Bombay High Court
Narayan Omkarnath Mishra vs Ibrahim Hussein Nadaf And Anr on 28 January, 2025
2025:BHC-AS:4049
Final-WP-7107-2022-2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7107 OF 2022.
1) Jiut Tulsi Yadav ]
Age About-74 Yrs, Occ- Nil ]
An Indian Inhabitant, residing at Room ]
No. 10, Manik Hussain Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, plot ]
No. 602 of Village Pahadi, Malad (East) ]
Mumbai- 400 064. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
TALLE Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
SHUBHAM Mumbai- 400 064. ] Respondents.
ASHOKRAO
2) The Deputy. Collector ]
Digitally signed by
TALLE SHUBHAM (Encroachment/Eviction), Malad having ]
ASHOKRAO
Date: 2025.01.28 office at MHB building No. 38, 1st floor, ]
18:07:50 +0530
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
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WITH
WRIT PETITION NO. 2280 OF 2020.
1) Lalita Nandlal Kahar ]
2) Rakesh Nandlal Kahar ]
3) Rajesh Nandlal Kahar ]
4) Sangita Nandlal Kahar ]
Petitioner Nos. 1 to 4, All adult, having ]
address at Room No. 4, Manik Hussain ]
Nadaf Chawl, Subtaram Pada, Khot ]
Kuwa Road, plot No. 602 of Village ]
Pahadi, Malad (East) Mumbai- 400 064. ]
5) Surekha Kahar, ]
Adult, Occupation: Nil of Mumbai, an ]
Indian Inhabitant, residing at Goregaon, ]
Mumbai. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
Mumbai- 400 064. ] Respondents.
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2) The Deputy. Collector ]
(Encroachment/Eviction), Malad having ]
office at MHB building No. 38, 1st floor, ]
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
WITH
WRIT PETITION NO. 7106 OF 2022.
1) Narayan Omkarnath Mishra ]
Adult Age About-70 Yrs, Occ- Nil of ]
Mumbai, An Indian Inhabitant, residing ]
at Room No. 8, Manik Hussain Nadaf ]
Chawl, Subtaram Pada, Khot Kuwa ]
Road, plot No. 602 of Village Pahadi, ]
Malad (East) Mumbai- 400 064. ] ...Petitioners.
Versus
1) Ibrahim Hussein Nadaf (Since Deceased) ]
Age- Not Known, Occ-Not Known, of ]
Mumbai an Indian Inhabitant, residing ]
at Room No. 2, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ]
Mumbai- 400 064. ]
1(a) Nurjahan Hussain Nadaf ]
Wife of the Respondent No. 1. ]
Age-71 Yrs, Occ- Household, ]
residing at room No. 2, Nadaf Chawl, ]
Subtaram Pada, Khot Kuwa Road, Malad ] ...Proposed
(East) Mumbai- 400 064. ] Respondents.
1(b) Razia Hussain Nadaf, ]
Married Daughter of the Respondent ]
No. 1 since deceased, Age-51, residing ]
at room No. 5, Nadaf Chawl, Subtaram ]
Pada, Khot Kuwa Road, Malad (East) ] ...Proposed
Mumbai- 400 064. ] Respondents.
2) The Deputy. Collector ]
(Encroachment/Eviction), Malad having ]
office at MHB building No. 38, 1st floor, ]
Sidddharth Nagar, S. V. Road, Goregaon ]
(West), Mumbai 400 062. ] ...Respondents.
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------------
Mr. Rakesh Agrawal a/w Mr. Darpan Jain, Mr. Sandeep Nirban for the
Petitioners.
Mr. Sanjay Jain a/w Ms. Aanchal Singhania, Mr. Ajay L. Bhise for the Respondent
No. 1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: December 16, 2024.
Pronounced on : January 28, 2025.
