Bombay High Court
Smt. Sushiladevi Rajaram Jaiswal And ... vs The Municipal Corporation Of Greater ... on 6 August, 2025
2025:BHC-AS:33550
FA-245-13 (J) C1.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by
CIVIL APPELLATE JURISDICTION
HUSENBASHA HUSENBASHA
RAHAMAN RAHAMAN
NADAF NADAF
Date: 2025.08.06
FIRST APPEAL NO. 245 OF 2013
19:53:48 +0530
WITH
CIVIL APPLICATION NO. 887 OF 2013
1 Smt. Sushiladevi Rajaram Jaiswal, )
age 62 Wd/o. of late Shri Rajaram )
Ramdulare Jaiswal, residing at )
"Samrat Ashok Nagar, Near Badal- )
Bijli Bldg., Opp. Navjeevan Society, )
R.C. Marg, Chembur, Mumbai-400074 )
2 Mrs. Suman Anil Jaiswal, )
(Maiden Name: Suman Rajaram Jaiswal) )
age 43 years, D/o. late Shri Rajaram )
Ramdulare Jaiswal, residing at )
194/232, Lohiya Pande Ke )
Hatha, Bahadur Ganj, Allahabad, U.P. )
3 Mr. Anil Rajaram Jaiswal, )
age 38 years, S/o. late Shri Rajaram )
Ramdulare Jaiswal, residing at )
"Samrat Ashok Nagar, Near Badal- )
Bijli Bldg., Opp. Navjeevan Society, )
R.C. Marg, Chembur, Mumbai- 400074 )
4 Mr. Sunil Rajaram Jaiswal, )
age 34 years, S/o. late Shri Rajaram )
Ramdulare Jaiswal, residing at )
"Samrat Ashok Nagar, Near Badal- )
Bijli Bldg., Opp. Navjeevan Society, )
R.C. Marg, Chembur, Mumbai-400074 )
5 Mrs. Reena Pankaj Shivhare )
(Maiden Name: Reena Rajaram Jaiswal), )
age 32 years, D/o. late Shri Rajaram )
Ramdulare Jaiswal, residing 101-A, )
Shivam Apartment, 10th Lane, M.R. Road )
Kamathipura, Mumbai - 400 007 )
6 Mr. Sudhir Rajaram Jaiswal, )
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age 31 years, S/o. late Shri Rajaram )
Ramdulare Jaiswal, Residing at )
"Samrat Ashok Nagar, Near Badal- )
Bijli Bldg., Opp. Navjeevan Society, )
R.C. Marg, Chembur, Mumbai-400074 )
7 Mrs. Poonam Mahesh Gupta, )
(Maiden Name: Poonam Rajaram )
Jaiswal) age 28 years, D/o. Late )
Shri Rajaram Ramdulare Jaiswal, )
residing at Room No.802/101, "B" Wing, )
Tilak Nagar, Chembur, Mumbai-400 089 )
8 Mr. MAHESH JAISWAL )
9 Mr. DINESH JAISWAL )
all adult Indian Inhabitants residing at )
Samrat Ashok Nagar, Near Badal-Bijallee )
Bldg., Opp.Navjeevan Society, R.C. )
Marg, Chembur, Mumbai-400 074 ) ..Appellants/
Applicants
Versus
1. The Municipal Corporation of )
Greater Mumbai, a statutory )
Corporation Act, 1888 having its )
Office at Mahapalika Marg, Fort, )
Mumbai-400 001 )
2. The State of Maharashtra, )
Through Dy. Collector, MHADA )
Building, 5th floor, Bandra (E), )
Mumbai-400 051 )
3. The Slum Rehabilitation Authority, )
MHADA Building, 5th floor, Bandra )
(E) Mumbai-400 051 )... Respondents
****
Mr. Prasad S. Dani, Senior Advocate a/w Mr. Pramod Bhosle i/b Mr.
Sharad Bhosale for the Appellants.
Ms. Pallavi Khale a/w Mr. Pradeep Patil i/b Ms. Komal Punjabi for
Respondent No.1/BMC.
