Bombay High Court
Pradip S/O Gopalrao Sapkal vs The State Of Maharashtra, Thr. ... on 24 September, 2025
2025:BHC-NAG:9727-DB
1 WP 6713.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6713 OF 2023
Shri Pradip s/o Gopalrao Sapkal,
Aged about 63 years,
Occupation-Retired.
R/o. Near Kacheshwar Mandir,
Sudam Road, Itwari, Nagpur. .. Petitioner
..Versus..
1) The State of Maharashtra through
its Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2) The Nagpur Municipal Corporation
through its Commissioner, having
Office at Civil Lines, Nagpur.
3) The Sub-Divisional Engineer,
Zone No.6, Gandhi Zone,
N.M.C. Nagpur.
4) Competent Authority (Slum)
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
5) The Additional Collector,
Nagpur, District-Nagpur.
6) Makrand s/o Madhusudhan Sapkal,
Aged about 35 years, Occu. Private
R/o. Near Krida Chowk, Sakarkardara,
Nagpur. .. Respondents
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Shri Madhur A. Deo, Advocate for Petitioner.
Shri S.B. Bissa, AGP for Respondent Nos.1 and 5.
Shri J.B. Kasat, Advocate for Respondent No.2 to 4.
Ms. S.P. Chavhan, Advocate for Respondent No.6
...............
CORAM : PRAVIN S. PATIL, J.
RESERVED ON : 16.09.2025.
PRONOUNCED ON : 24.09.2025.
JUDGMENT
1. Heard. Rule. Rule is made returnable forthwith.
2. The petitioner, who is residing in slum area, assailed the
order passed by respondent no.5, dated 5.9.2023 in Slum Appeal
No.21/Slum/Nag/2018-19 in present petition alleging that without
considering factual and legal position, his appeal has been dismissed.
3. Petitioner along with the challenge to the order of
respondent no.5 also prayed that writ of mandamus directing the
respondent no.2 to issue public notice under Rule 9 of the
Maharashtra Town Planning (Compounding Structures) Rules, 2017
(hereinafter referred to as 'Rules of 2017') and considered the
application filed by the petitioner for compounding of structure.
However, the prayers (A) and (B) made in the petition were not
pressed by the petitioner during the pendency of present petition and
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same is recorded in the order dated 23.4.2025. Hence, challenge in
the present petition is now restricted to prayer clause (C) and (D)
only.
4. Before adverting to the merits of the matter, it will be
necessary to state the few facts of the matter which are not disputed
in the present petition.
5. The petitioner is occupying the house bearing Corporation
No.134 situated at Ward No.28, near Kacheshawar Mandir, Sudam
Road, Itwari, Nagpur. The said property falls in the slum area.
According to petitioner, he is residing in the said house property
before year 2000 and to justify his submission placed on record the
copy of property card and copies of tax which he has paid to the
respondent no.2.
6. The submission of the petitioner that on 28.6.1999 and
7.8.2019, he had made applications to the office of Deputy Engineer,
Zone-3, Nagpur Municipal Corporation, to grant permission for repair
of his house, but same were not looked into. Hence, by
communication dated 19.11.1999, he has informed the Deputy
Engineer, Zone-3, Nagpur that as there is no response to his
application treating it as a deemed permission, started the repair of
his house. Along with application, the petitioner has also enclosed
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the building plan of the plot to the authority.
7. It is his submission that after the period of 19 years, he
received the show cause notice dated 8.4.2019 from the respondent
no.4 under Section 3-Z (1) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter
referred to as 'Act of 1971') alleging that construction made by
petitioner over suit property is illegal.
8. The petitioner on 6.5.2019 as permissible under Section 3-
Z(1) of the Act of 1971 raised objection to the notice issued by the
respondent no.4. The said objection was duly acknowledged by the
respondent no.4.
9. It is stated by the petitioner that some officials of the
respondent no.1, without considering the fact that the objection has
been raised to the notice, approached to his house stating that as per
Notice dated 8.4.2019 they are intending to demolish the constructed
part of the house. Therefore, on same day i.e. 6.5.2019, the
petitioner has preferred appeal under Section 35 (1) of the Act of
1971 before the learned Additional Collector, Nagpur.