JUDGMENT :
1. Rule. With consent, Rule made returnable forthwith and taken up for final hearing.
2. As these Petitions raise common issues, upon request, the Petitions were taken up for hearing together. By consent, Writ Petition No. 7106 of 2022 is taken up as lead Petition and the factual matrix of the lead Petition has been noted. Common submissions were advanced and the Petitions are being disposed of by this common Judgment.
THE CHALLENGE:
3. Exception is taken to the order dated 30 th January 2020, passed by the Slums Tribunal in Appeal filed under Section 23 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, ("the Slums Act"), by the Respondent No. 1 against the order of Deputy Collector passed under Section 22 of the Slums Act rejecting the application seeking permission to execute decree of eviction.
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FACTUAL MATRIX:
4. The facts of the case are that the Respondent No. 1 had filed eviction suit being R.A.E & R Suit No 309/814 of 1995 against the Petitioner in the Small Causes Court seeking eviction on the ground of non payment of rent, unauthorized alteration and for recovery of arrears of rent. The Trial Court by Judgment and order dated 1 st March 2012, decreed the suit on both the grounds. The Petitioner preferred Appeal before the Appellate Bench of the Small Causes Court and by order dated 28th March 2013, the Appeal came to be dismissed. The Civil Revision Application filed before the High Court was also dismissed by order dated 26th February, 2014.
5. During the pendency of the Appellate proceedings, notification came to be issued in the year 2012 under Section 4 of the Slums Act and while dismissing the Civil Revision Application, the High Court directed the Respondent No 1 to follow the procedure under Section 22 of Slums Act for execution of decree. Pursuant thereto, Application No. 1 of 2014 was preferred by the Respondent No. 1 before the Respondent No. 2-Authority under Section 22(2) of the Slums Act seeking permission to execute the decree, which came to be dismissed vide order dated 23rd January 2015.
6. Against the order of the Competent Authority dated 23 rd January 2015, the Respondent No 1 filed Petition before the High Shubham Talle 5 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc Court and by order dated 1st February 2018, the Petition came to be disposed of in view of the statement made that the Respondent No. 1 would file Appeal under Section 23 of the Slums Act. The High Court extended the ad-interim relief of restraining the occupier from creating third party rights for period of four weeks from 1 st February 2018, failing which if the Appeal is not filed, the ad-interim protection granted by this Court will stand vacated. Within period of four weeks, the Respondent No. 1 filed Appeal under Section 23 of the Slums Act.
7. The Application was resisted by the Petitioner on the ground of delay as well as on merits of the matter. Vide order dated 31st January 2020, the Appeal was allowed which is impugned in the present Petition.
SUBMISSIONS:
8. Mr. Agrawal, learned Counsel appearing for the Petitioners would submit that the Application filed under Section 22 (2) of the Slums Act merely reproduced the litigation between the parties and sought permission to execute the decree without any pleadings to satisfy the ingredients of sub section (4) of Section 22 of the Slums Act. He submits that the first Authority by a reasoned order considered the factors as to whether the alternate accommodation within the means of occupier would be available to him and whether the eviction is in interest of improvement and clearance of the slum area and answered Shubham Talle 6 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc both the issues in the negative. He submits that the grounds in the Appeal Memo would indicate that the stand of the Respondent No. 1 was that the permission under Section 22 (2) is mere formality. He submits that as far as the limitation is concerned the only pleading is that the Respondent No. 1 has approached the Tribunal as expeditiously as directed by the Hon'ble Court. He submits that without an Application for condonation of delay for exclusion of time as contemplated under Section 14 of the Limitation Act, 1963, the Appellate Authority has applied Section 14 and condoned the delay. He submits that Section 14 of Limitation Act has no applicability in present case as the provision applies only where the earlier proceedings are initiated before a Court having defect of jurisdiction, whereas in the present case the Petition was filed under Article 226/227 of Constitution of India which had jurisdiction but relegated the parties to the alternate remedy. In support he relies upon the following decisions:-
Laxmi Ram Pawar vs. Sitabai Balu Dhotre1 Taj Mohamed Yakub v. Abdul Gani Bhikan2 Shankar Dagadu Bakade vs. Bajirao Balaji Darwatkar3 Zafar Khan vs. Board of Revenue, U.P. 4 1 (2011) 1 SCC 356 2 1991 (1) Mh. L.J. 263.
