PAPAYA CHINAYA MUTHWAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this writ petition, the petitioner has challenged the legality and validity of a notification dated 15-6-1988 issued by the Deputy Collector (ENC) and Competent Authority, Borivali under section 4 (1) of the Maharashtra Slum Areas (Imporvement, Clearance and Redevelopment) Act, 1971 ("the Act"), declaring areas specified therein as a slum imporvement area and a communication dated 16-8-1988 addressed to the petitioner informing about the issue of the said notification. The challenge is on two grounds : First, that a similar notification issued on 21-4-1983 by the Competent Authority was set aside by the Appellate Tribunal constituted under the Act by judgment dated 19-10-1984 in Appeal No. 34 of 1984, on the ground that there were sufficient facilities available for the population residing over the property in question and, as such, declaration of the area as Slum Area was not justified : Second, that there is no change in the factual circumstances that existed at the time of passing of the earlier notification which was set aside by the Tribunal. That being so, the issue of fresh notification under the very same provision tentamounts to abuse of power under section 4 (1) of the Act.

(2.) THERE is no dispute about the fact that in respect of the very same property a notification under section 4 (1) of the Act had been issued by the Competent Authority earlier on 21-4-1983 which was set aside by the Tribunal on the ground that the conditions precedent for declaration of a particular area as slum area were not present. In that view of the matter, it may not be necessary to set out the facts of the case in details.

(3.) THE contention of the respondents is that the fresh notice which was issued to the petitioner to show-cause against the issue of the impugned notification dated 15-6-1988 is based on fresh material which had come in its possession subsequent to the order of the Tribunal and that being so, there is no provision in the Act which prohibits the competent authority from taking fresh action under section 4 (1) of the Act. The submission, in other words, is that the setting aside of the order by the Tribunal does not operate as fetters on the exercise of powers of the authority under this section for all times to come, if fresh developments take place which justify the declaration of the area as a slum area. So far as the second contention is concerned, the contention of the respondents is that they had material in their possession which fully justified the issue of the fresh notification under section 4 (1 ). Reference was made in this connection to the Surveyors report dated 26-2-1988 and a Joint Inspection report dated 29-4-1988.