10. The learned Collector, after hearing the petitioner, by his
order dated 5.9.2023, rejected the appeal by holding that the
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appellant failed to demonstrate that construction which is alleged by
the notice is before of year 2000. Being aggrieved by the same, the
petitioner approached to this court by way of present petition.
11. In response to the notice of this court, the respondent
nos.2 to 4 filed their affidavit on record. It is their submission that
bare perusal of notice dated 8.4.2019 made it clear that respondent
no.4 was not intending to remove the entire house, according to
notice, part of ground floor and the part of first floor which was
constructed after 1.1.2000 being without permission only that part
was directed to be demolished in the matter.
12. It is further submitted that as per the provisions of law,
after issuing the notice, the aggrieved person has right to raise the
objection. If such objection is raised, then competent authority is
required to take decision over the said objection. If the decision of
the competent authority goes against the person, then he can prefer
the appeal under Section 35 of the Act of 1971. However, in the
present case, the petitioner without waiting for the decision of the
competent authority on the objection raised by him, on same day i.e.
the date of which he has raised objection, filed the appeal before the
Additional Collector, Nagpur. Hence, his appeal itself is not tenable,
because the competent authority did not decide the objection raised
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by the petitioner.
13. It is stated that the competent authority as per the Act of
1971 can decide the objection raised by the petitioner and petitioner
after the decision on his objection can always at liberty to file the
statutory appeal in the matter.
14. I have gone through the entire record and the submissions
made by the respective counsel in the matter.
15. In the present petition, the issue involved is, whether the
learned Collector was right in exercising the powers under Section 35
(1) of the Act of 1971, particularly when the objection over the notice
raised by the petitioner was already pending before the competent
authority.
16. To consider the issue involved in the present petition, it
will be relevant to reproduce Section 3-Z (1) of the Act of 1971 which
reads as under :
3Z-1. Powers of Competent Authority to demolish
unauthorised or illegal dwelling structures.--
(1) Where a Competent Authority, upon a complaint
from any person or report from its officer or police or
any other record or information in its possession, is
satisfied that any unauthorised or illegal dwelling
structure or part thereof has been constructed, or any
addition to the existing structure as recorded on
photo-pass, has been erected, after the [1st January
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2000], within the area of its jurisdiction, without
obtaining necessary permissions required to be
obtained in that behalf under the relevant laws, of
the concerned statutory authorities, it shall forthwith
serve upon the owner of such unauthorised or illegal
dwelling structure or any other person claiming an
interest therein and also upon the person who is in
occupation of such structure, a written notice to
show cause, within twenty-four hours as to why an
order of demolition of the structure should not be
made.
(2) If the owner of such unauthorised or illegal
dwelling structure or any other person claiming an
interest therein or the occupier of such structure is,
by any reason whatsoever, not available for serving
or receiving the notice, such notice shall be affixed at
a conspicuous place on such structure, and it will be
deemed to be due service of notice on the concerned
person or persons.
(3) The person or persons upon whom the notice has
been served under sub-section (1) or (2), as the case
may be, shall, within twenty-four hours appear
before the Competent Authority and produce or
cause to be produced by his agent or representative,
the necessary documents to prove that the requisite
statutory permission for construction, reconstruction,
addition or extension, as the case may be, has been
duly obtained by him and that the construction,
re-construction, addition or extension is not
unauthorised or illegal.
(4) The Competent Authority shall, thereupon, on
scrutiny of documents, if any, produced by such
person, on being satisfied that the dwelling structure,
addition to it or extension thereof, is unauthorised or
illegal, forthwith make an order, in writing, for
demolition of such structure immediately, and in any
case not later than twenty-four hours from the time
of making of the order, by such person:
Provided that, if the owner or as the case may be, the
person claiming an interest in the structure or the
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occupier of such structure or his agent or
representative fails to appear before the Competent
Authority, within the time specified in the notice, the
structure shall be treated as unauthorised or illegal
and the Competent Authority shall pass an order for
its demolition.
