Diwakar Ratan Thakur vs the Municipal Corporation of Gr. Mumbai

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FA-1161-2024.doc

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TALLE SHUBHAM ASHOKRAO

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Digitally signed by TALLE SHUBHAM ASHOKRAO Date: 2025.02.25 15:19:38 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 1161 OF 2024.

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Diwakar Ratan Thakur ] Age-63 Years, Occ-Business ] An Adult, Indian Inhabitant of Mumbai, ] having structure situated At CTS No. 557, ] Near I.C. Colony, Link Road, Dahisar ] (West), Mumbai – 400068. ] …Appellant (Org Plaintiff)

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Versus

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The Municipal Corporation of Greater ] Mumbai, a body corporate Duly ] constituted under the Provisions of M. ] M. C. Act, 1888, Having their head office ] at Mahanagarpalika, Bhavan, Mahapalika ] Marg, Mumbai – 400 001. ] (R/North Ward) ] ...Respondents.

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Mr. Pradeep J. Thorat i/by Mr. Bholaprasad Shukla for the Appellant. Ms. Pallavi Khale for the Respondent-Corporation

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——————

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Coram : Sharmila U. Deshmukh, J. Reserved on: January 17, 2025.

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Pronounced on : February 25, 2025.

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JUDGMENT :

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1. The First Appeal filed by the Original Plaintiff impugns the

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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.

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Factual Matrix:

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2. L. C. Suit No. 567 of 2013 was filed challenging the notice

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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.

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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.

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

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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.

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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.

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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

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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 Mumbai¹ 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 statement and did not lead any evidence. He submits that the Trial Court has though noting that the Pitch Card refers to the area as 2450 sqr. ft. and accepting that the card was issued on 4^th March, 1977 has thereafter held that there is no evidence to show that the notice structure was existing before census.

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8. Per contra, Ms. Pallavi Khale, learned Counsel appearing for the Respondent-Corporation would submit that the height of 14 ft. is not in question and the issue is that the notice structure is not located in slum. To substantiate the submission she would rely upon the Government Resolution dated 11^th July, 2001 in which the Government has taken a decision that upon the fresh census being carried out in the year 2000 the previous photopass will stand cancelled and that the

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1 2005 A I H C 3221

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photopass will be issued only in respect of 500 sqr. ft. She submits that the Appellant is relying upon the Pitch Card issued in the year 1977 and as per the GR the same has been cancelled and the new Pitch Card has not been produced. She would further submit that in his reply to the Section 351 notice, the Plaintiff not produced the State government Gazette to show that the area has been notified as slum which has also been admitted by him in his cross examination. She would further submit that in the cross examination he has further admitted that he has not filed photopass on record. She submits that the impugned order dated 6^th February, 2013 was passed by the Assistant Commissioner as the area was not declared as slum and therefore datum line policy was applicable. She submits that the Trial Court has held that there is change in user and therefore Section 351 notice was rightly issued. She would further submit that it is settled position in law, drawing support from the decision in the case of Jilani Building at Bhiwandi vs. Bhiwandi Nizampur Municipal Corporation² that the Corporation is Competent Authority for issuance of notice for demolition of unauthorized structure.

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9. In rejoinder, Mr. Thorat would submit that the GR of 2001 does not take away the protection to censused structure and merely provides that upon issuance of fresh photopass, the old photopass

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2 Suo Motu PIL No. 1 of 2020

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would stand cancelled.

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10. The following point would arise for determination:

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(I) Whether the Plaintiff proves that the suit structure is a protected structure and thus the impugned notice under Section 351 of the MMC Act and the impugned order dated 6^th February, 2013 of the Respondent Corporation are liable to be quashed and set aside. As to Point No. (I) :

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11. The oral evidence of PW-1 is in consonance with the pleadings in the plaint. In support of his case he has produced Pitch Holder Card at Exhibit-9, 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 the Order dated 6^th February, 2013, at Exhibit12.

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12. The Pitch Holder Card -Exhibit-9 is an occupiers card issued by the Competent Authority specifying the details as regards the location of slum area, the name of the occupants, the size of the structure etc. The Pitch Holder Card issued on 4^th March, 1977 mentions the structure number as RXC-38 1/1 and the size is mentioned as 2450. The name of the occupier is shown as the father of the Plaintiff and the number of persons in the family is shown as seven. The noting on the said card is that the card holder was found to have occupying the structure on the date of notification under Section 8 of

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the Slums Act which restrict person from erecting any building in slum area except with the previous permission in writing of the Competent Authority. The Pitch Holder Card is proof the fact that the structure admeasuring 2450 was censused in the year 1977 and was in occupation of the Plaintiff’s father and thus protected structure.