3 1990(2) Bom. C. R. 38.
4 AIR 1985 SC 39
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India Electric Works Ltd. vs. James Mantosh5 ASGAR vs. Mohan Varma6 Mukund Ltd. vs. Mukund Staff & Officers' Association7
9. Per contra, Mr. Jain, learned Counsel appearing for the Respondent No. 1 would concede that the procedure under Section 22 is not a mere formality. He submits that the requisite factors to be considered as contained in sub section (4) of Section 22 of Slums Act are independent factors and even if one of the factor is satisfied, the permission has to follow. He submits that in the present case as the eviction decree was on the ground of arrears of rent, clause(b-1) of sub section (4) of Section 22 was satisfied by the decree and therefore on this ground alone the permission ought to have been granted. He would further submit that for the purpose of satisfaction of Clause(a) of sub section (4) of Section 22, the burden was upon the Petitioner to bring evidence on record to show his limited means, which burden the Petitioner has failed to discharge. He would further submit that the requirement of Clause (b-1) of sub section (4) of Section 22 is readiness and willingness of the occupier to pay the whole of the amounts of arrears of rent and from the filing of the suit till date there is no offer made by the Petitioner to pay the rent. 5 (1971) 1 SCC 24 6 (2020) 16 SCC 230 7 AIR 2004 Supreme Court 3905.
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10. He would further submit that the Competent Authority while considering the means of the occupier for the purpose of Clause
(a) of sub section (4) of Section 22 has taken hypothetical figures without any material on record. He submits that the Appellate Authority has rightly considered that the Petitioner has failed to produce any evidence in respect of his financial condition. He submits that in the affidavit-in-reply it has been specifically pleaded that the Petitioner is watchman and earning income of Rs. 10,000/- and his son also drives auto-rickshaw and is earning sufficient income which has not been denied.
11. He further submits that Section 14 of Limitation Act is for the purpose of exclusion of the time spent in prosecuting the proceedings bonafide in other Court, he only has to plead and not file separate Application. He submits that it was not the case of the Petitioners before the Appellate Authority that Section 14 does not apply and only objection was that without separate delay condonation Application the Appeal is not maintainable. Mr. Jain, would further distinguish the Judgments which are relied upon by Mr. Agrawal.
12. In rejoinder, Mr. Agrawal would submit that when parties are relegated to an alternate remedy, the benefit of Section 14 is not available. He submits that it was necessary for the Respondent No 1 to assert that the Petitioner had the means to procure alternate Shubham Talle 9 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc accommodation in which case the burden would have shifted to the Petitioner to prove otherwise.
REASONS AND ANALYSIS:
13. The undisputed position is that the decree of eviction against the Petitioner has attained finality and before the decree can be executed, the permission of the Competent Authority under Section 22 of Slums Act was necessitated as during the pendency of Appellate proceedings, the notification under Section 4 of the Slums Act came to be issued declaring the area as slum.
STATUTORY FRAMEW ORK:
14. Section 22 is contained under Chapter-VI of Slums Act which bears the heading of protection of occupiers in slums areas from eviction and distress warrant and reads thus:
" 22. Proceedings for eviction of occupiers or for issue of distress warrant not to be taken without permission of Competent Authority.-- (1) Notwithstanding anything contained in any other law for the time being in force, no person shall except with the previous permission in writing of the Competent Authority,
(a) institute, after commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Mah. XXVIII of 1971), any suit or proceeding for obtaining any decree or order for the eviction of an occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier, or for both; or Shubham Talle 10 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc
(b) when any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupier from any building or land in such area or for recovery of any arrears of rent or compensation from such occupier, or for both execute such decree or order; or
(c) apply to any Judge or the Registrar of the Small Cause Court under Chapter VIII of the Presidency Small Cause Courts Act, 1882 (XV of 1882), in its application to the State of Maharashtra, or to any Court of Small Causes under Chapter IV-A of the Provincial Small Cause Courts Act, 1887 (IX of 1887) in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any occupier of a house or premises in a slum area.
