Case Note & Summary
The petitioners, Prahlad Bansi Adsul and others, filed a writ petition in the Bombay High Court challenging the orders of the Administrator and Divisional Commissioner dated 29 September 2009 and 8 January 2010, and seeking a declaration that certain lands in final plot Nos. 566/A, 566/B1, 566/B2 at Ram Panjwani Road, Mahim, Mumbai be declared as a slum under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The petitioners had initially applied to the Joint Municipal Commissioner (Improvement) for such declaration, but their application was dismissed on 6 November 2007. They then filed a writ petition under Article 226, which was disposed of by a learned Single Judge on 18 March 2008, granting them liberty to pursue an appeal under Section 35 of the Act. The petitioners filed an appeal before the Administrator and Divisional Commissioner, who dismissed it on 29 September 2009, holding that the application was dealt with under Section 4(1) and an appeal would lie before the Tribunal. The petitioners then appealed to the Tribunal, which dismissed the appeal on 7 October 2009, stating that an appeal under Section 4(3) lies only against a declaration of a slum area, and since no notification under Section 4(1) had been issued, the appeal could not be entertained. The petitioners again appealed to the Administrator and Divisional Commissioner, who dismissed it on 8 January 2010 in view of the earlier order. The High Court, in its judgment dated 2 February 2011, held that Section 4(1) of the Act confers a suo motu power on the Competent Authority to declare an area as a slum after following the prescribed procedure, and there is no provision for any person to apply for such declaration. Therefore, the petitioners' application was not maintainable. Consequently, the refusal to entertain the application was not an order under the Act, and no appeal lay under Section 35. The court dismissed the writ petition, finding no merit in the petitioners' contentions.
Headnote
A) Slum Law - Declaration of Slum Area - Section 4(1) of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - Maintainability of Application - The petitioners applied for declaration of their land as a slum under Section 4(1). The Competent Authority dismissed the application. The Court held that Section 4(1) confers a suo motu power on the Competent Authority to declare an area as a slum after following the prescribed procedure, and there is no provision for any person to apply for such declaration. Therefore, the application was not maintainable. (Paras 4-5) B) Slum Law - Appeal - Section 35 of Maharashtra Slum Areas Act, 1971 - Against Refusal to Entertain Application - The petitioners filed appeals against the dismissal of their application. The Court held that since no notification under Section 4(1) was issued, there was no order passed under the Act against which an appeal could lie under Section 35. The refusal to entertain an application is not an order under the Act. (Paras 4-5) C) Constitutional Law - Writ Jurisdiction - Article 226 of Constitution of India - Alternative Remedy - The petitioners had earlier approached the High Court under Article 226, which was disposed of with liberty to pursue appeal under Section 35. However, the Court held that the appeal remedy was not available as the application itself was not maintainable. The writ petition was dismissed as the petitioners had no legal right to seek a declaration under Section 4(1). (Paras 1-5)
Issue of Consideration
Whether an application by individuals seeking declaration of land as a slum under Section 4(1) of the Maharashtra Slum Areas Act, 1971 is maintainable, and whether the refusal to entertain such an application is appealable under Section 35 of the Act.
Final Decision
The High Court dismissed the writ petition, holding that the application under Section 4(1) was not maintainable as the power under that section is a suo motu power of the Competent Authority, and no appeal lies against refusal to entertain such an application.
Law Points
- Section 4(1) of the Maharashtra Slum Areas (Improvement
- Clearance and Redevelopment) Act
- 1971 confers a suo motu power on the Competent Authority to declare an area as a slum
- not a power to be exercised on application by individuals
- No right of appeal lies against refusal to entertain an application under Section 4(1) as there is no notification or declaration
- The remedy of appeal under Section 35 is available only against orders passed under the Act
- not against refusal to initiate proceedings
