Quashed

Mr. Tahir Guldar v. State of Maharashtra and Ors.

Bombay HC13 Jun 2013WP/2510/2013

Case brief

AI extract

What is this about?

The Bombay High Court quashed an order rejecting a petitioner's appeal for dwelling eligibility. It directed the Directorate of Slum Rehabilitation to reconsider the petitioner's birth certificate, construing its date as the registration date (1996) despite issuance in 2012.

What did the court decide?

Quashing of impugned orders; Direction to Deputy Collector to reconsider eligibility within six weeks.

Mr. Tahir Guldar Vs State of Maharashtra and… — Pension and Retirement Benefits | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.2510 OF 2013

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Tahir Guldar .. Petitioner

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Vs. State of Maharashtra & Anr. .. Respondents

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Mr. Mohammed Akbar Ansari for the Petitioner. Mrs. M.S. Bane, AGP for Respondent Nos.1 to 3.

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CORAM : N.M. JAMDAR, J. DATE : 13 JUNE 2013

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P.C. :

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. Rule. Rule made returnable forthwith. By consent taken up for hearing. Learned AGP waives service for Respondent Nos.1 to 3.

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By this Petition,the Petitioner challenges the order passed by Respondent No.2-Administrator and Commissioner, Konkan Division, dated 12 June 2012. Respondent No.2 by the impugned order rejected the appeal filed by the Petitioner under Section 35 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971.

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The case of the Petitioner is that the Petitioner was residing in a hut at Indira Nagar Pipeline Zopadpatti, K.C. Marg, Bandra (west), Mumbai and the hut was in existence prior to year 2000. The hut was situated on the bank of Mithi river. By order dated 31 March 2006, the Competent Authority held the Petitioner to be ineligible for benefit of the government policy. The Petitioner thereafter, filed an appeal before the Divisional Commissioner which was remanded back to the Competent Authority. Thereafter, there were certain proceedings and final order

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came to be passed by the Competent Authority on 21 September 2011. The Petitioner filed an appeal before the Divisional Commissioner under Section 35 of the Act.

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During the Appeal proceedings, the Petitioner produced a birth certificate of his daughter Raziya Taher Gulzar. The birth certificate of his daughter showed the address of the Petitioner as Indira Nagar Pipeline Zopadpatti, R.N.146, K.C. Marg, Bandra (west), Mumbai. The Divisional Commissioner rejected the appeal filed by the Petitioner on the ground that though the Petitioner’s daughter was born on 23 October 1996 and the registration of birth was done on 31 December 1996, the certificate issued on 4 April 2012 which, being after the relevant date of 1 January 2000, cannot be considered.

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The learned Counsel for the Petitioner has relied upon the order passed in Writ Petition No.109 of 2013 dated 18 March 2013. The learned Counsel submits that the facts in the present case and the facts in Writ Petition No.109 of 2013 are identical. The learned Counsel submits that by the order passed in the said Writ Petition, the Court has remanded the proceedings back to the Competent Authority to consider the birth certificate in its proper prospective after holding that the date of registration of the birth will be of relevance.

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Relevant paragraph Nos.5, 6, 7 & 8 of the order dated 18 March 2013 in Writ Petition No.109 of 2013 are reproduced hereinbelow :-

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“5. The Petitioner thereafter filed an Appeal before Respondent No.2-Divisional Commissioner under

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Section 35 of the Act. During the Appeal proceedings, the Petitioner produced birth certificate of his son, showing the address of the hut. The Divisional Commissioner rejected the birth certificate on the ground that though the son was born on 24 March 1999 and the address shown is of the Petitioner’s hut, but the certificate was issued on 23 January 2012 i.e. after 1 January 2000 and, therefore, the document cannot be considered. The Divisional Commissioner also held that the birth certificate is a weak evidence and on the basis of such sole piece of evidence, the Petitioner cannot be held eligible. The Petitioner has challenged these orders.

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6. The learned Counsel for the Petitioner submitted that the birth certificate, though was issued on 23 January 2012, the certificate itself indicates that the Petitioner had registered the birth of his son on 10 June 1999. The learned Counsel relied on a Government Resolution dated 14 May 1998 wherein birth certificate is considered as one of the evidence which can be produced to demonstrate the eligibility.

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7. Perusal of the impugned order indicates that the Divisional Commissioner has not considered the fact that though the certificate was issued on 23 January 2012, registration of birth was done on 10 June 1999 and, therefore, even though document was issued on 23 January 2012, it will have to be construed to relate back to the date of registration i.e. 10 June 1999.

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8. In view thereof, it will be appropriate that if the matter is remanded back to authorities to consider the birth certificate produced by the Petitioner in its proper prospective. As far as the issue as to whether the birth certificate by itself can be the sole evidence of eligibility is concerned, the issue is left open to be decided by authorities,who will consider same as per law and policy.”

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In the present case also the Commissioner has refused to consider the certificate on the ground that the certificate was issued in

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the year 2012, completely ignoring that the registration of birth was of the year 1996. The petitioner had registered the birth of his daughter in the year 1996 giving address of the present hut and accordingly entry was made in the register. The document issued in the year 2012 certifies the fact that entry was made in the year 1996. Evidential value and construction of a document may differ depending on the nature of the proceedings. Considering the nature of the present proceedings,though the document is obtained in the year 2012 it will have to be construed to relate back to the date of registration i.e. 13 December 1996. The learned AGP submits that in No.109 of 2013, this court had kept the issue as to whether only a birth certificate can be termed as enough evidence open to be decided by the authorities.

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In view thereof it will be appropriate that if the matter is remanded back to authorities to consider the birth certificate produced by the Petitioner in its proper prospective. As far as the issue as to whether the birth certificate by itself can be the sole evidence of eligibility is concerned, the issue is left open to be decided by authorities, who will consider the same as per law and policy.

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Accordingly, the impugned orders passed by the Respondent Nos. 2 & 3 are quashed and set aside. Respondent No.3-Deputy Collector is directed to reconsider the issue of eligibility of the Petitioner in light of what is stated above, within a period of six weeks from today.

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Petition is disposed of in above terms.

Mr. Tahir Guldar v. State of Maharashtra and Ors.

Case brief

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Mr. Tahir Guldar v. State of Maharashtra and Ors.

Case brief

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