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13. The notice under Section 351 of MMC Act was issued by the Corporation alleging unauthorised construction of structure with B.M. Wall and G.I Sheet wall with A.C. Sheet Roof at CTS No 557, Near I.C. Colony, New Link Road, which is the same address as mentioned in the Pitch Holder Card. The notice was replied by the Plaintiff’s Advocate producing the pitch holder card and the census receipt dated 15^th July, 2000 issued in respect of the structure stating that the structure is an old censused structure. The Assistant Commissioner by the impugned order dated 6^th February, 2013 ordered demolition by relying on the verification remarks received from the Deputy Collector that the area under reference is not declared slum and the documents do not prove the existence of the structure prior to datum line i.e. 1^st April, 1962.

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14. The impugned order is erroneous as it declines to consider the structure as protected as there is no declaration of the area as slum under Section 4 of Slum Act without noticing that the slum had been censused in the year 1977 and in the year 2000. In Amba Chawl

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Wadi Rahiwasi Seva Sangh vs Municipal Corporation of Greater

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Mumbai, this Court was considering whether for an area to be considered a slum a declaration under Section 4 of Slum Act is a prerequisite and this Court held that a slum is not just an area declared a slum under Section 4 of Slum Act. In context of DCR 33, it held that if a slum is censused, it need not be declared and notified under the Slum Act of 1971. The impugned order dated 6^th February, 2013 does not notice the settled legal position that the protection is available to the censused structure and the notification under Section 4 of Slum Act is not required.

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15. The Trial Court failed to notice that the suit premises was duly censused in the year 1976 and 2000 by the Competent Authority and therefore it is not necessary to show the existence of the structure prior to the datum line as the structure stands protected. The Trial Court by considering the decision of Amba Chawl Wadi Rahiwasi Seva Sangh vs. Municipal Corporation of Greater Mumbai (supra) has held that it can be presumed that the subject premises is censused after the slum act came into existence however, declined to consider that the suit premises was protected on two grounds firstly, that the suit premises is used as commercial structure and for commercial structure in slum area the height of the structure more than 14 feet is not permissible and secondly the Pitch Card no where describes the area of

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the structure and therefore the documents relied upon by the Plaintiff does not demonstrate that the notice structure was existing before census.

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16. As far as the height of the structure is concerned, the sketch which is part of the Section 351 notice would make it more than clear that the height of the structure is 14 feet which has been fairly conceded by learned Counsel for the Corporation. As far as the Pitch Card not mentioning the area of the structure, Exhibit-9 clearly gives the size of the structure as 2450 and the number of the structure as RXC-38 1/1. The finding of the Trial Court that the Plaintiff has not been able to prove the area of the notice structure and therefore has failed to prove the existence of the notice structure before census is contrary to the documentary evidence which has been brought on record. As far as the change of the user to commercial is concerned the notice under Section 351 of the MMC Act has been issued for unauthorized construction of the structure, and not for change of the user or for unauthorised additions/alterations to existing structure. The Plaintiffs have established that the suit structure was duly censused in the year 1976. It is not the Corporation’s case that the old structure has been demolished and new structure has been erected. What was under consideration before the Trial Court was the validity of the Section 351 notice and the order dated 6^th February, 2013. The

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solitary reason on which the impugned order is passed is that the area under reference is not declared as slum which reason cannot be accepted in view of the decision in the case of Amba Chawl Wadi Rahiwasi Seva Sangh vs. Municipal Corporation of Greater Mumbai (supra). Once it is shown that the subject premises is censused structure and it is not disputed that the structure would be protected under the policy of the Corporation, there is no question of applicability of datum line.

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17. The contention of learned Counsel appearing for the Corporation is that under the notification of 11.07.2001, the earlier photopass was cancelled. A careful reading of the said circular would indicate that the same provides for conditions of issuing the photopass and it provides that under the said scheme upon the new photopass being issued the earlier photopass shall stand cancelled. In the present case there is no cancellation of the earlier photopass as the census was carried out in the year 2000 and no fresh photopass has been issued. In any event, the impugned order is not based on GR of 11^th July, 2001.

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18. Point No (I) is accordingly answered in favour of the Plaintiff. Resultantly, the following order is passed.

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::ORDER::

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a) First Appeal is allowed.

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b) The impugned Judgment and order dated 1^st July,

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2024 is hereby quashed and set aside.

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c) L. C. Suit No. 567 of 2013 stands decreed in terms of

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prayer clauses (a) and (b).

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d) Decree be drawn up accordingly.

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19. In view of the disposal of First Appeal, nothing survives for consideration in the pending Civil/Interim Applications and the same stand disposed of.

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[Sharmila U. Deshmukh, J.]

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Shubham Talle 11 of 11

Diwakar Ratan Thakur v. the Municipal Corporation of Gr. Mumbai

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Diwakar Ratan Thakur v. the Municipal Corporation of Gr. Mumbai

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