Bombay High Court
Lalita Nandlal Kahar And Ors vs Ibrahim Hussein Nadaf And Anr on 28 January, 2025
2025:BHC-AS:4049
Final-WP-7107-2022-2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7107 OF 2022.
1) Jiut Tulsi Yadav ]
Age About-74 Yrs, Occ- Nil ]
An Indian Inhabitant, residing at Room ]
No. 10, Manik Hussain Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, plot ]
No. 602 of Village Pahadi, Malad (East) ]
Mumbai- 400 064. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
TALLE Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
SHUBHAM Mumbai- 400 064. ] Respondents.
ASHOKRAO
2) The Deputy. Collector ]
Digitally signed by
TALLE SHUBHAM (Encroachment/Eviction), Malad having ]
ASHOKRAO
Date: 2025.01.28 office at MHB building No. 38, 1st floor, ]
18:07:50 +0530
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
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WITH
WRIT PETITION NO. 2280 OF 2020.
1) Lalita Nandlal Kahar ]
2) Rakesh Nandlal Kahar ]
3) Rajesh Nandlal Kahar ]
4) Sangita Nandlal Kahar ]
Petitioner Nos. 1 to 4, All adult, having ]
address at Room No. 4, Manik Hussain ]
Nadaf Chawl, Subtaram Pada, Khot ]
Kuwa Road, plot No. 602 of Village ]
Pahadi, Malad (East) Mumbai- 400 064. ]
5) Surekha Kahar, ]
Adult, Occupation: Nil of Mumbai, an ]
Indian Inhabitant, residing at Goregaon, ]
Mumbai. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
Mumbai- 400 064. ] Respondents.
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2) The Deputy. Collector ]
(Encroachment/Eviction), Malad having ]
office at MHB building No. 38, 1st floor, ]
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
WITH
WRIT PETITION NO. 7106 OF 2022.
1) Narayan Omkarnath Mishra ]
Adult Age About-70 Yrs, Occ- Nil of ]
Mumbai, An Indian Inhabitant, residing ]
at Room No. 8, Manik Hussain Nadaf ]
Chawl, Subtaram Pada, Khot Kuwa ]
Road, plot No. 602 of Village Pahadi, ]
Malad (East) Mumbai- 400 064. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
Mumbai- 400 064. ] Respondents.
2) The Deputy. Collector ]
(Encroachment/Eviction), Malad having ]
office at MHB building No. 38, 1st floor, ]
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
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------------
Mr. Rakesh Agrawal a/w Mr. Darpan Jain, Mr. Sandeep Nirban for the
Petitioners.
Mr. Sanjay Jain a/w Ms. Aanchal Singhania, Mr. Ajay L. Bhise for the Respondent
No. 1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: December 16, 2024.
Pronounced on : January 28, 2025.
JUDGMENT :
1. Rule. With consent, Rule made returnable forthwith and
taken up for final hearing.
2. As these Petitions raise common issues, upon request, the
Petitions were taken up for hearing together. By consent, Writ
Petition No. 7106 of 2022 is taken up as lead Petition and the factual
matrix of the lead Petition has been noted. Common submissions were
advanced and the Petitions are being disposed of by this common
Judgment.
THE CHALLENGE:
3. Exception is taken to the order dated 30 th January 2020,
passed by the Slums Tribunal in Appeal filed under Section 23 of the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, ("the Slums Act"), by the Respondent No. 1
against the order of Deputy Collector passed under Section 22 of the
Slums Act rejecting the application seeking permission to execute
decree of eviction.
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FACTUAL MATRIX:
4. The facts of the case are that the Respondent No. 1 had
filed eviction suit being R.A.E & R Suit No 309/814 of 1995 against the
Petitioner in the Small Causes Court seeking eviction on the ground of
non payment of rent, unauthorized alteration and for recovery of
arrears of rent. The Trial Court by Judgment and order dated 1 st March
2012, decreed the suit on both the grounds. The Petitioner preferred
Appeal before the Appellate Bench of the Small Causes Court and by
order dated 28th March 2013, the Appeal came to be dismissed. The
Civil Revision Application filed before the High Court was also
dismissed by order dated 26th February, 2014.
