SMT. JYOTI PRAKASH MANEversusTHE ASSISTANT MUNICIPAL COMMISSIONER AND COMPETENT AUTHORITY AND ORS

                                                                       12 & 13-WP-2757-2012 @.doc



                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                   (SR. NO. 12) WRIT PETITION NO. 2757 OF 2012

                   Prakash Vishnu Mane                                      ...Petitioner
                                   Versus
                   The Assistant Municipal Commissioner And
                   Competent Authority And Ors                              ...Respondents

                                                       WITH
SNEHA
NITIN                              (SR. NO. 13) WRIT PETITION NO. 2759 OF 2012
CHAVAN
Digitally signed
by SNEHA NITIN     Smt. Jyoti Prakash Mane                                  ...Petitioner
CHAVAN
Date: 2026.06.18
20:19:48 +0530
                                   Versus
                   The Assistant Municipal Commissioner And
                   Competent Authority And Ors                              ...Respondents

                                                      ****
                   Mr. Pradeep Thorat a/w Ms. Aditi Naikare for the Petitioner in both
                   petitions.
                   Mr. D.R. Kewale for Respondent/Corporation.
                   Mr. S.M. Shah for Respondent No.4 in both petitions.
                   Mr. Vijay Pardeshi – Officer (Rent Collector ‘N’ Ward) present.
                                                      ****
                                             CORAM : M.M. SATHAYE, J.
                                                DATE : 17th JUNE, 2026
                   P.C. :


                   1.             Writ Petition No. 2757 of 2012 is filed challenging an notice
                   dated 11.03.2010 issued by the Assistant Commissioner ‘N’ Ward stating
                   that the explanation given by the Petitioner is found to be
                   unsatisfactory, directing him to vacate the flat no. 701 allotted to the
                   him in Building No.2, Sai Amrut Co-operative Housing Society.


                   2.             Writ Petition No. 2759 of 2012 is filed by the Petitioner
                   challenging similar notice dated 11.03.2010, issued by same Authority
                   however, directing her to vacate flat No. 201, Building No. 4 in Ganesh


                   Sneha Chavan                                                              1
                                                      12 & 13-WP-2757-2012 @.doc



Sai Co-operative Housing Society.


3.             The Petitioners in above petitions are husband and wife,
fighting together. Both the petitions are admitted on 23.04.2012
pending for last about 14 years.


4.             Brief background of the dispute is as follows.


4.1        On      19.09.2007,    Assistant   Commissioner        of    Respondent
Municipal Corporation issued a letter to Chief Executive Officer of Slum
Rehabilitation Authority (SRA), Bandra making reference to a complaint
filed by Respondent No. 4 questioning entitlement of 3 residential
structures in one family. According to said letter Petitioners are non-
eligible for SRA scheme.


4.2.    Referring the said letter dated 19.09.2007, the Deputy Collector
of SRA, issued a letter / communication dated 15.12.2007 to the
Assistant Commissioner asking to initiate action under Section 33 of the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (‘Slum Act’ for short) as a Competent Authority.


4.3.    Pursuant to such communication, a notice was issued to the
Petitioners on 20.05.2009 by the Assistant Commissioner, directing the
Petitioners to show cause why they should not be evicted from the said
flats. These notices proceeded on the footing that Petitioners are
ineligible to be allotted flats in slum rehabilitation scheme despite their
eligibility under the Annexure-II prepared at the relevant time.


4.4.    For Petitioner Prakash Vishnu Mane, it was alleged in the notice


Sneha Chavan                                                                2
                                                  12 & 13-WP-2757-2012 @.doc



that without proper transfer of a hutment in the slum from earlier
occupant Gopal Pandu Gaikar, the name of the Petitioner has been
included in Annexure-II and that he is not eligible because he has
another hutment in his name in plot No. 273/274 where another slum
society viz. Nalanda Co-op. Housing Society is present.


