Digitally Signed by Kawre Kiran Kalyan Date: 2023.03.10 21:18:24 +0530
Digitally Signed by Kawre Kiran Kalyan Date: 2023.03.10 21:18:24 +0530
Digitally Signed by Kawre Kiran Kalyan Date: 2023.03.10 21:18:24 +0530
KIRAN
KALYAN
Digitally signed by
KAWRE KIRAN
KALYAN Rane -901-AO-st-2662-2023.doc
Date: 2023.03.10
21:18:24 +0530
Versus
….
Mr. Vishal Kanade i/b V. T. Dubey & Associates for the Appellant.
Mr. Joel Carlos with Mr. Ajit Kenjale and Ms. Smita Tondwalkar for
Respondent/BMC.
Mr. Sharan Jagtiani, Senior Advocate a/w Mr. Rohan Surve, Amici
Mr. Gajanan Dhotre, A.E. (B & F) T, Ward present.
CORAM : G. S. KULKARNI, J.
RESERVED ON : 23 February, 2023.
PRONOUNCED ON : 03 March, 2023
JUDGMENT:
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passed by the City Civil Court at Bombay, whereby pending the hearing of a
Notice of Motion filed in his civil suit (Long Cause Suit (St.) No.14458 of
2022) the learned trial Judge has rejected a prayer for an ad-interim
temporary injunction.
Section 3511 of the Mumbai Municipal Corporation Act 1881 (for short ‘the
MMC Act’).
4. By the said notice issued under Section 351 of MMC Act, the
appellant as described in the ‘schedule’ to the said notice along with the
1
Section 351 - Proceedings to be taken in respect of buildings or work commenced contrary to section
347.
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“Schedule
Unauthorized vertical extension by using brick masonry wall, M.S.
angle, Ladl coba and A.C. sheet & G. I. Sheet roof ad-measuring as
shown in sketch without permission of competent authority situated
at Shop no.36, Food Sagar Family Restaurant, MG Link Road; Opp.
Runwal Green Complex, Mulund West, Maharashtra 400080, India.”
was actually issued on 20 October, 2020 and was received by the appellant
advocate’s letter dated 22 October, 2020, inter alia contending that the
existence. It was stated that the structure of the appellant was partly
affected by road widening, hence, the appellant’s structure under the policy
of the MCGM was eligible for a vertical extension, as part of the appellant’s
area was taken away in road widening. It was stated that as the benefit of the
road widening was not provided to the appellant, for the area which had
gone in the road widening, the mezzanine floor which according to the
the policy of the MCGM known as the “Kurar pattern”. The reply further
stated that the MCGM had issued the Section 351 notice malafide and
without inspection of the premises. It was further stated that the appellant’s
father during his lifetime had acquired the land and the premises in regard
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for sale of July 1998, entered with the previous owner. It was contended
that the objected structure of the appellant also had a NOC from the Fire
Department of the MCGM, hence the structure was legal. It was also stated
that the appellant was thus in settled possession, use and occupation of the
premises conducting a hotel business, under valid license namely a Food and
Drug license, Fire NOC, trade license etc, which according to the appellant
supported the case of the appellant, that the objected structure was
authorized. It was further stated that in any event, the property on which
thereto the structure was eligible for the purpose for issuance of a “patch
MCGM was not the competent authority to issue such notice under Section
The Designated officer did not accept the appellant’s case that the objected
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structure for any of the reasons as furnished by the appellant could be held
show that the objected structure was authorized and/or legal i.e. whether it
the Fire NOCs, food and drug licence etc., as noted above. The Designated
the appellant did not show any permission from the competent authority
ORDER
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with a fine which shall not be less than five thousand rupees but which
may extend to Twenty Five Thousand Rupees and in the case of
continuous offence with a further daily fine which may extend to five
hundreds rupees.”
(emphasis supplied)
officer approached the City Civil Court by instituting the suit in question, as
rejected. The following are the prayers as made by the appellant in the
notice of motion.
