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, 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 351[Section 351 - Proceedings to be taken in respect of buildings or work commenced contrary to section 347.] 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 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 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),