(1A) Notwithstanding anything contained in sub-
section (1) as in force before the commencement of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) (Amendment) Act, 1986 (Mah. II of 1887) (hereinafter in this section referred to as "the Amendment Act") or in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority,--
(a) execute any decree or order obtained in any suit or proceeding instituted during the period commencing from the 30th day of September 1985, being the date of the expiry of the Maharashtra Vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent) Act, 1980 (Mah. XVI of 1980) and the date of commencement of the Amendment Act, for eviction of an occupier from any building or land in a slum area (which area was earlier purported to be covered by the definition of "vacant land" in clause (f) of section 2 of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 (Mah. LXVI of 1975) or for recovery of any arrears of rent or compensation from such occupier, or for both; or Shubham Talle 11 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc
(b) apply to any Judge or the Registrar of the Small Cause Court under Chapter VIII of the Presidency Small Cause Courts Act, 1882 (XV of 1882), in its application to the State of Maharashtra, or to any Court of Small Causes under Chapter IV-A of the Provincial Small Cause Courts Act, 1887 (IX of 1887) in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any such occupier of a house or premises in any such slum area.
(2) Every person desiring to obtain the permission referred to in sub-section (1) or (1A) shall make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall, by order in writing, either grant or refuse to grant such permission.
(4) In granting or refusing to grant the permission under clause (a) or (b) of sub-section (1) or clause (a) of sub-section (1A) the Competent Authority shall take into account the following factors, namely :--
(a) Whether alternative accommodation within the means of the occupier would be available to him, if he were evicted;
(b) Whether the eviction is in the interest of improvement and clearance of the slum area;
(b-1) whether, having regard to the relevant circumstances of each case, the total amount of arrears of rent or compensation and the period for which it is due and the capacity of the occupier to pay the same, the occupier is ready and willing to pay the whole of the amount of arrears of rent or compensation by reasonable installments within a stipulated time;
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(c) any other factors, if any, as may be prescribed. (4A) (a) In granting or refusing to grant the permission under clause (c) of sub-section (1) or clause (b) of sub- section (1A) the Competent Authority shall take into account the following factors, namely :--
(i) what is the amount of rent and for what period it is due;
(ii) whether a notice of demand referred to in the proviso to sub-section (1) of section 53 of the Presidency Small Cause Courts Act, 1882 (XV of 1882) or in the proviso to sub-section (1) of section 27B of the Provincial Small Cause Courts Act, 1887 (IX of 1887), as the case may be, has been duly given to the occupier liable to pay the arrears of rent,
(iii) whether the occupier is willing to pay arrears within a stipulated time;
(iv) any other factors, if any, as may be prescribed.
(b) If, within a period of six months from the date of receipt of any application for permission under clause
(c) of sub-section (1), or clause (b) of sub-section (1A) the Competent Authority does not refuse to grant the permission, it shall be deemed to have been granted at the expiration of such period.
(5) Where the Competent Authority refuses to grant the permission under any of the clauses of sub-section (1) or (1A) it shall record a brief statement of the reasons for such refusal, and furnish a copy thereof to the applicant."
15. Sub-Section (2) of Section 22 provides for an application to be made to the Competent Authority in the prescribed form containing the prescribed particulars. The Maharashtra Slum Areas (Improvement, Clearance and Re-development) Protection of Tenants in Slum Areas Shubham Talle 13 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc From Eviction Rules, 1972 have been framed under the Slums Act and Rule 3 thereof provides for the application to be in the prescribed form appended to the Rules. The prescribed particulars are the details of the area, the occupier and the Decree alongwith the reasons for eviction.
