IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.52 OF 2008 NO.52 OF 2008 NO.52 OF 2008 IN IN IN WRIT WRIT WRIT PETITION NO.3074 OF 2006 PETITION NO.3074 OF 2006 PETITION NO.3074 OF 2006 Jitendra Amritlal Shah ... Appellant Vs. The Deputy Collector ... Respondents (Encroachment) and Competent Authroity & Ors. Mr.R.S.Apte i/b N.R.Bubna for the Appellant. Mr.D.A.Nalawade, AGP for Respondent Nos.1, 2 & 8. Mr.Jagdish Reddy, for Respondent No.3 Mr.P.K.Dhakephalkar, Sr.Advocate i/b R.R.Mishra for Respondent No.5. CORAM CORAM CORAM : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & P.B.MAJMUDAR, P.B.MAJMUDAR, P.B.MAJMUDAR, JJ. JJ. JJ. DATE DATE DATE : JUNE 3, 2008 : JUNE 3, 2008 : JUNE 3, 2008 P.C. 1. Heard. 2. This appeal arises from the order dated 18-12-2006 passed in Writ Petition No.3074/2006. By the impugned order, the Writ Petition filed by the appellant against the order dated 21-09-2006 of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment Tribunal, has been dismissed. The said Tribunal by its order dated 21-09-2006 had dismissed the application for condonation of delay in filing an appeal by the petitioner. 2. Upon hearing the learned Advocates for the parties and on perusal of the impugned order and other materials on record, it is pertinent to note that the notification declaring the property in question as slum was issued on 14-07-1994 and final notification in terms of Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 was issued on 20-08-1996. Section 14(2) of the said Act, clearly provides that when a notice is published in terms of Section 14(1) in the Official Gazette, the land shall, on and from the date on which the notice is so published, vest absolutely in the State Government free from all encumbrances. Being so, the land in question vested in the State Government since 20-08-1996. 3. The claim of the appellant is that he had entered into an agreement for purchase of the suit property with the erstwhile owner of the property even prior to issuance of the notification declaring the area as slum and he had even filed a suit for specific performance of the said agreement in the year 1995 and it is still pending. The appellant however, sought to challenge the notification only on 13-06-2006, nearly 12 years after the date of issuance of the notification. The learned Single Judge in the impugned order has clearly observed that the appellant has pleaded that he came to know about the notification in the year 2004. However, there is absolutely no cogent explanation for delay in approaching the Court. Certainly, no explanation for the period from 2004 to 2006. 4. Mere filing of the suit for specific performance cannot be said to amount to create subsisting interest in the property in relation to which the suit has been filed. Relief in the nature of specific performance is a discretionary power of the Court. 5. Being so, it is premature to say that the appellant has got any subsisting interest as such in the land in question. There was an agreement for sale of the property between the erstwhile owner of the property and the appellant prior to the issuance of the notification. In any case, the property has already been vested in the State Government since August 1996 and therefore, there is absolutely no case for interference in the impugned order at the instance of the appellant against the notification declaring the property as the slum. 6. It was sought to be contended on behalf of the appellant that there was a fraud played declaring the property as a slum and once the fraud is established, it would be necessary for the authorities to take appropriate steps to ensure that the persons trying to claim the benefit out of the fraud are being penalized. It cannot be disputed that it is well settled that once the fraud is proved it will deprive a person from enjoying the advantages or benefits obtained therefrom and mere delay in detecting the fraud would not create any right in favour of such persons, nor it will debar the Court from entertaining the matters which have been filed even after beyond the prescribed period. 7. As rightly submitted by the learned Advocate, the law in that regard has been well explained by the Apex Court in the case of Ram Preeti Yadav V/s. U.P.Board Ram Preeti Yadav V/s. U.P.Board Ram Preeti Yadav V/s. U.P.Board of of of High School and Intermediate Education & Anr High School and Intermediate Education & Anr High School and Intermediate Education & Anr., reported in (2003) 8 SCC 311. Equally, it is well settled that once the malafide and fraud are established questions, even though they are challenged after considerable delay from the date of issuance of the notification under Section 14, nothing would prevent the Court from entertaining the petition and to pass an appropriate order. 8. The Apex Court in the matter of Vyalikaval Vyalikaval Vyalikaval Housebuilding Housebuilding Housebuilding Coop V/s. V.Chandrappa & Ors Coop V/s. V.Chandrappa & Ors Coop V/s. V.Chandrappa & Ors., reported in (2007) 9 SCC 304 held that once fraud is detected even if there was a challenge to the action, the condonation of such delay will be appreciated. The decision of the Apex Court in the case of Commissioner Commissioner Commissioner of of of Customs V/s. Candid Enterprises Customs V/s. Candid Enterprises Customs V/s. Candid Enterprises, reported in (2002) 9 SCC 764, certainly lends support to this contention. It is the contention of the learned Advocate for the appellant that the fraud has been played by issuing the notification declaring the area to be the slum area in his property which is comprised of merely 634 sq.mtrs. in area having only 24 hutments therein. Whether in a given situation the said number of hutments were sufficient to constitute slum area or not would depend on factual situation in loco which prevailed in the year 1994. It is not even the case of the appellant that as on today the appellant is in a position to establish with the cogent material as to what was the situation in loco in the year 1994. If the authorities, after taking into consideration the existence of 24 hutments in loco thought it fit to be sufficient to declare the same to be slum area, in the year 1994, it cannot be said in the year 2008 that the authorities had played fraud in issuing such declaration in relation to the area. Being so, even the contention regarding the allegations of fraud is of absolutely no substance. It is also an undisputed fact that the area has already been subjected to development and there exists 12 storeyed building in the property, though it is sought to be contended that the building is yet to be occupied. Taking into consideration all the above aspects and the fact that the area has already vested in the State Government, we find no case to interfere with the order passed by the learned Single Judge and as such the appeal is dismissed. ( R.M.S.KHANDEPARKAR,J.) R.M.S.KHANDEPARKAR,J.) R.M.S.KHANDEPARKAR,J.) ( P.B.MAJMUDAR,J.) P.B.MAJMUDAR,J.) P.B.MAJMUDAR,J.)