A censused structure is protected under municipal policy, regardless of its commercial use or the slum status of the area.

JUDGMENT :

1. The First Appeal filed by the Original Plaintiff impugns the judgment and order dated 1^st July, 2024 passed by the Bombay City Civil Court dismissing S. C. Suit No. 567 of 2013 seeking declaration and injunction.

Factual Matrix:

2. L. C. Suit No. 567 of 2013 was filed challenging the notice dated 6^th October, 2012 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 (“MMC Act”), the consequent order dated 6^th February, 2013 passed by the Assistant Municipal Commissioner R/North Ward and the notice dated 12^th October, 2017 directing removal of the notice structure. The notice structure is described in the Plaint as structure admeasuring 2450 sqr. ft. made of partly B. M. and Patra Wall with A. C. Sheet roof situated at, C.T.S. No. 557, Near I. C. Colony, Link Road, Dahisar (West), Mumbai-68.

3. The case of the Plaintiff was that the notice structure, which was censused under No. RXC-38 1/1 by the Competent Authority and Pitch Holder Card issued, was in occupation of the Plaintiff’s father prior to 1977. Subsequently the structure came to be censused in the name of the Plaintiff during the census carried out in the year-2000 and the Application for issuance of the photopass was accepted by the concerned authority and census receipt dated 15^th July, 2000 was issued in favour of the Plaintiff. It was pleaded that the suit premises is situated in slum area existing prior to the year 1977 and is fully protected.

4. The Defendant-Corporation failed to file its written statement and the suit proceeded to trial.

5. The Plaintiff examined himself and deposed as to the contents of the Plaint. PW-1 produced the Pitch Holder Card Holder at Exhibit-9, Census Receipt dated 15^th July, 2000 at article-A, notice dated 6^th October, 2012 issued under Section 351 of the MMC Act at Exhibit-10, Reply dated 12^th October, 2012 at Exhibit-11 and Order dated 6^th February, 2013 at Exhibit 12.

6. The Plaintiff came to be non suited by the Trial Court on the finding that the suit premises being commercial structure in a declared slum, height of more than 14 feet is not permissible. It further held that the pitch card does not describe the area of the suit structure and the documents do not prove that the notice structure was existing before census and as the notice structure is used for commercial purpose, there is change of user without Corporation’s permission. The Trial Court held that the structure is neither authorised nor tolerated and dismissed the suit.

7. Mr. Thorat, learned Counsel appearing for the Appellant would point out that the sketch shown in the notice issued under Section 351 of the MMC Act would demonstrate that the height of the structure is 14 feet and therefore the finding of the Trial Court that the height of the structure is more than 14 feet is an erroneous finding. He submits that the order of 6^th February, 2013 passed by the Assistant Commissioner does not say that the photopass does not pertain to the structure and the only ground on which the order of demolition is passed is that the area under reference is not declared slum. He submits that the decision of Division Bench of this Court in the case of Amba Chawl Wadi Rahiwasi Seva Sangh vs. Municipal Corporation of Greater Mumbai, 2005 A I H C 3221 clearly holds that the issuance of notification under Section 4 of the Slum Act is not pre-requisite for an area to be considered as the slum rehabilitation area and therefore slum is not just the area which has been declared as Slum under Section 4 of the Slum Act. He submits that Corporation did not file any written state