Mujibur Rehman Chaudhary v. Municipal Corporation for Greater Mumbai

6. Ad-interim relief granted earlier shall continue to operate till the adjourned date of hearing.

7. Mr. Sharan Jagtiani, Senior Advocate along with Mr. Rohan Surve, Advocate are appointed as Amici to assist the Court in this matter. A copy of the proceedings be supplied to the amicus curiae.”

10. On the adjourned day of hearing ie; on 8 February 2023, the Court pvr/vidya 9 of 38 was informed by Mr. Kanade, learned Counsel for the appellant that his prior statement that the land in question is a public land was not correct, as the land on which appellant’s structure was constructed was a private land. In that view of the matter the Court passed the following order, the relevant extract of which reads thus:- “2. On the backdrop of the order passed by this Court on 31 January, 2023, today Mr. Sharan Jagtiani, senior counsel and Mr. Rohan Surve who were appointed as amici have appeared before the Court. Mr. Jagtiani has made submissions on the issues which the Court would be required to consider and more particularly in the context of decision of this Court in Jilani Building’s case as noted in the earlier order. Insofar as the provisions in regard to photo-pass are concerned, which is the principal ground being asserted on behalf of the appellant, it is Mr. Jagtiani’s submission that as per the provisions of Chapter IB and more particularly Section 3Z(1) read with 3Y and 3X(b) of the Slums Act, it confers protection only to a dwelling structure. However, in the present case, the structure in question is a commercial structure namely a restaurant and an illegal addition to the said restaurant, is the subject matter of the impugned notice, issued by the Municipal Corporation.

3. Mr. Kanade, learned counsel for the appellant has placed on record an affidavit of the appellant-Mujibur Rehman Chaudhary inter alia stating that the land in question is not a public land, hence, one of the issues as discussed by the Court in the earlier order may not be relevant. Mr. Kanade has stated that on the earlier occasion when the statement to this effect was made before this Court, it was made on the instructions then received. He states that however on a re-verification, the position as revealed is set out in the affidavit of the appellant, as tendered before the Court today.

4. Mr. Carlos has appeared for the respondent/corporation. He has been furnished with a copy of the said affidavit. He intends to take instructions as to whether the land in question belongs to the Municipal Corporation after verification of CTS record and place on record an affidavit of a responsible officer of the Municipal Corporation dealing with the contentions as raised in the affidavit tendered by the appellant on record today.”

11. In pursuance of the above order, the MCGM has placed on record pvr/vidya 10 of 38 an affidavit of Shri Gajanan Dhotre, Assistant Engineer, T-Ward inter alia stating that the appellant has constructed a mezzanine floor at the suit premises without obtaining permission from the Competent Authority. It is stated that in fact the original structure below the mezzanine floor itself is constructed without obtaining any permission from the authority and it is illegal and unauthorized structure. It is stated that the extension of the structure, i.e., mezzanine/first floor being unauthorized, it deserved to be demolished. The appellant’s contention that the objected structure is constructed on a private land, is also confirmed by the MCGM in paragraph 12 of the said affidavit. The affidavit further states that only 10 ft. average height is permissible for commercial structures in a slum area, whereas the appellant has made construction having a height of 22 fts. including mezzanine/ first floor of 10 ft. It is stated that even if a permission was to be granted, the appellant would not be entitled to claim any benefit for the unauthorized vertical extension beyond the height of 10 ft. It is stated that the appellant is carrying on business/a commercial activity, i.e., he is running a restaurant in the name and style of “Food Sagar Family Restaurant” on the ground floor and the first/mezzanine floor. A photograph of the “plush” structure of the appellant is also annexed to the affidavit. The affidavit further states that the Designated Officer considering and discussing all the documents submitted by the appellant, has rightly pvr/vidya 11 of 38 rejected the said documents by a reasoned/speaking order dated 23 December, 2022. It is stated that the appellant has failed to make out any case, hence, the appeal be dismissed with exemplary costs.

12. It is on the above backdrop I have heard Mr. Kanade, learned counsel for the appellant, Mr. Carlos, learned counsel for the MCGM and Mr. Jagtiani, senior counsel along with Mr. Rohan Surve, learned amici.

13. At the outset, it needs to be observed that now the position on record is quite clear that the objected structure is not on any public land. This, in my opinion, makes the situation more serious for the appellant, inasmuch as any construction of a permanent nature, to be undertaken on any private land would necessarily require plans to be sanctioned and approval to be granted by the MCGM for any permanent construction. The objected vertical extension is a part of a permanent construction firmly embedded into the earth. Further as stated by the MCGM, the ground floor structure on which the objected mezzanine/ first floor is constructed by the appellant, itself is unauthorized. One would wonder in such a situation as to how the illegality of the entire construction can fade into insignificance. Further when the basic ground floor structure is totally unauthorized, as to how the vertical extension as objected by the MCGM by any standard can be presumed to be legal. This case depicts such state of affairs even on the MCGM’s part. pvr/vidya 12 of 38

14. Be that as it may, several interesting facets are unfolded, which would make one wonder as to how unauthorized constructions are put up, how they are dealt/sold/transferred, all this under the garb of an area being declared to be a slum by the State Government. This, as if once the area is declared as a slum, there is total immunity from applicability of any law or to put it differently there is no rule of law once a structure is put up in a slum and more particularly such commercial nature. This case is an eye opener nay a classic example depicting why unauthorized construction in the city proliferates and the authorities become mute spectators. From the record and the documents as tendered by Mr. Kanade, the following glaring facts are unfolded in the present case.

