Case Note & Summary
The case involves a reference to a larger bench due to conflicting views of two learned Single Judges of the Bombay High Court on the effect of a declaration under Section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 being set aside after institution of a suit and its effect on the maintainability of the suit. In Abdul Basu v. Smt. Teresa Rozario & Ors., the Single Judge (B.C. Gadgil, J.) held that once the notification under Section 4 is set aside, the very effect of it is washed away, and consequently, there was no prohibition against filing of the suit without permission of the competent authority. The facts of that case involved a suit for eviction filed in December 1977 by Teresa against Abdul Basu for arrears of rent. The suit proceeded ex-parte and a decree of eviction was passed on 12th April 1979. The decree was executed and possession was obtained. The present writ petition arises from similar facts where the petitioners challenge the maintainability of the suit. The court, after considering the conflicting views, held that the view taken in Abdul Basu's case is correct. The court reasoned that the setting aside of the declaration removes the bar retrospectively, and the suit becomes maintainable. The court dismissed the writ petition, upholding the eviction decree.
Headnote
A) Slum Law - Effect of Setting Aside of Declaration - Section 4 of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The court considered whether a suit filed without prior permission under Section 4 becomes maintainable if the declaration under Section 4 is subsequently set aside. The court held that once the notification under Section 4 is set aside, the very effect of it is washed away, and consequently, there was no prohibition against filing of the suit without permission of the competent authority. The suit is not rendered maintainable ab initio but the bar is removed retrospectively. (Paras 1-3, 5-6)
Issue of Consideration
Whether a suit for eviction filed without permission of the competent authority under Section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, becomes maintainable if the declaration under Section 4 is subsequently set aside after the institution of the suit.
Final Decision
The court dismissed the writ petition, upholding the eviction decree. The court held that the view taken in Abdul Basu v. Smt. Teresa Rozario & Ors. is correct, and once the notification under Section 4 is set aside, the prohibition against filing suit without permission is washed away retrospectively.
Law Points
- Effect of setting aside of slum declaration on pending suit
- Maintainability of suit without prior permission under Section 4 of Maharashtra Slum Areas Act
- 1971
- Retrospective operation of quashing of notification
Case Details
2019 LawText (BOM) (11) 53
WRIT PETITION NO.2926 OF 2001 WITH CIVIL APPLICATION NO.741 OF 2018
PRADEEP NANDRAJOG, C.J. & SMT. BHARATI DANGRE, J.
Mr. G.S. Bhat for the Petitioners and Applicant in Civil Application. Mr. R.S. Datar i/b Mr. R.D. Mishra for the Respondents.
Satish Shahu Bane and Rajendra Shahu Bane
Dattatraya Tanaji Padam and Vijay Shankar Dhadwe
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging eviction decree on ground of maintainability due to lack of prior permission under Section 4 of Maharashtra Slum Areas Act.
Remedy Sought
Petitioners sought to set aside eviction decree on the ground that suit was not maintainable without prior permission under Section 4 of the Maharashtra Slum Areas Act.
Filing Reason
The petitioners were tenants in a slum area declared under Section 4 of the Maharashtra Slum Areas Act. The respondents filed a suit for eviction without obtaining prior permission from the competent authority. The declaration under Section 4 was subsequently set aside. The petitioners argued that the suit was not maintainable at the time of filing.
Previous Decisions
The suit was decreed ex-parte and eviction was ordered. The petitioners challenged the decree in the present writ petition.
Issues
Whether a suit for eviction filed without permission under Section 4 of the Maharashtra Slum Areas Act, 1971, becomes maintainable if the declaration under Section 4 is subsequently set aside after institution of the suit.
Submissions/Arguments
Petitioners argued that the suit was not maintainable as it was filed without prior permission under Section 4 of the Maharashtra Slum Areas Act, and the subsequent setting aside of the declaration does not cure the initial defect.
Respondents argued that once the declaration is set aside, the bar is removed retrospectively and the suit becomes maintainable.
Ratio Decidendi
The setting aside of a declaration under Section 4 of the Maharashtra Slum Areas Act, 1971, after institution of a suit, removes the bar against filing the suit without permission retrospectively, and the suit becomes maintainable.
Judgment Excerpts
once the notification under Section 4 of the Maharashtra Slum Act is set aside, the very effect of it is washed away and, consequently, there was no prohibition against filing of the suit without permission of the competent authority.
Procedural History
The suit was filed in December 1977. The defendant did not file a written statement and the suit proceeded ex-parte. A decree of eviction was passed on 12th April 1979. The decree was executed and possession was obtained. The petitioners filed the present writ petition in 2001 challenging the decree. The matter was referred to a larger bench by order dated 19th October 2001 due to conflicting views of two learned Single Judges. The larger bench pronounced judgment on 18th November 2019.
Acts & Sections
- Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971: Section 4