“a. That pending the hearing and final disposal of the suit the
defendants, their servants, agents, and/or any other person/s acting
on their behalf may be restrained by temporary order and
injunction from demolishing or pulling down or removing the Suit
premises or any portion thereof, i.e. Shop No. 36, area adm. About
600 sq. ft. ground plus mezzanine, lying and situate at Food Sagar
Family Restaurant, Mulund Goregaon Link Road, CTS No.
667/668, Mulund (West), Mumbai – 400 080 and/or implementing
the notice being Notice No. T/ DO2T/ 108/ 351- MMCACT
/T128NO1/ 31-12-2019 dated 23/12/2022.
b. That pending the hearing and final disposal of the suit, Ad-
interim relief in terms of prayer clause (a) hereinabove be granted.”
learned trial Judge has considered the appellant’s case of the notice
learned trial Judge recorded that the appellant’s case was to the effect that
the objected unauthorized first/ mezzanine floor, was existing since long
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time, as also as the Chief Fire Officer of the MCGM had issued a NOC
floor. The trial Court also noted the appellant’s contention that the
Designated Officer had not considered the NOC granted by the Chief Fire
Officer as also the other documents, in its proper perspective, in passing the
“speaking order” dated 23 December, 2022, and for such reasons, the
defendant/MCGM, that the NOC granted by the Chief Fire Officer was
The learned trial Judge observed that the plaintiff ’s reliance primarily on the
NOC issued by the fire department, was not a document sufficient, to prove
that the notice structure was authorized and legal. The learned trial Judge
assessment bill and other documents did not show the authorization of
notice structure. It was observed that merely because a health licence was
issued or a NOC for issuance of such licence was issued, these were not the
documents sufficient to infer that the suit structure was authorized. The
learned trial Judge has also observed that there was no pleading of the
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authorization of notice structure. Thus, for such reasons that the appellant
had failed to make out any prima facie case to show that the notice
structure was legal, authorized and/or protected, the trial Court held that
the appellant was not entitled to any ad-interim protection. The appellant on
Court was informed that the land on which the appellant’s structure was put
informed by the MCGM that there were no documents to show that the
that the main structure on which the vertical extension as objected by the
were involved, the Court making the following observations had appointed
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10. On the adjourned day of hearing ie; on 8 February 2023, the Court
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was informed by Mr. Kanade, learned Counsel for the appellant that his
prior statement that the land in question is a public land was not correct, as
the land on which appellant’s structure was constructed was a private land.
In that view of the matter the Court passed the following order, the
11. In pursuance of the above order, the MCGM has placed on record
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stating that the appellant has constructed a mezzanine floor at the suit
stated that in fact the original structure below the mezzanine floor itself is
12 of the said affidavit. The affidavit further states that only 10 ft. average
be granted, the appellant would not be entitled to claim any benefit for the
affidavit. The affidavit further states that the Designated Officer considering
and discussing all the documents submitted by the appellant, has rightly
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December, 2022. It is stated that the appellant has failed to make out any
counsel for the appellant, Mr. Carlos, learned counsel for the MCGM and
Mr. Jagtiani, senior counsel along with Mr. Rohan Surve, learned amici.
record is quite clear that the objected structure is not on any public land.
This, in my opinion, makes the situation more serious for the appellant,
embedded into the earth. Further as stated by the MCGM, the ground floor
to how the illegality of the entire construction can fade into insignificance.
how the vertical extension as objected by the MCGM by any standard can
be presumed to be legal. This case depicts such state of affairs even on the
MCGM’s part.
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14. Be that as it may, several interesting facets are unfolded, which would
make one wonder as to how unauthorized constructions are put up, how
they are dealt/sold/transferred, all this under the garb of an area being
slum and more particularly such commercial nature. This case is an eye
the city proliferates and the authorities become mute spectators. From the
record and the documents as tendered by Mr. Kanade, the following glaring
show-cause notice issued by the MCGM under Section 351 of the M.M.C.
