Bhanwarlal Motilal Doshi Vs State of Maharashtra and Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3933 OF 2007

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WITH

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WRIT PETITION NO.3987 OF 2007

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Bhanwarlal Motilal Doshi.. Petitioner

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Versus

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State of Maharashtra & Ors... Respondents

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Mr.S.U.Kamdar with Mr.C.N.Gole for petitioner
Mr.K.K.Singhvi, Senior Advocate with

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Ms.Madhavi Tavnandi for respondent Nos. 4 to 7.

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CORAM : S.C.DHARMADHIKARI, J.

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DATE : 6th September 2007.

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P.C.

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.Rule. Respondents waive service. By

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consent Rule made returnable forthwith.

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2.This petition is directed against the

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order passed by the President of the Slum
Clearance Tribunal on 13th December 2006 in
Appeal No.26 of 2005.

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3.The impugned order was passed pursuant to
the directions of this Court and on remand. The
above Appeal was preferred by the contesting
respondent Nos. 4 to 7 in Writ Petition No.3933
of 2007 challenging the declaration of the area
as a Slum Area under the Maharashtra Slum
(Improvement, Clearance and Re-development) Act,
1971.

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4.Mr.Kamdar learned Counsel appearing for
petitioners does not challenge the order of the
President to the extent that it remands the
case\matter back to the competent authority but
he impugns the directions issued while remanding

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the case. He submits that the directions in the
operative order of sub-clauses (a), (c) and (d)
would make it impossible for the competent
authority to declare the area as slum. He
submits that the well settled principle is that
none can control the exercise of a discretion by
competent authority much less by a judicial
order. Neither a Administrative nor judicial
order can direct that the competent authority
should exercise its discretion in a particular
manner. In such circumstances and when the
statute does not provide for pre-decisional
hearing to all occupants and concerned person,
the scope of the enquiry cannot be widened by
such sweeping directions.

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5.Mr.Singhvi, learnedSenior Counsel

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appearing for original appellants\respondents
Nos. 4 to 7 before me submits that the impugned
order does not require any interference under
Article 227 of the Constitution of India as the

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President was well within his powers to issue
said directions. All that the President has
ensured is compliance with the principles of
natural justice when the property is being
declared as slum. In these circumstances, no
interference is permissible when the order is not
suffering from any error on the face of record
nor can be termed as perverse. Consequently, the
petition be dismissed.

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6.I have perused the impugned order and the
direction, with the able assistance of the
learned Counsel for both sides. The directions
which are subject of some dispute can be
conveniently reproduced hereunder :-

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"(a)Respondent Competent Authority
shall issue show cause notice to all the
Appellants and all the occupants and the
interested, affected and concerned
persons and parties in respect of the

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said area;

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(c)TheRespondentCompetent
Authority shall give intimation to the
appellants and concerned parties before
proceeding for site inspection;

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(d)TherespondentCompetent
Authority shall also give opportunity of
hearing to the appellant and all the
concerned parties and to produce
necessary documents and materials."

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7.In my view, there is substance in the
complaint of Mr.Kamdar that when there is a
Registered Body of occupants which was
representing the occupants and residents of the
slum area in question. In the Appeal before the
President, then, in the facts and circumstances
of the present case, the President could not have
directed that individual notices be issued to the

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occupants. Even otherwise, there is substance in
the complaint that the direction is rather vague.
Once the notice is directed to be issued to the
occupants, then, one fails to understand what
does the learned President means by the words
"Interested, affected and concerned persons and
parties".

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8.Ultimately, persons residing in the slum
structures or the areas are the affected persons.
There may be cases where somebody else is
required to be given notice. However, that is
not clear from the directions.

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9.Insuchcircumstances, directing
individual notice when there is representative
body of occupants appearing before the Appellate
Tribunal, was wholly unnecessary. Similarly, for
the site inspection, once again directing notices
to be issued individually would delay the entire
exercise. The President ought to have been aware

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of the fact that the powers, even discretionary,
have to be exercised within the four corners of
the Statute and the Rules in question. One
cannot sub-plant or substitute anything which the
Statute expressly does not provide. While, it
may be permissible to read into the statute,
principle of natural justice in a particular
case, but, while doing so, it is not permissible
to enlarge the ambit and scope of the enquiry by
including in it persons unconnected therewith.
The sweeping and wide directions of the nature
issued in the present case are likely to create
confusion. The learned President ought to have
indicated very clearly as to whether the
competent authority is at all obliged to give a
hearing to all concerned, viz., the owners and
all occupants or whether the provisions of an

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Appeal being provided by the Statute, by
necessary implication, hearing is ruled out at
the pre-decisional stage. Thus, without
indicating in any manner as to whether such is

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the mandate of the statute or otherwise, the
learned President ought to avoided issuance of
sweeping directions.

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10.These observations had to be made by me
because Mr.Kamdar brings to my notice that in
case the number of occupants exceeds 100 or 1000,
then, the competent authority may take months and
year to complete the exercise of issuing
individual notices as contemplated. The
Legislature never intended that the exercise
should be delayed endlessly so that the purpose
of inserting provisions which are beneficial in
nature is wholly defeated. Learned President,
hereafter to issue such directions with caution
and should justify them by cogent reasons. I do
not want to in any manner lay down principles
which would guide him in all cases and control
his authority in that behalf. Ultimately,
everything would depend upon the facts of each
case.

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11.In the present case, the directions can
safely be modified by directing that the notice
contemplated by the directions would be issued
through the registered body represented by the
petitioner before me and a copy thereof shall be
pasted at a prominent place in the area so as to
bring to the notice of all concerned occupants
that the exercise contemplated in the notice is
likely to be undertaken and that they are
permitted to appear at a site inspection, if one
is to be held. Therefore, the impugned order is
maintained with all directions, save and except
stating therein that the notice contemplated
shall be issued to the petitioner and a copy
thereof shall be pasted at a prominent place in
the area. No individual notice need be given to
the occupants. Rule is made absolute to the
above extent. Petition disposed of. No costs.

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(S.C.DHARMADHIKARI, J)

Bhanwarlal Motilal Doshi v. State of Maharashtra and Ors.

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Bhanwarlal Motilal Doshi v. State of Maharashtra and Ors.

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