5. During the pendency of the Appellate proceedings,
notification came to be issued in the year 2012 under Section 4 of the
Slums Act and while dismissing the Civil Revision Application, the High
Court directed the Respondent No 1 to follow the procedure under
Section 22 of Slums Act for execution of decree. Pursuant thereto,
Application No. 1 of 2014 was preferred by the Respondent No. 1
before the Respondent No. 2-Authority under Section 22(2) of the
Slums Act seeking permission to execute the decree, which came to be
dismissed vide order dated 23rd January 2015.
6. Against the order of the Competent Authority dated 23 rd
January 2015, the Respondent No 1 filed Petition before the High
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Court and by order dated 1st February 2018, the Petition came to be
disposed of in view of the statement made that the Respondent No. 1
would file Appeal under Section 23 of the Slums Act. The High Court
extended the ad-interim relief of restraining the occupier from
creating third party rights for period of four weeks from 1 st February
2018, failing which if the Appeal is not filed, the ad-interim protection
granted by this Court will stand vacated. Within period of four weeks,
the Respondent No. 1 filed Appeal under Section 23 of the Slums Act.
7. The Application was resisted by the Petitioner on the
ground of delay as well as on merits of the matter. Vide order dated
31st January 2020, the Appeal was allowed which is impugned in the
present Petition.
SUBMISSIONS:
8. Mr. Agrawal, learned Counsel appearing for the Petitioners
would submit that the Application filed under Section 22 (2) of the
Slums Act merely reproduced the litigation between the parties and
sought permission to execute the decree without any pleadings to
satisfy the ingredients of sub section (4) of Section 22 of the Slums Act.
He submits that the first Authority by a reasoned order considered the
factors as to whether the alternate accommodation within the means
of occupier would be available to him and whether the eviction is in
interest of improvement and clearance of the slum area and answered
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both the issues in the negative. He submits that the grounds in the
Appeal Memo would indicate that the stand of the Respondent No. 1
was that the permission under Section 22 (2) is mere formality. He
submits that as far as the limitation is concerned the only pleading is
that the Respondent No. 1 has approached the Tribunal as
expeditiously as directed by the Hon'ble Court. He submits that
without an Application for condonation of delay for exclusion of time
as contemplated under Section 14 of the Limitation Act, 1963, the
Appellate Authority has applied Section 14 and condoned the delay.
He submits that Section 14 of Limitation Act has no applicability in
present case as the provision applies only where the earlier
proceedings are initiated before a Court having defect of jurisdiction,
whereas in the present case the Petition was filed under Article
226/227 of Constitution of India which had jurisdiction but relegated
the parties to the alternate remedy. In support he relies upon the
following decisions:-
Laxmi Ram Pawar vs. Sitabai Balu Dhotre1
Taj Mohamed Yakub v. Abdul Gani Bhikan2
Shankar Dagadu Bakade vs. Bajirao Balaji Darwatkar3
Zafar Khan vs. Board of Revenue, U.P. 4
1 (2011) 1 SCC 356
2 1991 (1) Mh. L.J. 263.
3 1990(2) Bom. C. R. 38.
4 AIR 1985 SC 39
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India Electric Works Ltd. vs. James Mantosh5
ASGAR vs. Mohan Varma6
Mukund Ltd. vs. Mukund Staff & Officers' Association7
9. Per contra, Mr. Jain, learned Counsel appearing for the
Respondent No. 1 would concede that the procedure under Section 22
is not a mere formality. He submits that the requisite factors to be
considered as contained in sub section (4) of Section 22 of Slums Act
are independent factors and even if one of the factor is satisfied, the
permission has to follow. He submits that in the present case as the
eviction decree was on the ground of arrears of rent, clause(b-1) of
sub section (4) of Section 22 was satisfied by the decree and therefore
on this ground alone the permission ought to have been granted. He
would further submit that for the purpose of satisfaction of Clause(a)
of sub section (4) of Section 22, the burden was upon the Petitioner to
bring evidence on record to show his limited means, which burden the
Petitioner has failed to discharge. He would further submit that the
requirement of Clause (b-1) of sub section (4) of Section 22 is
readiness and willingness of the occupier to pay the whole of the
amounts of arrears of rent and from the filing of the suit till date there
is no offer made by the Petitioner to pay the rent.
