First Appeal No.782 of 2010,Civil Application No.1727 of 2010

5th October, 2010

Petitioner Counsel: Mr. ANIL SINGH,Mr. P. M. HAVNUR,Ms. NAYANA G. PARDESHI
Respondent Counsel: Mr. A. Y. SAKHARE,Mr. J. J. XAVIER

JUDGMENT

JUDGMENT :- Admit. Learned counsel appearing for the respondents waives service. By consent of learned counsel for the parties, Appeal is taken up for hearing and final disposal at the admission stage itself.

2. This appeal is directed against the Judgment and order dated 28.4.2010 rendered by the City Civil Court (Borivali Division), Dindoshi, Goregaon, Mumbai in L.C. Suit No.5990 of 2002, dismissing the suit filed by the appellant-plaintiff for declaration and permanent injunction. The declaration sought was that the notice dated 29.10.2002 issued under section 314 read with 394 of the Mumbai Municipal Corporation Act, 1888 (for short, "MMC Act") and the order dated 3.2.2004 passed by the Assistant Commissioner, "K/East Ward", is illegal and bad-in-law.

3. On the last date of hearing, this appeal was heard on admission for some time and then at the request of learned counsel for the parties adjourned and kept today with clear understanding that the appeal itself would be disposed of finally at the stage of admission. Learned counsel for the parties have placed on record the entire material/evidence for my perusal by way of independent compilations. I have gone through the entire evidence and more particularly the documents to which my attention was specifically drawn by learned counsel for the parties.

4. The facts leading to this appeal, sans unnecessary details, in brief, are that the respondent-corporation issued notice under section 314 of the MMC Act on 29.10.2010 directing the appellant-plaintiff to remove structure admeasuring about 20' x 40' situate at CTS No.175 (Pt), village Majas, Ganesh Nagar, Near Punam Nagar, Andheri (E), (for short, "the suit structure") within 48 hours, it being unauthorised. The appellant claims that he has been in possession of the suit structure since 1980 and that initially he was residing as well as carrying on business of garage therein along with his brother. In support of his claim, he has relied upon several documents, such as electric bill, ration card, shop and establishment licence, passport, letters, telephone bill etc.. Then, it is contended that the suit structure is not standing on the land owned by the Municipal Corporation but it is on private land and hence the notice under section 314 is bad-in-law. It is further contended that the respondent-corporation ought to have followed the procedure laid down under section 105-B of the MMC Act and that issuance of the notice under section 314 is misuse of power.

5. On the other hand, the respondent-corporation-defendants (for short, "the Corporation") claim, as is seen from the property card, that 3255 sq. meters area, out of CTS No.175, at village Majas, has been reserved for municipal market, out of which 2750 sq. meters area was owned by M/s. Madhu Fantasy Pvt. Ltd. prior to its acquisition in 1998 (for short, "the said land"). The plot of land, where the suit structure is standing, was owned by M/s. Madhu Fantasy Pvt. Ltd. The said land was acquired for the corporation. In the Development Plan, it was reserved for municipal market. The Corporation claim that when they took possession of the said land in 1998 it was vacant and/or free from encroachment. In short, it is contended by the respondent-corporation that CTS No.175 (Part) - A-3 admeasuring about 3255, is reserved for municipal retail market and ownership of the said plot is vested in the Municipal Corporation with effect from 8.5.1998 and that they were put in possession thereof in 1998 itself.

6. It has come on record and it is not disputed that the Corporation has already commenced construction of the market building on the said land and that the suit structure is within less then about 50-60 feet away from the plinth. The suit structure is admittedly adjacent/very close to the road. Further, the said land, is admittedly bounded by brick missionary wall and the suit structure, where the construction of the municipal market is in progress, is inside the boundary wall. I have also perused the photographs produced by the appellant. I have taken one photograph on record, which clearly shows the "suit structure" so also the construction of "municipal market building" and the "B.M.wall". The photograph is marked as "X" for identification.

7. I have perused the impugned judgment. The City Civil Court had framed the following issues :-

1. Whether plaintiff prove that he is in use, occupation and possession and carrying on business of garage at the plot of land bearing C.T.S. No.175 (Part), Majas village, Taluka-Andheri, Mumbai prior to 1.1.1995 and entitle for protection and alternate site in lieu thereof ?