15. Firstly, in the reply submitted by the appellant’s advocate to the show-cause notice issued by the MCGM under Section 351 of the M.M.C. Act, the appellant categorically asserted that the appellant’s father had acquired land and structure from its previous owner under a document described as an “Agreement of Sale” dated nil July, 1998. A copy of such agreement was also submitted to the Designated officer, also the same is now placed on record in the compilation of documents as tendered on behalf of the appellant. Such agreement which in fact is for sale of an immovable property is on a stamp paper of Rs.20/-. It is not a registered document. It does not have any “schedule/description” of the property as pvr/vidya 13 of 38 to what has been sold. The vendor had described himself to be a tenant, however, at the same time, in the Agreement there is a recital that the vendor was selling, transferring, assigning, conveying, releasing and disposing of piece and parcel of land together with all structures standing thereon. It records that what is sold by the vendor is piece and parcel of land together with structure standing thereon. The structure is stated to be admeasuring 15 ft. X 65 sq.ft. There is no reference to the mezzanine floor/ first floor in the said agreement, however, reference is to a loft. There is no document of title whatsoever either in favour of the vendor nor the real owner of the land, who is a third party is a confirming party to such sale by being a signatory to the said document, by which allegedly the land and the structure has been sold in favour of the appellant's father.

16. It is under such document of title to the land and structure the appellant is occupying, an unauthorized structure along with an illegal mezzanine/first floor as objected by the notice in question issued by the MCGM under section 351 of M.M.C. Act. Mr. Kanade, however, has sought to argue a case which is not at all pleaded in the plaint, namely, that the notice issued by the MCGM under section 351 of MMC Act would be required to be held to be illegal for the reason that the appellant’s premises are situated in a notified slum. It is contended that as the premises are situated in a notified slum as also there is a photo-pass issued in favour of pvr/vidya 14 of 38 the appellant, the structure as objected becomes an authorized structure being protected by photo-pass.

17. Mr. Kanade has submitted that even otherwise, part of the appellant’s structure had gone into road widening and hence by getting the benefit of the Municipal Corporation’s policy, namely of the “Kurar Pattern”, the appellant had become entitled to a vertical extension to the structure, hence such extension is being illegally objected by the MCGM.

18. Mr. Kanade has next submitted that the impugned notice under section 351 of M.M.C. Act also needs to fail, inasmuch as, the premises being objected by the MCGM, were existing premises, which was clear from the contents of the photo-pass issued in favour of the appellant. The submission is that once the construction was not a fresh construction and was an existing construction, the MCGM could not have issued such a notice, as the structure was protected under the State policy to protect the slum structures including under MCGM’s Circular dated 20 March, 2017, implementing the Kurar Pattern, whereby the photo-pass issued by the competent authority was required to be accepted as conclusive proof of legality of the structure. Mr. Kanade would submit that the eligibility criteria and the documents necessary in that regard as contemplated in the Circular dated 20 March, 2017, recognizes the photo-pass issued by the competent authority and other relevant documents like ration card, pvr/vidya 15 of 38 electricity bill being the documents recognizing the structure existing prior to 1 January, 2000. Mr. Kanade would accordingly submit that the appellant had made out prima facie case for grant of ad-interim injunction.

19. On the other hand, Mr. Carlos, learned counsel for the MCGM has made following submissions:

(i) It is submitted that the entire case of the appellant which is on the basis of a photo-pass is untenable inasmuch as the photo-pass itself does not indicate existence of any mezzanine floor or the first floor as objected by the MCGM in the notice issued under section 351 of M.M.C Act. It is submitted that in fact what has been shown in the photo-pass is a “loft” "पोटमाळा", which is neither a mezzanine floor nor a first floor, of a height of 10 ft. as objected by the notice issued by the MCGM. It is submitted that the photo-pass also does not indicate any hotel business being carried out, and in fact, in column 15 of the photo-pass, business of plastic scrap is indicated, however, what is seen from the photograph annexed by the MCGM is a full-fledged restaurant, hence the photo-pass cannot be considered to be any document pertaining to the legality of the structure. It is submitted that that there is a grave doubt about the applicability of the photo-pass being relied upon by the appellant, as the photo-pass itself is dated 25 May, 1998, which in column 8 refers to the name of “Habibul Rehman Choudhary”, whereas the Agreement for sale pvr/vidya 16 of 38 under which the premises are purportedly transferred in favour of the appellant is dated Nil July, 1998, that is subsequent to the date of the photo pass. Also the name of the purchaser as referred in the agreement is not “Habibul Rehman Choudhary”, but the purchaser is one “Habibur Rehman Hazi Hasmatili”. It is thus submitted that the names on the Agreement for sale and the photo-pass do not match, hence, appellant cannot raise any contention on the basis of photocopy of the photo-pass issued in the name of Habibul Rehman Choudhary.

(ii) It is next submitted that even in the verification of the structure as carried out by the MCGM (Page 42 of the Paper book), for some reason the photo-pass was not relied upon and hence the MCGM was never submitted photo-pass, which is also clear from the speaking order dated 23 December, 2022, in which there is no reference to the photo-pass, as it was never submitted. Hence, for the first time, such a case is being pleaded before the High Court without the same being pleaded in the plaint as there is no averment in the plaint.