5 (1971) 1 SCC 24
6 (2020) 16 SCC 230
7 AIR 2004 Supreme Court 3905.
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10. He would further submit that the Competent Authority
while considering the means of the occupier for the purpose of Clause
(a) of sub section (4) of Section 22 has taken hypothetical figures
without any material on record. He submits that the Appellate
Authority has rightly considered that the Petitioner has failed to
produce any evidence in respect of his financial condition. He submits
that in the affidavit-in-reply it has been specifically pleaded that the
Petitioner is watchman and earning income of Rs. 10,000/- and his son
also drives auto-rickshaw and is earning sufficient income which has
not been denied.
11. He further submits that Section 14 of Limitation Act is for
the purpose of exclusion of the time spent in prosecuting the
proceedings bonafide in other Court, he only has to plead and not file
separate Application. He submits that it was not the case of the
Petitioners before the Appellate Authority that Section 14 does not
apply and only objection was that without separate delay condonation
Application the Appeal is not maintainable. Mr. Jain, would further
distinguish the Judgments which are relied upon by Mr. Agrawal.
12. In rejoinder, Mr. Agrawal would submit that when parties
are relegated to an alternate remedy, the benefit of Section 14 is not
available. He submits that it was necessary for the Respondent No 1 to
assert that the Petitioner had the means to procure alternate
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accommodation in which case the burden would have shifted to the
Petitioner to prove otherwise.
REASONS AND ANALYSIS:
13. The undisputed position is that the decree of eviction
against the Petitioner has attained finality and before the decree can
be executed, the permission of the Competent Authority under Section
22 of Slums Act was necessitated as during the pendency of Appellate
proceedings, the notification under Section 4 of the Slums Act came to
be issued declaring the area as slum.
STATUTORY FRAMEW ORK:
14. Section 22 is contained under Chapter-VI of Slums Act
which bears the heading of protection of occupiers in slums areas from
eviction and distress warrant and reads thus:
" 22. Proceedings for eviction of occupiers or for
issue of distress warrant not to be taken without
permission of Competent Authority.--
(1) Notwithstanding anything contained in any other
law for the time being in force, no person shall except
with the previous permission in writing of the
Competent Authority,
(a) institute, after commencement of the Maharashtra
Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (Mah. XXVIII of 1971), any
suit or proceeding for obtaining any decree or order
for the eviction of an occupier from any building or
land in a slum area or for recovery of any arrears of
rent or compensation from any such occupier, or for
both; or
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(b) when any decree or order is obtained in any suit or
proceeding instituted before such commencement for
the eviction of an occupier from any building or land in
such area or for recovery of any arrears of rent or
compensation from such occupier, or for both execute
such decree or order; or
(c) apply to any Judge or the Registrar of the Small
Cause Court under Chapter VIII of the Presidency Small
Cause Courts Act, 1882 (XV of 1882), in its application
to the State of Maharashtra, or to any Court of Small
Causes under Chapter IV-A of the Provincial Small
Cause Courts Act, 1887 (IX of 1887) in its application
to the State of Maharashtra, for a distress warrant for
arrears of rent against any occupier of a house or
premises in a slum area.
(1A) Notwithstanding anything contained in sub-
section (1) as in force before the commencement of
the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) (Amendment) Act, 1986 (Mah. II
of 1887) (hereinafter in this section referred to as "the
Amendment Act") or in any other law for the time
being in force, no person shall, except with the
previous permission in writing of the Competent
Authority,--
(a) execute any decree or order obtained in any suit or
proceeding instituted during the period commencing
from the 30th day of September 1985, being the date
of the expiry of the Maharashtra Vacant Lands
(Further Interim Protection to Occupiers from Eviction
and Recovery of Arrears of Rent) Act, 1980 (Mah. XVI
of 1980) and the date of commencement of the
Amendment Act, for eviction of an occupier from any
building or land in a slum area (which area was earlier
purported to be covered by the definition of "vacant
land" in clause (f) of section 2 of the Maharashtra
Vacant Lands (Prohibition of Unauthorised Occupation
and Summary Eviction) Act, 1975 (Mah. LXVI of 1975)
or for recovery of any arrears of rent or compensation
from such occupier, or for both; or
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(b) apply to any Judge or the Registrar of the Small
Cause Court under Chapter VIII of the Presidency Small
Cause Courts Act, 1882 (XV of 1882), in its application
to the State of Maharashtra, or to any Court of Small
Causes under Chapter IV-A of the Provincial Small
Cause Courts Act, 1887 (IX of 1887) in its application
to the State of Maharashtra, for a distress warrant for
arrears of rent against any such occupier of a house or
premises in any such slum area.
