The Bombay High Court allowed a writ petition challenging the order passed by Respondent No.1, vide which it dismissed the Petitioners’ Application seeking condonation of delay in filing an Appeal under Section 4(3) read with Section 45 (1A) of the Maharashtra Slum Areas Act, 1971. The Court observed that it is only in cases where, for some compelling reason, it is not practicable to serve notice that service of such notice shall be dispensed with.
Brief Facts:
A land was bequeathed to the petitioners by their father, who had also constructed some chawls on the land. It is the Petitioners’ case that it was only in the year 2006 that the Petitioners became aware of the Notification by which the said land had been declared as a slum. the Petitioners on 29th August 2006 filed an Appeal under Section 4(3) of the Slums Act along with an Application for Condonation of Delay. Respondent No.1 had thereafter by an order dated 29th June 2012 allowed the Application for Condonation of Delay and by a subsequent order dated 9th April 2013 also allowed the said Appeal. The declaration of the said land as a slum was therefore set aside.
Respondent Nos. 3 to 30 being the occupants of the said land filed a Writ Petition impugning the aforesaid orders. The main ground of challenge in the Writ Petition was that the said orders were passed by Respondent No.1 without giving the contesting Respondents an opportunity of being heard. The said Writ Petition came to be allowed. The Petitioners thereafter impleaded the contesting Respondents who filed Affidavits to oppose the Application for Condonation of Delay as also the said Appeal. Respondent No. 1 dismissed the Petitioners’ Application for Condonation of Delay. Hence, the present writ petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner pointed out that Respondent No.1 had initially heard and thereafter allowed both the Application for Condonation of Delay as also the Appeal on merits. He argued that the said order had not been set aside on merits but had been set aside only on the ground that the contesting Respondents who claimed to be necessary parties had not been heard. Further, the Counsel contended that when the matter was remanded back for a fresh hearing, the contesting Respondents did not produce any material to displace the finding that the Petitioners were either not served with notice or were not granted an opportunity of being heard before declaring the land in question as a ‘slum’.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that Section 4 of the Slums Act did not contemplate any notice to be given to the landowner prior to the declaration of land as a ‘slum’. The notice contemplated 3 (c) to the owner of the said land was merely directory in nature and not mandatory. Further, he argued that even assuming without admitting that no notice was given to the Petitioners under Rule 3(c), the same would not vitiate or invalidate the said Notification, since presumption under Section 114 of the Evidence Act would apply.
Observations of the Court:
The Court noted that the Competent Authority, when declaring an area as a slum, is mandatorily required to serve notice upon every owner and occupier of the property in the area declared as a slum. It is only in cases where, for some compelling reason, it is not practicable to serve notice that service of such notice shall be dispensed with. The presumption under Section 114 of the Evidence Act will be of no avail since the presumption is a rebuttable and discretionary presumption in nature.
The Court observed that the declaration of the said land as a slum alters the character of the said land. Consequently, the Petitioners’ right, title, and interest as owners of the said land would also be gravely prejudiced. Thus, it is in the interest of justice, equity, and good conscience that the Petitioners must necessarily be given an opportunity to contest the declaration of the said land as a slum.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that the order passed by the learned Sessions Judge does not require any interference.
Case Title: Allan Sebastian D’Souza & Anr. vs Maharashtra Slum Areas Tribunal & Ors.
Coram: Hon’ble Justice Arif S. Doctor
Case no.: WRIT PETITION NO.3838 OF 2021
Advocate for the Petitioner: Mr. Ashish Kamat
Advocate for the Respondents: Mr. L. T. Satelkar, and Mr. Aseem Naphade
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Picture Source : https://commons.wikimedia.org/wiki/File:Slums_in_Delhi.jpg