(iii) It is submitted that even in respect of Kurar pattern, to undertake construction of the first floor of the height as objected, a permission from the MCGM was required to be obtained. There cannot be justification whatsoever to put a first floor/mezzanine floor as objected by the MCGM.

(iv) In any event, there is no photo-pass for conducting a restaurant. It is pvr/vidya 17 of 38 thus submitted that the appellant has miserably failed to make out any case for grant of ad-interim protection and the ad-interim relief has been rightly rejected by the learned trial Judge. It is submitted that for such reasons, the appeal deserves to be dismissed.

20. In view of the question posed by this Court in the order dated 31 January 2023, I have also heard Mr.Sharan Jagtiani, Senior Advocate alongwith Advocate Mr.Rohan Surve, the learned Amici. Mr.Jagtiani has also submitted a preliminary note on the question whether an occupier of a structure, can without the basic construction permission or any approved plan, seek, as a matter of entitlement and/or a legal right, to have additions and extension to such structure. Mr.Jagtiani has submitted that such issue would in fact stand covered by the decision of the Division Bench of this Court in Suo Motu Public Interest Litigation No. 1 of 2020 in the case of High Court on its own motion (in the matter of Jilani Building at Bhiwandi) vs. Bhiwandi Nizampur Municipal Corporation & Ors.2. (for short “the Jilani builder’s case”) Mr. Jagtiani, in particular, has referred to the observations of the Division Bench in paragraphs 58 to 63 and 70 of the said decision.

21. In so far as the contentions as urged by Mr.Kanade are concerned, Mr.Jagtiani has appraised the court of the legal position, in doing so, Mr. 2(2022) SCC Online Bom. 386 pvr/vidya 18 of 38 Jagtiani has referred to the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short ‘the Slums Act’), the meaning of the words ‘structure used as a dwelling or otherwise’ used in Section 3Z(1) of the Slums Act, the definition of ‘protected occupier’ as defined under Section 3X(c) of the Slums Act, ‘photo pass’ as defined under Section 3X(b) of the Slums Act, ‘dwelling structure’ as defined under Section 3X(a) of the Slums Act. He has referred to Section 3Y of the Slums Act in relation to the issuance of a photopass. As to what would be meant by ‘dwelling house’, Mr.Jagtiani has referred to the decision of Narashimaha Murthy V. Susheelabai (Smt).[3] It is next submitted that Section 2(b) of the Slums Act is the only provision where the term ‘dwelling’ is prefixed by the word ‘human’. Mr.Jagtiani has thereafter referred to the Government Resolution dated 16 May 1996 which is in the context ‘To decide eligibility of hutment dwellers under Slum Rehabilitation Scheme’. Mr.Jagtiani has contended that such Government Resolution was considered by this Court in Ramesh Appa Rao Vs. Municipal Corporation of Greater Mumbai[4]. Relying on such decision, he would submit that this Court had held that the Government Resolution dated 16 May 1996 recognizes as to which were the protected hutments being those which were meant for residential purpose and not commercial premises. Mr.Jagtiani has also referred to the decision

4 (2011)1 Mah L.J. 154 pvr/vidya 19 of 38 of this Court in Shriniwas Krishna Suvarna Vs. Executive Engineer, Transit Camp Division, M.B.R.&R Board[5] to submit that by Government Resolution dated 14 May 1998, the State Government had recognized that the hutment dwellers who were using their huts for commercial and other similar purposes prior to 1 January 1995, were held eligible for permanent alternate premises under any Slum Rehabilitation Scheme.

22. Mr.Jagtiani has referred to a further Government Resolution dated 11 July 2001 which notes that the general view of the Government, in issuing photo passes, to the effect that a photo-pass is a proof indicating that a photo-pass holder resides in a hut existing prior to 1 January 1995 and that the photo-pass holders would not be evicted. He submits that by a further Government Resolution dated 16 May 2015, a protection to hutment dwellers was extended to the cut-off date 1 January 2000. Mr.Jagtiani would submit that it is seen from various Government Resolutions issued by the State Government, that the protection of photo-pass is now made available to the commercial as well as residential structures. In the context of the definition of ‘dwelling structure’ as defined under Section 3X(a) of the Slums Act when the definition uses “dwelling or otherwise”, Mr.Jagtiani, relying on the decisions of the Supreme Court in Karam Kapahi & Ors. Vs. Lal Chand Public Charitable Trust & Anr.6, Luxmi Tea Co. Ltd. Vs.

pvr/vidya 20 of 38, State of M.P. Vs. Narayan Singh[8], and Animal Welfare Board of India Vs. A. Nagaraja[9] would submit that a wider meaning is required to be given to the words “or otherwise” as used in Section 3X(a) which defines the ‘dwelling structure’. It is also his submission that the words ‘or otherwise’ would take its colour from the context in which such words are used in the provision.