(2) Every person desiring to obtain the permission
referred to in sub-section (1) or (1A) shall make an
application in writing to the Competent Authority in
such form and containing such particulars as may be
prescribed.
(3) On receipt of such application, the Competent
Authority, after giving an opportunity to the parties of
being heard and after making such summary inquiry
into the circumstances of the case as it thinks fit, shall,
by order in writing, either grant or refuse to grant such
permission.
(4) In granting or refusing to grant the permission
under clause (a) or (b) of sub-section (1) or clause (a) of
sub-section (1A) the Competent Authority shall take
into account the following factors, namely :--
(a) Whether alternative accommodation within the
means of the occupier would be available to him, if he
were evicted;
(b) Whether the eviction is in the interest of
improvement and clearance of the slum area;
(b-1) whether, having regard to the relevant
circumstances of each case, the total amount of
arrears of rent or compensation and the period for
which it is due and the capacity of the occupier to pay
the same, the occupier is ready and willing to pay the
whole of the amount of arrears of rent or
compensation by reasonable installments within a
stipulated time;
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(c) any other factors, if any, as may be prescribed.
(4A) (a) In granting or refusing to grant the permission
under clause (c) of sub-section (1) or clause (b) of sub-
section (1A) the Competent Authority shall take into
account the following factors, namely :--
(i) what is the amount of rent and for what period it is
due;
(ii) whether a notice of demand referred to in the
proviso to sub-section (1) of section 53 of the
Presidency Small Cause Courts Act, 1882 (XV of 1882)
or in the proviso to sub-section (1) of section 27B of
the Provincial Small Cause Courts Act, 1887 (IX of
1887), as the case may be, has been duly given to the
occupier liable to pay the arrears of rent,
(iii) whether the occupier is willing to pay arrears
within a stipulated time;
(iv) any other factors, if any, as may be prescribed.
(b) If, within a period of six months from the date of
receipt of any application for permission under clause
(c) of sub-section (1), or clause (b) of sub-section (1A)
the Competent Authority does not refuse to grant the
permission, it shall be deemed to have been granted at
the expiration of such period.
(5) Where the Competent Authority refuses to grant
the permission under any of the clauses of sub-section
(1) or (1A) it shall record a brief statement of the
reasons for such refusal, and furnish a copy thereof to
the applicant."
15. Sub-Section (2) of Section 22 provides for an application to
be made to the Competent Authority in the prescribed form containing
the prescribed particulars. The Maharashtra Slum Areas (Improvement,
Clearance and Re-development) Protection of Tenants in Slum Areas
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From Eviction Rules, 1972 have been framed under the Slums Act and
Rule 3 thereof provides for the application to be in the prescribed form
appended to the Rules. The prescribed particulars are the details of the
area, the occupier and the Decree alongwith the reasons for eviction.
16. Sub-Section (3) of Section 22 provides for a summary
inquiry by the Competent Authority before the grant or refusal of
permission. Sub Section 4 of Section 22 provides for the factors to be
considered by the Competent Authority while granting or refusing to
grant permission under Clause(a) or Clause (b) of sub Section 1.
INQUIRY CONTEMPLATED UNDER SECTION 22:
17. Sub-Section (3) of Section 22 makes it evident that it is left
to the Competent Authority to conduct such inquiry of summary nature
as it thinks fit in the circumstances of the case. Though the nature of
inquiry is left to the discretion of the Competent Authority, the
relevant facts which would guide the Competent Authority in the
summary inquiry are laid down in clauses (a) to (c) of Sub Section (4) of
Section 22. In addition to clauses (a) to (c) of Section 22(4), Rule 4 of
Rules of 1972 sets out the other factors to be considered i.e. whether
the Applicant has acted out of malice or personal feud or deliberately
to prevent the occupier from claiming accommodation in re-developed
building.