Mr. Mayur Sonavane, AGP for Respondent No.2/State.
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Mr. Yogesh Patil i/b Abhijit Patil for Respondent No.3/SRA.
Mr. Vikram Somvanshi, Jr. Engineer, M/W ward, present.
Mr. Ankush Tuse, Asst. Engineer (Bldg and Factory), M/W Ward,
present.
****
CORAM : M.M. SATHAYE, J.
RESERVED ON : 25th JUNE 2025
PRONOUNCED ON : 6th AUGUST 2025
JUDGMENT:
1. This first appeal filed by original Plaintiffs takes exception to
the judgment and decree dated 18.01.2013 passed by Judge, City
Civil Court, Mumbai in Long Cause Suit No.817 of 2005, by which
the Appellants' suit is dismissed.
2. In this Judgment, The Maharshtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971 is referred to as 'the Slum
Act' for short. Slum Rehabilitation Authority is referred to as 'SRA' for
short. Government Resolution is referred to as 'GR'. Mumbai
Municipal Corporation Act is called MMC Act.
CASE
3. The case of the Appellants / Plaintiffs, in short, is as under.
Plaintiffs claim to be owners and occupiers on the basis of photo-
passes in their name of a structure which is constructed by them 30
years prior to suit. They are paying monthly compensation to the
Collector. According to the Appellants the suit premises is constructed
with brick masonry walls and A.C. roofing used for residential
purpose. According to the Appellants the suit premises are situated
on CTS No.151, 151/1 & 151(2) of Chembur, opposite Navjivan
FA-245-13 (J) C1.doc
Society. It is pleaded that the area of the suit premises is declared as
'slum' under government notification published in Government
Gazette dated 21.12.1978. According to the Appellants, they are
protected occupiers on the basis of photopasses and being in
occupation prior to 01.01.1995 which is the datum line. It is
contended that after the area being declared as slum, Slum
Improvement Board/Slum Rehabilitation Scheme for redevelopment
is undertaken and proposal for construction is submitted. It is
contended that the Appellants are occupying the suit premises for
more than 34 years. A notice under Section 351 of the MMC Act
dated 02.12.2003 is issued. It is contended that the Appellants
replied to the suit notice and thereafter speaking order dated
06.05.2004 and thereafter order dated 18.12.2004 are passed. It is
contended that despite submitting necessary documents and proof,
orders for removal of structure has been passed. According to the
Appellants, the suit premises are not newly constructed and they
have not changed original structure. While praying for declaration
that the suit notice and orders are illegal, it is contended that SRA
scheme is to be implemented and the suit premises is to be
demolished under the scheme and they need to be rehabilitated by
granting possession letter of alternate accommodation.
4. The Respondent Municipal Corporation filed a written
statement opposing the claim, contending inter alia that a statutory
notice under Section 527 of the MMC Act, is not issued. It is
contended that on receipt of a complaint, the Junior Engineer has
inspected the site and found fresh construction of ground plus two
FA-245-13 (J) C1.doc
floors with brick masonary (BM) walls and ladi coba as shown in the
rough sketch of notice. The Appellants have carried out unauthorized
structure without permission of the Municipal Corporation. At the
time of inspection itself the Appellants were asked to show
permission and documents about authorization of the existing
structure but the Appellants have failed to produce the same. It is
contended thereafter inspection report and papers were placed before
the Assistant Commissioner. Thereafter suit notice was issued, after
going through the record and after coming to the conclusion that
notice structural is without permission. It is submitted that the
Appellants have replied and after considering the documents
produced by the Appellants, the Assistant Commissioner has passed
the speaking order. It is contended that even if the area is declared as
a 'slum' it does not mean that the structure under reference is
censused and protected. It is contended that the structure reflecting
in the census documents is only zopda, but the notice-structure is
permanent structure with ground plus two floors.
5. Respondent No.2 - Slum Rehabilitation Authority/State or
MHADA has not filed a written statement and the suit proceeded
without their written statement.
6. Issues were framed and after hearing the parties and on
appreciation of the evidence, the suit came to be dismissed.
SUBMISSIONS
7. Learned senior Advocate Mr. Dani appearing for the Appellants
made following submissions :
FA-245-13 (J) C1.doc
7.1) That undisputedly suit property is located in a declared
slum and Slum Regulation Authority (SRA) is duly appointed
and the slum concerned is a slum rehabilitation area and already
under process for redevelopment. Thus, to this area the
provisions of Chapter I-A of the Slum Act applies.
7.2) That the whole of the Slum Act applies to any declared
slum and that by virtue of provisions of Sec. 3D, for the slums
covered under Chapter IA, the other provisions of the Slum Act
either are not applicable at all or apply as stand statutorily
modified as stated therein and thus apply as modified therein.
7.3) Sec. 3X, 3Z and 3Z1 in Chapter I-B will apply as they
stand. Sec. 3X gives definitions of dwelling structure and photo
pass while Sec. 3Z gives protection to such structures. Sec. 3Z1
statutorily avoids demolition of any existing structure
constructed before 1.1.2000 (earlier 1.1.1995) except on notice
issued by the competent authority alone i.e. in this case SRA.
7.4) Section 3Z(1) protects all structures built without
permission of the planning authority i.e. Respondent No. 1
Municila Corporation, including additions thereto, made prior to
1.1.2000. The said protection is to the "dwelling structure" as
defined in Sec. 3X and thus to those all structures, whether
temporary or permanent, constructed with whatever material
are protected. The definition in Sec. 3X is an inclusive definition
and only "includes" a hut within the meaning of "dwelling
structure". Thus dwelling structure will include a hut and several
FA-245-13 (J) C1.doc
other structures provided they are there before the date
concerned i.e. 1. 1. 2000.
7.5) Sec. 47 of the Act deals with "cesser" of municipal laws.
It applies in three different conditions viz. i) Blanket cessation of
municipal laws from the date of declaration of slum. ii) if any
order of demolition is passed under the Slum Act by the
competent authority i.e. SRA. iii) even if the area is declared as
slum and order of demolition is not passed by SRA still the BMC
Act would apply subject to conditions stated therein.
7.6) However, for suit property these provisions of Sec. 47
would not apply in its entirely. By virtue of Sec. 3D(e)(xii), the
protection is complete and the provisions of the MMC Act,
including Sec. 342, 351 etc. won't apply. The modification
totally exempts the applicability of the entire municipal law's
provisions once the land is declared a 'slum rehabilitation area'
7.7) In this case what is challenged is notice u/s. 351 of the
MMC Act. In view of the above provisions viz. Sec. 3X, 3Z, 3Z(1)
and 3D(e)(xii) of the Slum Act, the notice in question will be
without authority of law.
7.8) Therefore suit has to be decreed. He submitted that if the
necessary factual aspects are to be determined, the suit can even
be remanded for that purpose.
7.9) That the Appellants have produced 12 photo passes,
which are not considered by the Trial Court. That there has to be
FA-245-13 (J) C1.doc
finding about photo passes. That existence of photo passes is not
doubted in the written statement and the oral evidence of the
Appellants about photo passes is not shaken in cross
examination. That in the cross-examination of the witness for
Municipal Corporation it is admitted that passage passing
through the notice structure is for public and this indicates that
suit structure is ground plus one. That Chapter I-B (containing
Section 3X to 3Z-2) has come into force on 18.05.2001 and
therefore on the date of notice, the suit structure was protected
and provisions of MMC Act did not apply. Other documents as
such electricity bills, election voter cards etc. are not properly
considered.
8. On the other hand, learned counsel for Respondent -
Municipal Corporation submitted that under the provisions of MMC
Act, permission is required for anything beyond tenantable repairs. In
all the photo passes, the dwelling structure is shown as only 'zopda'
or 'kuccha structure' and not a ground plus two permanent
construction with brick masonary walls and ladi coba, as found to
have constructed without permission. That type of structure is
permanent in nature. That after due inspection and drawing of sketch
with measurement, the suit structure is found to be without
permission/sanctioned plan. Drawing attention of the Court to the
cross-examination of the Appellants' witness, it is submitted that
admitted absence of permission from MMC is fatal. That admissions
given in the cross-examination of the Appellants' witness by
Respondent - Municipal Corporation and Respondent - SRA are fatal.
FA-245-13 (J) C1.doc
That unless it is proved that the notice structure existed prior to
datum line, it cannot be protected. That existence of 'part of notice
structure' prior to datum line is not sufficient. That area of the suit
structure is not mentioned and area mentioned in the cross-
examination does not match with the photo-passes. That photo
passes relied by the Appellants are 'for different areas in Mumbai' and
therefore, cannot be considered as sufficient evidence for protection
of suit premises situated at a particular location. That all photo
passes are automatically canceled under GR dated 11.07.2001 and
instead of approaching the proper authority (Respondent No.3 - SRA)
they have approached the Court. It is asserted that suit notice is legal.
That under Section 47(3) of the Slum Act, the Municipal Corporation
retains its power to issue notices for unauthorized structure. That suit
structure as it stands is not censused. He has relied upon following
judgments in support of his submissions :
(i) Seema Arshad Zaheer & Ors. Vs. Municipal
Corporation of Greater Mumbai & Ors. (SLP(c) No.
9479/2005 Judgment dt. 05.05.2006 by Supreme Court)
(ii) Anil Madhav Gore Vs. Bombay Mun. Corporation -
2002(1) BomCR 146 (Bombay High Court Single Judge)
(iii) Tushar Guru Salien Vs. State of Maharashtra &
Ors. (PIL No. 67/2017 Order dt. 28.08.2019 - Bombay
High Court Division Bench)
(iv) High Court on its own motion Vs. Bhiwandi
Nizampur Mun. Corporation & Ors. (Suo Motu PIL No. 1
FA-245-13 (J) C1.doc
of 2020 Order dt. 26.02.2022 (Bombay High Court
Division Bench)
9. Learned counsel for Respondent No. 3 (SRA) has not made any
submissions and has maintained calibrated silence.
10. Following POINTS fall for my consideration, on which my
findings are shown below :
(1) Whether in the facts of this case, application of provisions of
MMC Act is excluded by virtue of Section 3D of the Slum Act ? NO
(2) Whether the Appellants have proved that the structure in their
possession is authorized? NO
(3) Whether the Appellants proved that the suit notice and speaking
order is illegal? NO.
(4) Whether the suit structure as described in the suit notice was in
existence prior to datum line on 01.01.1995 ? NO.
(5) What order ? Appeal is dismissed.
REASONS
About point no. 1
11. The detailed legal arguments advanced by the learned Senior
Counsel for the Appellants is not to be found argued before the Trial
Court. However, since they are purely legal submissions, I find it
appropriate to deal with them in this appeal. I do not intend to
remand the matter to the Trial Court because in my opinion, it will
amount to unnecessary lease of life to litigation, considering that suit
notice is issued about 22 years ago.
FA-245-13 (J) C1.doc
12. The argument is based on application of Section 3D(e)(xii) of
the Slum Act, in as much as, for slum covered under Chapter I-A, the
other provisions of the Slum Act are either not applicable or
statutorily modified as stated in Section 3D, especially section 47 of
the Slum Act which provides for application of local municipal laws
in a controlled manner. For better understanding of the argument, it
is necessary to consider that Chapter I-A (sections 3A to 3W) &
Chapter I-B (sections 3X to 3Z-2) of the Slum Act. Chapter I-A
provides for 'Slum Rehabilitation Scheme' and Chapter I-B provides
for 'protected occupiers, their relocation and rehabilitation'. The
whole legal argument is based on these chapters. For this to apply,
requirement is declaration under section 3C(1) of the Slum Act,
which at the relevant time, read as under :
"3C. (1) As soon as may be after the publication of the Slum
Rehabilitation Scheme, the Chief Executive Officer on being
satisfied that circumstances in respect of any area, justifying
its declaration as slum rehabilitation area under the said
scheme, may by an order published in the Official Gazette,
declare such area to be a "slum rehabilitation area". The order
declaring slum rehabilitation area (hereinafter referred to as
"the slum rehabilitation order") shall also be given wide
publicity in such manner as may be specified by the Slum
Rehabilitation Authority."
