and in distress warrant proceedings. As per section 1(3) the State Government has got discretion to bring this Act into force in such areas and on such dates, as it may notify. Thus, it was open to the State Government to stipulate that said Act shall not apply to slums located on properties vesting in State Government. However, it is an admitted position that there is no such notification. Section2 defines Competent Authority to mean a person or body appointed under section 3. Section 2(d) gives an illustrative and inclusive definition of land. Section 2(g)(a) defines slum area to mean any area declared as such by the competent Authority under section 4(1) of the 1971 Act. Section 2(j) defines works of improvement, the definition is again inclusive and list of 9 such works including repairs, structural alterations, provision of light points, water taps and bathing places etc. have been mentioned therein. Section 3 is about appointment of a competent Authority under sub-section (1). State Government is empowered to appoint any person as a competent authority by a notification in official gazette. It is not in dispute that vide Notification dated 10-2-1984 the Deputy Municipal Commissioner, Municipal Corporation Amravati is defined to be an Competent Authority for all lands in Amravati Municipal Council area. Section 4 appears in Chapter-II which deals with Slum areas. Section 4(1), allows competent Authority to declare particular area to be slum area, if it is satisfied that such area or any area may be a source of danger to health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being in sanitary, squalid, overcrowded or otherwise. The fact that notification accordingly was published by the competent Authority (appellant No. 2) on 11-11-1993, is not in dispute. The fact that notification accordingly was published by the competent Authority (appellant No. 2) on 11-11-1993, is not in dispute. As already noted by us above, the merits or otherwise of satisfaction recorded by the appellant No. 2 while issuing that notification was not an issue before the Tribunal. 12. The aims and object of the Act, the purpose for which area is notified, all show that the appellant No. 1 Municipal Corporation is vitally interested in the matter. As a Municipal Corporation, in terms of the provisions of Maharashtra Municipal Corporations Act, 2012 (Act No. LIX of 1949), it is its duty to provide various municipal services to the residents of the area. The declaration of area as slum enables it to adopt special measures for providing essential services and also for upliftment of residents in that area. It cannot be, therefore, said that appellant No. 1 Municipal Corporation has no interest in issuing such notification or in protecting it. 13. Appellant No. 2 is an officer of the appellant No. 1. He has been chosen and made a competent authority because of his position as such and association with the appellant No. 1. This authority has after due application of mind, found the area of respondent No. 1 overcrowded and lacking in basic amenities, which rendered it in sanitary and squalid. It has also declared intention to carry out necessary slum improvement works like public latrine, construction of either single or in groups, sewer line, waste water drain and storm water drain, water posts, widening, re-aligning and paving of existing lanes, roads and pathways and constructing new roads and pathways and lanes, street lights, demolition of dilapidated and obstructive building. Thus, appellant No. 2, after recording proper reasons, in discharge of statutory obligation, wanted to implement provisions of 1971 Act for betterment of that area. This is in furtherance of the duty cast upon it by the law of land. 14. It is therefore, obvious that both the appellants have interest in the matter, as they are discharging duty cast upon them by recognizing area to be slum area and by notifying it as an area which needed improvement. These appellants were petitioners before this Court in Writ Petition No. 1055/1999. It cannot be therefore, said that they are not aggrieved by order of the tribunal, which sets aside the notification dated 11-11-1993. These appellants were petitioners before this Court in Writ Petition No. 1055/1999. It cannot be therefore, said that they are not aggrieved by order of the tribunal, which sets aside the notification dated 11-11-1993. Their action was in public interest and they have approached this Court to protect the interest of slum residents. In this situation, we find the rejection of a challenge at their instance on the ground of lack of locus, unsustainable. It cannot be said that they have no locust to maintain a writ petition before this Court. They were/are persons aggrieved individually as also collectively and writ petition filed by any one of them should have been entertained and decided on merits. 15. In this situation, it is clear that the impugned order of learned Single Judge dated 12-10-1999 is unsustainable. It is accordingly quashed and set aside. 16. The question which now arise for consideration is, whether Writ Petition No. 1055/1999 should be placed back before the learned Single Judge for its further consideration. The respondent No. 1 who filed appeal before the Tribunal has chosen not to appear in the present appeal. It is, therefore, not opposing appeal at all. Respondent Nos. 2 and 3 are not disputing statements made by the appellant that after stay granted by this Court, they have proceeded with slum improvement works and hence public funds are already invested in that area. As such remand of the matter back to the learned Single Judge will be an exercise in futility. As public funds are now invested, and residents of slum area are being benefited, we quash and set aside the order/judgment dated 31-7-1997, delivered by the Maharashtra Slum Area Tribunal, Mumbai in Appeal No. 87/1996. That appeal is accordingly dismissed. Letters Patent Appeal is allowed in aforesaid terms. No costs.