16. Sub-Section (3) of Section 22 provides for a summary inquiry by the Competent Authority before the grant or refusal of permission. Sub Section 4 of Section 22 provides for the factors to be considered by the Competent Authority while granting or refusing to grant permission under Clause(a) or Clause (b) of sub Section 1. INQUIRY CONTEMPLATED UNDER SECTION 22:
17. Sub-Section (3) of Section 22 makes it evident that it is left to the Competent Authority to conduct such inquiry of summary nature as it thinks fit in the circumstances of the case. Though the nature of inquiry is left to the discretion of the Competent Authority, the relevant facts which would guide the Competent Authority in the summary inquiry are laid down in clauses (a) to (c) of Sub Section (4) of Section 22. In addition to clauses (a) to (c) of Section 22(4), Rule 4 of Rules of 1972 sets out the other factors to be considered i.e. whether the Applicant has acted out of malice or personal feud or deliberately to prevent the occupier from claiming accommodation in re-developed building.
18. Considering the statutory provisions conjointly makes it Shubham Talle 14 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc clear that the legislative intent is to protect the slum dweller from proceedings actuated by malice and to ensure that the slum dweller, if evicted, is able to procure alternate accommodation. The factors set out in clauses (a) to (c) of Section 22(4) have been held to be disjunctive and thus even if one factor is satisfied the others need not be considered.
19. In view of the prescribed format of the application to be filed before the Competent Authority, it is not necessary to plead the relevant factors in the application. The duty is upon the Competent Authority to consider the relevant factors while granting or refusing permission.
20. The Apex Court in Punnu Ram vs. Chiranji Lal Gupta 8 while considering the provisions of Section 19(4) of Slum Areas (Improvement and Clearance) Act, 1956, which is para materia with the pre-1987 unamended Section 22 of Slums Act, held that the factors to be considered by the Competent Authority are independent and if one factor is satisfied it is not necessary for the other factor also to be satisfied. The decision was followed by Division Bench of this Court in the case of Chanchalben Amritlal Patel vs. Deputy Collector (ENC) & Competent Authority9 holding that even if single factor out of clause
(a) to (c) of Sub-Section 4 of Section 22 is satisfied then there is no 8 (1999) 3 SCC 273.
9 2005 (3) Mh. L. J. 834.
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FINDINGS OF COMPETENT AUTHORITY:
21. Coming to the findings of the Competent Authority, the Competent Authority has taken clauses (a) and (b) of Section 22(4) as issues for determination and proceeded to decide the same. The inquiry is not confined to the determination of these two issues but requires an overall assessment of the circumstances of the case to ensure protection of slum dwellers against eviction. The findings of the Competent Authority on the determination of clauses (a) and (b) of Section 22(4) can be broadly summarized as under:
(a) There is no evidence produced by the Respondent No 1 about the financial capacity of Petitioner.
(b) The transit rent for the subject area is ordinarily between Rs 6,500/ to 12,000/. A person spends around 30% to 40% of his income on his residential accommodation and thus if the monthly income is Rs 25,000/ to Rs 30,000/, an alternate accommodation can be procured in the subject area.
(c) If the income of the occupier would have been in the said range, the Shubham Talle 16 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc Respondent No 1 would have produced the I.T. returns etc, which is not done.
(d) The Petitioner has been held as eligible under the proposed SRA Scheme and the eviction of Petitioner under any law other than the Slum Act is not in interest of improvement and clearance of slum area.
22. As the inquiry is summary in nature, it is not necessary for evidence to be led by the parties, however, for the Competent Authority to arrive at a decision all material facts are required to be placed by the parties before the Competent Authority. In the present case, the Respondent No 1 has placed the decisions of the Courts ordering eviction to support his application and had submitted that the Petitioner is having the financial means to obtain alternate accommodation as he is in receipt of retirement benefits and is also employed after retirement. On the other hand, the Petitioner's submission is that he is an aged person and is financially incapable. There is no material placed by either parties on the basis of which the financial incapability of the Petitioner could have been assessed. It was case of word against word. The financial capacity of the Petitioner, the necessary details about the family members, their source of income, the Petitioner's income and the collective means was within the knowledge of the Petitioner, which was not been placed before the Competent Authority by the Petitioner. In such circumstances, the Shubham Talle 17 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc inevitable conclusion would be that the Petitioner is having sufficient means to obtain alternate accommodation by drawing adverse inference.