Act, the appellant categorically asserted that the appellant’s father had
acquired land and structure from its previous owner under a document
agreement was also submitted to the Designated officer, also the same is
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to what has been sold. The vendor had described himself to be a tenant,
however, at the same time, in the Agreement there is a recital that the
disposing of piece and parcel of land together with all structures standing
thereon. It records that what is sold by the vendor is piece and parcel of
document of title whatsoever either in favour of the vendor nor the real
owner of the land, who is a third party is a confirming party to such sale by
being a signatory to the said document, by which allegedly the land and the
16. It is under such document of title to the land and structure the
MCGM under section 351 of M.M.C. Act. Mr. Kanade, however, has
sought to argue a case which is not at all pleaded in the plaint, namely, that
the notice issued by the MCGM under section 351 of MMC Act would be
required to be held to be illegal for the reason that the appellant’s premises
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17. Mr. Kanade has submitted that even otherwise, part of the appellant’s
structure had gone into road widening and hence by getting the benefit of
18. Mr. Kanade has next submitted that the impugned notice under
section 351 of M.M.C. Act also needs to fail, inasmuch as, the premises
being objected by the MCGM, were existing premises, which was clear from
submission is that once the construction was not a fresh construction and
was an existing construction, the MCGM could not have issued such a
notice, as the structure was protected under the State policy to protect the
legality of the structure. Mr. Kanade would submit that the eligibility
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electricity bill being the documents recognizing the structure existing prior
to 1 January, 2000. Mr. Kanade would accordingly submit that the appellant
had made out prima facie case for grant of ad-interim injunction.
19. On the other hand, Mr. Carlos, learned counsel for the MCGM has
does not indicate existence of any mezzanine floor or the first floor as
objected by the MCGM in the notice issued under section 351 of M.M.C
Act. It is submitted that in fact what has been shown in the photo-pass is a
submitted that the photo-pass also does not indicate any hotel business
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appellant is dated Nil July, 1998, that is subsequent to the date of the photo
pass. Also the name of the purchaser as referred in the agreement is not
Hazi Hasmatili”. It is thus submitted that the names on the Agreement for
sale and the photo-pass do not match, hence, appellant cannot raise any
structure as carried out by the MCGM (Page 42 of the Paper book), for
some reason the photo-pass was not relied upon and hence the MCGM
was never submitted photo-pass, which is also clear from the speaking order
as it was never submitted. Hence, for the first time, such a case is being
pleaded before the High Court without the same being pleaded in the plaint
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thus submitted that the appellant has miserably failed to make out any case
for grant of ad-interim protection and the ad-interim relief has been rightly
rejected by the learned trial Judge. It is submitted that for such reasons, the
20. In view of the question posed by this Court in the order dated 31
and extension to such structure. Mr.Jagtiani has submitted that such issue
would in fact stand covered by the decision of the Division Bench of this
Court in Suo Motu Public Interest Litigation No. 1 of 2020 in the case of
High Court on its own motion (in the matter of Jilani Building at Bhiwandi)
vs. Bhiwandi Nizampur Municipal Corporation & Ors. 2. (for short “the
said decision.
Mr.Jagtiani has appraised the court of the legal position, in doing so, Mr.
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Clearance and Redevelopment) Act, 1971 (for short ‘the Slums Act’), the
defined under Section 3X(c) of the Slums Act, ‘photo pass’ as defined
under Section 3X(b) of the Slums Act, ‘dwelling structure’ as defined under
Section 3X(a) of the Slums Act. He has referred to Section 3Y of the Slums
Slums Act is the only provision where the term ‘dwelling’ is prefixed by the
Resolution dated 16 May 1996 which is in the context ‘To decide eligibility
Relying on such decision, he would submit that this Court had held that the
protected hutments being those which were meant for residential purpose
and not commercial premises. Mr.Jagtiani has also referred to the decision
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Resolution dated 14 May 1998, the State Government had recognized that
the hutment dwellers who were using their huts for commercial and other
similar purposes prior to 1 January 1995, were held eligible for permanent
July 2001 which notes that the general view of the Government, in issuing
photo-pass holder resides in a hut existing prior to 1 January 1995 and that
dwellers was extended to the cut-off date 1 January 2000. Mr.Jagtiani would
relying on the decisions of the Supreme Court in Karam Kapahi & Ors. Vs.
Lal Chand Public Charitable Trust & Anr. 6, Luxmi Tea Co. Ltd. Vs.
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Pradip Kumar Sarkar7, State of M.P. Vs. Narayan Singh8, and Animal
Welfare Board of India Vs. A. Nagaraja9 would submit that a wider meaning
which defines the ‘dwelling structure’. It is also his submission that the
words ‘or otherwise’ would take its colour from the context in which such
structure shall mean all the dwelling area of a protected occupier as used in
Chapter I-B of the Slums Act, and orders issued thereunder. ’ He has also
provides for the right of the hutment dwellers in the slum or on the
Mr.Jagtiani has also referred to the provisions of Regulation 33(10) VIII (5)
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time to time indicate that the commercial premises are covered within the
24. Having heard learned Counsel for the parties and the learned Amici,
at the outset it is required to be stated that although the learned Amici has
made erudite submissions on several issues, I intend to deal only with those
25. The cause of action for the appellant to move the suit in question
before the City Civil Court has arisen from the notice issued by the MCGM
under the provisions of Section 351 of the MMC Act, which objected to
two fold; firstly, whether the appellant had made out any prima facie case on
the basis of the materials on record, that the structure of the appellant is in
any manner legal or authorized, which would require the Court to grant a
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to be noted that the appellant has not placed on record any permission
much less any sanctioned plan or an approval by the MCGM to put up the
December 2019 as issued by the MCGM under Section 351 of the MMC
Act. This apart, the entire structure, namely, the ground floor structure
so, the MCGM by its notice under Section 351 has questioned only the
feet whereby the total height of both the floors (ground plus the first floor)
Mr.Kanade’s submission to the effect that the ‘Kurar Pattern’ would assist
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accepted by the MCGM in its Circular dated 20 March 2017, which provides
TP Roads and RL. Paragraph 7 of the said policy provides for finalization
ii) Category -B: Structures protected under State Govt. Policy existing prior to 1.1.
2000. (As per GOVT. gazette issued u/no. SRS-1001/C NO.125/14/SRA-1 DT
16.05.2015). Or the dates as per the Notification/Gazette issued by GOM from time
to time under the Maharashtra slum Areas (Improvement, Clearance and
Rehabilitation) Act 197l as amended up to date.
iii) Documents to be considered for eligibility
Sr.N Categor Documents to be considered for eligibility
o. y
1 A Old City Survey Plan, First date of assessment;, Licenses issued
by License Deptt. And Health Deptt. Etc. On or before datum
line i.e. 17.4.1964 for residential user and 1.4.1962 for
commercial user and other relevant and authentic documents
thereof.
B Photo passes issued by the competent authorities. Censuses
verification letter issued by the competent authorities. Ration
Card /Electricity bill/Electoral roll/first date of assessment etc.
And other relevant and authentic documents for residential
structures existing prior to 1.1.2000.
License issued by Shops & Estt. Electricity Bills, license
from Health Deptt. And License Deptt; date of assessment etc.
And other relevant and authentic documents for commercial
structures existing prior to 1.1.2000 as applicable as per Govt.
gazette issued u/no. SRS-1001/C NO.125/14/SRA-1 DT
16.05.2015 Or any other documents prescribed as per
notification/Gazette/ Circulars issued by the GOM from time
to time under the Maharashtra slum Areas (Improvement,
Clearance and Rehabilitation) Act 197l as amended up to date.
The documents for deciding eligibility for structures under category A & B shall be
scrutinized by the Ward staff.”
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The ward Executive Engineer shall scrutinize the proposal and submit the
same through AC-Ward for obtaining the sanction of DMC and issue the same
under ward Executive’s signature.”
29. It is thus clearly seen that even if the appellant was to be eligible for
obtained from the MCGM, it was not permissible for the appellant to put
rejected.
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structure, which would mean not only the ground floor structure, but also
This also for the reason that the person in whose favour the photo-pass has
premises under the Agreement of Sale dated NIL July 1998, which is also
‘loft’, without any height, and lastly the business in relation to which the
defending the notice issued under Section 351 of the MMC Act. Even
not assist the appellant to save the unauthorized structure as objected by the
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claim for a permanent alternate accommodation as and when the slum area
goes for redevelopment, and if at all, for the protection of the basic
any nature.
permitted in slum areas, the ghastly consequences are not too far to be seen.
In such context, the Division Bench of this Court in Jilani Building’s Case
(b) (supra) considering the provisions of Chapter I-B of the Slums Act has
held that the protection which has been conferred by Section 3Z of the
mean that the protected occupier enjoys and can be granted a complete
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can make illegal additions or alterations. The Division Bench analyzing the
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33. There is another notable aspect of the case, namely although the land
the Municipal Corporation or any public body. The land is a private land as
not only stated by the appellant, but also by the MCGM. The claim of the
appellant is that his father has purchased the land and the structure,
however, the alleged agreement dated 20 July 1998 entered by his father
Even assuming that the appellant’s father had purchased the land in
Section 3X(a) of the Slums Act thereby, providing for a scheme to protect
the occupier who holds a photo-pass, however, it would be too far fetched
to read into the substantive provision of the Slums Act, that it would
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34. In the absence of specific provisions under the Slums Act for
the provisions of the Slums Act, it would be difficult to accept that the
under the Slums Act a photo-pass can be issued. Moreover, the definition
interpreted in the context of the object, the Slums Act intends to achieve.
“3X. Definitions:
In this Chapter, unless the context otherwise requires:-
(a) "dwelling structure" means a structure used as a dwelling
or otherwise and includes an out-house, shed, hut or other
enclosure or structure, whether of bricks, masonry, wood, mud,
metal or any other material whatsoever;”
35. When the words ‘dwelling or otherwise’ are used in the definition of
it would not include commercial premises which do not fit into any of the
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dated 16 May 1996 that the commercial structure is not protected, would be
Policies have deviated from the Government Resolution dated 16 May 1996
Division Bench of this Court in ‘Jilani Building’s Case’ (supra) as also the
Municipal Corporation and Ors. (2013)3 SCC (Civ) 72; Supertech Ltd. Vs.
Emerald Court Owner Resident Welfare Association & Ors, [(2021)10 SCC
1], this Court upheld the action of the Municipal Corporation in issuance of
20. It may be observed that once a construction is unauthorised and illegal, the
course of law to be taken in that regard is well settled by the catena of
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86. Apart from the above observations, what is significant is that the
Supreme Court also observed that if the High Court feels that the
illegal/unauthorized building activities are so rampant, so as to be
noticed judicially, it may suo motu register a public interest litigation and
commence monitoring the same by issuing directions so as to curb such
tendency and fixing liability and accountability. Such observations are
required to be noted, which reads thus:
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37. In Abdul Rehman Jamadar Shaikh & Anr. Vs. The Municipal
Corporation of Gr. Mumbai & Anr. (Appeal from Order No.73 of 2023
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of the appellant’s land was taken away in the road widening as the
desires.
Officer of the MCGM in passing the speaking order, has taken into
consideration each and every document as relied upon by the appellant and
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41. The appellant has miserably failed to make out a case for grant of
(supra), and would be contrary to the provisions of the Slums Act as also
accordingly rejected.
44. At this stage, learned Counsel for the appellant has prayed for
protection granted earlier is continued for a period of ten days from the
date a copy of this order is uploaded on the official website of this Court.
assisted by Mr. Mutahhar Khan, Mr. Priyank Kapadia, Ms. Shradha Achliya
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