23. Mr.Jagtiani has also referred to the provisions of Section 33(10) of the Development Control and Promotion Regulation 2034 (for short ‘DCPR 2034’) which provide for redevelopment/ rehabilitation of slum dwellers. It is pointed out that Regulation 33(10)(II)(vi) provides that ‘a structure shall mean all the dwelling area of a protected occupier as used in Chapter I-B of the Slums Act, and orders issued thereunder.’ He has also drawn the Court’s attention to Regulation 33(10)(IV) which interalia provides for the right of the hutment dwellers in the slum or on the pavement, to be eligible in accordance with the provisions of the Regulations for a permanent alternate residential accommodation, in exchange of the protected dwelling structure to be given free of cost, having a carpet area of 27.88 sq.meters, in lieu of their protected structure. Mr.Jagtiani has also referred to the provisions of Regulation 33(10) VIII (5) of the DCPR 2034 which provides for eligibility of Commercial/ office/ pvr/vidya 21 of 38 shop/ economic activity free of cost. It is thus submitted by Mr.Jagtiani that the Government Resolutions as issued by the State Government from time to time indicate that the commercial premises are covered within the regime of issuance of photo-pass as also the MCGM accepts photo-pass, as a proof of commercial premises for the purpose of issuing licenses under Section 394 and Section 412A of the MMC Act. Reasons and Conclusion

24. Having heard learned Counsel for the parties and the learned Amici, at the outset it is required to be stated that although the learned Amici has made erudite submissions on several issues, I intend to deal only with those aspects touching the subject matter of the present proceedings.

25. The cause of action for the appellant to move the suit in question before the City Civil Court has arisen from the notice issued by the MCGM under the provisions of Section 351 of the MMC Act, which objected to the unauthorized vertical extension as undertaken by the appellant as described in the Schedule to the notice. The questions to be answered are two fold; firstly, whether the appellant had made out any prima facie case on the basis of the materials on record, that the structure of the appellant is in any manner legal or authorized, which would require the Court to grant a protective relief of a temporary injunction restraining the MCGM from demolishing the structure in pursuance of the notice under Section 351 of pvr/vidya 22 of 38 the MMC Act. The second question which would be required to be answered is merely because the structure falls in a notified slum, whether any protection by virtue of photo-pass as relied upon by the appellant, would entitle the appellant to a relief of a temporary injunction.

26. To examine the above questions, at the threshold it would be required to be noted that the appellant has not placed on record any permission much less any sanctioned plan or an approval by the MCGM to put up the objected structure as described in the Schedule to the notice dated 31 December 2019 as issued by the MCGM under Section 351 of the MMC Act. This apart, the entire structure, namely, the ground floor structure itself is unauthorized, as no permission whatsoever has been taken to put up such structure, which is a structure firmly embedded in the earth. Be it so, the MCGM by its notice under Section 351 has questioned only the unauthorized extension namely of the mezzanine/first floor of a height 10 feet whereby the total height of both the floors (ground plus the first floor) is about 22 ft. By no acceptable standards, such structure appears to be permissible, authorised and legal, as can be discussed hereunder.

27. In support of the appellant’s case praying for a temporary injunction, Mr.Kanade’s submission to the effect that the ‘Kurar Pattern’ would assist the appellant to categorize the vertical extension as objected by the Section 351 notice of the MCGM, cannot be accepted. The Kurar Pattern is pvr/vidya 23 of 38 accepted by the MCGM in its Circular dated 20 March 2017, which provides policy guidelines for removal of bottleneck/missing link of the DP Road, TP Roads and RL. Paragraph 7 of the said policy provides for finalization of eligibility in which the eligibility criteria has been provided as under:- “7) FINALIZATION OF ELIGIBILITY

ELIGIBILITY CRITERIA: i) Category -A: Authorized structures, Tolerated structures, residential existing prior to 17.04.1964 and commercial existing prior to 1.4.1962. ii) Category -B: Structures protected under State Govt. Policy existing prior to 1.1.

2000. (As per GOVT. gazette issued u/no. SRS-1001/C NO.125/14/SRA-1 DT 16.05.2015). Or the dates as per the Notification/Gazette issued by GOM from time to time under the Maharashtra slum Areas (Improvement, Clearance and Rehabilitation) Act 197l as amended up to date. iii) Documents to be considered for eligibility Sr.N o. Categor y Documents to be considered for eligibility 1 A Old City Survey Plan, First date of assessment;, Licenses issued by License Deptt. And Health Deptt. Etc. On or before datum line i.e. 17.4.1964 for residential user and 1.4.1962 for commercial user and other relevant and authentic documents thereof. B Photo passes issued by the competent authorities. Censuses verification letter issued by the competent authorities. Ration Card /Electricity bill/Electoral roll/first date of assessment etc. And other relevant and authentic documents for residential structures existing prior to 1.1.2000. License issued by Shops & Estt. Electricity Bills, license from Health Deptt. And License Deptt; date of assessment etc. And other relevant and authentic documents for commercial structures existing prior to 1.1.2000 as applicable as per Govt. gazette issued u/no. SRS-1001/C NO.125/14/SRA-1 DT 16.05.2015 Or any other documents prescribed as per notification/Gazette/ Circulars issued by the GOM from time to time under the Maharashtra slum Areas (Improvement, Clearance and Rehabilitation) Act 197l as amended up to date. The documents for deciding eligibility for structures under category A & B shall be scrutinized by the Ward staff.”