18. Considering the statutory provisions conjointly makes it
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clear that the legislative intent is to protect the slum dweller from
proceedings actuated by malice and to ensure that the slum dweller, if
evicted, is able to procure alternate accommodation. The factors set
out in clauses (a) to (c) of Section 22(4) have been held to be disjunctive
and thus even if one factor is satisfied the others need not be
considered.
19. In view of the prescribed format of the application to be
filed before the Competent Authority, it is not necessary to plead the
relevant factors in the application. The duty is upon the Competent
Authority to consider the relevant factors while granting or refusing
permission.
20. The Apex Court in Punnu Ram vs. Chiranji Lal Gupta 8
while considering the provisions of Section 19(4) of Slum Areas
(Improvement and Clearance) Act, 1956, which is para materia with the
pre-1987 unamended Section 22 of Slums Act, held that the factors to
be considered by the Competent Authority are independent and if one
factor is satisfied it is not necessary for the other factor also to be
satisfied. The decision was followed by Division Bench of this Court in
the case of Chanchalben Amritlal Patel vs. Deputy Collector (ENC) &
Competent Authority9 holding that even if single factor out of clause
(a) to (c) of Sub-Section 4 of Section 22 is satisfied then there is no
8 (1999) 3 SCC 273.
9 2005 (3) Mh. L. J. 834.
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reason to withhold the permission. The Division Bench further held
that the Competent Authority while granting permission irrespective
the grounds mentioned in the Application under Section 22 (1) is
obliged to take into account the factors mentioned in sub section 4 of
Section 22 of the Act.
FINDINGS OF COMPETENT AUTHORITY:
21. Coming to the findings of the Competent Authority, the
Competent Authority has taken clauses (a) and (b) of Section 22(4) as
issues for determination and proceeded to decide the same. The
inquiry is not confined to the determination of these two issues but
requires an overall assessment of the circumstances of the case to
ensure protection of slum dwellers against eviction. The findings of the
Competent Authority on the determination of clauses (a) and (b) of
Section 22(4) can be broadly summarized as under:
(a) There is no evidence produced by the Respondent No 1 about the
financial capacity of Petitioner.
(b) The transit rent for the subject area is ordinarily between Rs 6,500/
to 12,000/. A person spends around 30% to 40% of his income on his
residential accommodation and thus if the monthly income is Rs
25,000/ to Rs 30,000/, an alternate accommodation can be procured in
the subject area.
(c) If the income of the occupier would have been in the said range, the
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Respondent No 1 would have produced the I.T. returns etc, which is not
done.
(d) The Petitioner has been held as eligible under the proposed SRA
Scheme and the eviction of Petitioner under any law other than the
Slum Act is not in interest of improvement and clearance of slum area.
22. As the inquiry is summary in nature, it is not necessary for
evidence to be led by the parties, however, for the Competent
Authority to arrive at a decision all material facts are required to be
placed by the parties before the Competent Authority. In the present
case, the Respondent No 1 has placed the decisions of the Courts
ordering eviction to support his application and had submitted that
the Petitioner is having the financial means to obtain alternate
accommodation as he is in receipt of retirement benefits and is also
employed after retirement. On the other hand, the Petitioner's
submission is that he is an aged person and is financially incapable.
There is no material placed by either parties on the basis of which the
financial incapability of the Petitioner could have been assessed. It was
case of word against word. The financial capacity of the Petitioner, the
necessary details about the family members, their source of income,
the Petitioner's income and the collective means was within the
knowledge of the Petitioner, which was not been placed before the
Competent Authority by the Petitioner. In such circumstances, the
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inevitable conclusion would be that the Petitioner is having sufficient
means to obtain alternate accommodation by drawing adverse
inference.
23. On the contrary, the Competent Authority has on
hypothetical analysis held that the income of the Petitioner is required
to be in the range of Rs 25,000 to Rs 30,000/ for procuring an alternate
accommodation. Apart from the fact that the findings are based on
surmises and conjectures, it is not the monthly income of the Petitioner
which has to be considered but the means which the Petitioner possess
to obtain alternate accommodation. As these details are especially in
the knowledge of the Petitioner and had not been placed before the
Competent Authority, adverse inference was required to be drawn.
