Digitally Signed by Kawre Kiran Kalyan Date: 2023.03.10 21:18:24 +0530

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KAWRE

KIRAN
KALYAN
Digitally signed by
KAWRE KIRAN
KALYAN Rane -901-AO-st-2662-2023.doc
Date: 2023.03.10
21:18:24 +0530

IN THE HIGH COURT OF JUDICATURE AT BOMBAY


CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER (St.) NO. 2662 OF 2023


WITH
INTERIM APPLICATION (St.) NO. 2664 OF 2023
Mujibur Rehman Chaudhary )
Age 41 years, Indian Inhabitant of )
Mumbai having address at 36, Food )
Sagar Family Restaurant, M.G. Link )
Road, Opp. Runwal Green Complex, )
Mulund (West), Mumbai-400 080 ) .Appellant(org.Applicant)

Versus

Municipal Corporation for Greater )


Mumbai (A Body Corporate )
Incorporated under the Provisions of )
BMC Act 1889) having its head office )
at Annexe Building, Mahapalika Marg, )
Mumbai C.S.T., Mumbai-400 001. ) .Respondent(Org. Respondent)

….
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:

1. This appeal under Order 43 Rule 1 of the Code of Civil Procedure

of the appellant/plaintiff, arises from an order dated 13 January, 2023,

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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.

2. The issue which arises for consideration in the present appeal is

whether an unauthorized vertical extension, namely, construction of a

mezzanine/first floor to the existing structure of the appellant used as hotel

(which itself is unauthorized), can receive a protection, from an action of its

removal by the municipal corporation, merely because the structure is

situated in a notified slum.

3. The suit in question was filed by the appellant/plaintiff being

aggrieved by a notice dated 31 December, 2019 issued by the Respondent-

Municipal Corporation of Greater Mumbai (for short ‘MCGM’) under

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

MCGM objected to an unauthorized construction as carried out by the

appellant as described in the ‘schedule’ to the said notice along with the

sketch, setting out the extent of the unauthorized construction. The

1
Section 351 - Proceedings to be taken in respect of buildings or work commenced contrary to section
347.

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schedule reads thus:-

“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.”

5. Although the Section 351 notice was dated 31 December, 2019, it

was actually issued on 20 October, 2020 and was received by the appellant

on 21 October, 2020. Such notice was replied by the appellant by his

advocate’s letter dated 22 October, 2020, inter alia contending that the

objected structure namely the mezzanine/first floor was already in

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

appellant was already in existence, was required to be given benefits as per

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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to the notice structure, from its previous owner, pursuant to an agreement

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

the structure was located, was declared as a “slum area”, in pursuance

thereto the structure was eligible for the purpose for issuance of a “patch

holders card” (eligibility for an alternate accommodation in case of

redevelopment of the slum), and in regard to which, documents were

submitted by the appellant to the Tehsildar. It was therefore contended that

MCGM was not the competent authority to issue such notice under Section

351 of the MMC Act.

6. The intervening period was affected by the Covid-19 Pandemic.

Thus, post the pandemic, the Designated Officer of the MCGM,

considering the appellant’s reply to the Section 351 notice as submitted

through his advocate, passed a “speaking order” dated 23 December, 2022.

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

to be legal and authorized. In such order the Designated Officer MCGM

scrutinized and considered each and every document as submitted on

behalf of the appellant, in reply to the show cause notice, so as to examine

whether the documents as furnished by the appellant, in any manner would

show that the objected structure was authorized and/or legal i.e. whether it

was put up after a lawful permission/approval obtained from the MCGM or

was a tolerated structure. A perusal of the speaking order passed by the

Designated Officer, would show that there is a detailed discussion, on each

of the documents, submitted on behalf the appellant in defending the

objected structure to be authorized. Such documents being photocopies of

the Fire NOCs, food and drug licence etc., as noted above. The Designated

Officer accordingly concluded that the documentary evidence produced by

the appellant did not show any permission from the competent authority

for unauthorized work and accordingly passed the following order:

ORDER

“In view of the above, it is found that the documentary evidence


produced by you does not have any permission from the competent
authority for unauthorized work. Hence you are directed to discontinue
the use of the notice structure and remove or restore the unauthorized
work mentioned in the referred notice within “15(Fifteen) days” from
the receipt of this notice falling which the same will be demolished by
this office at your entire risk ad cost.
You shall further note that on failure to comply with the notice action
issued under Section 351 of MMC Act are liable to be punished with
imprisonment under Section 475-A of MMC Act for a term which shall
be not be less than one month but which may extend to one year and

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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)

7. The appellant being aggrieved by such order passed by the designated

officer approached the City Civil Court by instituting the suit in question, as

also filed a Notice of Motion for a temporary injunction, on which, by the

impugned order, ad-interim relief of a temporary injunction has been

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.”

8. In refusing the relief for a temporary ad-interim injunction, the

learned trial Judge has considered the appellant’s case of the notice

structure being authorized, relying on the documents as noted above. The

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

dated 20 April 2016 which also contained a reference to the mezzanine

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

appellant was entitled to an ad-interim temporary injunction. The learned

trial Judge also considered the opposition on behalf of the

defendant/MCGM, that the NOC granted by the Chief Fire Officer was

not a document showing any sanction or approval of the notice structure.

The MCGM contended that none of the documents relied on by the

appellant showed authorization and or the legality of the notice structure.

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

further observed that the reliance of the appellant on the alleged

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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appellant holding any sanctioned plan or permission for construction or

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

such premise has filed the present appeal.

9. At the hearing of the present proceedings on 31 January 2023, this

Court was informed that the land on which the appellant’s structure was put

up, was a “public land” on which a commercial structure was constructed

wherein a full fledged business of a hotel is being conducted. It was also

informed by the MCGM that there were no documents to show that the

structure as objected by the MCGM was authorized. It was also revealed

that the main structure on which the vertical extension as objected by the

MCGM was itself unauthorized. On such premise, as certain larger issues

were involved, the Court making the following observations had appointed

Mr.Sharan Jagtiani, Senior Advocate and Mr.Rohan Surve as Amici.