23. On the contrary, the Competent Authority has on hypothetical analysis held that the income of the Petitioner is required to be in the range of Rs 25,000 to Rs 30,000/ for procuring an alternate accommodation. Apart from the fact that the findings are based on surmises and conjectures, it is not the monthly income of the Petitioner which has to be considered but the means which the Petitioner possess to obtain alternate accommodation. As these details are especially in the knowledge of the Petitioner and had not been placed before the Competent Authority, adverse inference was required to be drawn. Secondly there is no warrant for the presumption that alternate accommodation referable to an accommodation in the same vicinity of the subject premises.
24. While considering whether the eviction is in interest of improvement and clearance of slum area, the Competent Authority has considered the eligibility of the Petitioner in the slum scheme. There is no finding as to why the eviction of an eligible occupier would be against the interest of the entire slum scheme. The order of Competent Authority proceeds on the basis that the twin requirement of clauses (a) and (b) of Section 22(4) are required to be satisfied.
Shubham Talle 18 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc Firstly the Petitioner has failed to produce any evidence to demonstrate his financial incapability and secondly there is no finding as to how the eviction would benefit or impede the slum scheme.
25. The Competent authority failed to consider the factors set out in Rule 4 of Rules of 1972 and that the proceedings for eviction were commenced prior to the notification under Section 4 of the Slums Act and the area was declared as slum during the pendency of the Appellate proceedings. It was thus not a case of malice or intent to deprive the Petitioner of his right to be allotted accommodation in the re-developed building. The Respondent No 1 was seeking to reap the benefits of his decree passed on grounds of non payment of rent and unauthorised additions and alterations. The suit was of the year 1995 and the notification of slum was issued in the year 2012 when the appellate proceedings were pending. Upon overall consideration of the facts of the case, the Competent Authority erred in declining to grant permission.
26. In the present case the Small Causes Court had decreed the suit for eviction on grounds of non payment of arrears of rent and had directed payment of the arrears of rent. In the facts of the case, the factors required to be considered by the Competent Authority was firstly whether the eviction is actuated by malice in order to deprive the slum dweller of alternate accommodation in the re-developed Shubham Talle 19 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc building, secondly whether the Petitioner had the means to obtain alternate accommodation and thirdly whether the Petitioner was willing to pay the arrears of rent. As far as the first factor is concerned, the suit for eviction was filed in the year 1995 and the notification under Section 4 of Slum Act was issued in the year 2012. Therefore there was no question of the action being actuated with malice. Secondly the financial incapability was not established by the Petitioner by placing cogent material on record and resultantly, by drawing adverse inference, the inevitable conclusion is that the Petitioner was financially capable of securing alternate accommodation. The Respondent No 1 could not be expected to place material about the said fact before the Competent Authority. And, thirdly, there was no attempt by the Petitioner to make payment of the arrears of rent. All these circumstances when assessed leads to the conclusion that the permission could not be withheld.
27. The Appellate Authority has considered the decisions of Small Causes Court in context of Rule 4 of Rules of 1972. As regards the pleading about the financial ability of the Petitioner to obtain alternate accommodation, the Appellate Authority has rightly held that strict rules of pleading are not applicable considering the limited applicability of the civil procedure code under Section 45 of Slums Act.
28. The Appellate Authority has rightly considered that the Shubham Talle 20 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc Petitioners had failed to produce any evidence in respect of the financial condition of the Petitioner, whereas the Respondent No. 1 has submitted that the Petitioner is retired and doing job and also doing business of clothes.