Secondly there is no warrant for the presumption that alternate
accommodation referable to an accommodation in the same vicinity of
the subject premises.
24. While considering whether the eviction is in interest of
improvement and clearance of slum area, the Competent Authority has
considered the eligibility of the Petitioner in the slum scheme. There is
no finding as to why the eviction of an eligible occupier would be
against the interest of the entire slum scheme. The order of
Competent Authority proceeds on the basis that the twin requirement
of clauses (a) and (b) of Section 22(4) are required to be satisfied.
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Firstly the Petitioner has failed to produce any evidence to
demonstrate his financial incapability and secondly there is no finding
as to how the eviction would benefit or impede the slum scheme.
25. The Competent authority failed to consider the factors set
out in Rule 4 of Rules of 1972 and that the proceedings for eviction
were commenced prior to the notification under Section 4 of the Slums
Act and the area was declared as slum during the pendency of the
Appellate proceedings. It was thus not a case of malice or intent to
deprive the Petitioner of his right to be allotted accommodation in the
re-developed building. The Respondent No 1 was seeking to reap the
benefits of his decree passed on grounds of non payment of rent and
unauthorised additions and alterations. The suit was of the year 1995
and the notification of slum was issued in the year 2012 when the
appellate proceedings were pending. Upon overall consideration of the
facts of the case, the Competent Authority erred in declining to grant
permission.
26. In the present case the Small Causes Court had decreed
the suit for eviction on grounds of non payment of arrears of rent and
had directed payment of the arrears of rent. In the facts of the case,
the factors required to be considered by the Competent Authority was
firstly whether the eviction is actuated by malice in order to deprive
the slum dweller of alternate accommodation in the re-developed
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building, secondly whether the Petitioner had the means to obtain
alternate accommodation and thirdly whether the Petitioner was
willing to pay the arrears of rent. As far as the first factor is concerned,
the suit for eviction was filed in the year 1995 and the notification
under Section 4 of Slum Act was issued in the year 2012. Therefore
there was no question of the action being actuated with malice.
Secondly the financial incapability was not established by the
Petitioner by placing cogent material on record and resultantly, by
drawing adverse inference, the inevitable conclusion is that the
Petitioner was financially capable of securing alternate
accommodation. The Respondent No 1 could not be expected to place
material about the said fact before the Competent Authority. And,
thirdly, there was no attempt by the Petitioner to make payment of the
arrears of rent. All these circumstances when assessed leads to the
conclusion that the permission could not be withheld.
27. The Appellate Authority has considered the decisions of
Small Causes Court in context of Rule 4 of Rules of 1972. As regards
the pleading about the financial ability of the Petitioner to obtain
alternate accommodation, the Appellate Authority has rightly held that
strict rules of pleading are not applicable considering the limited
applicability of the civil procedure code under Section 45 of Slums Act.
28. The Appellate Authority has rightly considered that the
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Petitioners had failed to produce any evidence in respect of the
financial condition of the Petitioner, whereas the Respondent No. 1 has
submitted that the Petitioner is retired and doing job and also doing
business of clothes.
SECTION 14 OF LIMITATION ACT, 1963:
29. Instead of preferring the statutory Appeal under Section
23 of Slums Act, the Respondent No 1 filed a Writ Petition before this
Court which came to be disposed of on 1 st February, 2018 in view of the
submission made that the Appeal under Section 23 would be preferred.
Section 23 provides that an appeal may be filed within a period of
thirty days from the date of order of Competent Authority, which was
dated 23rd January, 2015 and the Appeal was filed in or around
February, 2018 after the disposal of the Petition.