2. The moot question which would be required to be


decided in the present proceedings is whether an encroacher
on public land can claim an absolute right to hold a
commercial structure (a restaurant in the present case)
constructed without obtaining any permission from the
Municipal Corporation/Planning Authority and also further
without the basic construction permission or any approved
plan, seek as a matter of entitlement and/or a legal right to
have additions and extensions to such structure on the
encroached land. Such issue would be required to be
examined not only on the touchstones of the provisions of

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law and the Government policies which, if any, confering any


such protection; but also, keeping in mind the observations 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., reported
in (2022) SCC Online Bom. 386, wherein the Division Bench
has categorically observed that a protection which has been
conferred by Section 3Z of the Slums Act to the protected
occupiers, cannot be confused or interpreted to mean that the
protected occupier enjoy and are granted a complete immunity
from putting up unauthorized construction or structure
and/or can make illegal additions or alterations. It has also
been observed by the Division Bench that mere issuance of
photo-pass cannot be interpreted to be a blanket and an
unfettered permission to put up any illegal construction,
additions or alterations, it would lead to an abuse of the
provisions of Section 3Z read with Section 3X-(a)(b)(c). The
Division Bench has observed that such can never be the
intention of the legislature that the municipal authorities
cannot take any action against the unauthorized structures
merely because a photo-pass is issued.

3. In the present case, trump card of the


appellant/plaintiff is on the issuance of a photo-pass in his
favour to contend that the structure which has been objected
to be illegal by the notice issued by the Municipal Corporation
under section 351 of the M.M.C. Act would remain protected
in regard to the unauthorized extension, which has been
pointed out to the appellant/plaintiff in such notice dated 31
December, 2019. The learned Judge of the City Civil Court
has rejected the ad-interim relief to the appellant/plaintiff.
4. Certainly some larger issues are involved, the parties
would be required to be heard. Accordingly stand over to 8
February, 2023 at 2.30p.m.

5. In the meantime, reply affidavit, if any, be placed on


record by the Municipal Corporation .

6. Ad-interim relief granted earlier shall continue to


operate till the adjourned date of hearing.

7. Mr. Sharan Jagtiani, Senior Advocate along with Mr.


Rohan Surve, Advocate are appointed as Amici to assist the
Court in this matter. A copy of the proceedings be supplied
to the amicus curiae.”

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

relevant extract of which reads thus:-

“2. On the backdrop of the order passed by this Court on 31


January, 2023, today Mr. Sharan Jagtiani, senior counsel and Mr. Rohan
Surve who were appointed as amici have appeared before the Court.
Mr. Jagtiani has made submissions on the issues which the Court would
be required to consider and more particularly in the context of decision
of this Court in Jilani Building’s case as noted in the earlier order.
Insofar as the provisions in regard to photo-pass are concerned, which
is the principal ground being asserted on behalf of the appellant, it is
Mr. Jagtiani’s submission that as per the provisions of Chapter IB and
more particularly Section 3Z(1) read with 3Y and 3X(b) of the Slums
Act, it confers protection only to a dwelling structure. However, in the
present case, the structure in question is a commercial structure namely
a restaurant and an illegal addition to the said restaurant, is the subject
matter of the impugned notice, issued by the Municipal Corporation.

3. Mr. Kanade, learned counsel for the appellant has placed on


record an affidavit of the appellant-Mujibur Rehman Chaudhary inter
alia stating that the land in question is not a public land, hence, one of
the issues as discussed by the Court in the earlier order may not be
relevant. Mr. Kanade has stated that on the earlier occasion when the
statement to this effect was made before this Court, it was made on the
instructions then received. He states that however on a re-verification,
the position as revealed is set out in the affidavit of the appellant, as
tendered before the Court today.

4. Mr. Carlos has appeared for the respondent/corporation. He


has been furnished with a copy of the said affidavit. He intends to take
instructions as to whether the land in question belongs to the Municipal
Corporation after verification of CTS record and place on record an
affidavit of a responsible officer of the Municipal Corporation dealing
with the contentions as raised in the affidavit tendered by the appellant
on record today.”

11. In pursuance of the above order, the MCGM has placed on record

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an affidavit of Shri Gajanan Dhotre, Assistant Engineer, T-Ward inter alia

stating that the appellant has constructed a mezzanine floor at the suit

premises without obtaining permission from the Competent Authority. It is

stated that in fact the original structure below the mezzanine floor itself is

constructed without obtaining any permission from the authority and it is

illegal and unauthorized structure. It is stated that the extension of the

structure, i.e., mezzanine/first floor being unauthorized, it deserved to be

demolished. The appellant’s contention that the objected structure is

constructed on a private land, is also confirmed by the MCGM in paragraph

12 of the said affidavit. The affidavit further states that only 10 ft. average

height is permissible for commercial structures in a slum area, whereas the

appellant has made construction having a height of 22 fts. including

mezzanine/ first floor of 10 ft. It is stated that even if a permission was to

be granted, the appellant would not be entitled to claim any benefit for the

unauthorized vertical extension beyond the height of 10 ft. It is stated that

the appellant is carrying on business/a commercial activity, i.e., he is

running a restaurant in the name and style of “Food Sagar Family

Restaurant” on the ground floor and the first/mezzanine floor. A

photograph of the “plush” structure of the appellant is also annexed to 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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rejected the said documents by a reasoned/speaking order dated 23

December, 2022. It is stated that the appellant has failed to make out any

case, hence, the appeal be dismissed with exemplary costs.