2. Does plaintiff prove that the notice bearing No.KE/AE (M) II/314/1 dated 29.10.2002 being notice under section 314 of the MMC Act, 1888 is illegal, null and void ?

3. Does plaintiff proves that the order bearing No.KE/1196/AE(M) II/Gen. Dated 3.2.2004 passed by the Assistant Municipal Commissioner is illegal and bad-in-law ?

4. Is suit not maintainable for want of notice under section 527 of the M.M.C. Act, 1888 ?

5. Is the plaintiff entitled to the relief as claimed in the suit ?

All the issues, after having considered the evidence on record, have been answered in negative.

8. I have heard Mr. Anil Singh, learned counsel for the appellant and Mr. A. Y. Sakhare, learned senior counsel for the respondent-corporation for quite some time and with their assistance gone through the entire material placed before the court. Mr. Singh, learned counsel for the appellant, at the outset, invited my attention to the impugned notice under section 314 of the MMC Act and submitted that the notice is not only vague but it is also unclear as to how much portion of CTS No.175 (Part) has been acquired by the municipal corporation and whether the suit structure stands on the said land. He further submitted that if the notice does not specify as to whether the suit structure affects the construction of municipal market or development of the public road. He submitted that in any case, the notice under section 314 cannot be issued for both the purposes and hence it is bad-in-law. In other words, he submitted that the impugned notice is bad-in-law since it was issued under section 314 read with section 394 of the MMC Act. He then submitted that from the notice it is not possible to identify exact location of the structure so also the land acquired and owned by the corporation where they propose to construct the municipal market.

9. Mr. Singh then submitted that the documents produced by the appellant on record clearly show that the suit structure has been in existence since prior to 1.1.1995. He further submitted that even if it is assumed that the suit structure is unauthorised, as per the Government policy, it falls within the category of "tolerated structure" and the same is not liable to be demolished without offering alternate accommodate in lieu thereof. He submitted that the Corporation has wrongly applied the datum line of 1962-63 instead of applying the datum line of 1.1.1995 as per the Government resolutions dated 16.5.1996 and 11.7.2001, by which all the structures existing on or before 1.1.1995 were protected.

10. On the other hand, Mr. Sakhare, learned senior counsel for the corporation, submitted that the appellant has not produced a single document on record to show his source of acquisition or ownership and possession-of the suit structure. As a matter of fact, the documents produced by the Corporation, namely, possession receipt dated 8.5.98 (Exh.-24), P.R.Card (Exh.-25), C.T. Survey Plan and the policy/scheme dated 11.7.2001 clearly show that the suit structure is unauthorised and it does not fall within the category of "tolerated structure". He then submitted that the suit structure was neither censused nor in "slum area" as defined by sub-section (ga) of Section 2 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short, "the Act of 1971"). When the possession was handed over to the corporation by M/s. Madhu Fantasy Pvt. Ltd. on 8.5.1998 there was no encroachment on the said land and, therefore, the suit structure is liable to be removed. Mr. Sakhare further submitted that the suit structure is obstructing the development being made for the public purpose.

11. It would be relevant to notice few admitted facts. The suit structure is not assessed for municipal taxes. The appellant could not and did not produce permission to put up the suit structure on the part of CTS No.175 of village Majas in Ganesh Nagar. The appellant has also not stated the source of acquisition or ownership or possession of the suit structure, nor has he led any evidence in support thereof. Admittedly the suit structure is neither censused nor in slum area as defined by section 2(ga) of the Act of 1971. The size of the suit structure is 20' x 40' and is a tin structure. It situates on C.T.S. 175 (Part) of village Majas. It is against these admitted/undisputed facts, I examined the material on record in order to appreciate the submissions advanced by the learned counsel for the parties.

12. It appears that before filing of the present suit (L.C. Suit No.5990 of 2002) the appellant had filed L.C. Suit No.5848 of 2000 against the corporation seeking direction to the corporation to follow the due process of law before taking any action against the suit structure. That suit was decreed on 16.2.2002 and the Corporation were directed not to demolish the suit structure without following the due process of law. In view of the direction issued by the City Civil Court in the said suit, the Corporation issued the impugned notice dated 29.10.2002 under section 314 read with section 394 of the MMC Act. The notice was replied by the appellant on 30.10.2002. After the Assistant Municipal Commissioner, (K/East Ward), giving an opportunity of being heard to the appellant, passed the order of demolition of the suit structure dated 3.2.2004. The appellant has challenged the notice so also the order dated 3.2.2004 in the instant suit.