SECTION 14 OF LIMITATION ACT, 1963:
29. Instead of preferring the statutory Appeal under Section 23 of Slums Act, the Respondent No 1 filed a Writ Petition before this Court which came to be disposed of on 1 st February, 2018 in view of the submission made that the Appeal under Section 23 would be preferred. Section 23 provides that an appeal may be filed within a period of thirty days from the date of order of Competent Authority, which was dated 23rd January, 2015 and the Appeal was filed in or around February, 2018 after the disposal of the Petition.
30. The limitation clause in the Appeal pleaded that the Appellant had approached the Tribunal as directed by the High Court expeditiously. Admittedly there is no separate application filed seeking condonation of delay. Section 14 the Limitation Act provides for exclusion of time of proceedings bonafide in Court without jurisdiction and provides in sub Section 2 of Section 14 that in computing the period of limitation the time during which the Applicant has been prosecuting with due diligence another civil proceeding whether in Court of first instance or of Appeal or revision against the same party Shubham Talle 21 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc for the same relief shall be excluded where such proceeding is prosecuted in good faith in Court which from defect of jurisdiction or other cause of like nature is unable to entertain it. The Section applies for the purpose of computing the period of limitation and is distinct and different from an Application which is required to be filed under Section 5 of the Limitation Act for extension of prescribed period by condoning the delay as in that case the Applicant is required to satisfy the Court about the sufficient cause for not preferring the Appeal within the prescribed period. Section 45 of the Slums Act makes the provisions of Section 4,5, 12 and 14 applicable to the filing of appeal to the Tribunal under the Slums Act.
31. It was not necessary for the Respondent Nos. 1 to 5 to file a separate Application for condonation of delay under Section 5 of Limitation Act in view of Section 14 of Limitation Act. The Appellate Authority after recording the submissions of the parties on applicability of Section 14, has considered that the Respondent No. 1 had filed Writ Petition in the year 2015 which was disposed of in the year 2018 and thereafter the Appeal was filed. The Appellate Authority has excluded the time spent in prosecuting the proceedings before this Court in computing the period of limitation. The Appellate Authority has not construed the order of the High Court as granting liberty but has considered the provisions of Section 14 of the Limitation Act.
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32. The Apex Court in case of Consolidated Engineering Enterprises Vs Principal Secretary, Irrigation Department 10 was considering the applicability of Section 14 of Limitation Act to proceeding under Section 34 of Arbitration and Conciliation Act, 1996. It was observed in paragraph 22 as under:
"22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the Court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect or procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its 10 (2008 (7) SCC 169 Shubham Talle 23 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded"
(Emphasis supplied)
33. The above decision enumerates the legislative intent of Section 14 which is to afford protection to a litigant against the bar of limitation where the proceedings are being prosecuted bonafide before a wrong Court. It is well settled that there are no fetters on exercise of writ jurisdiction by the High Court and the rule of alternate remedy is a self imposed restriction by the High Court. Even if the filing of Petition under Article 226/227 of Constitution of India cannot be said to have been instituted in a Court suffering from defect of jurisdiction, as held by the decision of Apex Court noted above, the provisions have to be applied to advance the cause of justice. Though the wordings of Section 14(2) uses the expression "in a court which, from defect of jurisdiction or other causes of a like nature is unable to entertain it" the Apex Court in the above noted decision, has given an expansive meaning by including a wrong court in consequence of bonafide mistake of law or defect or procedure. It cannot be disputed that the proceedings before this Court were being bonafide prosecuted by the Respondent No 1 and upon being relegated to the alternate remedy, Section 14 of Limitation Act will apply for excluding the period spent in prosecuting the Petition before the High Court.
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34. Coming to the decisions which are cited by the Learned Counsel appearing for the Petitioner :-
35. In the case of Laxmi Ram Pawar vs. Sitabai Balu Dhotre (supra) the Apex Court has held that the provisions contained in Section 22 are salutary in light of the scheme of 1971 Act and have to be followed. There is no dispute about the said proposition.