28. In so far as the benefit to be given, in case the area, of a structure is pvr/vidya 24 of 38 taken away, paragraphs (10)(ii) provides for allowing vertical extension beyond road lines in categories A & B of paragraph 7 (supra). Paragraph 10(ii) reads thus:-

10)

CASE BY CASE BASIS-REMOVAL OF BOTTLENECK: i)....... ii) Allowing vertical extension beyond R.L. in categories A & B. Eligible structures affected by road widening may be allowed to be repaired/reconstructed and raised to the height of 17’-0” on ‘Kurar Pattern’ 230 mm(9”) thick brick masonry walls having ladi, coba ladi supported on MS I section girders framework as a roof of ground floor and 230 mm(9”) thick masonry walls having AC sheets/GI sheet roofing rested on angles/pipes for mezzanine floor may be permitted subject to the conditions that total carpet area including area of mezzanine floor, shall not exceed the original protected carpet area of the structure. It shall be clearly mentioned in the permission that the status of the structures shall remain as it was before and permission granted for repairs/construction and additional height shall not confer any additional rights to the tenants/occupants and undertaking to that effect shall be obtained from the occupants in the format approved by the Law Officer. The tenant/occupant shall procure structural stability certificate from the registered structural Engineer about supervision/safety of the structure. An undertaking shall also be obtained from such tenants/occupants stating that they shall not claim any alternate accommodation/compensation/ The ward Executive Engineer shall scrutinize the proposal and submit the same through AC-Ward for obtaining the sanction of DMC and issue the same under ward Executive’s signature.”

29. It is thus clearly seen that even if the appellant was to be eligible for vertical extension of his structure, a permission in that regard was required to be obtained to put up a mezzanine floor, without a permission being obtained from the MCGM, it was not permissible for the appellant to put up a vertical extension being a first floor area mezzanine floor. Thus, Mr.Kanade’s contentions relying on ‘Kurar Pattern’ is required to be rejected.

30. Mr. Kanade relying on the photo-pass purportedly issued to the pvr/vidya 25 of 38 appellant has submitted that the structure in question was an existing structure, which would mean not only the ground floor structure, but also the vertical extension, which according to him would stand recognized by the photo-pass, such submission also cannot be accepted. A copy of the photo-pass is part of the compilation of documents, on photo-pass and on any rights thereunder, no averments as noted above are made by the appellant in the plaint. Perusal of the photo-pass also indicates number of anomalies as noted above. Thus, there is grave doubt as to whether the photo-pass relied upon by the appellant is in respect of the same structure. This also for the reason that the person in whose favour the photo-pass has been issued is one ‘Habibul Rehman Choudhary’. The photo-pass is issued on 25 May, 1998 prior to the appellant’s father purportedly purchasing the premises under the Agreement of Sale dated NIL July 1998, which is also an unregistered agreement and to which the owner of the land is not a signatory. Further, the premises as described the photo-pass shows only a ‘loft’, without any height, and lastly the business in relation to which the photo pass is issued is of a ‘plastic scrap shop’. It is thus quite surprising as to how such photo-pass could in any manner be pressed into service in defending the notice issued under Section 351 of the MMC Act. Even assuming that the photo-pass is issued in favour of the appellant, it would not assist the appellant to save the unauthorized structure as objected by the pvr/vidya 26 of 38 MCGM, as there is no provision in law or under any government policy that a person holding photo-pass can undertake unauthorized construction and claim a protection. A photo-pass would primarily be relevant to make a claim for a permanent alternate accommodation as and when the slum area goes for redevelopment, and if at all, for the protection of the basic dwelling unit being prevented from being demolished, if it is a tolerated structure as per the slum policy of the State Government. A photo-pass cannot be a shield to protect an unauthorized extension/construction of any nature.

31. It also needs to be stated that a photo-pass cannot be accepted to be a carta blanca or a blanket licence to put up an unauthorised, illegal construction. It is certainly within the jurisdiction and powers of the MCGM to take action against the structure, if any structure is put up illegally. If unauthorized and uncontrolled illegal constructions are permitted in slum areas, the ghastly consequences are not too far to be seen. In such context, the Division Bench of this Court in Jilani Building’s Case (b) (supra) considering the provisions of Chapter I-B of the Slums Act has held that the protection which has been conferred by Section 3Z of the Slums Act to the protected occupiers, cannot be confused or interpreted to mean that the protected occupier enjoys and can be granted a complete immunity from putting up unauthorized construction or structure and/or pvr/vidya 27 of 38 can make illegal additions or alterations. The Division Bench analyzing the complete scheme of Slums under Chapter 1-B of the Slums Act in paragraphs 58 to 63 and 70 has observed thus:-

58. To appreciate these submissions, it would be necessary to consider the scheme of Chapter I-B of the Slums Act. Chapter I-B deals with protected occupiers, their relocation and rehabilitation. Section 3X is the definition clause which defines ‘dwelling structure’ [Section 3X(a)], ‘photo pass’ [3X(b)], ‘protected occupier’ [3X(c)] and ‘scheme’ [3X(d)]. Section 3Y ordains issuance of photo passes and maintenance register. It provides that the actual occupier of a dwelling structure in existence on or prior to 1st January 2000, would be issued a photo pass which would be an identity card-cum-certificate, issued by the Government certifying a slum dweller to be an actual occupier of the dwelling structure in existence on the cut of date i.e. 1st January 2000. A photo pass holder becomes a protected occupier as defined under Section 3X(c).