13. The appellant claims to be the owner and occupier of the suit structure where he runs a garage, viz. "God Gift Garage" and it is on the plot of land bearing CTS No.175 (Part). The name and address of the suit structure mentioned in the notice under section 314 read with 394 of the MMC Act dated 29.10.2002, reads thus : "Shri. Ramesh Apparao, "God Gift Garage", CTS No.175 (Part), village Majas, Ganesh Nagar, near Punam Nagar, Andheri (E)". The address mentioned in the title of the suit by the appellant of the suit structure reads thus : "At plot of land bearing CTS No.175 (Part), Majas village, Taluka Andheri, Ganesh Nagar, near Punam Nagar Hutments, M. C. Road, Andheri-East, Mumbai-400 093". The suit structure, according to the appellant, has been in existence and in his possession since 1980. Initially, as stated in the plaint in paragraph 2, the appellant was residing as well as carrying on business of garage in the suit structure along with his brothers.

14. The appellant placed about 14-15 documents in support of his claim that the suit structure has been in existence since 1980 and in any case since before 1.1.1995. There is no dispute that prior to 1998, when the possession was handed over to the corporation, the suit structure was standing on the private land owned by M/s. Madhu Fantasy Pvt Ltd. In support of his claim, the appellant placed reliance upon new ration card issued in December, 2002 (Exh.7), the extract of the voters list dated 26.3.2004 (Exh.8), copy of the voters list of 2002 (Exh-9), election identity card issued on 2.3.1996 (Exh.-10), N.A. order passed by the Addl. Tahasildar dated 7.11.94 (Exh.11), electric bill dated 8.5.1994 (Exh.12), telephone bills dated 1.3.1995 and 23.3.1999 (Exh.-13), registration certificate issued under the Shops and Establishments Act in January,1996 (Exh.-14), copy of the Passport issued on 25.9.1996 (Exh.-15), letter dated 27.5.2002 (Exh.17), notice dated 29.10.02 issued by the Assistant Engineer (Exh.-18), letter dated 30.10.2002 addressed to the Law Officer, BMC (Exh.19) and order dated 3.2.2004 passed by the Assistant Commissioner, BMC (Exh-20).

15. Mr. Singh, learned counsel for the appellant, invited my attention to all the documents in the compilation placed on record by the appellant. None of the documents, in my opinion, would help the appellant to either prove that the suit structure is authorized or has been in existence since prior to 1.1.1995, inasmuch as the address mentioned on those documents do not tally with the address of the suit structure mentioned on the impugned notice or title of the suit. It would be relevant to notice different addresses mentioned on these documents and compare them with the address of the suit structure. The ration card shows the following address : "Ganesh Nagar, Punam Nagar, Mahakali, Andheri East". It does not mention the plot number. Admittedly, the suit structure is on C.T.S. No.175 (Part). The said land, acquired and taken in possession by the corporation in 1998 for municipal market, according to the corporation, was not having any structure and/or Zopadpatti/hutments. But even if it is assumed that the suit structure was in existence in 1998 when the possession was taken by the corporation, admittedly, except the suit structure, no other structure or hutment was in existence on the said land either on or before or after the date of taking possession. This was admitted by Mr. Singh in the course of arguments. In other words, the suit structure is not situated in any Zopadpatti. However, the documents including the application made for ration card, the address mentioned was "Ganeshnagar, Punamnagar Zopadpatti, Mahakali Caves, Andheri (East)". One of the letters produced by the appellant also shows the following address : "Ganesh Nagar, Punam Nagar Zopadpatti, Room No.1, Mahakali Caves Road, Andheri -East, Bombay 400 093". The passport has the following address : "Punam Nagar Zopadpatti, Ganesh Nagar, Mahakali Caves, Andheri (East), Mumbai 400 093". The Election Identity Card shows the following address : "G-2, Behind Punam Kirti Building, Andheri -East, Bombay -400 093". N.A. Order dated 7.11.1994 mentions the following address: "Ganesh Nagar, Punam Nagar Zopadpatti, Mahakali, Andheri, Bombay". Telephone bill mentions the following address: "Ground, Punam Nagar Chawl,Ganesh Nagar, Mahakali Caves Road, Andheri East, Bombay 400 093". The letter dated 28.4.1994 placed on record by the appellant of the Distribution Engineer, BSES Ltd mentions the following address : "Ganesh Nagar, Punam Nagar Zopadpatti, Road No.18, Marol, Andheri East, Bombay - 400093". The Shop and Establishment certificate mentions the following address : "Ganesh Nagar, Punam Nagar Zopadpatti, M.C. Road, Andheri - East". One of the letters dated 27.5.2002 written by the appellant and addressed to the Assistant Municipal Commissioner shows the following address : "Ganesh Nagar, Mahakali Caves, Andheri -East, Mumbai - 400 093".