12. It is on the above backdrop I have heard Mr. Kanade, learned

counsel for the appellant, Mr. Carlos, learned counsel for the MCGM and

Mr. Jagtiani, senior counsel along with Mr. Rohan Surve, learned amici.

13. At the outset, it needs to be observed that now the position on

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,

inasmuch as any construction of a permanent nature, to be undertaken on

any private land would necessarily require plans to be sanctioned and

approval to be granted by the MCGM for any permanent construction. The

objected vertical extension is a part of a permanent construction firmly

embedded into the earth. Further as stated by the MCGM, the ground floor

structure on which the objected mezzanine/ first floor is constructed by the

appellant, itself is unauthorized. One would wonder in such a situation as

to how the illegality of the entire construction can fade into insignificance.

Further when the basic ground floor structure is totally unauthorized, as to

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

declared to be a slum by the State Government. This, as if once the area is

declared as a slum, there is total immunity from applicability of any law or

to put it differently there is no rule of law once a structure is put up in a

slum and more particularly such commercial nature. This case is an eye

opener nay a classic example depicting why unauthorized construction in

the city proliferates and the authorities become mute spectators. From the

record and the documents as tendered by Mr. Kanade, the following glaring

facts are unfolded in the present case.

15. Firstly, in the reply submitted by the appellant’s advocate to the

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

described as an “Agreement of Sale” dated nil July, 1998. A copy of such

agreement was also submitted to the Designated officer, also the same is

now placed on record in the compilation of documents as tendered on

behalf of the appellant. Such agreement which in fact is for sale of an

immovable property is on a stamp paper of Rs.20/-. It is not a registered

document. It does not have any “schedule/description” of the property as

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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

vendor was selling, transferring, assigning, conveying, releasing and

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

land together with structure standing thereon. The structure is stated to be

admeasuring 15 ft. X 65 sq.ft. There is no reference to the mezzanine floor/

first floor in the said agreement, however, reference is to a loft. There is no

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

structure has been sold in favour of the appellant's father.

16. It is under such document of title to the land and structure the

appellant is occupying, an unauthorized structure along with an illegal

mezzanine/first floor as objected by the notice in question issued by 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

are situated in a notified slum. It is contended that as the premises are

situated in a notified slum as also there is a photo-pass issued in favour of

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the appellant, the structure as objected becomes an authorized structure

being protected by photo-pass.

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

the Municipal Corporation’s policy, namely of the “Kurar Pattern”, the

appellant had become entitled to a vertical extension to the structure, hence

such extension is being illegally objected by the MCGM.

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

the contents of the photo-pass issued in favour of the appellant. The

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

slum structures including under MCGM’s Circular dated 20 March, 2017,

implementing the Kurar Pattern, whereby the photo-pass issued by the

competent authority was required to be accepted as conclusive proof of

legality of the structure. Mr. Kanade would submit that the eligibility

criteria and the documents necessary in that regard as contemplated in the

Circular dated 20 March, 2017, recognizes the photo-pass issued by the

competent authority and other relevant documents like ration card,

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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

made following submissions:

(i) It is submitted that the entire case of the appellant which is on

the basis of a photo-pass is untenable inasmuch as the photo-pass itself

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

“loft” "पोटमाळा", which is neither a mezzanine floor nor a first floor, of a

height of 10 ft. as objected by the notice issued by the MCGM. It is

submitted that the photo-pass also does not indicate any hotel business

being carried out, and in fact, in column 15 of the photo-pass, business of

plastic scrap is indicated, however, what is seen from the photograph

annexed by the MCGM is a full-fledged restaurant, hence the photo-pass

cannot be considered to be any document pertaining to the legality of the

structure. It is submitted that that there is a grave doubt about the

applicability of the photo-pass being relied upon by the appellant, as the

photo-pass itself is dated 25 May, 1998, which in column 8 refers to the

name of “Habibul Rehman Choudhary”, whereas the Agreement for sale

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under which the premises are purportedly transferred in favour of the

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

“Habibul Rehman Choudhary”, but the purchaser is one “Habibur Rehman

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

contention on the basis of photocopy of the photo-pass issued in the name

of Habibul Rehman Choudhary.

(ii) It is next submitted that even in the verification of the

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

dated 23 December, 2022, in which there is no reference to the photo-pass,

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

as there is no averment in the plaint.

(iii) It is submitted that even in respect of Kurar pattern, to undertake

construction of the first floor of the height as objected, a permission from

the MCGM was required to be obtained. There cannot be justification

whatsoever to put a first floor/mezzanine floor as objected by the MCGM.

(iv) In any event, there is no photo-pass for conducting a restaurant. It is

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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

appeal deserves to be dismissed.

20. In view of the question posed by this Court in the order dated 31

January 2023, I have also heard Mr.Sharan Jagtiani, Senior Advocate

alongwith Advocate Mr.Rohan Surve, the learned Amici. Mr.Jagtiani has

also submitted a preliminary note on the question whether an occupier of a

structure, can without the basic construction permission or any approved

plan, seek, as a matter of entitlement and/or a legal right, to have additions

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

Jilani builder’s case”) Mr. Jagtiani, in particular, has referred to the

observations of the Division Bench in paragraphs 58 to 63 and 70 of the

said decision.

21. In so far as the contentions as urged by Mr.Kanade are concerned,

Mr.Jagtiani has appraised the court of the legal position, in doing so, Mr.

2(2022) SCC Online Bom. 386

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Jagtiani has referred to the Maharashtra Slum Areas (Improvement,

Clearance and Redevelopment) Act, 1971 (for short ‘the Slums Act’), the

meaning of the words ‘structure used as a dwelling or otherwise’ used in

Section 3Z(1) of the Slums Act, the definition of ‘protected occupier’ as

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

Act in relation to the issuance of a photopass. As to what would be meant

by ‘dwelling house’, Mr.Jagtiani has referred to the decision of Narashimaha

Murthy V. Susheelabai (Smt).3 It is next submitted that Section 2(b) of the

Slums Act is the only provision where the term ‘dwelling’ is prefixed by the

word ‘human’. Mr.Jagtiani has thereafter referred to the Government

Resolution dated 16 May 1996 which is in the context ‘To decide eligibility

of hutment dwellers under Slum Rehabilitation Scheme’. Mr.Jagtiani has

contended that such Government Resolution was considered by this Court

in Ramesh Appa Rao Vs. Municipal Corporation of Greater Mumbai 4.