59. Section 3Z is a vital provision which provides for ‘protection, relocation and rehabilitation of protected occupiers.’ The provision begins with a non-obstante clause in sub-section (1) to ordain that notwithstanding anything contained in the Slums Act, on and after the commencement of the 2014 Amendment Act, no protected occupier except as provided under sub-section (2) be evicted from his dwelling structure. Thus, the protection is only from eviction. However, subject to the exceptions in sub-section (2) of Section 3Z which is to the effect that, when in the opinion of the State Government, it is necessary in the larger public interest to evict the protected occupier from the dwelling structure occupied by him. The State Government in that event, may subject to a condition of relocating and rehabilitating such slum dwellers in accordance with the scheme of relocation and rehabilitation, in accordance with such scheme evict the slum dwellers from their dwelling structures. The scheme referred in sub-section (2) of Section 3Z is the scheme as defined under Section 3X(d) to mean any arrangement or plan prepared and declared by the State Government for the protection, relocation and rehabilitation of the protected occupiers. It is thus seen that a protected occupier would enjoy an immunity in so far as the structure is concerned, from being evicted from his dwelling structure, except when the eviction is required for the purpose of relocation and rehabilitation, in the larger public interest.

60. The next provision is Section 3Z-1 and is a significant provision, which confers powers on competent authority to demolish unauthorized or illegal dwelling structures. Sub-section (1) of Section 3Z-1 provides that where a competent authority, upon a complaint from any person or report from its officer or police or any other record or information in its possession, is satisfied that any unauthorized or illegal dwelling structure or part thereof has been pvr/vidya 28 of 38 constructed or any addition to the existing structure as recorded on photo-pass had been erected after the cut-off date of 1st January 2000, without obtaining necessary permissions required to be obtained in that behalf under the relevant laws, a written notice to show cause can be issued by the competent authority to such person who has put up such unauthorized or illegal dwelling structures. It provides that such notice be replied within 24 hours as to why an order of demolition of the structure be not made. Sub-section (3) of Section 3Z-1 is also quite significant, which provides that a person upon whom such notice has been served under sub-section (1) or (2), as the case may be, shall within 24 hours appear before the competent authority and produce through his agent or representative, the necessary documents to prove that the requisite statutory permission for construction, reconstruction, addition or extension, as the case may be, has been duly obtained by him and that the construction, re-construction, addition, extension is not unauthorized or illegal. Sub-section (5) of Section 3Z-1 provides for an order of demolition to be passed on any unauthorized or illegal dwelling structure, if such person fails to demolish such structure within the time the competent authority had directed.

61. Section 3Z-2 provides for demolition of unauthorized or illegal dwelling structures and for penal liability. Even this provision inter alia confers powers on the competent authority to take action against unauthorized or illegal dwelling structures which are constructed without obtaining necessary permissions required to be obtained in that behalf under the “relevant laws” from the concerned statutory authorities under sub-section (1) of Section 3Z-2. In such case, a written show cause notice can be issued by the competent authority calling upon the person who has put up such structure to show cause as to why an order of demolition be not made. Sub-section (6) of Section 3Z-2 provides for penal action to be taken, so to provide, that notwithstanding anything contained in the Slums Act, the owner of unauthorized or illegal dwelling structure referred to in sub-section (1) of Section 3Z(2) or any other person responsible for construction of such unauthorized structure or even such person who has aided or abetted the construction of such unauthorized or illegal structure or the person who is in occupation of such structure, with the knowledge, that such structure is unauthorized or is illegally constructed, shall be guilty of an offence under this section and shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than two thousand five hundred rupees but which may extend to five thousand rupees. Sub-section (7) of Section 3Z-2 is further a very drastic provision, which provides that notwithstanding anything contained in the Slums Act, the competent authority or any of its officer who has aided or abetted the construction of illegal or unauthorized structure or who has failed to demolish such structure as provided in sub-section (5) of Section 3Z-2 without any sufficient reason, such act of commission or omission on their part shall constitute an offence under this section and shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than two thousand five hundred rupees but which may extend to five thousand rupees. Sub-section (8) of Section 3Z-2 provides that the pvr/vidya 29 of 38 offences punishable under sub-section (6) of Section 3Z-2 shall be cognizable and non-bailable.

62. On a holistic reading of the above provisions as contained in Chapter I-B of the Slums Act, it becomes clear that on one hand it confers protection on protected occupiers [Section 3X(c)] and further, it confers powers on the competent authority to demolish unauthorized or illegal dwelling structures, (Section 3Z-1) and also makes construction of unauthorized and illegal dwelling structures an offence punishable under sub-section (6) and (7) of Section 3Z-2. In our opinion, Mr. Chinoy would not be correct in his contention, that when it comes to ascertaining as to whether the construction set up in slums is unauthorized or illegal, it is only the competent authority who would be the only officer responsible to take an action, for the reasons we discuss hereunder.

63. A plain reading of sub-section (3) of Section 3Z-1, clearly recognizes that although the competent authority is permitted to initiate an action of demolition, however, the competent authority is required to verify as to whether the construction which has been put up complies with requisite statutory permissions for construction, reconstruction, addition or an extension has been obtained by a person, who is alleged to have put up such construction. Similar is the position under sub-section (3) of Section 3Z-2. An authority to grant construction permission of any nature may it be for putting up a new construction or making any addition, alteration, etc. would be with the Planning Authority, unless such authority is expressly taken away and vested with any other authority as the law may provide. We are thus of the opinion that even in respect of slum structures although the competent authority has been empowered to take action against unauthorized or illegal dwelling structures of demolition and/or lodging of prosecution, however, at the same time the provisions of Section 3Z-1 and 3Z-2 recognizes the role of the planning authority. …..

