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IN THE HIGH COURT OF BOMBAY
M.M. SATHAYE, J
Mr. Maqsood Ahmed Jamaluddin Khan And Others – Appellant
Versus
Municipal Corporation Of Greater Mumbai Thr.Assistance Commissioner D-Ward – Respondent
IA/15549/2024
Decided On : 13-01-2025
(A) Mumbai Municipal Corporation Act - Section 351 - Appeal against refusal of ad-interim relief regarding unauthorized structures - Appellants claimed lawful occupancy of structures predating 1945, asserting eligibility under Slum Rehabilitation Scheme - Respondents contended structures were unauthorized and not protected under slum laws - Court found no prima facie evidence supporting Appellants' claims, emphasizing the necessity of photo passes for protection under the Slum Act. (Paras 11, 12, 20)
(B) Burden of Proof - The burden of proving unauthorized nature of structures lies with the authority alleging such status, but this principle varies based on case specifics - Court distinguished previous judgments based on differing facts. (Paras 15, 16) Facts of the case:
The Appellants challenged notices issued under Section 351 of the Mumbai Municipal Corporation Act regarding structures claimed to be lawful and pre-dating the datum line, asserting eligibility for slum rehabilitation.
Findings of Court:
The court found that the Appellants failed to provide sufficient evidence to support their claims of lawful occupancy and protection under slum laws.
Issues: The main issues included the legitimacy of the Appellants' claims regarding the structures' status and the necessity of documentation for slum rehabilitation eligibility.
Ratio Decidendi: The court ruled that the Appellants did not provide prima facie evidence of lawful occupancy or eligibility for slum rehabilitation, and the burden of proof regarding unauthorized structures lies with the authority alleging such status, contingent on case specifics.
Result: Appeal dismissed.
JUDGMENT :
1. Learned counsel for the parties were heard on 11.12.2024 and 16.12.2024 and it is placed today for passing order.
2. The Appellants are Plaintiffs and Respondent are Defendants. The appeal is filed challenging the Order dated 22.11.2024 passed by the City Civil Court, Greater Mumbai in Notice of Motion No. 4920 of 2024 in L.C. Suit No. 6405 of 2024. By the said impugned Order ad-interim relief is refused. The said motion was taken out for restraining the Respondents from acting upon on the notices dated 08.10.2024 and speaking Orders dated 04.11.2024 issued by Respondent No.1/Municipal Corporation in respect of suit structures.
3. The suit is filed challenging the notices issued u/s. 351 of the Mumbai Municipal Corporation Act (for short ‘the said Act’), dated 08.10.2024 and the speaking Orders dated 04.11.2024 passed by the Designated Officer of Respondent No.1/Municipal Corporation.
SUBMISSIONS
4. Learned counsel for the Appellants Mr. Saraogi, submitted that the Appellants/Plaintiffs are lawful occupants of their respective suit structures which are in existence since prior 1945. It is submitted that the suit structures have been assessed by the Respondent/Municipal Corporation since prior to 1961 and as such they are tolerated structures being prior to datum line. It is submitted that the suit structures are falling under slum land which is redeveloped under Slum Rehabilitation Scheme. Two assessment bills, bearing Nos.DX2402120010000 & DX2402040080000 and their respective Capital Value Statements are relied upon to contend that the suit structures are assessed in 1961 and as such the suit structures are in existence since prior to datum line and therefore, they are tolerated structures. It is contended that one of the assessment bills, mentions “house with sheds” in the description of the suit structures and Capital Value statements show “pucca building excluding chawls” & “kuccha building including chawls” which indicates that the suit structures are authorized. Learned counsel for the Appellants has relied upon documents issued in the name of the some of the Appellants, which according to him, prima facie shows eligibility during slum rehabilitation. He further submitted that in Chamber Summons No. 2477 of 2024 filed by the Respondent No. 2 Owner for impleadment in the said suit, Owner himself has stated that there are tin sheds in the suit properties, which supports the Appellants’ case.
5. Learned counsel for the Appellants has relied upon various circulars issued by the Respondent/Municipal Corporation from time to time. He has also relied upon following judgments in support of his submission in respect of the manner in which challenge to notices u/s. 351 of the said Act is to be considered.
1. Re: Directions in the matter of demolition of structures [Writ Petition (Civil) No.295 of 2022 order dated 13.11.2024 (para 90)]
2. Vadilal Maganlal Trevadia V. Bombay Municipal Corporation and Ors. [2021(1) Mh.L.J. 157]
3. Pali Hill Tourist Hotel Pvt. Ltd. V. The Municipal Corporation of Gr. Mumbai & Anr. [Appeal from Order No.715 of 2024 order dated 06.06.2017]
4. Masood Ahmed Siddiqui V. Mumbai Municipal Corporation & Ors. [Appeal from Order No.75 of 2013 order dated 23.01.2013]
5. Mr. Arvind Pradhanbhai Dama V The Municipal Corporation of Greater Mumbai [Appeal from Order No.361 of 2013 order dated 30.08.2013]
6. Mohamed Yusuf Abul Sattar V. Municipal Corporation for Greater Bombay [Appeal from Order No.712 of 1996 order dated 19.06.1996]
7. Vakil Mohamed Khan V. Municipal Corporation for Gr. Bombay [Appeal from Order No.069 of 1991 order dated 08.08.1991]
8. Selim Babu Khan & Ors. V. The Bombay Municipal Corporation [Writ Petition (L) No. 1330 of 2008 order dated 30.09.2008]
9. Ramesh Hargovinddas Divecha V. The Mumbai Municipal Corporation of Greater Bombay & Ors [Writ Petition No.715 of 1999 order dated 12.07.1999]
10. Jadav Chandra Das V. Guwahati Municipal Corporation [High Court of Assam - 1996-GAULR-1-72, 1996-GAULJ-1
The court emphasized the necessity of prima facie evidence for lawful occupancy and the burden of proof regarding unauthorized structures, which varies based on specific case facts.
A censused structure is protected under municipal policy, regardless of its commercial use or the slum status of the area.
Unauthorized structures on public streets removable without notice; tax payments, electricity bills do not legitimize or create equity; clean hands doctrine bars relief to encroachers abusing process....
Suit against municipal body challenging demolition notice requires proven pre-suit notice under Section 527 MMC Act; mere plaint averment insufficient against specific denial, no waiver without expli....
No proof of pre-datum line structure existence via assessments, Tikka Sheets, repair permissions, or IOD; illegal structures incurably demolishable; subsequent permissions do not legitimize.
The duty of municipal officers to take action against illegal and unauthorized structures, and the need for a well-considered approach by the Civil Court in dealing with applications for temporary in....
The judgment emphasizes the importance of establishing a prima facie case and balance of convenience for granting temporary injunctions, and the need for the appellant's conduct to be free from blame....
Municipal officers have a duty to take action against illegal and unauthorized structures, as per the provisions of the law and government directives.
The main legal point established in the judgment is the interpretation of the Municipal Policy for protecting structures and the application of Section 354-A of the Mumbai Municipal Corporation Act, ....
Appellants lack legal standing for injunction against demolition as they suppressed prior litigation and proved non-entitlement to the unauthorized structures.
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