Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 661 OF 2011.
PETITIONER: 1. Devendra Ganpatlal Chamedia,
aged about 53 years, Occu: Agrist.
2. Sau.Prabhavati Sureshkumar Agrawal.
Aged about 40 years.
(since deceased through L.Rs.)
2(a) Suresh Narayan Agrawal,
Aged about 59 years, Occu: Business.
2(b) Pravin Suresh Agrawal,
Aged about 27 years, Occu: Business.
2(c) Pankaj Suresh Agrawal,
Aged about 25 years, Occu: Business.
All R/o H.No.406/1, P.P.D.A.Plots,
Akti Porvorim Opp. Nava Sidharth,
Goa, Occu: Household.
3. Manoj Ganpatlal Chamediya,
Aged about 40 years, Accu: Agrist.
Petitioners no.1 and 3 are R/o
Sadar Chowk, Yavatmal.
... VERSUS ...
RESPONDENTS: 1. The Chief Officer and Competent
Authority, Municipal Council, Yavatmal,
Distt. Yavatmal.
2. Prashik Navyuwak Smitee,
through its President Charandas Manikrao
Bangar, R/o Ambedkar Nagar, Yeotmal,
Distt.Yeotmal.
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====================================
Mr. V.R.Choudhari Advocate for the petitioners.
Mr. Kale, Addl.Govt.Pleader for respondent no.1.
Mr.A.B.Moon, Advocate for respondent no.2.
===========================
CORAM : R.M.SAVANT, J.
th
DATED : 4 July, 2011.
ORAL JUDGMENT :
1. Rule, with the consent of the parties, made returnable
forthwith and heard.
2. The above petition filed under Articles 226 and 227 of
the Constitution of India takes exception to the order dated
4/5/2010 passed by the President, Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment), Tribunal, Mumbai,
by which order the appeal filed by the petitioners herein came to
be dismissed.
3. The facts involved in the above petition can be stated in
brief thus
The petitioners are the owners of land bearing Survey
No.51 situated in Ward No.19 of Municipal Council, Yavatmal. It
appears that the Municipal Council by a letter dated 23/7/1987
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passed a Resolution that the said land situated in Ward No.19
bearing Survey No.51 be declared as Slum, as there are no basic
facilities or amenities, and hence recommendation be made to the
State Government. The respondent no.1 – Municipal Council in
terms of the Resolution forwarded the proposal for declaring the
land owned by the petitioners for being declared as a slum, a
declaration thereafter came to be published by the authorities in
the Government Gazette dated 28/7/1988. It is pertinent to note
that prior to the Resolution passed by the Municipal Council, the
petitioners on acquiring knowledge that a move was afoot to
declare the land as a slum, represented to the Municipal Council by
letter dated 21/7/1987. The petitioners in the said letter
mentioned the background of facts leading to the encroachment of
the property when the property was leased out to various persons
by the Tahsildar under Section 80 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958.
th
4. Aggrieved by the declaration dated 28 July, 1988
declaring the lands as slum, the petitioners filed an Appeal as
provided for under Section 4 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment), Act, 1971. It is
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significant to note that in the said appeal amongst the grounds of
challenge to the declaration were three grounds which are
reproduced herein under
(a) That the said land S.No.51 of Yeotmal is
owned by original Appellant Nos.1 to 3 as
successorsintitle of the original owner
Smt.Gulabbai w/o Ganpatlal Chamedia who died
in the year 1970. It may be mentioned that
original Appellate No.2 expired during the
pendency of the appeal, and Appellant Nos.2(a)
to 2(c) have come on record as the legal heirs of
the deceased. That, the land continues to be
agricultural land, in spite of the fact that in
violation of the lease agreements the same was
not cultivated by the various persons who were
inducted at the instance of the Government.
That, a part of the said land is declared as slum.
(b) That, no showcause notice was served upon
the Appellants and the property was declared as
slum area without following the principles of
natural justice.
(d) That, the Respondent did not observe all the
mandatory provisions and the declaration is
therefore illegal and bad in law.
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In the said appeal, reply was filed by the respondent no.1 –
Municipal Council dealing with the contentions in the Appeal filed
by the petitioners. As indicated above, the said Appeal came to be
dismissed by the Tribunal by the impugned order dated 2/4/2010.
5. A perusal of the said order indicates that in so far as the said
three grounds are concerned, which had been raised by the
petitioners, the said grounds have been brushed aside by the
Tribunal on the ground that the petitioners had addressed the said
letter dated 21/7/1987 to the respondent no.1 – Municipal Council
thereby had communicated their objection to the property being
declared as slum and therefore, according to the Tribunal, the
petitioners were aware of the said declaration. The Tribunal in the
said circumstances came to a conclusion that no prejudice was
caused to the petitioners. How knowledge of an impending
declaration can absolve the statutory authority from following the
statutory procedure, as envisaged in the said Act, begs an answer.