16. It is thus clear that the addresses mentioned on the documents, heavily relied upon by the appellant, in support of his case are inconsistent and/or they do not match with the address mentioned either on the impugned notice or the address mentioned in the title of the suit. For the first time in the title of the suit "near Punam Nagar Zopadpatti" is mentioned, perhaps with a view to explain as to why on every document "Punam Nagar Zopadpatti" is mentioned. The appellant has not brought any material on record to show where the Punam Nagar Zopadpatti is situated and how far it is from the suit structure. On a query made by me in the course of hearing of the appeal as to whether the suit structure ever existed in any zopadpatti, the reply of Mr. Singh, learned counsel for the appellant was in negative. He, however, tried to explain reference to "Punam Nagar Zopadpatti" on all these documents contending that Punam Nagar Zopadpatti is near from the said land/ suit structure. It is further interesting to note that these documents do not make reference to CTS No.175 (Part) of village Majas. Almost all the documents pertain to some premises situate in either Punam Nagar Zopadpatti or somewhere else and not at CTS No.175 (Part), which is the address of the suit structure. The appellant has not taken any trouble to bring on record any cogent and convincing material/evidence to connect all these documents with the suit structure.

17. It is against this backdrop, Mr. Anil Singh invited my attention to the judgment of the City Civil Court in L.C. Suit No.5848 of 2000 to contend that there is a clear finding recorded by the court while issuing direction to the corporation to follow the due process of law that the appellant is in settled possession of the suit structure since 1980. Admittedly, when this finding was recorded by the City Civil Court in the earlier suit, the only issue fell for the consideration of the City Civil Court was whether the suit structure existed and, if yes, whether direction should be issued to the corporation to follow due process of law. In view of this finding I would now proceed on the assumption that the suit structure came into existence in 1980 and consider whether it falls within the category of "tolerated structure" or whether it is liable to be demolished without offering alternate accommodation in lieu thereof.

18. The learned counsel for the appellant placed heavy reliance upon the scheme/policy as reflected in two Government Resolutions dated 16.5.1996 and 11.7.2001 to contend that all unauthorised structures/hutments, which were in existence as on 1.1.1995, have been protected and in the event of its demolition, occupants/owners are entitled for alternative accommodation in lieu thereof. I have perused both the Government Resolutions placed on record by the appellant. It would be relevant to reproduce official translation of the Government Resolution dated 16.5.1996, on which heavy reliance was placed so also the official translation of the relevant portion of the Government Resolution dated 11.7.2001 in order to appreciate the contentions urged on behalf of the appellant. The official translation of the Government Resolution dated 16.5.1996 reads thus :