Relying on such decision, he would submit that this Court had held that the

Government Resolution dated 16 May 1996 recognizes as to which were the

protected hutments being those which were meant for residential purpose

and not commercial premises. Mr.Jagtiani has also referred to the decision

3 (1996)3 SCC 644


4 (2011)1 Mah L.J. 154

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of this Court in Shriniwas Krishna Suvarna Vs. Executive Engineer, Transit

Camp Division, M.B.R.&R Board5 to submit that by Government

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

alternate premises under any Slum Rehabilitation Scheme.

22. Mr.Jagtiani has referred to a further Government Resolution dated 11

July 2001 which notes that the general view of the Government, in issuing

photo passes, to the effect that a photo-pass is a proof indicating that a

photo-pass holder resides in a hut existing prior to 1 January 1995 and that

the photo-pass holders would not be evicted. He submits that by a further

Government Resolution dated 16 May 2015, a protection to hutment

dwellers was extended to the cut-off date 1 January 2000. Mr.Jagtiani would

submit that it is seen from various Government Resolutions issued by the

State Government, that the protection of photo-pass is now made available

to the commercial as well as residential structures. In the context of the

definition of ‘dwelling structure’ as defined under Section 3X(a) of the

Slums Act when the definition uses “dwelling or otherwise”, Mr.Jagtiani,

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.

5 2005 SCC OnLine Bom 487


6 (2010)4 SCC 753

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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

is required to be given to the words “or otherwise” as used in Section 3X(a)

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

words are used in the provision.

23. Mr.Jagtiani has also referred to the provisions of Section 33(10) of

the Development Control and Promotion Regulation 2034 (for short

‘DCPR 2034’) which provide for redevelopment/ rehabilitation of slum

dwellers. It is pointed out that Regulation 33(10)(II)(vi) provides that ‘ a

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

drawn the Court’s attention to Regulation 33(10)(IV) which interalia

provides for the right of the hutment dwellers in the slum or on the

pavement, to be eligible in accordance with the provisions of the

Regulations for a permanent alternate residential accommodation, in

exchange of the protected dwelling structure to be given free of cost,

having a carpet area of 27.88 sq.meters, in lieu of their protected structure.

Mr.Jagtiani has also referred to the provisions of Regulation 33(10) VIII (5)

of the DCPR 2034 which provides for eligibility of Commercial/ office/


7 1989 Supp(2) SCC 656
8 (1989)3 SCC 596
9 (2014)7 SCC 547

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shop/ economic activity free of cost. It is thus submitted by Mr.Jagtiani

that the Government Resolutions as issued by the State Government from

time to time indicate that the commercial premises are covered within the

regime of issuance of photo-pass as also the MCGM accepts photo-pass, as

a proof of commercial premises for the purpose of issuing licenses under

Section 394 and Section 412A of the MMC Act.

Reasons and Conclusion

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

aspects touching the subject matter of the present proceedings.

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

the unauthorized vertical extension as undertaken by the appellant as

described in the Schedule to the notice. The questions to be answered are

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

protective relief of a temporary injunction restraining the MCGM from

demolishing the structure in pursuance of the notice under Section 351 of

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the MMC Act. The second question which would be required to be

answered is merely because the structure falls in a notified slum, whether

any protection by virtue of photo-pass as relied upon by the appellant,

would entitle the appellant to a relief of a temporary injunction.

26. To examine the above questions, at the threshold it would be required

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

objected structure as described in the Schedule to the notice dated 31

December 2019 as issued by the MCGM under Section 351 of the MMC

Act. This apart, the entire structure, namely, the ground floor structure

itself is unauthorized, as no permission whatsoever has been taken to put

up such structure, which is a structure firmly embedded in the earth. Be it

so, the MCGM by its notice under Section 351 has questioned only the

unauthorized extension namely of the mezzanine/first floor of a height 10

feet whereby the total height of both the floors (ground plus the first floor)

is about 22 ft. By no acceptable standards, such structure appears to be

permissible, authorised and legal, as can be discussed hereunder.

27. In support of the appellant’s case praying for a temporary injunction,

Mr.Kanade’s submission to the effect that the ‘Kurar Pattern’ would assist

the appellant to categorize the vertical extension as objected by the Section

351 notice of the MCGM, cannot be accepted. The Kurar Pattern is

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accepted by the MCGM in its Circular dated 20 March 2017, which provides

policy guidelines for removal of bottleneck/missing link of the DP Road,

TP Roads and RL. Paragraph 7 of the said policy provides for finalization

of eligibility in which the eligibility criteria has been provided as under:-

“7) FINALIZATION OF ELIGIBILITY


ELIGIBILITY CRITERIA:
i) Category -A: Authorized structures, Tolerated structures, residential existing prior
to 17.04.1964 and commercial existing prior to 1.4.1962.

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.”