70. As discussed above, there are provisions under the MMC Act as also under the MRTP Act and the MLRC which confer several powers on the authorities to take action against illegal constructions. We may, however, clarify that a protection which has been conferred by Section 3Z of the Slums Act, to the protected occupiers, cannot be confused or interpreted to mean that the protected occupier enjoys and is granted a complete immunity from putting up unauthorized construction or structure and/or can make illegal additions or alterations. The protection which is granted is to a basic slum structure as may be recognized in the photo-pass. If mere issuance of a photo-pass is interpreted to be a blanket and an unfettered permission to put up any illegal construction, additions or alterations, it would lead to an abuse of the provisions of Section 3Z read with Section 3X-(a)(b)(c). Such can never be the intention of the legislature that the municipal authorities cannot take any action against the unauthorized structures merely because a photo–pass is issued.”

32. Thus, Mr.Kanade’s contention that the photo-pass purportedly issued in favour of appellant would protect unauthorised construction as objected pvr/vidya 30 of 38 by the MCGM deserves to be rejected.

33. There is another notable aspect of the case, namely although the land is notified as a Slum, it does not belong to either the State Government or the Municipal Corporation or any public body. The land is a private land as not only stated by the appellant, but also by the MCGM. The claim of the appellant is that his father has purchased the land and the structure, however, the alleged agreement dated 20 July 1998 entered by his father with his predecessor-in-title, to which the owner himself is not a party. Even assuming that the appellant’s father had purchased the land in question, however, there is no provision under any law/municipal law, that on a private land, a structure can be put up without prior approval of the MCGM and more particularly, a permanent structure of such nature, where a restaurant is conducted. Although, the slum policy may be well intentioned namely to protect the dwelling structure as defined under Section 3X(a) of the Slums Act thereby, providing for a scheme to protect the occupier who holds a photo-pass, however, it would be too far fetched to read into the substantive provision of the Slums Act, that it would recognize any protection to commercial premises, albeit that the State Government in its various Government Resolutions as noted above has recognized commercial structures, in slum areas to be structures entitled for a permanent alternate accommodation, under such government policies, pvr/vidya 31 of 38 as also they are so recognized in the Development Control Regulations. Be that as it may, the Government Resolutions as also the Development Control Regulations may stand independent of the substantive provisions of the Slums Act which appear to be explicitly not recognizing rehabilitation of a commercial slum structure.

34. In the absence of specific provisions under the Slums Act for inclusion of commercial premises being recognized in the photo-pass under the provisions of the Slums Act, it would be difficult to accept that the Slums Act would recognize a commercial structure, in respect of which under the Slums Act a photo-pass can be issued. Moreover, the definition of ‘dwelling structure’ as defined under Section 3X(a) of the Slums Act, as rightly contended by Mr. Jagtiani, in my opinion, would be required to be interpreted in the context of the object, the Slums Act intends to achieve. The said definition reads thus:- “3X. Definitions: In this Chapter, unless the context otherwise requires:- (a) "dwelling structure" means a structure used as a dwelling or otherwise and includes an out-house, shed, hut or other enclosure or structure, whether of bricks, masonry, wood, mud, metal or any other material whatsoever;”

35. When the words ‘dwelling or otherwise’ are used in the definition of a “dwelling structure”, and when the definition provides to include outhouse, shed, hut or other enclosure or structure, necessarily in my opinion, it would not include commercial premises which do not fit into any of the pvr/vidya 32 of 38 ingredients of such provision namely a structure used for dwelling or outhouse, shed, hut, as used in the said provision. In such context Mr.Jagatiani’s reliance on the decision in Ramesh Appa Rao (supra) which has considered the Government policy under the Government Resolution dated 16 May 1996 that the commercial structure is not protected, would be apposite, however, subject to caveat that the subsequent Government Policies have deviated from the Government Resolution dated 16 May 1996 so as to grant protection to commercial structures.

36. This Court in Mohammed Iqbal Abdul (supra) in paragraph 21 was confronted with similar facts, which was also a case in regard to a commercial structure in a slum area. Referring to the decision of the Division Bench of this Court in ‘Jilani Building’s Case’ (supra) as also the decision of the Supreme Court in Friends Colony Development Committee

V. State of Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee V. Kolkata

Municipal Corporation and Ors. (2013)3 SCC (Civ) 72; Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association & Ors, [(2021)10 SCC 1], this Court upheld the action of the Municipal Corporation in issuance of notice under Section 351 of the MMC Act on removal of such unauthorized commercial structure. Paragraph 20 of the said order of this Court reads thus:-

20. It may be observed that once a construction is unauthorised and illegal, the course of law to be taken in that regard is well settled by the catena of pvr/vidya 33 of 38 decisions of the Supreme Court [See: Friends Colony Development Committee

