MADHUKAR SHANKAR PARSEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. Rule. By consent, the rule is made returnable forthwith. The petitioner challenges the order dated 24th May, 2006 passed by the Administrator & Divisional Commissioner, Konkan Division, Mumbai, whereby the petitioner is directed to vacate the premises and to hand over the possession of the land occupied by his structure as well as to shift to the alternative accommodation provided by the respondent No.5 herein.

(2.) The challenge to the impugned order is three-fold. Firstly that the lower appellate authority did not give sufficient opportunity to the petitioner of being heard in the matter in as much as that his request for adjournment of the hearing was rejected. Secondly that the order which was sought to be challenged before the lower appellate authority was issued by an officer who was not authorised under the law to issue the said order and this fact was totally ignored by the lower appellate authority inspite of the specific objection being taken in that regard in the memo of appeal, and thirdly that inspite of the materials on record disclose that the structure of the petitioner occupies an area admeasuring 1460 sq.ft., in the alternative, he was sought to be allotted an area of 225 sq.ft.

(3.) The learned advocate appearing for the petitioner placing reliance in the unreported decision of the Division Bench in the matter of Om Sai Darshan Cooperative Housing Society & Another v. The State of Maharashtra & Others, in the Writ Petition No.910 of 2005 delivered on 26th April, 2006 submitted that the proper authority to issue an order in terms of the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, hereinafter called as "the Slum Act", was the Chief Executive Officer, and therefore, neither the Deputy Collector nor any other officer could have issued the order which was sought to be challenged before the lower appellate authority. Attention was also drawn to the memo of appeal filed before the lower appellate authority wherein a specific ground in that regard was raised by the petitioner. He further submitted that the ration card of the petitioner clearly discloses that the area occupied by the petitioner s structure was more than 1400 sq. ft., and therefore, there was no justification for the authority to provide alternative accommodation of an area of 225 sq. ft. He further submitted that when the matter came up before the lower appellate authority the advocate for the petitioner could not appear, and therefore, the petitioner sought adjournment in the matter but the lower appellate authority refused to grant adjournment and compelled the petitioner to argue the matter, as a result of which the petitioner could not place all the facts on record before the lower appellate authority, nor point out the provisions of law which had resulted into great prejudice to the petitioner.