36. In Zafar Khan vs. Board of Revenue, U.P. (supra), the Appellants had moved an application for restitution under Section 144 of CPC before the Sub Divisional Officer who opined that as the rival claims were decided under the Consolidation Act of 1953, he has no jurisdiction to re-open the proceedings concluded before the Authorities under the 1953 Act. The matter was carried right upto the High Court and was dismissed holding that the Appellants ought to have approached the authorities under the 1953 Act. The Appellants thereafter filed suit claiming possession in which objection to limitation was taken. While considering Section 14 of Limitation Act, the Apex Court held that there is no denial that the authority to whom the application for restitution was made had the jurisdiction and therefore the previous proceeding did not fail on account of defect of jurisdiction but the relief was declined on merits. The facts of the present case are clearly distinguishable as in this case the High Court Shubham Talle 25 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc invoked the rule of self imposed restriction and relegated the party to the alternate remedy.
37. The decision in the case of ASGAR vs. Mohan Varma (supra) lays down that granting liberty to the parties to pursue appropriate remedy would encompass both the ability of the appellants to take recourse and of the respondents to raise necessary defences to the invocation of the remedy. There is no quarrel with the said proposition. In the present case, the Appellate Authority has excluded the time spent in prosecuting the proceedings before the High Court and did not construe the order of High Court as liberty granted and therefore the decision does not assist the case of the Petitioner.
38. The decision in the case of Mukund Ltd. vs. Mukund Staff & Officers' Association (supra) is pressed on the point of law that in the absence of plea no amount of evidence led in relation thereto can be looked into. It is well settled proposition of law which is sought to be applied in the present case to contend that the Respondent No. 1 has not pleaded about the financial inability of the Petitioner. As discussed above, the application is required to be in the prescribed format and irrespective of the pleadings in the application, the relevant factors are required to be considered by the Competent Authority.
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CONCLUSION:
39. The application under Section 22 of Slums Act is required to be in a prescribed format as appended to the Rules, which provides for setting out the details for seeking permission to execute the decree of eviction. Irrespective of the pleadings in the Application, the Competent Authority while deciding whether to grant or refuse permission to execute the decree is required to take into consideration the relevant factors contained in clauses (a) to (c) of Sub Section (4) of Section 22 of Slums Act which are disjunctive. In addition Rule 4 of the Rules of 1971 provides for additional factors to be considered by the Competent Authority. The duty is cast upon the Competent Authority to conduct a summary inquiry considering overall circumstances of the case by factoring the relevant factors laid down by the statutory provisions.
40. In the present case, the means of the Occupier was within the personal knowledge of the Occupier and having failed to place any material on the basis of which it could be held that the Occupier was financial incapable of obtaining alternate accommodation, the Competent Authority erred in coming to a finding of financial incapability based on surmises and conjectures. The Competent Authority failed to notice that there was no intent to deprive the Petitioner of his right to obtain a re-developed premises under the Shubham Talle 27 of 28 ::: Uploaded on - 28/01/2025 ::: Downloaded on - 28/01/2025 23:10:37 ::: Final-WP-7107-2022-2.doc Slum Scheme as the notification under Section 4 of Slums Act was issued in the year 2012 during pendency of appellate proceedings whereas the eviction proceedings were initiated in the year 1995 on ground of arrears of rent and unauthorized additions and alterations. The overall circumstances demanded the permission to be granted for executing decree of eviction.
41. As the Respondent No 1 was bonafide pursuing the Petition filed in this Court against order of Competent Authority, the Appellate Authority has rightly excluded the period for purpose of computation of period of limitation under Section 14 of Limitation Act, 1963 and it was not necessary for separate application for condonation of delay to be filed.
42. In light of the above, there is no merit in the Petitions. All three Petitions stands dismissed. Rule is discharged in all Petitions.
43. In view of the disposal of Writ Petition, nothing survives for consideration in the pending Civil/Interim Applications and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
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