4.5.    Petitioner Prakash filed his explanation dated 01.06.2009 and
10.06.2009 contending that the hutment in Plot No. 252 (Sai Amrut Co-
operative Housing Society) was transferred from earlier occupant Mr.
Gaikar and it was in his possession in 1988 itself and based on his
occupation, his name has been included in Annexure-II prepared at the
relevant time and he was shown as eligible. He contented that therefore
flat No.701 has been allotted. So far as the allegation that he had
another hutment in his name in plot No. 273/274 is concerned, he
offered explanation that said hutment was in the name of his father,
who expired in April, 1998 and the Petitioner's name was entered as the
elder son/Karta. He further explained that said hutment has been
transferred in the name of his sister-in-law in 1999 and all the
documents have been executed.


4.6.    In the notice issued to the Petitioner Jyoti Prakash Mane, it was
alleged that hutment in Plot No. 252 was transferred in her name after
cut-off date - 01.01.1995 and therefore, she is ineligible.


4.7.    Petitioner Jyoti filed her reply dated 10.06.2009 and offered
explanation, contending that transfer in her name has been accepted
under order dated 05.03.1998 by charging Rs.5000/- as transfer-fees.
She has also explained that the concerned hutment was in the name of
her father, which is received by her as a daughter for residence.


Sneha Chavan                                                            3
                                                12 & 13-WP-2757-2012 @.doc



4.8.    The Assistant Commissioner, by the impugned notices, held that
the explanations were un-satisfactory and therefore, direction was
issued for vacating the concerned flats.


4.9.    It appears from the record that pursuant to the impugned orders,
notices under Section 488 of the Mumbai Municipal Corporation Act,
1888 (‘MMC Act’ for short) were issued informing the Petitioners that
on a particular date that the Assistant Commissioner will be entering
the concerned flats with the assistance of workmen as per impugned
orders dated 11.03.2010 (for implementation).


4.10. The Petitioners filed Appeal Nos. 699 and 700 of 2011 before the
Administrator and Divisional Commissioner of Konkan Division,
Mumbai challenging the notices under Section 488 of the MMC Act. The
said Authority by order dated 10.10.2011, quashed and set aside the
notice/action under Section 488 of the MMC Act, holding that once the
SRA scheme is complete and eligible members are put in possession of
the permanent alternate accommodations (flats in question), the role of
the Competent Authority is over (functus officio) and therefore, action
cannot be taken against the Petitioners.


4.11. Thereafter, in March 2012, again notices were issued to the
Chairman of the concerned Housing Societies as also to the Deputy
Registrar, Co-operative Society, SRA for evicting the Petitioners from
concerned flats and police protection was sought.
4.12. In these circumstances, the present petitions were filed which are
admitted and interim relief / status quo was granted.


5.             Learned Counsel for the Petitioners submitted that the


Sneha Chavan                                                          4
                                                        12 & 13-WP-2757-2012 @.doc



impugned notice is issued without considering the explanation given by
the Petitioners. He submitted that both Petitioners have been held
eligible as per the concerned Annexure-II prepared while implementing
Slum Rehabilitation Scheme. He submitted that when the action under
Section 488 pursuant to the impugned order was quashed and set aside,
it was sought to be implemented again. He submitted that Assistant
Commissioner, acting as Competent Authority can not act after being
functus officio because the SRA scheme is over prior to action taken.


6.             Learned Counsel for the Respondent- Municipal Corporation
as well as Respondent No. 4 complainant has supported the impugned
notices and the actions pursuant thereto. They contended that the
Petitioners have been found ineligible for allotment of the permanent
alternate accommodation and therefore the action is justified. It is
submitted that Petitioners are ineligible because members of same
family are allotted more than one unit and husband and wife cannot be
held separately eligible and Petitioner Prakash had another hutment in
his name in some other slum. It is contented that the appeal was filed
only challenging action under Section 488 and the impugned order can
be challenged by filing the appeal before the Grievance Redressal
Committee under Section 35 of the Slum Act.


7.             I have considered the rival submissions and perused the
record.


8.             At the outset, it is necessary to note that the action is initiated
at the instance of Respondent No. 4 Complainant who claims that there
has been illegality in holding the Petitioners as eligible. It is not his case
that he had rival claim to the hutments involved. It is also not explained


Sneha Chavan                                                                  5
                                                    12 & 13-WP-2757-2012 @.doc



under what locus, he had complained.