28. In so far as the benefit to be given, in case the area, of a structure is

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taken away, paragraphs (10)(ii) provides for allowing vertical extension

beyond road lines in categories A & B of paragraph 7 (supra). Paragraph

10(ii) reads thus:-

10) CASE BY CASE BASIS-REMOVAL OF BOTTLENECK:


i) .. .. .. .
ii) Allowing vertical extension beyond R.L. in categories A & B.
Eligible structures affected by road widening may be allowed to be
repaired/reconstructed and raised to the height of 17’-0” on ‘Kurar Pattern’
230 mm(9”) thick brick masonry walls having ladi, coba ladi supported on MS I
section girders framework as a roof of ground floor and 230 mm(9”) thick
masonry walls having AC sheets/GI sheet roofing rested on angles/pipes for
mezzanine floor may be permitted subject to the conditions that total carpet
area including area of mezzanine floor, shall not exceed the original protected
carpet area of the structure. It shall be clearly mentioned in the permission that
the status of the structures shall remain as it was before and permission granted
for repairs/construction and additional height shall not confer any additional
rights to the tenants/occupants and undertaking to that effect shall be obtained
from the occupants in the format approved by the Law Officer. The
tenant/occupant shall procure structural stability certificate from the registered
structural Engineer about supervision/safety of the structure. An undertaking
shall also be obtained from such tenants/occupants stating that they shall not
claim any alternate accommodation/compensation/

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

vertical extension of his structure, a permission in that regard was required

to be obtained to put up a mezzanine floor, without a permission being

obtained from the MCGM, it was not permissible for the appellant to put

up a vertical extension being a first floor area mezzanine floor. Thus,

Mr.Kanade’s contentions relying on ‘Kurar Pattern’ is required to be

rejected.

30. Mr. Kanade relying on the photo-pass purportedly issued to the

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appellant has submitted that the structure in question was an existing

structure, which would mean not only the ground floor structure, but also

the vertical extension, which according to him would stand recognized by

the photo-pass, such submission also cannot be accepted. A copy of the

photo-pass is part of the compilation of documents, on photo-pass and on

any rights thereunder, no averments as noted above are made by the

appellant in the plaint. Perusal of the photo-pass also indicates number of

anomalies as noted above. Thus, there is grave doubt as to whether the

photo-pass relied upon by the appellant is in respect of the same structure.

This also for the reason that the person in whose favour the photo-pass has

been issued is one ‘Habibul Rehman Choudhary’. The photo-pass is issued

on 25 May, 1998 prior to the appellant’s father purportedly purchasing the

premises under the Agreement of Sale dated NIL July 1998, which is also

an unregistered agreement and to which the owner of the land is not a

signatory. Further, the premises as described the photo-pass shows only a

‘loft’, without any height, and lastly the business in relation to which the

photo pass is issued is of a ‘plastic scrap shop’. It is thus quite surprising as

to how such photo-pass could in any manner be pressed into service in

defending the notice issued under Section 351 of the MMC Act. Even

assuming that the photo-pass is issued in favour of the appellant, it would

not assist the appellant to save the unauthorized structure as objected by the

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MCGM, as there is no provision in law or under any government policy that

a person holding photo-pass can undertake unauthorized construction and

claim a protection. A photo-pass would primarily be relevant to make a

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

dwelling unit being prevented from being demolished, if it is a tolerated

structure as per the slum policy of the State Government. A photo-pass

cannot be a shield to protect an unauthorized extension/construction of

any nature.

31. It also needs to be stated that a photo-pass cannot be accepted to be

a carta blanca or a blanket licence to put up an unauthorised, illegal

construction. It is certainly within the jurisdiction and powers of the

MCGM to take action against the structure, if any structure is put up

illegally. If unauthorized and uncontrolled illegal constructions are

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

Slums Act to the protected occupiers, cannot be confused or interpreted to

mean that the protected occupier enjoys and can be granted a complete

immunity from putting up unauthorized construction or structure and/or

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can make illegal additions or alterations. The Division Bench analyzing the

complete scheme of Slums under Chapter 1-B of the Slums Act in

paragraphs 58 to 63 and 70 has observed thus:-

58. To appreciate these submissions, it would be necessary to consider


the scheme of Chapter I-B of the Slums Act. Chapter I-B deals with
protected occupiers, their relocation and rehabilitation. Section 3X is
the definition clause which defines ‘dwelling structure’ [Section 3X(a)],
‘photo pass’ [3X(b)], ‘protected occupier’ [3X(c)] and ‘scheme’ [3X(d)].
Section 3Y ordains issuance of photo passes and maintenance register.
It provides that the actual occupier of a dwelling structure in existence
on or prior to 1st January 2000, would be issued a photo pass which
would be an identity card-cum-certificate, issued by the Government
certifying a slum dweller to be an actual occupier of the dwelling
structure in existence on the cut of date i.e. 1 st January 2000. A photo
pass holder becomes a protected occupier as defined under Section
3X(c).

59. Section 3Z is a vital provision which provides for ‘protection,


relocation and rehabilitation of protected occupiers.’ The provision
begins with a non-obstante clause in sub-section (1) to ordain that
notwithstanding anything contained in the Slums Act, on and after the
commencement of the 2014 Amendment Act, no protected occupier
except as provided under sub-section (2) be evicted from his dwelling
structure. Thus, the protection is only from eviction. However, subject
to the exceptions in sub-section (2) of Section 3Z which is to the effect
that, when in the opinion of the State Government, it is necessary in
the larger public interest to evict the protected occupier from the
dwelling structure occupied by him. The State Government in that
event, may subject to a condition of relocating and rehabilitating such
slum dwellers in accordance with the scheme of relocation and
rehabilitation, in accordance with such scheme evict the slum dwellers
from their dwelling structures. The scheme referred in sub-section (2)
of Section 3Z is the scheme as defined under Section 3X(d) to mean
any arrangement or plan prepared and declared by the State
Government for the protection, relocation and rehabilitation of the
protected occupiers. It is thus seen that a protected occupier would
enjoy an immunity in so far as the structure is concerned, from being
evicted from his dwelling structure, except when the eviction is
required for the purpose of relocation and rehabilitation, in the larger
public interest.