“To decide eligibility of hutment dwellers under Slum Rehabilitation Scheme. Government of Maharashtra Housing and Special Assistance Department, Government Resolution No.SRS-1096/C.No.68/Housing Cell, Mantralaya, Mumbai 400 032. Date - 16th May 1996. Read :           1) Development Control Rules No.33(10) dated 25th March, 1991 of Government Urban Development Department.           2) Additional guidelines in connection with Slums Reconstruction Scheme, issued under Government letter bearing No. D.G.R. -1092/Slum/687 UD-11, dated 29th April, 1992 of Urban Development Department in connection with Slum Reconstruction Scheme.            3) Government Resolution, Housing and Special Assistance Department No.1095/3785/SRS-1, Dt.27th April, 1995.            4) Government Notification, Housing and Special Assistance Department, No.SRS-1095/C. No.37 Housing Cell, Date - 16th December, 1995. Preface :-           In order to improve standard of living of hutment dwellers in Brihan Mumbai and in order to avoid any adverse effects harmful for public health and surrounding atmosphere, various schemes e.g. Slums Improvement Scheme, Slum Upgrading Scheme, have been implemented by the Government. However, on account of these schemes, the basic problem of hutment dwellers could not be solved and therefore the Government, by making provision in Brihan Mumbai Development Control Rules under Rule No.33(10), had implemented Slum Reconstruction Scheme from the date 20th March, 1991. Accordingly, it was the policy of the Government to give benefits to those hutment-dwellers, whose names are appearing in the electoral roll for the year 1985 and who are residing at the same address, as beneficiaries. However, on account of some errors and mistakes therein this scheme could not be implemented speedily. And therefore the Government appointed a study group and took action to remove the errors and mistakes in the said scheme and has decided to allot the flats of 225 sq. feet carpet area, free of cost, to 40 lakhs hutment-dwellers in Brihan Mumbai.           2) Pursuant to said decision, the Government, under Government Notification dt.16-12-95, has appointed a separate Slum Rehabilitation Authority to implement the scheme to allot ‘pucca’ houses, free of cost, to 40 lakhs hutment dwellers. In the 1990 census campaign of huts, the Government had given orders to carry out census as per the names entered in then electoral roll of the year 1985 and to give protection to them. That means the hutment dwellers of the period of 10 years i.e. from 1985 to 1995 were to be kept deprived of from this scheme. As result thereof the hutment dwellers of the huts, which have been erected newly during last 10 years, might have created problems in the implementation of this scheme; therefore the Government was considering the issue whether or not to treat those hutment dwellers beneficiaries of this scheme, whose names are appearing in the electoral roll 1-1-95 and who are residing at the same address. Government Resolution :-           The Government is according sanction to declare all those hutment-dwellers in Brihan Mumbai area eligible for their rehabilitation, who have been censused according to the electoral roll of the year 1976 and thereafter according to the electoral roll of the year 1980 and 1985 as well as the hutment-dwellers in such hutments whose names are appearing in the electoral roll dt.1.1.95 and who are residing at the same address as well as the hutment dwellers whose (huts) have come in to existence after the year 1985, but whose names have been reflected in the electoral roll of the dt.1-1-95.           The Government further orders to initiate eviction proceedings against those hutment dwellers who are ineligible as per the aforesaid eligibility criteria. By order and in the name of the Governor of Maharashtra I. M. More Under Secretary Government of Maharashtra.” (Emphasissupplied)

19. From bare perusal of the Government Resolution dated 16.5.1996, it is clear that the hutment dwellers in the hutments, whose names are appearing in the electoral roll dated 1.1.1995, and who are residing at the same address so also the hutments dwellers whose huts came into existence after 1985, and whose names are appearing in the electoral roll dated 1.1.1995 are protected by this resolution and in the event of their eviction they are eligible for rehabilitation/alternative accommodation. Admittedly, the suit structure is not censused structure. Keeping that in view, I perused the identity card issued by the Election Commission of India produced on record by the appellant. The identity card was issued on 2.3.1996 mentioning the following address of the appellant "G-2, behind Punam Kirti Building, Andheri (E), Mumbai-400 093". The identity card, in my opinion, would not help the appellant to establish that he was residing at the same address, as of the suit structure, on 1.1.1995. The appellant has also placed on record a copy of the electrol roll as on 1.1.1995. The name of the appellant appears at Sr. No.1173 in the said list and the address of the appellant mentioned in the voters list is "T-2, behind Punam Kirti building". The electrol roll is in Marathi and the number 'T-2' is mentioned in Marathi as "Ta-2". It does not make any reference to either Ganesh Nagar or Punam Nagar Zopadpatti. The appellant also placed reliance upon the extract of the voters list issued on 26.3.2004, wherein the name of the appellant is shown at sr. no. 937 and the address of the appellant as reflected in the said extract reads thus : "Punam Nagar Zopadpatti, Ganesh Nagar Mahakali Gufa Road, Andheri (E)". This extract also shows that the appellant along with his brothers is a resident of Punam Nagar Zopadpatti. In support of this extract dated 26.3.2004 the appellant has also placed on record the voters list published on 3.12.2002. There is one more certificate/voters list extract dated 3.5.1990. In this extract, name of the appellant is shown at sr .no.1172 and the address of the appellant as reflected in the said extract is also of Punam Nagar Hutment (Ganesh Nagar). From bare perusal of this material, it is clear that none of the extracts or the identity card issued by the Election Commission of India or the voters lists shows the address of the suit structure. That apart, except the certificate dated 3.5.1990, all other documents were issued after 1.1.1995 and therefore, would not help the appellant to contend that his name was included in the voters' list at the address of the suit structure as on 1.1.1995.