The Tribunal by merely taking the letter of the petitioners into
consideration has held that the procedure as envisaged in the Act
cannot be said to be violated. The Tribunal thereby has glossed
over the points raised by the petitioners in the Appeal memo and
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which points go to the very root of the matter. It is also pertinent
to note that the petitioners had also relied upon a judgment of the
Apex Court reported in AIR 1975 SC 596 in the matter of
Government of Mysore and ors. ..vs..l J.V.Bhat etc. wherein the
Apex Court in the contest of a declaration of a slum has held that
there can be no two opinions about the need to hear the affected
persons before declaring an area to be a slum area under Section 3,
or an area as a clearance area under Section 9 or before taking
action under Section 10. The petitioners also relied upon a
judgment of the learned Single Judge of this court reported in
1997(1) Mh.L.J. 107 in the matter of Satish B.Kadhe and
ors. ..vs.. Maharashtra Slum Areas (Improvement, Clearance
and ReDevelopment) Tribunal, Bombay wherein the learned
Single Judge has followed the view taken by the Apex Court in the
case of the Government of Mysore ( supra) thereby holding that the
affected persons have to be noticed. The impugned order of the
Tribunal does not disclose that the judgments cited on behalf of
the petitioners were considered by the Tribunal. As can be seen,
the Tribunal merely on the basis of the letter addressed by the
petitioners dated 21/7/1987 has failed to consider whether notice,
in fact, was issued to the petitioners and whether they were
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granted a hearing. The Tribunal has therefore, as mentioned
herein above, totally glossed over the said points and by merely
stating that there are 4000 to 5000 families residing in the land in
question and the basic amenities were lacking, has dismissed the
appeal filed by the petitioners. In my view, for the reasons
mentioned herein above, the impugned order passed by the
Tribunal is unsustainable and is required to be set aside and is
accordingly set aside and the following directions are issued.
(i) The Appeal filed by the petitioners is remanded
back to the Tribunal for a de novo consideration.
(ii) The Tribunal to consider the points raised by the
petitioners as regards no notice being issued to them
and no hearing being granted to them prior to the
issuance of the declaration as slum, as also to consider
the judgments of the Apex Court as well as this court
that would be cited by the petitioners.
(iii) The Tribunal to hear the concerned parties and
st
decide the Appeal by 31 December, 2011.
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(iv) Pending such consideration, no further steps to be
taken pursuant to the said declaration.
Rule is accordingly made absolute in the
aforesaid terms with parties to bear their respective
costs.
th
Parties to appear before the Tribunal on 29
July, 2011.
JUDGE
chute
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 661 OF 2011.
PETITIONER: 1. Devendra Ganpatlal Chamedia,
aged about 53 years, Occu: Agrist.
2. Sau.Prabhavati Sureshkumar Agrawal.
Aged about 40 years.
(since deceased through L.Rs.)
2(a) Suresh Narayan Agrawal,
Aged about 59 years, Occu: Business.
2(b) Pravin Suresh Agrawal,
Aged about 27 years, Occu: Business.
2(c) Pankaj Suresh Agrawal,
Aged about 25 years, Occu: Business.
All R/o H.No.406/1, P.P.D.A.Plots,
Akti Porvorim Opp. Nava Sidharth,
Goa, Occu: Household.
3. Manoj Ganpatlal Chamediya,
Aged about 40 years, Accu: Agrist.
Petitioners no.1 and 3 are R/o
Sadar Chowk, Yavatmal.
... VERSUS ...
RESPONDENTS: 1. The Chief Officer and Competent
Authority, Municipal Council, Yavatmal,
Distt. Yavatmal.
2. Prashik Navyuwak Smitee,
through its President Charandas Manikrao
Bangar, R/o Ambedkar Nagar, Yeotmal,
Distt.Yeotmal.
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====================================
Mr. V.R.Choudhari Advocate for the petitioners.
Mr. Kale, Addl.Govt.Pleader for respondent no.1.
Mr.A.B.Moon, Advocate for respondent no.2.
===========================
CORAM : R.M.SAVANT, J.
th
DATED : 4 July, 2011.
ORAL JUDGMENT :
1. Rule, with the consent of the parties, made returnable
forthwith and heard.
2. The above petition filed under Articles 226 and 227 of
the Constitution of India takes exception to the order dated
4/5/2010 passed by the President, Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment), Tribunal, Mumbai,
by which order the appeal filed by the petitioners herein came to
be dismissed.