13. 3D(e)(xii) and 47 as they stood on the date of suit notice read
as under :
3D(e)(xii) for section 47, the following section shall be
substituted, namely :-
FA-245-13 (J) C1.doc
"47. Where any area is declared to be a slum rehabilitation
area then as from the date of such declaration, the provisions
of any municipal law or other law, corresponding to the
provisions of this Chapter, for slum development in relation to
such slum rehabilitation area, in force immediately before the
said date shall, save as otherwise provided in this Chapter,
cease to be in force in such slum rehabilitation area, but so
long only as the said declaration remains in force."
It is worth noting at the outset that words used as "slum
rehabilitation area". Otherwise section 47 reads as under :
"47. Cesser of corresponding laws and powers conferred
thereunder temporarily.
(1) Where any area is declared to be slum area under this
Act, then as from the date of such declaration, the provisions
of any municipal or other law corresponding to the provisions
of this Act for slum improvement in relation to the slum area
in force immediately before the said date shall, save as
otherwise provided in this Act, cease to be in force in the
slum area, but so long only as the said declaration remains
in force.
(2) Where any area is declared to be a slum area, and any
building or buildings are ordered to be demolished, under
this Act, then as from the date of such order, the provisions
of any municipal or other law corresponding to the provisions
of this Act for slum clearance and redevelopment and
demolition of buildings in force immediately before the said
date shall not, save as otherwise provided in this Act, apply
in relation to such building or buildings, but so long as the
building or buildings, as the case may be, are redeveloped.
(3) Even though any area is declared to be a slum area, as
long as the order for demolition of any building or buildings is
not made under this Act, nothing contained in this section
shall affect the provisions of any municipal or other law for
the time being in force for slum clearance and
redevelopment and demolition of buildings in the slum area:
Provided that, after any area is declared to be a slum
area till the date of the order is made for demolition of any
building or buildings under this Act, the powers of demolition
of buildings conferred on the Municipal Commissioner or
FA-245-13 (J) C1.doc
Chief Officer or any other officers or authorities under any such
law shall, nothwithstanding anything contained in any such law,
be exercised by them, subject to the control of the State
Government. For this purpose, the State Government may from
time to time, issue any general or special directions to any such
officers or authorities, which shall be complied by them."
[emphasis supplied]
It is worth noting that in its original / unmodified form, this
section uses words "slum area" and not "slum rehabilitation area"
and in such cases powers of municipal corporation are saved, if
action is not taken under the Slum Act.
14. It is therefore clear that two contingencies operate in two
different domains, in as much as, the original Section 47 applies to
premises which are declared as "slum area" defined under Section
2(ga) of the Slum Act. This declaration is by Competent Authority
under Section 4(1) of the Slum Act. This is a different exercise under
different source of power for different definition. The modified
Section 47 [as applicable under Section 3D(e)(xii)] applies if the
premises are situated in "Slum Rehabilitation Area" as defined under
Section 2(h-b) declared by Competent Authority under Section 3C(1)
of the Slum Act. Once again, a different exercise under different
source of power for different definition.
15. I have gone through the plaint and documents produced in the
record and proceedings. In the entire plaint, the only notification
relied upon by the Appellants/Plaintiffs is a Notification dated
21.12.1978. Its copy is produced on record, which shows
declaration of the area as 'slum area' in exercise of power under
Section 4(1) of the Slum Act. Letter dated 28.07.2004 issued
FA-245-13 (J) C1.doc
to Appellant by Dy. Dist Collector (referred and relied upon in plaint)
also mentions same notification 21.12.1978 and nothing else. Under
the said notification dated 21.12.1978, the subject matter area is not
declared as "slum rehabilitation area". At least nothing is shown to
the Court and nothing is part of the record to indicate that the power
is exercised under Section 3C(1) of the Slum Act for declaration as
slum rehabilitation area. The Court can not assume that such
declaration is made. Merely asserting that SRA is appointed and slum
is under rehabilitation is not enough. Mere submission that
'undisputedly suit property is located in a declared slum and Slum
Regulation Authority (SRA) is duly appointed and the slum
concerned is a slum rehabilitation area' is not sufficient.
