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Judgment
Bhimrao N. Naik, J.—These are six appeals filed by the Appellants challenging the order passed by the learned Judges of the City Civil Court on 17-2-1994, whereby the Notice of Motions taken out by them in their respective suits came to be dismissed. I have heard the learned Counsel appearing for both the sides and I propose to pass a common order in respect of these appeals.
The Corporation on 3-6-1991 issued a notice u/s 351 of the Bombay Municipal Corporation Act to each one of the Plaintiffs in Suit Nos. 5531/91, 5532/91, 5233/91, 5238/91, 5236/91 and 5237/91, since they had constructed unauthorised structures, being hutments in Indira Nagar, Parshi Naka, Mahul Road, Chembur, Bombay. It does appear from the record that the three plaintiffs, namely Shaikh Rahimtulla Noor Mohammed (Plaintiff in Suit No. 5236/91), Shaikh Maqbulla Noor Rahimtulla (Plaintiff in Suit No. 5238/91) and Shaikh Whals Mohammed Noor Mohammed (Plaintiff in Suit No. 5237/91) are holding photo-passes, whereas the remaining three Plaintiffs do not hold such photo-passes. The plaintiff aggrieved by the notice issued by the Corporation on 3-6-1991 have filed the aforesaid six suits. In each of the suit, separate six notice of motions were taken out and the City Civil Court directed the Deputy Municipal Commissioner concerned to hear the objections of the Plaintiff and dispose of the same by a speaking order. It is an admitted fact that none of the Plaintiffs appeared personally before the Deputy Municipal Commissioner. The only contention raised by the learned Counsel before the City Court was that though the plaintiffs have not appeared before the D.M.C., still the D.M.C. was required to go through the file and consider the case of the Plaintiffs by following the principle of natural justice. The D.M.C., it appears that, has gone through the file and passed a detailed speaking order on 9-1-1992. In the said proceedings, the D.M.C. found that all the structures are unauthorised and the three above mentioned Plaintiffs are only holding the patch-holders card. The D.M.C. therefore requested the Additional Collector whether those hutment dwellers have been offered any alternative site or otherwise and in reply to the above letter, the Additional Collector (Encroachment) informed the D.M.C. that only three, out of the six Plaintiffs, are proposed to be given alternative site vide order dated 21.10.1991, whereas for the remaining three Plaintiffs no such alternative site is proposed to be provided as they are not entitled to any such alternative plot of land. In view of this since the constructions are absolutely unauthorised, which cannot either be tolerated at all as per the policy of the Corporation or regularised under the Development Control Rules, the D.M.C. directed the Plaintiffs to remove themselves immediately failing which the ordered the Ward Officer to demolish the structures at the risk and cost of the plaintiffs after two weeks from the date of the order. He further ordered that the Plaintiffs, who have been offered alternative site, should approach the authority concerned for further necessary action. After passing this order by the D.M.C., the Plaintiffs got their respective plaint amended in order to challenge this order of the D.M.C.
After hearing the learned Counsel for the parties, I am satisfied that the appellants have no case at all. No material has been placed either before the Court or before the D.M.C. to satisfy that the structures can be tolerated or they are authorised. The structures are unauthorised and only three of the Plaintiffs have been offered alternative site. Therefore, in fairness the learned Counsel appearing for the Corporation made a statement that these three Plaintiffs, whose names are mentioned above be directed to approach the authorities concerned and get an order, of allotment of alternative site within 8 weeks from date and to get some letter to that effect from the Additional Collector (Encroachment) and for that purpose the Corporation would stay their hands of demolition so far as these structures of the above said three Plaintiffs are concerned for a period of 8 weeks. If the said Plaintiffs do not approach the Additional Collector (Encroachment) and obtain necessary orders for allotment of alternative site within 8 weeks the Corporation is free to demolish the said structures, which are totally unauthorised.
The learned Counsel for the Appellants/Plaintiffs thereafter contended that these structures are situated in a slum area and therefore, as per the policy they are entitled to get protection for any unauthorised construction carried out in a slum area. First of all this point was not agitated by the plaintiffs before the D.M.C. nor any material is placed before me. It appears that no such contention is taken before the Trial Court also nor any documents produced. In view of this, I see no substance in any of the contentions raised by the Appellants. The structures are unauthorised and they are not covered by any policy of the Corporation or by the D.C. Rules and, therefore, the order passed by the Trial Court appears to be just and proper. The appeals are therefore dismissed. However, the Respondent-Corporation, shall stay their hands for a period of 8 weeks from date in demolishing the structures of the three Plaintiffs, namely Shaikh Rahimtulla Noor Mohammed, Shaikh Maqbulla Noor Rahimtulla and Shaikh Whals Mohammed, Noor Mohammed, since they have been offered to provide alternative site, in order to enable them to approach the Additional Collector (Encroachment) to get necessary order and satisfy the Corporation that they have done so. The statement to that effect made by the learned Counsel for the Corporation is accepted.
Appeals dismissed.
In view of the dismissal of the appeals, nothing survives in the Civil Applications and hence the Civil Applications are also disposed of.
Certificate copy of this order be issued expeditiously.