SATISH SHAHU BANE Vs. DATTATRAYA TANAJI PADAM

JUDGEMENT

(1.) By Order dated 19th October, 2001, the matter was directed to be placed before the larger Bench in light of the contrary views taken by two learned Single Judges of this Court on the issue of the effect of a declaration under Section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 being set aside after institution of a suit and its effect on the maintainability of a suit.

(2.) In case of Abdul Basu v. Smt. Teresa Rozario and Ors. (WP 848/1980) decided on 8th July 1985, the Single Judge of this Court (B.C. Gadgil, J.) held that once the notification under Section 4 of the Maharashtra Slum Act is set aside, the very effect of it is washed away and, consequently, there was no prohibition against filing of the suit without permission of the competent authority. The necessary fact involved in the case disclose that a suit came to be filed by Respondent No.2 against the Petitioner for eviction on the allegation that Abdul Basu had fallen in arrears of rent of residential premises in Mumbai. The notice issued by Teresa to clear the arrears did not yield any result and the suit came to be filed in December, 1977. No Written Statement was filed by the Defendant, though he was served, nor did he put his presence when the suit was fixed for hearing. Resultantly, suit proceeded ex-parte and a decree of eviction was passed on 12th April, 1979. Teresa executed the decree and secured possession on 10th May, 1979. On 22nd May, 1979, Abdul filed a Miscellaneous Notice against the ex-parte decree and raised an objection that there was no permission obtained from the competent authority as contemplated under Section 4 of the Act of 1971 and the suit was, therefore, not maintainable. The Miscellaneous Notice, setting aside the ex-parte decree on the ground of lacunae pointed out, resulted in filing of revision which was allowed on 5th February, 1980. The Revisional Court based its decision on a factual aspect that the Notification dated 9th September, 1977 declaring the premises as Slum Area was quashed and set aside on 7th December, 1979. In an Appeal filed under the Slum Act, the ex-parte decree was therefore confirmed. In the backdrop of these facts, the learned Single Judge (B.C. Gadgil, J) held that once the Notification is set aside, its effect gets withered away and the bar created for instituting the suit with the previous permission of the competent authority loses its sanctity.

(3.) The second judgment is in case of Smt. Hasira v. Safiah d/o. ARI Fitwalla & Ors. reported in (1986) Mah. R.C.J. 527) (Writ Petition No.3331/1980) decided by another learned Single Judge (Justice R.R. Jehagirdar) on 31st July 1986. The facts in the backdrop of which the said judgment was delivered divulge that the declaration under the Slum Act, 1971 was made on 26th November 1977 and a suit came to be instituted on 21st March 1979, while the declaration under the Slums Act was in force. The said declaration was set aside on 30th April, 1982, on an Appeal filed by the Plaintiff and in the backdrop of these facts, the learned Single Judge held that before filing a suit against a tenant, it was open for the Plaintiff to follow the requirement under Section 22(1) of the Slum Act or challenge the declaration declaring the area to be slum before the Slum Area Tribunal and after getting the declaration, the suit could have been instituted with the permission of the competent authority. The suit which came to be filed when the declaration was in force without obtaining permission of the competent authority contemplated under sub-section (1) of Section 22 of the Slum Act was therefore held to be not maintainable and the decree passed in the suit was declared as illegal.