: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.392 OF 2008 WITH CIVIL APPLICATION NO.461 OF 2008 IN B.C.C.L.C.SUIT NO.294 OF 2008 Akram B. Khan & Anr. ....Appellants V/s. Municipal Corpn.of Gr.Mumbai ....Respondent Mr.Anil Singh i/b Mr.D.R. Shah for the Appellants. Mrs.Geeta Joglekar for the Respondent - B.M.C. CORAM : S.J. VAZIFDAR, J. DATED : 2ND MAY, 2008. P.C. : 1. Admit and heard finally. 2. The licence under the Shops and Establishment Act in the facts and circumstances of this case atleast do not establish the Appellants’ case. Further even if the Appellants were to ultimately succeeded in convincing the authorities pursuant to this order that the suit structure is relatable to the structure in existence prior to the relevant datum-line, the Appellants shall be entitled to succeed only upto the extent of area of 30 ft. x 16 ft. and not more. : 2 : 3. It is difficult at this stage to accept the Respondent’s contention that the structure does not fall within the area declared to be a slum. For instance the notice under Section 351 of the B.M.C. Act itself contain the word "slum" adjacent to depiction of the structure. 4. Mr.Singh also contended that in respect of the original structure admeasuring 30 ft. x 16 ft. proceedings had been adopted by the previous owner. The question as to whether the present suit structure is the same as the structure in the said proceedings or not will also be decided by the Respondent. 5. Even assuming that the answers to the above questions are found to be in favour of the Appellants, the Appellants would only be entitled to retain the structure admeasuring 30 ft. x 16 ft. Mr.Singh did not deny the same. 6. In the circumstances, the following order is passed :- i). The impugned order is set-aside. : 3 : ii). The Assistant Municipal Commissioner, K/West Ward will afford the Appellants an opportunity of establishing that the structure was in existence prior to the relevant datum-line on the basis of the proceedings initiated against the alleged original structure admeasuring 30 ft. x 16 ft. and on the basis that it falls within area declared to be a slum under the Slum Act. iii). The Appellants shall appear before the Assistant Municipal Commissioner, K/West Ward at 12.00 noon on 15.5.2008 in the first instance and thereafter as directed by the Assistant Municipal Commissioner, K/West Ward. iv). If the Assistant Municipal Commissioner, K/West Ward finds in favour of the Appellants, it shall be to the extent of only 30 ft. x 16 ft. To the extent that the structure is in excess thereof, the Appellants undertake to demolish the same. In the event of the Appellants failing to do so within the time and in the manner : 4 : prescribed by the Assistant Municipal Commissioner, the Respondent shall demolish the same at the expenses of the Appellants. v). Till the order is passed and for a period of five weeks after a copy thereof is served on the Appellants, the suit structure to the extent of 30 ft. x 16 ft. shall not be demolished. 5. The Appeal from Order is accordingly disposed of. The Civil Application is also disposed of.