20. The appellant claims, as is stated in the pleadings and in his evidence, that he voted in the assembly election held in February 1995, then in the elections of the Municipal Corporation held on 22.2.1997 and then the parliamentary election on 28.2.1998. Merely because he exercised right of voting in these elections, in my opinion, would not help to establish that his name was in the voters list at the address of the suit structure, as contemplated by the Government Resolution dated 16.5.1996. Moreover, it cannot be overlooked that by the resolution dated 16.5.1996 what is protected are only the hutments meant for residential purpose and not commercial premises. The appellant has not stated that on 1.1.1995 he was using the suit premises for his residential purpose. On the contrary, in paragraph 2 of the plaint, he has specifically stated that earlier he was residing as well as carrying on the business of garage along with his brothers since 1980, suggesting thereby that at the time of filing of the suit he had shifted his residence elsewhere, may be in the Punam Nagar Zopadpatti and continued to run his business of garage at the suit structure. In any case, the resolution dated 16.5.1996 would not help the appellant to protect the suit structure and claim alternative accommodation under the scheme/policy.

21. Official translation of the relevant portion of the Government Resolution dated 11.7.2001 reads thus :-

"Revised policy of the Government to issue photo pass to the hut holders (Slum-dwellers) in the hutments existing up to the date 1st January, 1995.

Government of Maharashtra Housing Department, Government Resolution No.SI 1220/M.NO.204 (1)/SI-1, Mantralaya, Mumbai 400 032. Date :- 11th July, 2001. Read :-           (1) Government Resolution, Housing and Special Assistance Department No.SC 1220/M.No.5/SI-1, Dt.9th March, 2000.           (2) Government Resolution, Housing and Special Assistance Department No.SI 1220/M. No.204 SI-1, Dt.17th November, 2000.           (3) Government Letter No.SI 1220/M.No.204/SI-1, Dt.28.11.2000. Preface :-            As per the Government Resolution under reference a decision has been taken to issue photo pass to the eligible slum-dwellers after making survey and census of the slum-dwellers. Moreover, the Government has taken a decision to provide basic amenities to the eligible slum-dwellers at the place of the city/town of which population is more than 50,000 or more as per the census of the year 1991 and in the area of the Municipal Corporation/Municipal Council, for which Maharashtra Slums Act, 1971 has been made applicable. Presently, this scheme has been made applicable to 61 cities/towns of the State and photo passes will be issued to eligible slum dwellers of such places. (A list of concerned 61 Municipal Corporations/Municipal Councils is enclosed herewith at Annexure ‘C’).            2. General view of the Government in issuing the photo passes is as follows :- 1) Photo-pass is a proof showing that the photopass holder was residing in the hut existing prior to 1st January, 1995. 2) The photo-pass holders, as far as possible, will not be evicted. However, whenever the Government feels necessary, in such event, by making their alternative arrangement, the Government can make their eviction. 3) In the hutment, eligible to be declared on the land of the declared private land or on the land of the State Government and the State Government Undertakings, wherein the photo-pass holder resides, in such hutment (slum) basic civil amenities will be provided by the State Government, as per the availability of fund and the slum dwellers shall have to pay the consolidated fee amount, service charges etc. prescribed by the Government, from time to time.           Considering the aforesaid view, in order to make the policy of issuing the photo-pass more clear and effective, the Government Resolution Dt.9th March, 2000, Government Resolution Dt.17th November, 2000 and letter Dt.28th November, 2000 are superseded and the Government has taken the following decision.   GOVERNMENT RESOLUTION 1. Name of the Scheme Issuance of Photo pass to the Eligible Slum-dwellers Scheme - 2001. 2. Scope of the Scheme           (1) This scheme shall be applicable to those hutments situated on the land of the ownership of the State Government, Municipal Corporations, Municipal Councils, MHADA, and other Semi-Government Bodies and on the private land in the 61 Municipal Corporations/Municipal Councils area mentioned in the list at Annexure C, enclosed herewith, of the cities/towns having population of 50,000 or more as per the census of the year 1991, which (hutments) have been declared as per the provisions of Maharashtra Slum (Improvement, Clearance and Rehabilitation) Act, 1971.            (2) This scheme shall be applicable to the eligible hutments existing prior to 1-1-1995, on the lands having reservations of playground, recreation ground, parks etc. for public purposes and on the non-buildable lands of the State Government and State Government Undertakings.            (3) This scheme shall not be applicable to the huts situated on the road and footpath. Their census will be made, but they will not be issued the photo-passes. However, if the hut-holders on the roads and footpaths, who are complying with the conditions of eligibility under this scheme, are evicted, then they shall be eligible to get alternative premises.           (4) This scheme shall not be applicable to those huts, which are 25 or less in number either in cluster or in scattered condition.           (5) This scheme shall not be applicable to such hutments for which Slum Rehabilitation Scheme has been sanctioned.           (6) This scheme shall be applicable to the hutments on the CRZ affected lands of the State Government and State Government Undertakings and on the declared private lands.”

