Mr. Ramkumar G. Yadav v. Dy. Collector (Enc-Rem) Malad

Mr. R.A. Thorat, Sr. Adv. i/b Mr. R.R. Tiwari, for the Petitioner. Ms. P.S. Cardozo, A.G.P. for Respondent No.1. Mr. M.U. Pandey, for Respondent Nos.2 & 3. ............ CORAM : S.C.DHARMADHIKARI, J. DATE : OCTOBER 03, 2012. P.C.:

Heard Mr. Thorat, learned Senior Counsel appearing for the Petitioner and Mr. Pandey, learned Counsel appearing for the Respondent Nos.2 and 3-the Society and the Developer. 2 wp.8993-2012.sxw

Perused the concurrent orders passed by the Competent Authority and the Divisional Commissioner Konkan Division dated

1.9.2012.

The submission of Shri Thorat, learned Senior Counsel for the Petitioner is that the property bearing CTS No.509 was declared as slum but to limited extent and even that declaration was set aside. His further contention is that the property CTS No.509(part) was never declared as slum which is pre-condition for initiations of proceedings under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (for short 'Slum Act, 1971).Therefore, the Competent Authority equally the Appellate Authority could not have exercised any power and did not have jurisdiction to evict the Petitioner, who has obtained a decree from Small Causes Court at Bombay in R.A.E. Suit No.192 of 1991 against an occupant of the structure, which decree has been challenged but the appeal is pending. 3 wp.8993-2012.sxw

My attention is invited to the judgment passed by the Court of Small Causes at Mumbai, Bandra Bench in R.A.E. Suit No.192 of 1991. After having perused the writ petition, what I find is that there is much substance in the objections of Shri Pandey, learned Counsel appearing for Respondent Nos.2 and 3 that none of the above contentions were raised before the Authorities and equally if they were raised, they were beyond the powers and jurisdiction of the said Authorities. If the Petitioner is really aggrieved by the fact that the property in respect of which he claims right, title and interest has been erroneously declared as a slum or that if that is yet to be declared as slum and the development activity has been carried out and commenced, then his remedy is to establish his rights elsewhere. In the limited powers that the Authority had under the Slum Act, 1971, it was not open for them to examine his grievance.

Once the orders under challenge do not take away the remedy of the Petitioner and he can seek appropriate declaration and reliefs from the Competent Court/Authority, then this petition need not be entertained, and is accordingly dismissed with no order as to costs. 4 wp.8993-2012.sxw

At this stage, Mr. Thorat prays that the Petitioner be given sometime to remove his articles and belongings as the Developer and the Society, equally the Competent Authority are likely to demolish his existing structure.

Considering the fact that the Petitioner has been occupying the structure with his family, interest of justice would be served if the Petitioner is granted two weeks time to remove his articles and all belongings from the subject premises/structure. It is clarified that this order is passed on the footing that the existing premises/structure is in the possession of the Petitioner.

(S.C.DHARMADHIKARI, J.)