60. The next provision is Section 3Z-1 and is a significant provision,


which confers powers on competent authority to demolish
unauthorized or illegal dwelling structures. Sub-section (1) of Section
3Z-1 provides that where a competent authority, upon a complaint
from any person or report from its officer or police or any other
record or information in its possession, is satisfied that any
unauthorized or illegal dwelling structure or part thereof has been

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constructed or any addition to the existing structure as recorded on


photo-pass had been erected after the cut-off date of 1 st January 2000,
without obtaining necessary permissions required to be obtained in
that behalf under the relevant laws, a written notice to show cause can
be issued by the competent authority to such person who has put up
such unauthorized or illegal dwelling structures. It provides that such
notice be replied within 24 hours as to why an order of demolition of
the structure be not made. Sub-section (3) of Section 3Z-1 is also
quite significant, which provides that a person upon whom such notice
has been served under sub-section (1) or (2), as the case may be, shall
within 24 hours appear before the competent authority and produce
through his agent or representative, the necessary documents to prove
that the requisite statutory permission for construction, reconstruction,
addition or extension, as the case may be, has been duly obtained by
him and that the construction, re-construction, addition, extension is
not unauthorized or illegal. Sub-section (5) of Section 3Z-1 provides
for an order of demolition to be passed on any unauthorized or illegal
dwelling structure, if such person fails to demolish such structure
within the time the competent authority had directed.

61. Section 3Z-2 provides for demolition of unauthorized or illegal


dwelling structures and for penal liability. Even this provision inter alia
confers powers on the competent authority to take action against
unauthorized or illegal dwelling structures which are constructed
without obtaining necessary permissions required to be obtained in
that behalf under the “relevant laws” from the concerned statutory
authorities under sub-section (1) of Section 3Z-2. In such case, a
written show cause notice can be issued by the competent authority
calling upon the person who has put up such structure to show cause
as to why an order of demolition be not made. Sub-section (6) of
Section 3Z-2 provides for penal action to be taken, so to provide, that
notwithstanding anything contained in the Slums Act, the owner of
unauthorized or illegal dwelling structure referred to in sub-section (1)
of Section 3Z(2) or any other person responsible for construction of
such unauthorized structure or even such person who has aided or
abetted the construction of such unauthorized or illegal structure or
the person who is in occupation of such structure, with the knowledge,
that such structure is unauthorized or is illegally constructed, shall be
guilty of an offence under this section and shall on conviction be
punished with imprisonment for a term which shall not be less than
one year but which may extend to three years and with fine which shall
not be less than two thousand five hundred rupees but which may
extend to five thousand rupees.
Sub-section (7) of Section 3Z-2 is further a very drastic provision,
which provides that notwithstanding anything contained in the Slums Act,
the competent authority or any of its officer who has aided or abetted the
construction of illegal or unauthorized structure or who has failed to
demolish such structure as provided in sub-section (5) of Section 3Z-2
without any sufficient reason, such act of commission or omission on their
part shall constitute an offence under this section and shall on conviction be
punished with imprisonment for a term which shall not be less than one
year but which may extend to two years and with fine which shall not be
less than two thousand five hundred rupees but which may extend to five
thousand rupees. Sub-section (8) of Section 3Z-2 provides that the

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offences punishable under sub-section (6) of Section 3Z-2 shall be


cognizable and non-bailable.

62. On a holistic reading of the above provisions as contained in


Chapter I-B of the Slums Act, it becomes clear that on one hand it confers
protection on protected occupiers [Section 3X(c)] and further, it confers
powers on the competent authority to demolish unauthorized or illegal
dwelling structures, (Section 3Z-1) and also makes construction of
unauthorized and illegal dwelling structures an offence punishable under
sub-section (6) and (7) of Section 3Z-2. In our opinion, Mr. Chinoy would
not be correct in his contention, that when it comes to ascertaining as to
whether the construction set up in slums is unauthorized or illegal, it is only
the competent authority who would be the only officer responsible to take
an action, for the reasons we discuss hereunder.

63. A plain reading of sub-section (3) of Section 3Z-1, clearly


recognizes that although the competent authority is permitted to initiate an
action of demolition, however, the competent authority is required to verify
as to whether the construction which has been put up complies with
requisite statutory permissions for construction, reconstruction, addition or
an extension has been obtained by a person, who is alleged to have put up
such construction. Similar is the position under sub-section (3) of Section
3Z-2. An authority to grant construction permission of any nature may it
be for putting up a new construction or making any addition, alteration, etc.
would be with the Planning Authority, unless such authority is expressly
taken away and vested with any other authority as the law may provide. We
are thus of the opinion that even in respect of slum structures although the
competent authority has been empowered to take action against
unauthorized or illegal dwelling structures of demolition and/or lodging of
prosecution, however, at the same time the provisions of Section 3Z-1 and
3Z-2 recognizes the role of the planning authority.
…..
70. As discussed above, there are provisions under the MMC Act as
also under the MRTP Act and the MLRC which confer several powers on
the authorities to take action against illegal constructions. We may, however,
clarify that a protection which has been conferred by Section 3Z of the
Slums Act, to the protected occupiers, cannot be confused or interpreted to
mean that the protected occupier enjoys and is granted a complete
immunity from putting up unauthorized construction or structure and/or
can make illegal additions or alterations. The protection which is granted is
to a basic slum structure as may be recognized in the photo-pass. If mere
issuance of a photo-pass is interpreted to be a blanket and an unfettered
permission to put up any illegal construction, additions or alterations, it
would lead to an abuse of the provisions of Section 3Z read with Section
3X-(a)(b)(c). Such can never be the intention of the legislature that the
municipal authorities cannot take any action against the unauthorized
structures merely because a photo–pass is issued.”

32. Thus, Mr.Kanade’s contention that the photo-pass purportedly issued

in favour of appellant would protect unauthorised construction as objected

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by the MCGM deserves to be rejected.

