The Bombay High Court recently set aside the order canceling the condonation of delay on the grounds that the Competent Authority was bound to publish notification as per Rule 3 read with Section 4 of the Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971 (Slums Act) when it was declaring a certain land to be a slum area.

A Single Judge Bench of Justice Arif S. Doctor observed that “the mandatory modes of publication prescribed in Rule 3 read with Section 4 of the Slums Act is not without good reason as the effect of a declaration of land as a slum has widespread ramifications which would affect the right, title and interest of both the owners and occupiers of such land”.

Senior Advocate Mr. Ashish Kamat appeared for the Petitioner, whereas Additional Government Pleader L. T. Satelkar appeared for the Respondents.

In a nutshell, the issue is regarding a land area belonging to one Sebastian John D’Souza who made the Petitioner the owner, by way of a Will. Sebastian John had constructed some chawls and some of the area of the passage of the chawls fell into the land of the Petitioner. In 2004 when the Petitioner filed for eviction against Kamalram Dhobi, a Written Statement was filed in 2006 with an annexed a copy of a 1995 Notification which declares the land in dispute to be a slum area. This Notification was challenged by the Petitioner before the Tribunal (first Respondent) along with application for Condonation of Delay on the ground that Petitioner found out about the notification only in 2006 when the written statement was filed. The application for condonation was allowed. Hence, present petition.

After perusing the facts and provisions of the Slums Act, the High Court observed that mandatory compliance of Rule 3 read with Section 4 was required and publication should have been made by following each of the modes as effect of declaration of land to be a slum area.

The High Court also observed the fact that second Respondent did not endeavour to present any evidence so as to show that proper Rules were complied with while issuing notification and hence, presumption under Section 114 of Evidence Act even if it was there, stood rebutted.

While stating that declaration of a land as a slum alters the character of the land and hence Petitioners’ right, title and interest as owners of the said land would also be gravely prejudiced, the Bench observed that the Petitioners must necessarily be given an opportunity to contest the declaration of the said land as a slum.

Therefore, while allowing the petition, the Bench stated that no prejudice can possibly be caused to the contesting Respondents if the delay is condoned and the Petitioners appeal is heard on merits.

Cause Title: Allan Sebastian D’Souza v. Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Tribunal and Ors. [Neutral Citation No: 2023: BHC-OS: 4588]

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Bombay High CourtJustice Arif S. Doctor

Pankaj Bajpai