30. The limitation clause in the Appeal pleaded that the
Appellant had approached the Tribunal as directed by the High Court
expeditiously. Admittedly there is no separate application filed seeking
condonation of delay. Section 14 the Limitation Act provides for
exclusion of time of proceedings bonafide in Court without jurisdiction
and provides in sub Section 2 of Section 14 that in computing the
period of limitation the time during which the Applicant has been
prosecuting with due diligence another civil proceeding whether in
Court of first instance or of Appeal or revision against the same party
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for the same relief shall be excluded where such proceeding is
prosecuted in good faith in Court which from defect of jurisdiction or
other cause of like nature is unable to entertain it. The Section applies
for the purpose of computing the period of limitation and is distinct
and different from an Application which is required to be filed under
Section 5 of the Limitation Act for extension of prescribed period by
condoning the delay as in that case the Applicant is required to satisfy
the Court about the sufficient cause for not preferring the Appeal
within the prescribed period. Section 45 of the Slums Act makes the
provisions of Section 4,5, 12 and 14 applicable to the filing of appeal to
the Tribunal under the Slums Act.
31. It was not necessary for the Respondent Nos. 1 to 5 to file
a separate Application for condonation of delay under Section 5 of
Limitation Act in view of Section 14 of Limitation Act. The Appellate
Authority after recording the submissions of the parties on
applicability of Section 14, has considered that the Respondent No. 1
had filed Writ Petition in the year 2015 which was disposed of in the
year 2018 and thereafter the Appeal was filed. The Appellate Authority
has excluded the time spent in prosecuting the proceedings before this
Court in computing the period of limitation. The Appellate Authority
has not construed the order of the High Court as granting liberty but
has considered the provisions of Section 14 of the Limitation Act.
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32. The Apex Court in case of Consolidated Engineering
Enterprises Vs Principal Secretary, Irrigation Department 10 was
considering the applicability of Section 14 of Limitation Act to
proceeding under Section 34 of Arbitration and Conciliation Act, 1996.
It was observed in paragraph 22 as under:
"22. The policy of the section is to afford protection to
a litigant against the bar of limitation when he
institutes a proceeding which by reason of some
technical defect cannot be decided on merits and is
dismissed. While considering the provisions of Section
14 of the Limitation Act, proper approach will have to
be adopted and the provisions will have to be
interpreted so as to advance the cause of justice rather
than abort the proceedings. It will be well to bear in
mind that an element of mistake is inherent in the
invocation of Section 14. In fact, the section is
intended to provide relief against the bar of limitation
in cases of mistaken remedy or selection of a wrong
forum. On reading Section 14 of the Act it becomes
clear that the legislature has enacted the said section
to exempt a certain period covered by a bona fide
litigious activity. Upon the words used in the section, it
is not possible to sustain the interpretation that the
principle underlying the said section namely, that the
bar of limitation should not affect a person honestly
doing his best to get his case tried on merits but failing
because the court is unable to give him such a trial,
would not be applicable to an application filed
under Section 34 of of the Act of 1996. The principle is
clearly applicable not only to a case in which a litigant
brings his application in the Court, that is, a court
having no jurisdiction to entertain it but also where he
brings the suit or the application in the wrong court in
consequence of bona fide mistake or (sic of) law or
defect or procedure. Having regard to the intention of
the legislature this Court is of the firm opinion that the
equity underlying Section 14 should be applied to its
10 (2008 (7) SCC 169
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fullest extent and time taken diligently pursuing a
remedy, in a wrong court, should be excluded"
(Emphasis supplied)
33. The above decision enumerates the legislative intent of
Section 14 which is to afford protection to a litigant against the bar of
limitation where the proceedings are being prosecuted bonafide
before a wrong Court. It is well settled that there are no fetters on
exercise of writ jurisdiction by the High Court and the rule of alternate
remedy is a self imposed restriction by the High Court. Even if the filing
of Petition under Article 226/227 of Constitution of India cannot be
said to have been instituted in a Court suffering from defect of
jurisdiction, as held by the decision of Apex Court noted above, the
provisions have to be applied to advance the cause of justice. Though
the wordings of Section 14(2) uses the expression "in a court which,
from defect of jurisdiction or other causes of a like nature is unable to
entertain it" the Apex Court in the above noted decision, has given an
expansive meaning by including a wrong court in consequence of
bonafide mistake of law or defect or procedure. It cannot be disputed
that the proceedings before this Court were being bonafide
prosecuted by the Respondent No 1 and upon being relegated to the
alternate remedy, Section 14 of Limitation Act will apply for excluding
the period spent in prosecuting the Petition before the High Court.