33. There is another notable aspect of the case, namely although the land

is notified as a Slum, it does not belong to either the State Government or

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

with his predecessor-in-title, to which the owner himself is not a party.

Even assuming that the appellant’s father had purchased the land in

question, however, there is no provision under any law/municipal law, that

on a private land, a structure can be put up without prior approval of the

MCGM and more particularly, a permanent structure of such nature, where

a restaurant is conducted. Although, the slum policy may be well

intentioned namely to protect the dwelling structure as defined under

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

recognize any protection to commercial premises, albeit that the State

Government in its various Government Resolutions as noted above has

recognized commercial structures, in slum areas to be structures entitled

for a permanent alternate accommodation, under such government policies,

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as also they are so recognized in the Development Control Regulations. Be

that as it may, the Government Resolutions as also the Development

Control Regulations may stand independent of the substantive provisions

of the Slums Act which appear to be explicitly not recognizing

rehabilitation of a commercial slum structure.

34. In the absence of specific provisions under the Slums Act for

inclusion of commercial premises being recognized in the photo-pass under

the provisions of the Slums Act, it would be difficult to accept that the

Slums Act would recognize a commercial structure, in respect of which

under the Slums Act a photo-pass can be issued. Moreover, the definition

of ‘dwelling structure’ as defined under Section 3X(a) of the Slums Act, as

rightly contended by Mr. Jagtiani, in my opinion, would be required to be

interpreted in the context of the object, the Slums Act intends to achieve.

The said definition reads thus:-

“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

a “dwelling structure”, and when the definition provides to include out-

house, shed, hut or other enclosure or structure, necessarily in my opinion,

it would not include commercial premises which do not fit into any of the

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ingredients of such provision namely a structure used for dwelling or out-

house, shed, hut, as used in the said provision. In such context

Mr.Jagatiani’s reliance on the decision in Ramesh Appa Rao (supra) which

has considered the Government policy under the Government Resolution

dated 16 May 1996 that the commercial structure is not protected, would be

apposite, however, subject to caveat that the subsequent Government

Policies have deviated from the Government Resolution dated 16 May 1996

so as to grant protection to commercial structures.

36. This Court in Mohammed Iqbal Abdul (supra) in paragraph 21 was

confronted with similar facts, which was also a case in regard to a

commercial structure in a slum area. Referring to the decision of the

Division Bench of this Court in ‘Jilani Building’s Case’ (supra) as also the

decision of the Supreme Court in Friends Colony Development Committee

V. State of Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee V. Kolkata

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

notice under Section 351 of the MMC Act on removal of such

unauthorized commercial structure. Paragraph 20 of the said order of this

Court reads thus:-

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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decisions of the Supreme Court [See: Friends Colony Development Committee


V. State of Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee V. Kolkata
Municipal Corporation and Ors. (2013)3 SCC (Civ) 72; Supertech Ltd. vs.
Emerald Court Owner Resident Welfare Association and Ors. (2021)10 SCC
1.] In Jilani Building at Bhiwandi (supra), the Division Bench has considered
such mandate of law as laid down by the Supreme Court in paragraphs 85 to 87
which reads thus:-

“85. In Friends Colony Development Committee V/s State of


Orissa (2006)3 SCC 581, the Court was concerned with an unauthorized
construction being undertaken by the builder, as instead of sanction of a
four storeyed building, he had constructed a 5 th floor and for which an
action came to be initiated against him. On the plea of the builder being
accepted by the High Court that he be permitted to make a fresh
application and submit a revised plan for approval qua the construction
he had already undertaken, the appellant had moved the Supreme Court.
It is in such context the Supreme Court made significant observations in
regard to the threat to the society, illegal and unauthorized constructions
pose. These observations are important not only in the context of
unauthorized and illegal constructions but also in the context of the
plight of those who purchase premises in unauthorized buildings. The
relevant observations are required to be noted, which reads thus:

“20. The pleadings, documents and other material brought on


record disclose a very sorry and sordid state of affairs prevailing
in the matter of illegal and unauthorized constructions in the
city of Cuttack. Builders violate with impunity the sanctioned
building plans and indulge deviations much to the prejudice of
the planned development of the city and at the peril of the
occupants of the premises constructed or of the inhabitants of
the city at large. Serious threat is posed to ecology and
environment and, at the same time, the infrastructure consisting
of water supply, sewerage and traffic movement facilities suffer
unbearable burden and are often thrown out of gear. Unwary
purchasers in search of roof over their heads and purchasing
flats/apartments from builders, find themselves having fallen
prey and become victims to the design of unscrupulous
builders. The builder conveniently walks away having pocketed
the money leaving behind the unfortunate occupants to face the
music in the event of unauthorized constructions being detected
or exposed and threatened with demolition. Though the local
authorities have the staff consisting of engineers and inspectors
whose duty is to keep a watch on building activities and to
promptly stop the illegal constructions or deviations coming up,
they often fail in discharging their duty. Either they don't act or
do not act promptly or do connive at such activities apparently
for illegitimate considerations. If such activities are to stop,
some stringent actions are required to be taken by ruthlessly
demolishing the illegal constructions and non-compoundable
deviations. The unwary purchasers who shall be the sufferers
must be adequately compensated by the builder. The arms of
the law must stretch to catch hold of such unscrupulous
builders. At the same time, in order to secure vigilant
performance of duties, responsibility should be fixed on the

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officials whose duty it was to prevent unauthorized


constructions, but who failed in doing so either by negligence or
by connivance.
22. ........... It can be stated in a way that power to plan
development of city and to regulate the building activity therein
flows from the police power of the state. The exercise of such
governmental power is justified on account of its being
reasonably necessary for the public health, safety, morals or
general welfare and ecological considerations; though an
unnecessary or unreasonable inter- meddling with the private
ownership of the property may not be justified.”
(emphasis supplied)

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:

