Kanya Khemaram Choudhary v. The Tahsildar, Borivali And 4 ORS

oswp497.doc ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.497 OF 2018 Kanya Khemaram Choudhary

...Petitioner

vs.

The Tahsildar, Borivali & Ors.

...Respondents

Mr.S.N.Gawde I/b M/s.Shree & Co. for the Petitioner Mr.Amit Shastri, AGP for the respondent-State CORAM : A.S.OKA, & M.S.SANKLECHA,JJ.

DATE : MARCH 14, 2019 P.C.:

Rule. The learned AGP waives service for the respondent. Forthwith taken up for disposal.

The challenge in this petition under Article 226 of the Constitution of India is to the order made by the Additional Collector (Encroachment), Western Suburbs by which the appeal preferred by the petitioner against a public notice dated 30th May 2017 has been dismissed as not maintainable. The Appeal was preferred under section 35 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "the said Act of 1971"). The appeal is dismissed by the impugned order on the ground that the impugned notice challenged in the Appeal is not issued in exercise of the powers under the said Act of 1971.

oswp497.doc We have carefully perused the impugned notice. It clearly incorporates that it is issued in exercise of the powers under section 3(z)(2)(4) of the said Act of 1971.

Hence, the impugned order shows non application of mind. The Appeal was maintainable. Therefore, the impugned order deserves to be set aside.

Accordingly, we dispose of the petition by passing the following order:

(I) The impugned order dated 29th September 2017 (Exhibit-I) is hereby quashed and set aside;

(II) The appeal preferred by the petitioner is restored to the file of the Appellate Authority;

(III) We direct the petitioner to appear before the Appellate Authority on 27th March 2019 at 11.00 a.m for fixing the schedule of hearing; (IV) Rule is made partly absolute on above terms;

(V) All contentions on merits are kept open;

(VI) All concerned to act upon an authenticated copy of this order.

(M.S.SANKLECHA,J.) (A.S.OKA,J.)