9.             The communication dated 19.09.2007 indicates that the
Assistant Commissioner has written to the Chief Executive Officer of the
SRA pursuant to complaint of Respondent No. 4. Going by the date of
the communication, it appears that the complaint was acted upon in
September 2007, when admittedly the concerned SRA scheme was
completed and the Permanent Alternate Accommodation Agreements
(‘PAAA’ for short) were already executed in 2006 in case of both the
Petitioners.


10.            I have perused Annexure-II annexed to the Writ Petition No.
2757/2012 which shows that the name of Petitioner Mr. Prakash Vishnu
Mane. It is included at serial No.147 as eligible person for Shree Sai
Janata Co-operative Housing Society (proposed) at the relevant time
which is the slum society. This Annexure II is of January 2001.


11.            As per the explanation given by Petitioner Smt. Jyoti Prakash
Mane, her name was included under order dated 05.03.1998 bearing
No. MDLE 2406 dated 05.03.1998 and it is also asserted that in 2001,
the Annexure-II was prepared.


12.            Therefore, apparently the action on the basis of alleged
ineligibility is initiated after a period of more than 6 years and after
PAAA agreements have been executed and the Petitioners have been put
in possession of the alternate accommodation i.e. said flats.


13.            The Divisional Commissioner of Konkan Division in its order
dated 10.10.2011 has noted that the Petitioners have been given


Sneha Chavan                                                              6
                                                     12 & 13-WP-2757-2012 @.doc



permanent accommodation on the basis of their eligibility as per
Annexure-II and once the scheme is complete and eligible members are
put in possession of permanent accommodation, the role of Competent
Authority is over and therefore, such action cannot be initiated.


14.            Perusal of the impugned notices indicate that no reason is
stated by the concerned Assistant Commissioner acting as Competent
Authority under Section 33 of the Slum Act and only reason given is
that the explanations are found to be unsatisfactory. The contentions of
the advocate for the Respondent-Municipal Corporation as well as the
Complainant that the illegality in holding Petitioners eligible lies in
same member of family being allotted more than one unit or that a
husband and wife cannot be held separately eligible or that the
Petitioner Mr. Prakash Vishnu Mane is held eligible when he had
another hutment in his name in some other slum, are not to be found in
the impugned notice. Apparently they are order issued without
considering the explanations offered by the Petitioners. It is settled law
that an action/notice must speak for itself and reasons can not be
supplanted later on.


15.            In the aforesaid facts and circumstances and for the reasons
indicated above, the impugned notices cannot be sustained. In the
peculiar facts of this case, the issue of eligibility could not have been re-
opened after SRA scheme was over and Petitioners have been put in
possession of alternate accommodations as per Annexure-II prepared
holding them eligible, especially at the instance of complainant whose
locus is not clear.


16.            So far as the contention that the Petitioners should have filed


Sneha Chavan                                                               7
                                                     12 & 13-WP-2757-2012 @.doc



appeal to the Grievance Redressal Committee is concerned, it is brought
to the notice of the Court that the amendment in Section 35 making
available such appeal to Grievance Redressal Committee, is brought on
the statute book with effect from August 2023 which was thereafter
changed to March 2017. In any case, when the present petitions were
filed, such remedy was not available. Additionally, learned Counsel for
the Petitioners have relied upon the judgment of this Court in Procter
and Gamble India Ltd. vs. Municipal Corporation of Greater Bombay
and others [2003 SCC OnLine Bom 952] where it is held that once the
petitions are admitted for final hearing without any reservation of right
in favour of Respondents to raise the plea of maintainability on account
of any alternative remedy being available, the Petitioners cannot be
non-suited at the stage of final hearing.


17.            In the present case, when the Petitioners were filed the said
alternate remedy was not available at all and after so many years, at the
time of final hearing, Petitioners cannot be non-suited for that reason.


18.            In the circumstances, the petitions are allowed. Rule is made
absolute by quashing and setting aside the impugned notices issued to
Petitioners dated 11.03.2010 by Respondent No. 1. No order as to costs.


19.            All concerned to act on duly authenticated or digitally signed
copy of this order.


                                             (M.M. SATHAYE, J.)




Sneha Chavan                                                               8