16. This is a statutory first appeal. The Appellants/Plaintiffs must
stand or fall on their own feet. Learned counsel for the
Respondent/SRA has not made any submissions. Therefore, it is clear
that the protection sought by the Appellants under the slum Act is
based on declaration of "slum area" and not "slum rehabilitation
area". Therefore Chapters I-A and Chapter I-B do not apply. The
whole basis and foundation of argument about application of
modified section 47 (under Section 3D(e)(xii)] falls flat. In that view
of the matter, the detailed legal argument sought to be advanced on
behalf of the Appellants is not based on factual foundation and
therefore does not require to be considered any further. Law does not
apply de hors the facts. And fact is that there is nothing on record to
show that suit premises are declared as "slum rehabilitation area".
Therefore original section 47(3) of the Slum Act applies with full
FA-245-13 (J) C1.doc
force and Respondent Municipal Corporation had every right to issue
suit notice. Hence point no. 1 is answered as NO.
About Point nos. 2 to 4
17. Being the Court of first appeal, complete re-appreciation of
evidence is expected to arrive at conclusion. Perusal of the oral
evidence of PW-1 indicates that no house number or any other
identifying number for the suit premises is given, which is censused
according to the witness. He has admitted that he had not taken
permission from the Municipal Corporation at the time of
construction of the suit premises. He has also admitted that he cannot
produce any sanctioned plan and permission for the suit structure.
The dispute about suit premises being ground plus one or ground
plus two, can be kept aside for the time being, in view of clear
admission of the Appellants' witness that he has no document to
show even sanction or permission for the first floor. The Appellants'
witness by oral evidence could prove only three photo-passes which
are collectively marked Exh.11.
18. I have perused these three-photo passes which show that those
are only in respect of a hut and reference is made to a hut occupier
(zopadi malak). The nature of construction recorded in 'kuccha'
(temporary). The Appellants have produced documents such as
election card, electricity bill, telephone bill indicating that they are in
occupation of three huts regarding which photo-passes are proved.
Admittedly, the Appellants have not produced sanctioned plan or
permission for the structure found constructed which is described in
FA-245-13 (J) C1.doc
suit notice as ground plus two floors. Assuming that all the photo-
passes relied upon by the Appellants are to be considered even then
they only indicate existence of huts and not ground plus one or
ground plus two storied structures. For protection of section 3Z to
apply, procedure u/s. 3Y is necessary. No other photo passes are
produced on record. Therefore it can not be said that due verification
of documents / record has taken place and it can not be said that the
Appellants are really protected occupiers of the present structure, as
contemplated u/s. 3Y of the Slum Act. Therefore no protection can be
claimed by the Appellants.
19. The exhibited photographs in the record and proceedings as
well as recent photographs shown to the Court bear clear testimony
to the nature of structure erected by the Appellants. It is a full
fledged permanent structure much beyond zopda.
20. It is seen from the record that after suit notice was issued and
the same was acted upon by the Appellants by submitting documents
in support of their case, 15 days' time was given for submitting reply
as per requirement laid down by this Court in Sopan Maruti Thopte V.
Pune Municipal Corporation [AIR 1996 Bom. 304]. The Trial Court
also come to the conclusion on appreciation of evidence that the
guidelines given by this Court under Sopan Maruti Thopte's case
(supra) has been followed. The Trial Court after considering that the
notice structure is either ground plus two floors or ground plus one
floor, is unauthorized and without permission of the Municipal
Corporation since as per the photo-pass the original structures were
only huts.