3. The facts involved in the above petition can be stated in
brief thus
The petitioners are the owners of land bearing Survey
No.51 situated in Ward No.19 of Municipal Council, Yavatmal. It
appears that the Municipal Council by a letter dated 23/7/1987
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passed a Resolution that the said land situated in Ward No.19
bearing Survey No.51 be declared as Slum, as there are no basic
facilities or amenities, and hence recommendation be made to the
State Government. The respondent no.1 – Municipal Council in
terms of the Resolution forwarded the proposal for declaring the
land owned by the petitioners for being declared as a slum, a
declaration thereafter came to be published by the authorities in
the Government Gazette dated 28/7/1988. It is pertinent to note
that prior to the Resolution passed by the Municipal Council, the
petitioners on acquiring knowledge that a move was afoot to
declare the land as a slum, represented to the Municipal Council by
letter dated 21/7/1987. The petitioners in the said letter
mentioned the background of facts leading to the encroachment of
the property when the property was leased out to various persons
by the Tahsildar under Section 80 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958.
th
4. Aggrieved by the declaration dated 28 July, 1988
declaring the lands as slum, the petitioners filed an Appeal as
provided for under Section 4 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment), Act, 1971. It is
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significant to note that in the said appeal amongst the grounds of
challenge to the declaration were three grounds which are
reproduced herein under
(a) That the said land S.No.51 of Yeotmal is
owned by original Appellant Nos.1 to 3 as
successorsintitle of the original owner
Smt.Gulabbai w/o Ganpatlal Chamedia who died
in the year 1970. It may be mentioned that
original Appellate No.2 expired during the
pendency of the appeal, and Appellant Nos.2(a)
to 2(c) have come on record as the legal heirs of
the deceased. That, the land continues to be
agricultural land, in spite of the fact that in
violation of the lease agreements the same was
not cultivated by the various persons who were
inducted at the instance of the Government.
That, a part of the said land is declared as slum.
(b) That, no showcause notice was served upon
the Appellants and the property was declared as
slum area without following the principles of
natural justice.
(d) That, the Respondent did not observe all the
mandatory provisions and the declaration is
therefore illegal and bad in law.
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In the said appeal, reply was filed by the respondent no.1 –
Municipal Council dealing with the contentions in the Appeal filed
by the petitioners. As indicated above, the said Appeal came to be
dismissed by the Tribunal by the impugned order dated 2/4/2010.
5. A perusal of the said order indicates that in so far as the said
three grounds are concerned, which had been raised by the
petitioners, the said grounds have been brushed aside by the
Tribunal on the ground that the petitioners had addressed the said
letter dated 21/7/1987 to the respondent no.1 – Municipal Council
thereby had communicated their objection to the property being
declared as slum and therefore, according to the Tribunal, the
petitioners were aware of the said declaration. The Tribunal in the
said circumstances came to a conclusion that no prejudice was
caused to the petitioners. How knowledge of an impending
declaration can absolve the statutory authority from following the
statutory procedure, as envisaged in the said Act, begs an answer.
The Tribunal by merely taking the letter of the petitioners into
consideration has held that the procedure as envisaged in the Act
cannot be said to be violated. The Tribunal thereby has glossed
over the points raised by the petitioners in the Appeal memo and
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which points go to the very root of the matter. It is also pertinent
to note that the petitioners had also relied upon a judgment of the
Apex Court reported in AIR 1975 SC 596 in the matter of
Government of Mysore and ors. ..vs..l J.V.Bhat etc. wherein the
Apex Court in the contest of a declaration of a slum has held that
there can be no two opinions about the need to hear the affected
persons before declaring an area to be a slum area under Section 3,
or an area as a clearance area under Section 9 or before taking
action under Section 10. The petitioners also relied upon a
judgment of the learned Single Judge of this court reported in
1997(1) Mh.L.J. 107 in the matter of Satish B.Kadhe and
ors. ..vs.. Maharashtra Slum Areas (Improvement, Clearance
and ReDevelopment) Tribunal, Bombay wherein the learned
Single Judge has followed the view taken by the Apex Court in the
case of the Government of Mysore ( supra) thereby holding that the
affected persons have to be noticed. The impugned order of the
Tribunal does not disclose that the judgments cited on behalf of
the petitioners were considered by the Tribunal. As can be seen,
the Tribunal merely on the basis of the letter addressed by the
petitioners dated 21/7/1987 has failed to consider whether notice,
in fact, was issued to the petitioners and whether they were
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granted a hearing. The Tribunal has therefore, as mentioned
herein above, totally glossed over the said points and by merely
stating that there are 4000 to 5000 families residing in the land in
question and the basic amenities were lacking, has dismissed the
appeal filed by the petitioners. In my view, for the reasons
mentioned herein above, the impugned order passed by the
Tribunal is unsustainable and is required to be set aside and is
accordingly set aside and the following directions are issued.
(i) The Appeal filed by the petitioners is remanded
back to the Tribunal for a de novo consideration.
(ii) The Tribunal to consider the points raised by the
petitioners as regards no notice being issued to them
and no hearing being granted to them prior to the
issuance of the declaration as slum, as also to consider
the judgments of the Apex Court as well as this court
that would be cited by the petitioners.
(iii) The Tribunal to hear the concerned parties and
st
decide the Appeal by 31 December, 2011.
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(iv) Pending such consideration, no further steps to be
taken pursuant to the said declaration.
Rule is accordingly made absolute in the
aforesaid terms with parties to bear their respective
costs.
th
Parties to appear before the Tribunal on 29
July, 2011.
JUDGE
chute
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