(5) Where an order of demolition of such
unauthorised or illegal dwelling structure is made
under sub-section (4) or the proviso thereto, the
owner of the structure or any other person claiming
an interest therein or the person in occupation of
such structure shall, immediately demolish that
structure within twenty-four hours from the passing
of the demolition order and if, the concerned person
who is ordered to demolish the structure, fails to
demolish such structure within that time, the
Competent Authority shall forthwith demolish the
structure and remove the debris with the help of its
staff and the police officer from the area where such
structure is situated, and sell the debris of such
demolished structure to recover the expenses
incurred by the Competent Authority for such
demolition and removal of debris. If the expenses
incurred are not satisfied out of the proceeds of sale
of the debris of such structure, the same shall be
recoverable from the owner of the structure or any
other person claiming an interest therein or from the
person who was in occupation of such structure, as
arrears of land revenue.
17. The bare perusal of the provision clarify the fact that
where a competent authority is satisfied that any unauthorized or
illegal dwelling structure or part thereof has been constructed after
1.1.2000, is required to issue a written notice to show cause, within
twenty-four hours as to why an order of demolition of the structure
should not be made. It is further provided that the person to whom
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notice has been served within twenty-four hours has to appear before
the competent authority and state the reasons by raising objection as
to how the action is illegal. After receipt of such objection, the duty
is cast upon the competent authority to make scrutiny of the
documents produced by such person and after his satisfaction,
appropriate order is to be passed in the matter.
18. In the present petition, it is clear from the record that the
petitioner at one hand i.e. on 6.5.2019 raised objection to the notice
received to him under Section 3-Z(1) of the Act of 1971 and on the
other hand, on 8.5.2019 preferred appeal before the Additional
Collector, Nagpur under Section 35 (1) of the Act of 1971. Hence, it
is clear that the petitioner did not wait for the decision on the
objection raised by him before the competent authority and in a very
haste filed the proceeding before the Additional Collector, Nagpur.
19. It is though permissible under Section 35 of the Act of
1971 that aggrieved person can file appeal even against the notice
issued by the authority, however, while exercising such powers, it is
expected from the authority to verify the factual aspect in the matter.
According to me, when objection was raised by the petitioner to the
notice under Section 3-Z (1) of the Act of 1971 as permissible under
the provisions of law and same was not decided, the learned
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Additional Collector should not have entertained the appeal.
He ought to have first satisfied himself about the details of objection
raised by Petitioner from respondent no.4 and then could have
proceeded in the matter. But there is nothing on record to show that
this exercise was undertaken by learned Collector before deciding the
appeal.
20. In the circumstances, I am of the confirmed opinion that
the impugned order passed by the learned Collector is by exceeding
his jurisdiction and, therefore, same deserves to be quashed and set
aside.
21. In the present petition, admittedly the objection raised by
the petitioner to the notice received to him under Section 3-Z (1) of
the Act of 1971 is till date not decided by the competent authority on
its own merits. Therefore, it will be expedient to direct the
competent authority to decide the objection raised by the petitioner
as per the mandate of Section 3-Z (1) of the Act of 1971. In view of
above, I proceed to pass the following order :
ORDER
(1) The petition is partly allowed.
(2) The order passed by Respondent no.5-Collector,
Nagpur in the capacity of Appellate Authority of Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act, 1971 is
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hereby quashed and set aside.
(3) The Competent Authority (Slum), Nagpur
Municipal Corporation is hereby directed to decide the objection
raised by Petitioner to the show cause notice received by his office
on 6.5.2019 on its own merits, within a period of three months.
(4) The petitioner is directed to appear suo motu
before the Competent Authority (Slum) i.e. Respondent No.4 on
01.10.2025.
(5) The Competent Authority is further directed to
decide the objection raised by the petitioner independently by
following due procedure of law without influence of the order passed
by the learned Collector in Appeal No.21/Slum/Nag/2018-19 dated
5.9.2023 as well as the order passed by this court.
(6) All the issues are kept open.
(7) It is made clear if any adverse order is passed
by Competent Authority, the same shall not take it's effect for a
period of 7 days.
(8) No order as to costs. Rule is above terms.
(Pravin S. Patil, J.)
Gulande
Signed by: A.S. GULANDE
Designation: PS To Honourable Judge
Date: 25/09/2025 16:04:04