FA-245-13 (J) C1.doc
21. I have perused the suit notice dated 02.12.2003 which gives
clear sketch about cross section of the suit premises. It shows that
ground floor and first and second floor on one side and steps and
railing are on the other side. By no stretch of imagination it can be
said that the structure described in the suit notice is a hut.
22. Appellants' witness Mr. Dinesh R. Jaiswal has given following
admissions in the cross-examination conducted by Municipal
Corporation and by Respondent No.3 (SRA):
"I have not given statutory notice to Mumbai Municipal
Corporation before filing of this suit. After filling some portion
of the creek, I have erected the suit premises on it with brick
masonry walls in the year 1968-69. The roof of suit premises
is made with ladi coba. The area of suit premises is
admeasuring 1826 sq. ft. the suit premises consist ground
plus one floor ....xxxx.... I have not taken permission from the
Mumbai Municipal Corporation at the time of constructing suit
premises ...xxx... I did not produce the documents before
BMC authority as mentioned in the 351 notice. I cannot
produce the sanctioned plan and permission of the suit
structure before this Court ...xxx... I have 13 photo passes of
different areas in Mumbai. I do not know the photo pass
number of the suit premises."
"According to me my name is included in the list of hutment
dwellers. In the said list my eligibility is not decided ...xxx... I
did not prove the eligibility list."
23. Above admissions are fatal. The Respondent - Municipal
Corporation has taken a clear stand that even though area is declared
as slum, it does not mean that the structure under reference is
censused one and protected under slum policy. Since it is not
declared as slum rehabilitation area, it is obvious that Section 47 as it
originally stands, would apply and under Section 47(3) of the Slum
Act, the provisions of the Slum Act shall not affect the provisions of
FA-245-13 (J) C1.doc
municipal law (MMC Act in the present case) because admittedly
Respondent No.3 / SRA (Authority under the slum Act) has not
ordered demolition. No such order passed by SRA is shown to the
Court.
24. An attempt was made by learned counsel for the Appellants to
indicate from the cross examination of the witness for the
Respondent - Municipal Corporation that the suit premises
(structure) is ground plus one floor and not ground plus two floors.
However, in view of the fact that ground plus one structure itself
cannot be a hut as appearing in the photo pass, the said aspect needs
no further consideration. Hence Point Nos. 2 to 4 are answered as
NO.
25. In Anil Madhav Gore (supra), this Court has considered similar
arguments about notice structure being situated in slum area. It is
held in the said case that what is protected is only the censused
structures in the slum area and if the structure is not censused, no
protection is available to such structure. It was therefore held that the
Respondent-Municipal Corporation was justified in taking action
under section 351 of the Mumbai Municipal Corporation Act. In Suo
Moto PIL No. 1 of 2020, the Division Bench of this Court has taken
note of the legal position that Section 47 of the Slum Act applies to
'Slum Area', which is defined u/s. 2(ga) of the Slum Act and a
notification dated 11/03/2019 issued by the Commissioner,
Municipal Corporation clarifying that jurisdiction of the Designated
Officer would stand extended to all areas, which would include areas
covered under section 3Z of the Slum Act, 1971.
FA-245-13 (J) C1.doc
26. For the aforesaid reasons, there is no merit in the first appeal
and the same is dismissed with costs. Appellants are directed to bear
cost of the Respondent Municipal corporation. Respondent Nos. 2 & 3
shall bear their own costs. In view of dismissal of the appeal, pending
civil application is also dismissed.
27. At this stage, a request is made to stay effect of the present
order. Learned Counsel for the Respondent/Municipal Corporation
has opposed the request. Considering that the Appellants were
protected during the pendency of the appeal, in fairness, the
operation of this order is stayed for a period of 4 weeks from today,
subject to all the Appellants and their family members filing
undertaking within 1 week from today, stating that they will remove
unauthorised construction at their own cost after a period of 4 weeks,
subject to order/s by the Hon'ble Supreme Court.
28. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M. M. SATHAYE J)
