Mohd. Salim Fateh Mohd. Ansari v. The State Of Maharashtra Through The Addl. Collector (Enc. Rem) And ANR.

Shailaja

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 10518 OF 2018 Mohd. Salim Fateh Mohd. Ansari ] Petitioner Vs.

The State of Maharashtra and another.

] Respondents .....

Mr. Ram U. Singh, for Petitioner.

Mr. Y.D. Patil, A.G.P, for Respondent No.1.

Mr. Santosh Parad i/b Jernold J. Xavier, for Respondent No.2-B.M.C. .....

CORAM : R.G. KETKAR, J.

DATE : 10th DECEMBER, 2018.

P.C.

Heard Mr. Singh, learned Counsel for the petitioner, Mr. Patil, learned A.G.P, for respondent No.1 and Mr. Parad, learned Counsel for respondent No.2-B.M.C at length.

2.

By this Petition under Article 227 of the Constitution of India, the petitioner has challenged the orders;

dated 12th April, 2018 passed by respondent No.2-Assistant Municipal Commissioner & Competent Authority, M/East Ward, Mumbai as also dated 21st June, 2018 passed by Additional Collector (Enc/Rem) Eastern Suburbs, Mumbai.

Respondent No.2 passed final order on 12th April, 2018 under section 3Z-1 (4) of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 (for short 'Slum Act') directing the petitioner to demolish unauthorized structure failing which appropriate action will be taken under

section 3Z (6) of the Act. Aggrieved by these orders, the petitioner preferred appeal under section 35 of the Act before the Additional Commissioner. 3.

By order dated 21st June, 2018, Additional Collector directed the petitioner to approach the Competent Authority for establishing eligibility. The petitioner is directed to submit documents within 15 days. The Competent Authority is further directed to take appropriate decision within 3 months about eligibility of the petitioner.

4.

Rule. Mr. Patil waives service on behalf of respondent No.1 and Mr. Parad waives service on behalf of respondent No.2. Having regard to the narrow controversy raised in this Petition as also at the request and by consent of learned Counsel for the parties, Rule is made returnable forthwith and Petition is taken up for final hearing.

5.

In support of this Petition, Mr. Singh invited my attention to the notice dated 11th April, 2018 issued by respondent No.2 under section 3Z (1) of the Act calling upon the petitioner to show cause as to why unauthorized structure should not be demolished. The petitioner was called upon to file reply within 24 hours along with the documents in support of his claim. He submitted that in pursuance thereof, on 12th April, 2018, the petitioner filed reply which was received on the same date by the 2nd respondent enclosing therewith; Rent Receipt Gumasta Licence [3] Ration Card [4] Aadhar Card [5] Electric bill [6] Police complaint [7] PAN Card

[8] Certificate issued by the Police [9] Affidavit of loss of documents.

6.

By order dated 12th April, 2018, respondent No.2 held that the petitioner's structure is not protected as the petitioner is not eligible. Mr. Singh submitted that respondent No.2 did not consider the documents submitted by him as also did not give any reason save and except by observing that the reply given by the petitioner is not satisfactory and that the documents submitted by the petitioner are not valid. As respondent No.2 did not consider the documents furnished by the petitioner, order passed by respondent No.2 deserves to be set aside.

7.

In so far as the Appellate Authority is concerned, the Appellate Authority directed the petitioner to submit the documents before the Competent Authority within 15 days and the Competent Authority was directed to decide eligibility of the petitioner within 3 months. 8.

Mr. Patil and Mr. Parad supported the impugned orders. They submitted that as the Appellate Authority has directed the petitioner to furnish the documents, no case is made out for interfering with the impugned orders. 9.

I have considered rival submissions advanced by the learned Counsel for the parties. I have also perused the material on record. A perusal of the order dated 12th February, 2018 passed by respondent No.2 shows that it is not a speaking order. Respondent No.2 has also not considered each document and has also not indicated how the documents are invalid. As respondent No.2 has not passed a speaking order, the order dated 12th April, 2018 deserves to be set aside. Resultantly challenge to the order dated 21st December, 2018 does not survive.

10.

Mr. Patil submitted that the petitioner has to furnish the documents in terms of Form Annexure-3 along with the documents and affidavit as laid down in Government Resolution dated 16th May, 2015 issued by Housing Department of Maharashtra Government. Mr. Singh assures that within two weeks from today, the petitioner will file appropriate application and will furnish the documents as per Annxure-3 of the G.R dated 16th May, 2015 as also file Affidavit in terms of that G.R.

11.

In view thereof, the Petition is disposed of in the following terms; The impugned orders are set aside.

The petitioner shall submit the documents in terms of annexure-3 of the G.R dated 16th May, 2015 and file affidavit before respondent No.2 within 2 weeks from today.

[3] Respondent No.2 shall consider each document furnished by the petitioner and pass a reasoned order. Let that exercise be done within 3 months from the receipt of information.

[4] Rule is made absolute accordingly with no order as to costs.

[R.G. KETKAR, J.]