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hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 286 OF 2011 Shagir Ahmed Sajjad Hussain Shaikh and Ors. Versus Brihan Mumbai Municipal orporation and Ors. ... Mr. V.!. "hond #ith Ms. P.S. .B. . 'or the petitioners. !espondents ... Petitioners

olaba#ala i$b% M$s. Mulla & Mulla &

Mr. (onkim !ais #ith Mr. M.M. Malvankar 'or respondent B.M. . CORAM : S.C. DHARMADHIKARI J. DATED : JUNE 2! 2011 P.C. 1. B% this petition 'iled under Article ))* and ))+ o' the onstitution

o' ,ndia- the petitioners are impugning the orders passed b% the learned (udge- it% ivil ourt- Mumbai in Misc. Appeal .o. /0 o' )010. ). 1his Misc. Application #as 'iled b% the Petitioners challenging the ompetent Authorit%$2n3uir%

order dated /th March- )010 b% the

O''icer appointed under section 104B o' the MM Act- 1555. 6. .otice to sho# cause against the proposed eviction #as issued

against the petitioner on the basis that 1S .o. /50$1 to )6 situated at S#ami Vivekananda !oad- Oshi#ara- (ogesh#ari 78est9- Mumbai admeasuring 6000 s3. %ards belongs to the Brihan Mumbai Municipal

orporation. ,t #as leased to M$s. Ajit :lass 8orks on ;.).1;*0 'or thirt% %ears. <pon e=pir% o' the period o' lease- the same #as not rene#ed. 1he lessee #as under an obligation to hand over possession o' the premises to the orporation. /. 1he notice proceeds on the basis that the lessee #as allo#ed to use

the municipal propert% as industr% and he had constructed a shed thereon. A'ter the period o' 60 %ears e=pired- the lease #as not rene#edthat the lessee M$s. Ajit :lass 8orks #as in unauthorised occupation o' the leased premises. 1he petitioners and some o' the occupants in the structure put up on the propert% cannot have better rights once the lessee has not challenged the 'act that the lease has come to an end b% e''lu= o' time and not rene#ed therea'ter. 1here'ore- petitioners> continued occupation is unauthori?ed and the% must 'ace the eviction proceedings. 4. Some o' the petitioners replied to the sho# cause notice b%

contending that their possession #as not unauthori?ed and illegal and in 'act the% are protected occupiers because the propert% has no# been

declared as slum under the Maharashtra Slum Areas 7,mprovementlearance and redevelopment9 Act- 1;+1. 1heir structures are e=isting prior to 1st (anuar%- 1;;4 and there'ore- the% are protected. 1he% have also 'ormed Shiv Shakti S!A oop. Hsg. Societ% 'or the entire area o' )500 s3. mtrs. 1he% have also entered into a development agreement #ith M$s. Obama Builders and "evelopers and 'or all these reasons it cannot be said that the% are in unauthori?ed occupation o' the premises and there'ore- liable to be evicted. *. 1he 2n3uir% O''icer 'ound no substance in an% o' these

contentions and 'rom the 'indings on record- it is clear that the propert% belongs to Brihan Mumbai Municipal orporation and that it #as given on lease 'or the period o' 60 %ears to M$s. Ajit :lass 8orks and that the lease having e=pired and the Petitioners being some o' the e=@

emplo%ees o' that compan%- can not continue to hold on to the propert%. 1hus the% are liable to be evicted. ,t is this reasoning and conclusion o' the 2n3uir% O''icer #hich has been con'irmed b% the appellate authorit% and there'ore- this #rit petition. +. Mr. "hond learned counsel 'or the Petitioner invites m%

attention to the

averments in the #rit petition and particularl% the 'act

that in or around October- )00; the petitioners 'iled a #rit petition being 8rit Petition .o. 1415 o' )00; b% #hich the% pra%ed that the scheme be implemented.

propert% be declared as slum and S.!.A.

Ainding that the matter #as pending be'ore the High Po#er Authorit% appointed b% the State under the Act- the% #ithdre# the #rit petition #ith a libert% to approach that committee. Mr. "hond submits that no# there is declaration under the Slum Act declaring the propert% as slum and that has attained 'inalit%. 1he petitioners being in occupation prior to the cut o'' date and there'oreit cannot be said that the% are in

unauthori?ed occupation o' the premises so also liable to be evicted. ,n 'act the proceedings #ere not maintainable as the propert% is declared slum area. ,n these circumstances- the order passed should be set aside. He submits that none o' the Authorities have e=amined this issue in la# but have brushed aside the same. He there'ore- pra%s that the petition be admitted and interim orders be continued. 5. On the other hand Mr. !ais appearing on behal' o' the orporation points out that this is clear case