“(7) The High Court, if it feels that illegal/unauthorized building


activities in Cuttack are so rampant as to be noticed judicially, 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.”
(emphasis supplied)

87. In Dipak Kumar Mukherjee v Kolkata Municipal Corporation


and Ors. (2013)3SCC(Civ.)72, again the Supreme Court was concerned
with an illegal and unauthorized construction of buildings and other
structures put up by respondent no. 7 in the said proceedings, who had
undertaken construction in violation of the sanctioned plans. An order
was passed by the Municipal Corporation ordering demolition of the
disputed construction. Respondent no. 7 having approached the High
Court, an order came to be passed by the High Court directing the
competent authority to pass an appropriate order after giving an
opportunity of a hearing to respondent no. 7. The Supreme Court held
that such an order could not be sustained, as the construction
undertaken by respondent no. 7 was in clear violation of the sanctioned
plans and for which a notice was issued by the competent authority of
the Corporation and more so because an application for regularization
was made by respondent no. 7 after completion of the construction. It is
in such context, the Supreme Court considering the position in law as
laid down in the earlier decisions emphasized that illegal and
unauthorized constructions of buildings and other structures not only
violate the municipal laws and the concept of planned development of
the particular area but also affect various fundamental and constitutional
rights of other persons. It was observed that the common man feels
cheated when he finds that those making illegal and unauthorised
constructions are supported by the people entrusted with the duty of
preparing and executing master plan/development plan/zonal plan. In
commenting on the menace of illegal and unauthorized constructions,
the Supreme Court considering its decisions in K. Ramadas Shenoy V.

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Town Municipal Council, Udipi (1974)2 SCC 506, Pratibha Coop.


Housing Society Ltd. v. State of Maharashtra (1991)3 SCC 341, Friends
Colony Development Committee v. State of Orissa (supra), Shanti
Sports Club v. Union of India (2009)15 SCC 705 and Priyanka Estates
International (P) Ltd. v. State of Assam (2010)2 SCC 27. the Supreme
Court made the following observations:
“29. It must be remembered that while preparing master
plans/zonal plans, the Planning Authority takes into
consideration the prospectus of future development and
accordingly provides for basic amenities like water and
electricity lines, drainage, sewerage, etc. Unauthorized
construction of buildings not only destroys the concept of
planned development which is beneficial to the public but also
places unbearable burden on the basic amenities and facilities
provided by the public authorities. At times, construction of
such buildings becomes hazardous for the public and creates
traffic congestion. Therefore, it is imperative for the concerned
public authorities not only to demolish such construction but
also impose adequate penalty on the wrongdoer.”
(emphasis supplied)”

37. In Abdul Rehman Jamadar Shaikh & Anr. Vs. The Municipal

Corporation of Gr. Mumbai & Anr. (Appeal from Order No.73 of 2023

decided on 10 February, 2023) this Court in similar facts wherein a case

relying on a photo-pass was urged by the appellant’s therein, rejecting such

contentions had made the following observations:-

“8. From a perusal of the document of what is contended by the


appellants/plaintiffs to be a photo-pass, there is a grave doubt
as to whether the document (receipt) pertains to the
unauthorized structure of the appellants/plaintiffs. Even
assuming that the structure in question is issued a photo-pass,
however, it appears that the photo-pass has not been issued in
the name of subsequent purchasers like the appellants/
plaintiffs who have purchased the premises recently in the year
2019, under an illegal sale deed dated 13 September,
2019. Hence the appellants/plaintiffs cannot be given
benefit under any such document or under the slum scheme. It
is also not pointed out that there is any provision under the
Slums Act or any other law that a slum structure becomes
an authorized structure and it becomes transferable by a sale
deed and even the benefit of photo-pass if any
issued is available to a transferee of the slum structure. Such
contention as urged on behalf of the appellants/ plaintiffs if

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accepted, in fact, would lead to mockery of the Slums Act and


slums scheme. As clearly seen from the provisions of the Slums
Act, photo-pass is issued only for dwelling house and not for
commercial structure.”

38. It would thus be required to be held that on a mere issuance of a

photo-pass, the appellant would not be entitled to a protection to the illegal

vertical extension as undertaken to the slum structure in question.

39. Insofar as the question in regard to applicability of the Kurar Pattern

and the protection as claimed by the respondent relying on the same is

concerned, in my opinion, the appellant ipso facto cannot claim protection

under the Kurar Pattern, as no permission whatsoever was obtained by the

appellant to put up a vertical extension, even assuming that certain portion

of the appellant’s land was taken away in the road widening as the

provisions of the policy of the MCGM itself would mandate as noted

above. It would be an absurdity to read the said policy as the appellant

desires.

40. In the light of the above discussion, it is required to be concluded

that the structure as objected by the MCGM by a notice issued under

Section 351 of the MMC Act, is a rank unauthorized structure, constructed

without obtaining any permission from the MCGM. The Designated

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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has rightly concluded that no documents whatsoever proved the legality of

the structure as objected by the MCGM.

41. The appellant has miserably failed to make out a case for grant of

temporary injunction. Any temporary injunction granted would be opposed

to the observations of the Division Bench of this Court in Jilani’s case

(supra), and would be contrary to the provisions of the Slums Act as also

the provisions of the Mumbai Municipal Corporation Act. Certainly, a

relief against law cannot be claimed by the appellant.

42. For the above reasons, the appeal deserves to be rejected. It is

accordingly rejected.

43. In view of disposal of the appeal, pending Interim Application

would not survive. It is disposed of.

44. At this stage, learned Counsel for the appellant has prayed for

continuation of the ad-interim protection granted earlier. The ad-interim

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.

45. The Court appreciates the assistance as rendered by learned Amici as

assisted by Mr. Mutahhar Khan, Mr. Priyank Kapadia, Ms. Shradha Achliya

and Mr. Siddharth Joshi.

(G. S. KULKARNI, J.)

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