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DECISIONS CITED BY PETITIONER:
34. Coming to the decisions which are cited by the Learned
Counsel appearing for the Petitioner :-
35. In the case of Laxmi Ram Pawar vs. Sitabai Balu Dhotre
(supra) the Apex Court has held that the provisions contained in
Section 22 are salutary in light of the scheme of 1971 Act and have to
be followed. There is no dispute about the said proposition.
36. In Zafar Khan vs. Board of Revenue, U.P. (supra), the
Appellants had moved an application for restitution under Section 144
of CPC before the Sub Divisional Officer who opined that as the rival
claims were decided under the Consolidation Act of 1953, he has no
jurisdiction to re-open the proceedings concluded before the
Authorities under the 1953 Act. The matter was carried right upto the
High Court and was dismissed holding that the Appellants ought to
have approached the authorities under the 1953 Act. The Appellants
thereafter filed suit claiming possession in which objection to
limitation was taken. While considering Section 14 of Limitation Act,
the Apex Court held that there is no denial that the authority to whom
the application for restitution was made had the jurisdiction and
therefore the previous proceeding did not fail on account of defect of
jurisdiction but the relief was declined on merits. The facts of the
present case are clearly distinguishable as in this case the High Court
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invoked the rule of self imposed restriction and relegated the party to
the alternate remedy.
37. The decision in the case of ASGAR vs. Mohan Varma
(supra) lays down that granting liberty to the parties to pursue
appropriate remedy would encompass both the ability of the
appellants to take recourse and of the respondents to raise necessary
defences to the invocation of the remedy. There is no quarrel with the
said proposition. In the present case, the Appellate Authority has
excluded the time spent in prosecuting the proceedings before the
High Court and did not construe the order of High Court as liberty
granted and therefore the decision does not assist the case of the
Petitioner.
38. The decision in the case of Mukund Ltd. vs. Mukund Staff
& Officers' Association (supra) is pressed on the point of law that in
the absence of plea no amount of evidence led in relation thereto can
be looked into. It is well settled proposition of law which is sought to
be applied in the present case to contend that the Respondent No. 1
has not pleaded about the financial inability of the Petitioner. As
discussed above, the application is required to be in the prescribed
format and irrespective of the pleadings in the application, the
relevant factors are required to be considered by the Competent
Authority.
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CONCLUSION:
39. The application under Section 22 of Slums Act is required
to be in a prescribed format as appended to the Rules, which provides
for setting out the details for seeking permission to execute the
decree of eviction. Irrespective of the pleadings in the Application, the
Competent Authority while deciding whether to grant or refuse
permission to execute the decree is required to take into consideration
the relevant factors contained in clauses (a) to (c) of Sub Section (4) of
Section 22 of Slums Act which are disjunctive. In addition Rule 4 of the
Rules of 1971 provides for additional factors to be considered by the
Competent Authority. The duty is cast upon the Competent Authority
to conduct a summary inquiry considering overall circumstances of the
case by factoring the relevant factors laid down by the statutory
provisions.
40. In the present case, the means of the Occupier was within
the personal knowledge of the Occupier and having failed to place any
material on the basis of which it could be held that the Occupier was
financial incapable of obtaining alternate accommodation, the
Competent Authority erred in coming to a finding of financial
incapability based on surmises and conjectures. The Competent
Authority failed to notice that there was no intent to deprive the
Petitioner of his right to obtain a re-developed premises under the
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Slum Scheme as the notification under Section 4 of Slums Act was
issued in the year 2012 during pendency of appellate proceedings
whereas the eviction proceedings were initiated in the year 1995 on
ground of arrears of rent and unauthorized additions and alterations.
The overall circumstances demanded the permission to be granted for
executing decree of eviction.
41. As the Respondent No 1 was bonafide pursuing the
Petition filed in this Court against order of Competent Authority, the
Appellate Authority has rightly excluded the period for purpose of
computation of period of limitation under Section 14 of Limitation Act,
1963 and it was not necessary for separate application for condonation
of delay to be filed.
42. In light of the above, there is no merit in the Petitions. All
three Petitions stands dismissed. Rule is discharged in all Petitions.
43. In view of the disposal of Writ Petition, nothing survives for
consideration in the pending Civil/Interim Applications and the same
stand disposed of.
[Sharmila U. Deshmukh, J.]
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