V. State of Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee V. Kolkata

Municipal Corporation and Ors. (2013)3 SCC (Civ) 72; Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association and Ors. (2021)10 SCC 1.] In Jilani Building at Bhiwandi (supra), the Division Bench has considered such mandate of law as laid down by the Supreme Court in paragraphs 85 to 87 which reads thus:- “85. In Friends Colony Development Committee V/s State of Orissa (2006)3 SCC 581, the Court was concerned with an unauthorized construction being undertaken by the builder, as instead of sanction of a four storeyed building, he had constructed a 5 th floor and for which an action came to be initiated against him. On the plea of the builder being accepted by the High Court that he be permitted to make a fresh application and submit a revised plan for approval qua the construction he had already undertaken, the appellant had moved the Supreme Court. It is in such context the Supreme Court made significant observations in regard to the threat to the society, illegal and unauthorized constructions pose. These observations are important not only in the context of unauthorized and illegal constructions but also in the context of the plight of those who purchase premises in unauthorized buildings. The relevant observations are required to be noted, which reads thus: “20. The pleadings, documents and other material brought on record disclose a very sorry and sordid state of affairs prevailing in the matter of illegal and unauthorized constructions in the city of Cuttack. Builders violate with impunity the sanctioned building plans and indulge deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffer unbearable burden and are often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the design of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop, some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders. At the same time, in order to secure vigilant performance of duties, responsibility should be fixed on the pvr/vidya 34 of 38 officials whose duty it was to prevent unauthorized constructions, but who failed in doing so either by negligence or by connivance. 22............ It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the state. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter- meddling with the private ownership of the property may not be justified.”

86. Apart from the above observations, what is significant is that the Supreme Court also observed that if the High Court feels that the illegal/unauthorized building activities are so rampant, so as to be noticed judicially, it may suo motu register a public interest litigation and commence monitoring the same by issuing directions so as to curb such tendency and fixing liability and accountability. Such observations are required to be noted, which reads thus: “(7) The High Court, if it feels that illegal/unauthorized building activities in Cuttack are so rampant as to be noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directions so as to curb such tendency and fixing liability and accountability.”

87. In Dipak Kumar Mukherjee v Kolkata Municipal Corporation and Ors. (2013)3SCC(Civ.)72, again the Supreme Court was concerned with an illegal and unauthorized construction of buildings and other structures put up by respondent no. 7 in the said proceedings, who had undertaken construction in violation of the sanctioned plans. An order was passed by the Municipal Corporation ordering demolition of the disputed construction. Respondent no. 7 having approached the High Court, an order came to be passed by the High Court directing the competent authority to pass an appropriate order after giving an opportunity of a hearing to respondent no. 7. The Supreme Court held that such an order could not be sustained, as the construction undertaken by respondent no. 7 was in clear violation of the sanctioned plans and for which a notice was issued by the competent authority of the Corporation and more so because an application for regularization was made by respondent no. 7 after completion of the construction. It is in such context, the Supreme Court considering the position in law as laid down in the earlier decisions emphasized that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. It was observed that the common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. In commenting on the menace of illegal and unauthorized constructions, the Supreme Court considering its decisions in K. Ramadas Shenoy V. pvr/vidya 35 of 38 Town Municipal Council, Udipi (1974)2 SCC 506, Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (1991)3 SCC 341, Friends Colony Development Committee v. State of Orissa (supra), Shanti Sports Club v. Union of India (2009)15 SCC 705 and Priyanka Estates International (P) Ltd. v. State of Assam (2010)2 SCC 27. the Supreme Court made the following observations:

37. In Abdul Rehman Jamadar Shaikh & Anr. Vs. The Municipal Corporation of Gr. Mumbai & Anr. (Appeal from Order No.73 of 2023 decided on 10 February, 2023) this Court in similar facts wherein a case relying on a photo-pass was urged by the appellant’s therein, rejecting such contentions had made the following observations:-

38. It would thus be required to be held that on a mere issuance of a photo-pass, the appellant would not be entitled to a protection to the illegal vertical extension as undertaken to the slum structure in question.

39. Insofar as the question in regard to applicability of the Kurar Pattern and the protection as claimed by the respondent relying on the same is concerned, in my opinion, the appellant ipso facto cannot claim protection under the Kurar Pattern, as no permission whatsoever was obtained by the appellant to put up a vertical extension, even assuming that certain portion of the appellant’s land was taken away in the road widening as the provisions of the policy of the MCGM itself would mandate as noted above. It would be an absurdity to read the said policy as the appellant desires.

40. In the light of the above discussion, it is required to be concluded that the structure as objected by the MCGM by a notice issued under Section 351 of the MMC Act, is a rank unauthorized structure, constructed without obtaining any permission from the MCGM. The Designated Officer of the MCGM in passing the speaking order, has taken into consideration each and every document as relied upon by the appellant and pvr/vidya 37 of 38 has rightly concluded that no documents whatsoever proved the legality of the structure as objected by the MCGM.

41. The appellant has miserably failed to make out a case for grant of temporary injunction. Any temporary injunction granted would be opposed to the observations of the Division Bench of this Court in Jilani’s case (supra), and would be contrary to the provisions of the Slums Act as also the provisions of the Mumbai Municipal Corporation Act. Certainly, a relief against law cannot be claimed by the appellant.

42. For the above reasons, the appeal deserves to be rejected. It is accordingly rejected.

43. In view of disposal of the appeal, pending Interim Application would not survive. It is disposed of.

44. At this stage, learned Counsel for the appellant has prayed for continuation of the ad-interim protection granted earlier. The ad-interim protection granted earlier is continued for a period of ten days from the date a copy of this order is uploaded on the official website of this Court.

45. The Court appreciates the assistance as rendered by learned Amici as assisted by Mr. Mutahhar Khan, Mr. Priyank Kapadia, Ms. Shradha Achliya and Mr. Siddharth Joshi. (G. S. KULKARNI, J.) pvr/vidya 38 of 38