Brihanmumbai Municipal

o' petitioners tr%ing to hold a ver% valuable propert% #hich belongs to Municipal orporation. M$s. Ajit :lass 8orks have not disputed that the propert% #as given to them on lease 'or the period o' 60 %ears. 1he%

have not disputed that the propert% belongs to the orporation. 1here is no denial o' the 'act that the structure$shed on the plot o' land #as put up b% M$s. Ajit :lass 8orks. 1he Petitioners have not obtained an% relie' 'rom an% high po#er committee or this court #ith regard to the declaration o' the propert% as slum. He submits that the said declaration no# relied upon is o' no assistance to the Petitioners because the% have admitted during the course o' en3uir% proceedings that the propert% is a leased propert%. ,t #as given on lease b% Municipal orporation to M$s. Ajit :lass 8orks. ,t is admitted b% M$s. Ajit :lass 8orks that the% constructed a shed 'or their purpose. ,t is admitted position that M. .:.B. had not given the premises on leave and licence basis to an% o' the petitioners. Having admitted this position- no# it is not open to them to urge to the contrar%. Aor all these reasons- the petition deserves to be dismissed. ;. 8ith the assistance o' Mr. "hond and Mr. !ais- , have perused the

impugned orders. , am in agreement #ith Mr. !ais that the attempt made b% the petitioners is to someho# hold on to the propert%. 1he Petitioners 'iled a repl% to the sho# cause notice raising the above pleas. Ho#ever- during the course o' en3uir% there is re'erence made b% the 2n3uir% O''icer to the deposition o' Shri. !ajesh Sharma #ho deposed

on behal' o' some o' the petitioners. Also there is re'erence to the deposition o' Shri. (aved Ali Bhan. 1he% admit that the premises had Ho#ever- M$s.

been leased b% the M :B to M$s. Ajit :lass 8orks.

Ajit :lass 8orks had allotted some o' the structures on the plot o' land to the petitioners 'or their residence. 1he% have no document to sho# that the% are either o#ners o' the propert% or have an% other interest

therein. 1he structures are not put up b% an% o' these petitioners. Once such is 'actual position and M$s. Ajit :lass 8orks not disputing the 'act that the lease has come to an end b% e''lu= o' time and that it #as not rene#ed- then- the argument o' Mr. "hond on the basis o' the pleas in this petition can not be accepted. ,t is not the case #here an% structures have been put up b% the petitioners on the said land under some right #hich is distinct 'rom that o' M$s. Ajit :lass 8orks. 1hese persons appear to have been inducted b% M$s. Ajit :lass 8orks either as its emplo%ees or other#ise but the% have no independent right therein. 1here is no 3uestion o' petitioners there'ore- claiming protection o' the Slum Act. 1hus- there is no 3uestion o' the petitioners being permitted to hold on to the premises. 1he% #ere clearl% in unauthori?ed occupation thereo'. 1hat the propert% belongs to Municipal orporation is not in

dispute. ,n such circumstances- there #as no necessit% 'or the authorit%

as also the appellate court to go into

the issue o' #hether the said

propert% can be declared as slum. 1he occupation o' the petitioners can be said to be on the basis that the premises are allotted to them b% M$s. Ajit :lass 8orks and the% continued as on 1.1.1;;4 but that b% itsel' is o' no signi'icance to urge that the petitioners are not in unauthori?ed

occupation o' the said premises. 1o m% mind- this is an attempt b% the petitioners to not onl% protect their unauthori?ed occupation but to

usurp the public premises and propert% #ith the help o' some developers and builders. 1hat the Municipal orporation propert% can be

declared as slum and #ithout an%

re'erence to the corporation as

contended b% Mr. !ais is a serious matter. ,t is not 'or me to go into all these aspects but this is a 'it case #here the orporation and State

:overnment #ill look into the matter and order appropriate en3uiries and bring all those guilt% to book. 1his is a clear case #here the people #ho are in possession o' public propert%- long a'ter the authorit% to occup% the same coming to an end are there'ore- rightl% termed as unauthori?ed occupants. 1he% have been rightl% evicted and the concurrent orders in that behal' do not call 'or an% inter'erence as

neither the% are vitiated b% an% errors apparent on the 'ace o' record nor perversit%. 1his court does not act as a court o' 'urther appeal so as to

re@appreciate the 'actual materials. ,n the circumstances- #rit petition is devoid o' an% merits and hence- it is dismissed #ith no costs. 10. At this stage- Mr. "hond appearing 'or the petitioners seeks

continuation o' the order passed b% this court on 16th (anuar%- )011. 1he said re3uest is opposed on behal' o' the Municipal orporation.

Ainding that the petitioners are in completel% unauthori?ed occupation and possession o' the said premises and are part% to the larger attempt o' usurping a public propert%- this is not a 'it case to continue the ad interim order. Hence- re3uest is rejected.

7S. . "HA!MA"H,BA!,-(.9