The demolition of protected structures without due process (notice) is illegal and entitles the occupier to reconstruct the premises at their own cost, maintaining the obligations under prior agreements.

JUDGMENT :

SHARMILA U. DESHMUKH, J.

1. These group of Appeals are at the instance of Municipal Corporation of Greater Mumbai [for short, “MCGM”]-original Defendant No. 1 challenging the impugned judgment dated 23^rd October, 2008 directing the Appellant to make available land to the Respondent No 1 as and when available on priority basis. The suits filed by the Respondent No. 1 also impleaded Mumbai Metropolitan Region Development Authority [for short, “MMRDA”] as Defendant No. 2.

2. With consent, First Appeal No. 1546 of 2010 arising out of L.C. Suit No 3354 of 2007 is taken as lead Appeal for factual clarity. Common submissions were advanced and the group of Appeals are being disposed of by this common judgment. For sake of convenience, the Parties are referred to by their status before the Trial Court.

FACTUAL MATRIX:

3. The case of the Plaintiffs in L. C. Suit No. 3354 of 2007 was that the Plaintiff was in use and occupation of Pitch Hut No 5 admeasuring 15’ x 10’ with height 9’ situated at Kokari Agar, Antop Hill, Wadala, Mumbai – 37. The Plaintiff was earlier occupying Hut No F/N/GA/44-7/7 admeasuring 261 square feet at Kokari Agar for which Pitch Holder Card was issued in the name of Plaintiff in the year 1976 and compensation was being regularly paid. In the year 1986, the old huts came to be removed by MCGM as it was creating an obstruction in the way of proposed nallah. The Additional Collector (Encroachment), vide order dated 29^th March, 1994, permitted rehabilitation of the a occupiers on adjoining land admeasuring about 4,000 sq. yards. Subsequently, the plaintiff constructed hut admeasuring 15’x10’ with height 9’ and was occupying the same for which compensation was paid to Additional Collector (Encroachment). On 10^th March, 2006, MCGM’s officers inspected the suit premises and threatened demolition of the suit premises for which, the suit came to be filed before the City Civil Court for injunction against the Corporation to not demolish the structure without following due process of law. On 19^th October, 2006, at about 1 p.m., the Defendants with their demolition squad and with the help of MMRDA demolished the suit premises without following due process of law and without giving any notice to plaintiff. In view of demolition, the suit filed by the Plaintiff came to be withdrawn on 28^th November, 2006. On 27^th November, 2006, the Assistant Commissioner (F/North) Ward communicated to the Plaintiff’s Advocate that the demolition was carried out by MMRDA. The Additional Collector informed the Plaintiff’s that the ownership of the land vests in MCGM and Additional Collector is not concerned with the land. The statutory notice under Section 527 of the Mumbai Municipal Corporation Act, 1888 [for short, “MMC Act”] was given to the Defendants on 17^th July, 2007 and the suit is not barred by law of limitation as cause of action arose on 19^th October, 2006. The prayer sought declaration that the demolition is illegal and mandatory injunction to the Defendants to reconstruct the demolished hut at the cost of the Defendants. In the alternative, the Plaintiffs be permitted to reconstruct the hut at cost of Defendants or for permanent alternate accommodation.

4. The Defendants failed to file their written statement though served with writ of summons.

5. The Plaintiff adduced evidence through her Constituted Attorney who deposed as to the contents of the Plaint. PW-1 specifically deposed that as Constituted Attorney, PW-1 is fully conversant with the facts of the case and the Power of Attorney was produced on record. P.W.-1 also produced the Pitch Holder’s Card (Exhibit-6), order dated 29^th March, 1994 passed by Additional Collector (Encroachment) (Exhibit-7), compensation receipts paid to the Additional Collector (Encroachment)-(Exhibit-8), letter dated 27^th November, 2006 issued by the Assistant Commissioner (F/North Ward) (Exhibit-9), letter dated 15^th November, 2006 issued by the Additional Collector (Exhibit-10), statutory notice