22. Insofar as this resolution is concerned, my attention was drawn to paragraph 2(2) of the Preface and clause (1) of paragraph 2 of the Government Resolution. The Government by this resolution revised its policy to issue photo pass to the hutment dwellers (slum dwellers), whose huts were existing on or before 1.1.1995. One of the objectives of this resolution, as reflected in sub-para (2) of paragraph 2 of the Preface of the Government Resolution, is that the photo pass holders, as far as possible, would not be evicted and if their eviction is inevitable the Government shall do so after providing them alternative accommodation. Paragraph 2 of the Resolution provides for scope of the scheme/policy. Clause (1) of paragraph 2 of the Government Resolution speaks about applicability of the scheme. As per clause (1) of paragraph 2 of the G.R., the scheme is made applicable, insofar as this appeal is concerned, to those hutments situated on the land owned by the Municipal Corporation so also to the hutments on private land within the jurisdiction of the corporation as per the census of the year 1991 and the hutments which have been declared as slum under sub-section (1) of Section 4 and/or deemed to be a slum area under section 4-A of the Act of 1971. In the present case, the said land or the plot of land, where the suit structure situate, has not been declared as slum under sub-section (1) of Section 4 and/or deemed to be slum area under section 4A of the Act of 1971. The corporation took possession of the said land for the first time in 1998. Till then it was a private land owned by M/s. Madhu Fantasy Pvt Ltd. In view thereof, it is clear that the suit structure is not covered by the Government policy/scheme as reflected in the G.R. dated 11.7.2001. The Government Resolution dated 11.7.2001 is made applicable to those hutments situated on the private land, which were censused and are in "slum area" as defined by sub-section (ga) of Section 2 of the Act of 1971. The appellant has not produced any material on record to show that either the photo pass in respect of the suit structure was issued or it was censused or it was declared as slum. In the circumstances, I have no hesitation to hold that the scheme/policy of the Government, as reflected in the G.R. dated 11.7.2001, also is not applicable to the suit structure and/or the appellant is not entitled for protection/alternative accommodation as per the Government policy.

23. Thus, there is absolutely nothing on record to establish that the suit structure is legal or authorised. None of the documents produced on record supports the case of the appellant to establish that it is authorised and/or is covered by the Government scheme/Government Resolutions dated 16.5.1996 and 11.7.2001. That apart, the appellant has not placed any material on record to show as to in what capacity he is in occupation of the suit structure. He has not placed any material on record to show his source of acquisition or ownership or possession of the suit structure or the plot of land on which the suit structure is situate. I am satisfied that the suit structure was erected illegally/unauthorisedly and it is not entitled to be protected under the Government policy. Despite ample opportunities given to the appellant by the corporation so also by the court below he could not and did not prove that the suit structure is authorised and/or he is entitled for protection and alternate accommodation in lieu of the suit structure. In the circumstances, the First Appeal fails and dismissed as such. No costs. Consequently, Civil Application No.1727 of 2010 also stands rejected.

As prayed by the learned counsel for the appellant, the appellant is granted time to vacate and hand over peaceful possession of the suit structure to the corporation on or before 20.11.2010, subject to the appellant filing usual undertaking in this court of all adult members in occupation of the suit structure within a period of three weeks from today. Filing of the undertaking, however, shall not preclude the appellant from carrying his matter to the Supreme Court and in that event the undertaking would be subject to the orders that may be passed by the Supreme Court. It is needless to mention that the appellant shall furnish a copy of the undertaking/s filed by the appellant and other adult members in occupation of the suit structure to the advocate for the Corporation.

Ordered accordingly