vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3152 OF 2009 WRIT PETITION NO.3152 OF 2009 WRIT PETITION NO.3152 OF 2009 Kolhapur Municipal Corporation & anr. ... Petitioners V/s. Smt.Kerabai Ananda Shinde ... Respondent Mr.S.S. Patwardhan for Petitioners Mr.S.M. Kamble for Respondent CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: APRIL 23, 2009 APRIL 23, 2009 APRIL 23, 2009 P.C.: P.C.: P.C.: . The Petitioners have approached this Court challenging the order passed in Regular Civil Suit No.608 of 2008 granting an injunction in favour of the respondent herein. The petitioners have been restrained from demolishing the suit property pursuant to the notice dated 31.7.2008 till the disposal of the suit. This order has been confirmed by the appellate Court. 2. The Petitioners contend that 48 structures were situated on the land bearing Survey No.255. 47 structures have been demolished and the corporation has undertaken a scheme of redevelopment under the Integrated Housing and Slum Development Programme. Only one structure, that of the respondent, remains as she is unwilling to vacate the premises. It is submitted on behalf of the petitioners that injunctions granted by : 2 : the trial Court would adversely affect the progress of the development programme. As a result 47 persons who are entitled to be rehoused in these structures which will be built over the land, are left without roof over their head. It is submitted that in view of the impending monsoon, such an injunction ought not to have been granted because it is impossible to complete the scheme in a phased manner. It is submitted that after all the 48 structures are built, lots would be drawn and the occupants would be allotted the structures. The learned Counsel for the Petitioners submits that the respondent would also be entitled to a structure under the scheme. He further submits that in case it is found by the Civil Court that the Petitioner is occupying an area of more than 269 sq.ft., she would be entitled to the same area under the various notifications issued for implementation of the scheme. He therefore submits that the injunction granted against the Corporation should be vacated. 3. On the other hand, it is submitted by Mr.Kamble appearing for the Respondent, that she does not reside in a hut as claimed by the petitioners. It is submitted that the respondent has applied for regularisation of her structure and, therefore, if the structure is demolished at this stage, her suit would become infructuous. It is further submitted that the : 3 : Respondent would in any event, be entitled to more than 269 sq.ft. as she now occupies an area of about 400 sq.ft. The learned advocate further submits that the existence of the structure cannot be an hindrance for the redevelopment of the plot as the new structures on redevelopment, can be constructed surrounding the structure occupied by the petitioner. He therefore submits that the respondent should not be dishoused and the injunctions granted be continued. 4. In my opinion, the injunction granted by this trial Court has been ordered without considering whether the action taken by the petitioners under the BPMC Act by issuing a notice under the Act is illegal. The trial Court has merely proceeded on the basis that the possession of the plaintiff is protected under section 3(z-1) of the Maharashtra Slum (Area Improvement, Clearance/Development) Act. However, there is no material on record to indicate that this entire area is notified as a slum and, therefore, in my opinion, prima facie, if there is no declaration that the area is a slum, the respondents would not be entitled to relief as granted by the trial Court. Apart from this the Respondent has no legal right to continue on the plot of land. 5. In this view of the matter, though there is a : 4 : concurrent finding of fact by both the Courts below, they have not considered the issue as to whether the provisions of the BPMC Act under which the notice has been issued to the respondent have been breached. Therefore, the injunction granted must be vacated. Moreover, with the impending monsoon it would be in the interest of justice to ensure that the other 47 people are not held at ransom by one person as the project cannot progress. Twenty four structures have already been built and the Respondent’s structure is causing a hindrance for the redevelopment of the property. The Petitioners have stated in their additional affidavit that the scheme is expected to be completed by 15.5.2009 and that the Respondent would be accommodated in a new structure after the redevelopment of City Survey No.255. 5. Petition is allowed. The orders impugned in this Petition are set aside.