ash 1 fa-1757.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1757 OF 2011 Sultana Wd/o Shaikh Gulam Dastagir & Others. .. Appellants Vs The Municipal Corporation of Greater Bombay and Another. .. Respondents -- Shri K.D. Jha for the Appellants. Shri Vinod Mahadik for the Respondent No.1. -- CORAM : A.S. OKA, J DATED : 4TH OCTOBER, 2011 P.C. . Heard learned counsel appearing for the Appellants and the learned counsel appearing for the first Respondent. The Appellants are the original Plaintiffs. The appellants filed a suit for challenging a notice dated 11th November, 1995 under Section 351 of the Mumbai Municipal Corporation Act, 1888 ( hereinafter referred to as “the said Act”) as well as the order dated 20th July, 1998 passed on the basis of the said notice. The order is of demolition of the suit structure. 2. The notice was issued under Section 351 of the said Act alleging that the Appellants have carried out unauthorised construction of brick masonary wall and A.C. Sheets roof admeasuring 49’.8” x 27’. ash 2 fa-1757.11 The notice was replied by the Advocate for the Appellants. In the reply, it was contended that the suit structure is a censused structure. 3. An order was passed by the Deputy Municipal Commissioner on the basis of the said notice after considering the documents submitted by the Appellants. It was observed that the suit structure was totally unauthorised. The suit has been dismissed by the Trial Court by passing the impugned judgment and decree. The Trial Court held that the Appellants have failed to prove that the suit structure is situated in a declared slum area and that the Appellants have failed to prove that the premises can be tolerated as per the policy of the Government. 4. Learned counsel appearing for the Appellants relied upon a certificate issued by the Authority stating that the suit structure is situated in a slum area. He stated that the original of the said document could not be produced and the same was lost after the death of the original Appellant. He submitted that subsequently a notice under Section 351 of the said Act was issued by the MMRDA which was withdrawn. He stated that he Appellants have filed an application for regularisation of the said suit structure and instead of deciding the said application, the first Respondent Corporation directed the Appellants to approach the Slum Rehabilitation Authority. He submitted that an ash 3 fa-1757.11 opportunity may be given to the Appellants to prove that the suit structure is in a declared slum area. 5. I have considered the submissions. A compilation containing copies of the pleadings, notes of evidence and documents on record of the suit has been filed. The suit is filed in the year 1998. The only contention in the suit appears to be that as the suit structure is a censused structure in a declared slum area under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, the same is required to be protected as the same was in existence on 1st January, 1995. The Appellants have relied upon the certificate dated 21st July, 1998 issued by the Additional Collector (Encroachment) in which it was stated that the suit structure was situated on a private property declared as a slum area. However, the Appellants did not produce the original of the said certificate. Only a photo copy was produced which was not exhibited. In fact the Appellants have produced no evidence to show that the land on which the suit structure was situated has been declared as a slum area. The Appellants could have always adduced secondary evidence of the same document or could have produced a certified copy of declaration of slum under Section 4 of the said Act of 1971. 6. The protection under the policy of the Government was claimed by the Appellants only on the ground that the suit structure ash 4 fa-1757.11 was situated in a declared slum area. After having failed to prove that the suit structure was in a slum area, obviously the Appellants are not entitled to protection. 7. The subsequent notice under Section 351 of the said Act was issued by the MMRDA which has been withdrawn. However, the first Respondent has not withdrawn the notice. 8. The burden was on the Appellants to prove that the suit structure is authorized or the same can be tolerated as per the policy of the first Respondent-State Government. As the Appellants failed to adduce the evidence in that behalf, the Trial Court has dismissed the suit. It was never the case of the Appellants that the structure was authorised. The structure cannot be tolerated by relying upon the policy of the Government as the Appellants failed to prove that it was in a slum area. Hence, no case is made out for interference. The Appeal is accordingly dismissed. 9. On the Application made by the Appellants, the ad-interim relief granted earlier will continue to operate for a period of three months from today as the learned counsel appearing for the Appellants states that the Appellants desire to apply for regularization. ash 5 fa-1757.11 10. Civil Application no.3880 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )