Bombay High Court
Sandesh Mahadev Lavnde And 3 Ors vs Collector Mumbai-Suburban District … on 6 June, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:8408-DB JUDG-WP-157-2022- SLUMS - 4.6.2025.DOC
PALLAVI
MAHENDRA IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WARGAONKAR
Digitally signed by
PALLAVI MAHENDRA
ORDINARY ORIGINAL CIVIL JURISDICTION
WARGAONKAR
Date: 2025.06.06
16:21:17 +0530
WRIT PETITION NO. 157 OF 2022
WITH
INTERIM APPLICATION NO.1991 OF 2024
IN
WRIT PETITION NO.157 OF 2022
1. Sandesh Mahadev Lavnde
Formerly residing at Laxman Bhandari Chawl,
Om Darshan Welfare Society,
Charkop Gaon, Kandivli (West),
Mumbai - 400 067.
2. Sadanand Babaji Palav
Formerly residing at Room No.6,
Laxman Bhandari Chawl
Near Rajudhaba, Charkop Village,
Kandivli (West),
Mumbai - 400 067.
3. Prasad Dattatray Pawar,
Adult, Indian Inhabitant,
Formerly residing at Laxman Bhandari Chawl,
Laxminagar, Charkop Village,
M.G. Road, Kandivli (West),
Mumbai - 400067.
4. Aruna Sarjerav Doke
Formerly residing at Laxman Bhandari Chawl,
Laxminagar, Charkop Village,
M.G. Road, Kandivli (West)
Mumbai - 400 067. ... Petitioners
Versus
1. Collector, Mumbai - Suburban District,
Administrative Building, 10th Floor,
Government Colony,
Opp. Chetana College,
Bandra (East), Mumbai - 400 051.
2. Assistant Engineer,
Municipal Corporation of Greater Bombay,
"R" South Ward, Kandivali (West),
Mumbai.
Pallavi/ Mayur Page 1 of 52
::: Uploaded on - 06/06/2025 ::: Downloaded on - 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS - 4.6.2025.DOC
3. The State of Maharashtra
Through the Principal Secretary,
Housing Department,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai - 400032
4. The State of Maharashtra
Through the Additional Principal
Chief Conservator of Forest
Mantralaya Revenue and Forest
Department Mantralaya Mumbai
Revenue and Forest Department,
Mantralaya Mumbai - 32
5. The Senior Inspector of Police, ... Respondents
Charkop, Kandivali (West) Mumbai.
Ms. Ronita Bhattacharya Bector for the Petitioners/Applicant.
Ms. Uma Palsuledesai, AGP for the Respondent- State.
Ms. Anuja Tirmali a/w Ms. Jyoti Mhatre i/b. Komal Punjabi, for the
Respondent No.2 - BMC.
_______________________
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
JUDGMENT RESERVED ON : 11 FEBRUARY 2025
JUDGMENT PRONOUNCED ON : 6 JUNE 2025
_______________________
JUDGMENT (Per Advait M. Sethna, J.) :
1. Rule, made returnable forthwith. Respondents waives service. By
consent of the parties heard finally.
2. This Writ Petition is filed under Article 226 of the Constitution of
India praying for the following substantive reliefs :-
Pallavi/ Mayur Page 2 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
“a. That this Hon’ble Court be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of mandamus directing the
Respondents No. 1 and 2 to provide the Petitioners and other residents of the
Laxman Bhandari chawl area represented by them at Exhibit A with suitable in-
situ rehabilitation in accordance with the law on account of being a protected
occupants of hutments prior to the cut of date 01.01.2000 and/or 01.01.2011;
b. That this Hon’ble Court be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of mandamus directing the
Respondent No. 1 to restore the status quo ante in the Laxman Bhandari Chawl
area in the Laxman Bhandari chawl area;
c. That this Hon’ble Court be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of mandamus directing the
Respondents No. 1 and 2 to provide the Petitioners and other residents of the
Laxman Bhandari chawl area represented by them at Exhibit A with due
compensation for the hardships suffered by them over the past month;
d. That this Hon’ble Court be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of mandamus directing the
Respondents No. 1 and 2 to take appropriate disciplinary action against the
Deputy Collector of the Borivili region and the Sub-Divisional officer concerned
for failing to verify the eligibility documents of the residents of the basti in the
Laxman Bhandari chawl prior to demolishing their structures and further direct the
other Respondent Authorities to cease any and all coercive actions against the
Petitioners and those represented by them at Exhibit A;”
3. The challenge in the petition stems from the alleged illegal
demolition undertaken by the respondents on 9 April 2021 of
structures/hutments located at the Laxman Bhandari chawl at Charkop Gaon,
Kandivali West, Mumbai on the land bearing survey no. 39 admeasuring 55
Hectares and 1900 sq. meters, (“Subject Land”) shown as reserved forest in the
government / public records.
Prologue:
4. At the very outset, this case projects, yet again, the deep rooted
menace of mushrooming of illegal slums, encroachments, unauthorized
Pallavi/ Mayur Page 3 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
constructions/structures on government/public lands and the challenges that arise
therefrom, to be faced by the already overpopulated island city of Mumbai. The
petitioners in the present petition belong to the category of persons who have
apparently encroached on government/public land as described below, shown as
reserved forest in government records as also falling within the prohibited 50
meters buffer zone around mangroves where human habitation is legally
impermissible. However, such persons continue to reside in their dwelling
structure/houses primarily on the basis of claiming to be ‘protected occupiers’,
under the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (‘Slums Act‘). It is on such basis that they assert rights
and claim benefits under the Government Resolutions (GRs) dated 16 May 2015
and 16 May 2018. We are conscious of and cannot be oblivious to the delayed
action and/or inaction on the part of the State machinery which at times would
act as a mute spectator. Such approach would aggravate the problems that are
already starring in these situations. However, the rule of law is supreme and has to
prevail. It is on such backdrop and in light of the contentions canvassed before we
examine and adjudicate this petition.
Factual Matrix:-
5. Following are the facts as averred in the petition which would be
relevant for adjudication of the petition:-
Pallavi/ Mayur Page 4 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
(i) In the year 1980, Laxman Bhandari Chawl came to be established in Laxmi
Nagar in Charkop, Kandivali on the land bearing Survey no.39.
(ii) It was in September 2006 that some of the hutment dwellers in the
Laxman Bhandari Chawl were issued notices under Section 3Z-1(1) of the
Maharashtra Slums Act. The residents who received notices at the time,
submitted necessary documents as required under the notices. Whereas, some of
the other residents disputed the legal validity of the notices and approached this
Hon’ble Court by filing Writ Petition No.5283 of 2007, wherein some protective
orders were passed by this Court.
(iii) The Government land situated at survey no.39 where the said Laxman
Bhandari Chawl is located covers an area admeasuring 55 Hectares and 1900 sq.
meters. The subject land is shown as reserved forest in the government/public
records, including the 7/12 extract, a copy of which is exhibited to the reply
affidavit of the respondent no.1. However, the petitioners in the rejoinder
affidavit dated 8 October 2021 would contend that the structures of the
petitioners are located on the balance area of survey no.39 which would fall
outside the area of reserved forest.
(iv) During the period from 2012 to 2017, afforestation activities and
plantation of mangroves were undertaken by the Forest Department on the entire
land bearing survey no.39. The application of the petitioners made under Right
to Information Act, 2005 (‘RTI’ for short) annexed to the rejoinder would show
Pallavi/ Mayur Page 5 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCthat in the year 2012-2013, on the subject land in the area of 10 Hectares,
mangroves species in the name of Avesinia Marinaceria Seria etc. were planted.
(v) According to the petitioners, during the period from 2013 to 2014, illegal
demolitions of the said Laxman Bhandari Chawl were undertaken by the
respondents.
(vi) On 16 June 2015, a Government Resolution was issued under the
provisions of the Maharashtra Slums Act providing for shelter to slum dwellers
actually residing in declared and enumerated hutments existing on or before the
qualifying date of 1 January 2000 on government, semi-government and private
lands, who are categorized as ‘protected occupiers’ under the said GR.
(vii) A public notice dated 30 May 2017 was issued by the Tehsildar, Borivali
concerning the subject land to remove encroachments and unauthorized structure
situated within 50 meters of the mangrove buffer zone under the provisions of
section 3Z-2(4) of the Maharashtra Slums Act.
(viii) The petitioners would contend that during the period of May 2017 to June
2017 demolition drives were undertaken on the subject land by the respondent
authorities.
(ix) The petitioners with reference to their Rejoinder would rely on a
communication of June 2017 issued by the office of Tehsildar, Borivali to the
Assistant Commissioner, R/South of the Municipal Corporation of Greater
Pallavi/ Mayur Page 6 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCMumbai. This is to emphasize the need for a joint inspection to demarcate the
boundaries of the 50 meters buffer zone around mangroves concerning subject
land being in the nature of reserved forest.
(x) The petitioners would refer to an order of this Court dated 5 December
2017 passed in another Writ Petition No.999 of 2018 claimed to be filed by three
residents of the Laxman Bhandari Chawl. The court observed that since it is not
clear whether the shanties of those petitioners are removed by the concerned
respondents or not, it would be necessary to direct the authorities to maintain
status-quo as on date, in respect of the shanties of those petitioners.
(xi) The petitioners would then refer to a letter dated 18 November 2017
which is a part of their rejoinder, to contend that the City Survey Officer, Borivali
wrote to the Tehsildar, Borivali that at the time of handing over possession of the
forest area of subject land bearing survey no.39, the mangroves were not mapped.
However, the said communication would clearly indicate that an area of 1900 sq.
meter was demarcated and named as Maharashtra Government Protected Forest
(Mangroves) which would encompass the subject land.
(xii) The petitioners would then place reliance on a GR dated 16 May 2018 for
rehabilitation of hut holders actually residing in slums/hutments after 1 January
2000 but before the cut-off date of 1 January 2011 who would be conferred the
status of protected occupiers, under the said GR. Both the said GRs incorporates
and stipulates the documents to be shown for claiming status of ‘protected
Pallavi/ Mayur Page 7 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
occupier’. They would be eligible to receive alternate permanent tenements as
homes, upon paying construction related costs for the alternate tenements to be
provided to such qualified hutments dwellers.
(xiii) The petitioners referring to their rejoinder affidavit would contend that on
30 July 2018 the City Survey Officer addressed a letter to the Divisional Forest
Officer that the mapping of mangroves and the demarcation of the 50 meters
boundary was not complete. Further, the petitioners would refer to a letter dated
25 May 2018 of the Maharashtra State Road Development Corporation
(‘MSRDC’) addressed to the Collector, regarding the subject land, inquiring
whether it could be utilized for the purpose of compensatory afforestation for the
Versova-Bandra Sea Link Project.
(xiv) A coordinate Bench of this Court by a judgment dated 17 September 2018
in PIL No.87 of 2006, dealing with the issue of destruction of mangroves in the
entire State of Maharashtra, issued detailed directions. The court, inter alia,
directed that there shall be a total freeze on the destruction and cutting of
mangroves in the entire State of Maharashtra, regardless of ownership of land
having mangroves, all constructions taking place within 50 meters on all sides of
all mangrove areas shall be stopped forthwith. There would be no development
whatsoever within a buffer zone of 50 meters around the mangroves in the State
of Maharashtra.
Pallavi/ Mayur Page 8 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
(xv) The petitioners would then refer to the minutes of meeting conducted by
the Collector, Mumbai Suburban District on 6 April 2021 annexed to the reply
affidavit of respondent no.1, to plan demolition of illegal structures,
encroachments on the land bearing survey nos.38 and 39 situated within 50
meters from the mangrove buffer zone.
(xvi) The petitioners would refer to a public notice dated 7 April 2021 issued by
the Tehsildar and Executive Magistrate, Borivali, Mumbai in regard to the
demolition of unauthorized structures/construction within 50 meters of the
mangrove buffer zone situated in subject land. The said public notice also refers
to an earlier public notice dated 20 February 2019. The concerned persons were
informed of the necessary action to be taken by the respondent authorities
including removal of such unauthorized structures/encroachments, to be
undertaken between 9 and 10 April 2021.
(xvii) It was on 8 April 2021 that the City Survey Officer, Borivali
conducted survey and demarcated the area within 50 meters of the mangrove
buffer zone in subject land bearing survey no.39. After such survey conducted by
the City Survey Officer, the area within 50 meters of the mangrove buffer zone
was so demarcated. However, according to the petitioners, no forest official was
present when such demarcation was undertaken.
(xviii) The petitioners would then contend that it was on 9 April 2021 that
the respondent authorities carried out an illegal demolition drive in the subject
Pallavi/ Mayur Page 9 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
land bearing survey no.39 which was so done without any verification of
documents of the petitioners and/or verifying their eligibility to receive alternate
accommodation.
(xix) It is in the above backdrop that the petition is filed with the prayers/reliefs
as noted, (supra).
Submissions of Petitioners:
6. Ms. Bhattacharya would at the outset submit that the families
residing in the Chawl are ‘protected occupiers’ on account of having the necessary
documentation as per the Government Resolution No.Zopudho-1001/Case
No.125/14/Zopsu-1 dated 16 May 2015 and the Government Resolution
Number G.R. No -SR Scheme-0810/Pra. Kra.96/2018/SI-1 dated 16 May 2018.
The Government Resolution dated 16 May 2015 qualifies those hutment-
dwellers residing in structures constructed prior to 1 January 2000 to be
protected occupants entitled to alternate accommodation in the form of
tenements provided free of cost.
7. She would next submit that the Government Resolution dated 16
May 2018, qualifies those hutment-dwellers residing in structures constructed
between the period of 1 January 2000 and 1 January 2011, upon paying certain
construction related costs qua the alternate tenement to be provided to them.
Accordingly, both the said GRs will apply to the petitioners, who qualify as
Pallavi/ Mayur Page 10 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
‘protected occupiers’ under the Maharashtra Slums Act, thereby vitiating the
demolition action of the respondents. The petitioners are therefore entitled to
alternate accommodation as provided in the said GRs.
8. Ms. Bhattacharya would contend that aggrieved by the illegal action
of the officers of the Respondent No.1, forcibly evicting and taking other coercive
measures against the petitioners and other residents of the Laxman Bhandari
chawl during the period of 9 April 2021 till 11 April 2021, would be in flagrant
violation of the said GRs and the provisions of Slums Act.
9. Ms. Bhattacharya would submit that instead of taking accountability
for the illegal demolition drive on 9 April 2021 and making arrangements to
provide the residents of the chawl with alternative accommodation, police officers
of the Respondent – police department and officers of the Respondent – Forest
Department of the State Government continue to harass, threaten and harm the
Petitioners and other residents of the area by taking coercive measures against
them, inter alia, by forcing them to evict their hutments, which is contrary to law.
10. Ms. Bhattacharya would contend that instead of assisting the
petitioners, the Police Officers threatened to file criminal cases against the
residents of the area for returning to reside on the area upon which their
dwellings/structures stood prior to demolition. The Petitioners are suffering
immense distress since the onset of the rain has begun, left them living amidst
pools of dirty, contaminated rain water and are vulnerable to serious health issues
Pallavi/ Mayur Page 11 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
on account of being exposed to the direct rainfall and cold winds without any
shelter over their heads. The Petitioners apprehend contracting influenza and
even pneumonia, which will put them at severe risk of developing life threatening
cases of Covid-19. Such hardship to the petitioners would have been avoided by
the respondent authorities if they acted in accordance with law by not resorting to
the illegal demolition.
11. Ms. Bhattacharya would submit that due to the illegal acts of
respondents, the petitioners are being made to live in such a squalid and
inhumane manner in the open, without any roof over their heads. At any time,
during the past month when the Petitioners attempted to build temporary
shelters over their heads in the form of shacks, the officials of the Respondent No.
4 – Forest Department arrived at the basti and coercively made the Petitioners
dismantle their temporary shelters. Such high handed action and arbitrariness of
the respondents is exacerbated by the fact that on 16 April 2021, merely a week
after the demolition of the Petitioners structures, this Court stayed all evictions
and demolitions within the State due to the Covid-19 Pandemic. The directions
of the Court have been extended till 11 June 2021.
12. Ms. Bhattacharya would contend that on 9 April 2021, even while
this Court was in the process of issuing directions in Writ Petition No. 999 of
2018 to maintain status-quo in the basti, Respondent No. 1 and 2 proceeded to
demolish the structures, without affording them an opportunity of a
Pallavi/ Mayur Page 12 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
representation or protecting their valuables. This is not how ‘protected occupiers’
under the 2015 and 2018 GRs of the State of Maharashtra ought to be treated as
Ms. Bhattacharya would strenuously urge.
13. Ms. Bhattacharya emphasize that notwithstanding her submission
that their hutments were located outside the 50 meter buffer zone around
mangrove areas in the region, it is on 9 April 2021, even while this Court was in
the process of issuing directions in WP No. 999/2018 to maintain status-quo in
the basti, the Respondent No. 1 and 2 proceeded to demolish the structures in
the basti in a high-handed and arbitrary manner, not known to law.
14. According to Ms. Bhattacharya, the forcible evictions of the
hutments of the petitioners were being done without any survey merely to try
clear paths and establish a right of way for private high rise residential buildings
being developed in the region. The public notice dated 7 April 2021 did not
provide the residents of Laxman Bhandari chawl to be heard prior to their forced
evictions, in contravention to the findings of the Supreme Court in the case of
Olga Tellis v Bombay Municipal Corporation and Ors .1. She would submit that
the Supreme Court has clearly held that the ordinary rule which regulates all
procedure is that persons who are likely to be affected by the proposed action
must be afforded an opportunity of being heard as to why that action should not
be taken.
1. AIR 1986 SC 180
Pallavi/ Mayur Page 13 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
15. Ms. Bhattacharya would urge that the Supreme Court has held that
the discretionary power of the Commissioner of the Municipal Commissioner to
order the demolition of structures without serving prior notice should only be
exercised when absolutely necessary, depending on the exigencies of the case and
cited apprehending danger, presumably in the form of unstable structures
collapsing, as being a circumstance warranting the demolition of a structure under
Section 314 of the Mumbai Municipal Corporation Act, 1888. There was no such
imminent danger arising from the hutments in Laxman Bhandari Chawl, and
therefore, it was unwarranted for the Respondents to have demolished the
structure, notwithstanding the distance between the hutments and mangroves in
the Charkop area, on account of the fact that the residents of such
hutments/dwellings were ‘protected occupants’ who could not be forcibly evicted
without securing them with alternate accommodation.
16. Ms. Bhattacharya would submit that it is settled law that the right to
live with human dignity, with a basic form of shelter over one’s head is included
within the realm of the right to life guaranteed under Article 21 of the
Constitution of India. The Order passed by the this Court in the above
mentioned Writ Petition No.999 of 2018, this Court directed the Respondent
Authorities to maintain status-quo with regard to their shanties/hutments. The
said order has been extended from time to time over the past few years including
on 9 April 2021, when the officers of the Respondents once again sought to
Pallavi/ Mayur Page 14 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
forcibly evict the residents of the Laxman Bhandari Chawl area, which violated
their fundamental rights.
17. Referring to the inhuman conditions which the petitioners had to
face due to illegal act of demolition by the respondents, Mr. Bhattacharya would
rely on a judgment of the Supreme Court in the matter of Shantistar Builders v.
Narayan Khimalal Totame2, more particularly, paragraph 9 thereof. In this
context, she would submit that the Supreme Court has recognized that it is not
necessary that every citizen must be assured of living in a well-built comfortable
house but a reasonable home particularly, for people in India can even be mud-
built thatched house or a mud-built fireproof accommodation.
18. Ms. Bhattacharya has also tendered a compilation of judgments at
the end of hearing with which we deal with in the paragraphs below.
Submissions of Respondent No.1:-
19. Ms. Palsuledesai, learned AGP for the State would vehemently
oppose the petition and the submissions made by Ms. Ronita Bhattacharya. At
the very outset, she would submit that the present writ petition is misconceived
and therefore, deserves to be dismissed with exemplary costs. It is submitted that
this is a case where the petitioners encroached upon government land and
constructed their shanties on the buffer zone, in the restricted mangroves reserved
forest area. It is submitted that the respondents have time and again demolished
2 (1990) 1 SCC 520
Pallavi/ Mayur Page 15 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
the shanties of the petitioners by conducting demolition drives in accordance
with law read with the provisions of the Environment (Protection) Act 1986.
However, in defiance the petitioners have again constructed the illegal tenements
in such mangroves areas, consequent thereto also an FIR was registered against
these petitioners. The Petitioners have not disclosed these vital facts and have not
approached this Court with clean hands. The petitioners are guilty of ‘ suppresio
veri’ and ‘suggestio falsi’ for which the petition ought to be dismissed on such
ground alone.
20. Ms. Palsuledesai would refer to the affidavit-in-reply of Vinod
Dhotre, Tehasildar, Borivali dated 1 st July 2021 filed on behalf of the Respondent
No.1. According to the respondents, the subject land bearing survey No.39
admeasuring 55 hectares and 1900 sq. meters is shown as reserved forest in the
7/12 extract, which is annexed to the affidavit-in-reply. This is an undisputed
position. However, the respondents would refute the petitioners’ claim that their
structures are located on the balance area of survey No.39 which falls outside the
scope of reserved forest. This according to the respondents is only a bald assertion
based on surmises and conjunctures without any material and/or document in
support of such claim. In fact, to the contrary, the documents relied on by the
petitioners more particularly in the rejoinder would falsify such claim of the
petitioners.
Pallavi/ Mayur Page 16 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
21. Ms. Palsuledesai would urge that the basic contention of the
petitioners that they are protected occupants under the GR dated 16 May 2015
and 16 May 2018 is totally untenable. A perusal of the said GRs would indicate
that the tenements of the petitioners are neither declared nor enumerated as
mandated under the Maharashtra Slums Act. On a bare perusal of Section 3X (c)
which defines the term ‘protected occupier’ would demonstrate that the
petitioners do not fall within the scope and ambit of such definition. Moreover,
Section 3Z-6(c) of the Slums Act does not clearly apply to certain coastal areas,
more particularly, being the Costal Regulation Zone as declared under clause (v)
of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986. In
view thereof, the Slums Act is not applicable to the subject land bearing survey
No.39 where the petitioners have encroached, as such government land is
demarcated as reserved forest. Also, under Section 3Z-6 of the Slums Act,
scheduled areas declared as such by an order of the President of India under
paragraph 6 of the Fifth Schedule to the Constitution of India and forest area to
which the Forest (Conservation) Act, 1980 applies, are specifically excluded. This
would mean that the petitioners cannot take shelter as protected occupiers under
the said GRs of 2015 and 2018, which are clearly not applicable to the
petitioners, in any manner whatsoever.
22. Ms. Palsuledesai would then submit that the petitioners are
encroachers on the government land which is a buffer zone in the mangroves
area, where human habitation is prohibited. The shanties constructed by the
Pallavi/ Mayur Page 17 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
petitioners on such government land being reserved forest in the mangroves
buffer zone are encroached upon and are unauthorized and illegal.
23. The respondents would refer to the minutes of meeting held on 6
April 2021 under the chairmanship of Additional Collector, Mumbai Suburban
District, to chalk out a plan for conducting demolition drive of the unauthorized
structures situated within 50 meters of the mangrove areas in the Survey No. 38,
Jalaram Mandir Area, Dingeshwar Talav, and Survey No. 39, Laxmi Nagar,
Charkop, District Borivali. A perusal of the minutes of such meeting would reveal
that the subject land bearing survey No.39 was encroached upon by the
petitioners whose structures/tenements fell within the prohibited 50 meters
mangroves buffer zone. The said document is not controverted by the
petitioners.
24. The respondents would then submit that on 7 April 2021, a public
notice was duly issued and pasted on the conspicuous place of the unauthorized
structures, and on 9 April 2021 in the presence of Additional Collector, MSD,
Sub Divisional Officer MWS, Dy. Collector (Enc. And Rem.) Borivali-1,
Tahsildar Borivali, City Survey Officer Borivali, Assistant Commissioner of
Police, Kandivali, Senior Police Inspector, Charkop Police Station, Divisional
Forest Officer, Mangrove cell, Circle Officer Borivali, Talathi Kandivali, Executive
Engineer R/South ward BMC. Tahasildar (Enc. & Rem) Borivali, police squad
etc. around 200 unauthorized temporary/pacca structures were demolished
Pallavi/ Mayur Page 18 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
except the structures of one Jaywant Ramnath Bhandari and Devu Putran who
showed the status quo order dated 15 June 2013 in writ petition No. 8546/2013
and 8547/2013 respectively. After the demolition was carried out, to avoid
further encroachment, possession was correctly handed over to the Forest
Department.
25. The respondents would contend that the City Survey Officer,
Borivali conducted survey and demarcated the area within 50 meters of the
mangrove in the Survey No 39 at Charkop, Borivali on 8 April 2021 from
morning 10.00 a.m. onwards. After the survey was conducted by the City Survey
Officer, the area within 50 meters of the mangrove was demarcated as buffer
zone. The Tahasildar, Borivali issued a public notice after following due process of
law on 7 April 2021 in the evening and after the demolition was completed,
Divisional Forest Officer Mumbai, Mangrove Conversion Cell, deputed security
guards to avoid any further encroachment. Further, the arrangement of
loudspeakers was made to appeal to the people to co-operate the demolition drive
from 9 April 2021. Deputy Collector (Removal and encroachment) Borivali -1,
was deputed to verify the records and the documents such as photo-passes, court
orders, if any, or any stay orders and the present status of any cases pending before
any courts and to remain present during the demolition drive on the Government
land, who verified the records, accordingly, Tahsildar, Borivali took video
shooting of the entire demolition drive and after the demolition was complete,
City Survey Officer handed over the vacant possession of the mangrove area to
Pallavi/ Mayur Page 19 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
the Divisional Forest Officer to ensure no further encroachment on the said land
compound was built as an appropriate safeguard. The respondent authorities have
also recorded the proceedings conducted on 9 April 2021 by panchnama of the
said date which is duly signed by the panchas/witnesses. It is hence submitted that
complete procedure was followed contrary to the allegations of the petitioners
which is without substance.
26. The respondents submit that it is pertinent to note that during the
demolition drive, none of the petitioners produced before the Tahsildar (Enc.
And Rem.) Borivali -1 who was present during the demolition drive, any
documents to show that they are protected occupiers as defined under section 3X
of the Maharashtra Slums Act and that their structures are legal, to avail of the
benefits as per Government Resolution dated 16 May 2015 and 16 May 2018 for
rehabilitation as slum-dwellers as claimed by the Petitioners.
27. The respondents submit that the petitioners have suppressed from
this Court that even earlier a public notice was issued on 30May 2017 to the
residents of Laxman Bhandari Chawl whose structures were situated within the
mangroves area and pursuant to the said public notice, the said unauthorized
structures were removed.
28. The respondents submit that the petitioners have further suppressed
the fact that the Collector, MSD had taken a demolition drive on 1 June 2017
whereby 123 illegal structures were demolished and on 2 June 2017, additional
Pallavi/ Mayur Page 20 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
158 illegal structures came to be demolished and on 3 June 2017, further 94
structures were demolished.
29. The respondents submit that after these structures were demolished,
the petitioners once again put up their structures on the mangrove area and the
office of the Collector registered FIR No.25 of 2017 dated 21 November 2017
against 130 people (including the petitioners herein) under the provisions of
section 15(1)(2) of the Environment (Protection) Act, 1986. The respondents
submit that an FIR is registered against the Petitioners in the present petition as
well as against the other persons which is annexed to the petition.
30. The respondents submit that in earlier Writ Petition No.999 of 2018
filed by the petitioners above-named challenging the public notice, an affidavit-in
reply dated 18 June, 2019 was filed to place on record the facts that the
petitioners are encroachers on the Government Land and put up their structures
illegally within 50 meters of the mangrove area in spite of removing them time
and again in the demolition drive. The said area of buffer zone has been rightly
handed over, in accordance with law, to the Forest Department by the City
Survey Officer, Borivali, on 9 April 2021.
31. The respondents through the learned AGP would urge that the
petition is devoid of merits and ought to be dismissed.
Pallavi/ Mayur Page 21 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
Submissions of Respondent No.3:-
32. Further to the above, the respondent no.3 through the Deputy
Secretary, Housing Department has filed an affidavit of Sunil Baburao Tumbare,
dated 22 November 2022. The said affidavit supports the stand taken by the
respondent No.1 as narrated above. The respondent No.3 would primarily
contend and reiterate that in terms of Section 3Z-6(a) (b) and (c) of the
Maharashtra Slums Act, the provisions of the Slums Act will not be applicable to
the subject land bearing survey no.39. For such reasons the petitioners are not
protected occupiers under the provisions of the Maharashtra Slums Act as also
under the Government Resolutions dated 16 May 2015 and 16 May 2018. As the
said GRs are not at all applicable to the petitioners, they cannot claim any right of
alternate accommodation.
33. The respondent No.3 would further contend that the petitioners are
not protected occupiers even under Section 3X(c) of the Maharashtra Slums Act.
Moreover, this Court by an order dated 17 September 2018 passed in PIL No.87
of 2006 had clearly held that there cannot be any development or construction of
structures in the prohibited buffer zone of 50 meters around mangroves areas,
where the subject land bearing survey No.39, falls. Based on the order dated 17
September 2018, this Court passed an order not accepting such claim of the
petitioners in order dated 14 November 2022 in these proceedings observing that
it cannot permit in situ rehabilitation of the petitioners or such persons.
Pallavi/ Mayur Page 22 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
34. For the above reasons, the respondent no.3 would pray that the
petition be dismissed.
Submissions of the Petitioners in Rejoinder:-
35. The petitioners through Ms. Bhattacharya would support the case of
the petitioners as noted above. In rejoinder, the petitioners would first submit that
out of the total area of the subject land under survey no.39 admeasuring 55
hectares and 1900 sq. meters, only 36 hectares is reserved forest, whereas the
balance 19 hectares is not so. The petitioners’ tenements fall within such area
which is not reserved forest to which the provisions of the Indian Forest Act,
1927 do not apply. The petitioners would rely on mutation entry dated 4 August
2008 in support of such submission, to refute and deny the case of the
respondents.
36. The petitioners would then submit that the demolition undertaken
on 9 April 2021 was completely contrary to law. There was no show cause notice
issued prior to such demolition by the competent authority. It was contrary to
Sections 33 and 38 of the Maharashtra Slums Act as also in violation of the
judgment of the Supreme Court in Olga Tellis (supra). Moreover, the petitioners
were never given any notice of the proposed survey which was carried out
belatedly. Thus, the demolition carried out by the respondents was in
contravention of the principles of natural justice.
Pallavi/ Mayur Page 23 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
37. According to the petitioners, the public notice dated 7 April 2021
does not record any details of inspection of paper work or documentation, it is
therefore defective, and contrary to law. The survey conducted on 8 April 2021
by the City Survey Officer was done in a manner unknown to law, as no
procedure was followed in conducting such survey. This is inasmuch as no forest
officer was present when such survey was conducted. The panchanama as relied
on by the respondents, annexed to their affidavit-in-rely is also defective. This is
inasmuch as the 50 meters buffer zone was not measured from the boundary of
the mangroves, which ought to have been done. Such panchanama was conducted
after the demolition according to the petitioners which makes it bad in law.
38. The petitioners would contend that no documents of the petitioners
were verified by the respondents before conducting the demolition on 9 April
2021. This would make the demolition bad in law inasmuch as the petitioners
were not given an opportunity to show their credentials as protected occupiers.
39. The petitioners would reiterate that they are protected occupiers
under the provisions of the Maharashtra Slums Act read with the GRs dated 16
May 2015 and 16 May 2018 respectively. Therefore, the demolition of the
petitioners’ structure/tenement was illegal. The petitioners would submit that
they are also protected under the Pradhan Mantri Awas Yojana for urban areas
which is referred to under the GR dated 16 May 2018. Even on such ground the
Pallavi/ Mayur Page 24 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
petitioners are entitled to alternate housing/ accommodation, which is illegally
deprived to them.
40. The petitioners would then submit that there is complete confusion
created by the respondents regarding the boundary of the mangroves buffer zone.
According to the petitioners, the forest department itself is unaware of the
mangroves buffer zone boundary and the demarcations. The petitioners would
rely on the communication dated 25 May 2016 addressed to the Collector by
MSRDC to contend that the land on which the petitioners’ structures/ tenements
were located, being the subject land bearing survey No.39 was identified as the
land on which MSRDC would carry out its compensatory afforestation of
mangroves that would have to be cut for construction of the Versova-Bandra Sea
Link and only a part of about 5.6 hectares of mangroves forest in possession of the
forest department which was identified, was affected due to such project.
ANALYSIS:
41. At the very outset, it may be noted that the petitioners who are four
in number claim to be residents of the slum situated on government land bearing
survey no.39 referred to as Laxman Bhandari chawl, which according to them
consisted of approximately 500 hutments, housing 500 families. At this juncture,
we may observe that such government land admeasuring 55 hectares and 1900
sq. meters is shown as reserved forest in the revenue records viz. 7/12 extract.
This fact is not controverted by the petitioners. However, the petitioners’ stand is
Pallavi/ Mayur Page 25 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
that their tenements/hutments are located on the balance portion of the land of
about 19 hectors which does not constitute reserved forest, as only 36 hectares is
reserved forest. Such submission of the petitioners is premised on a mutation
entry no.416 dated 4 August 2008 which is referred to in their rejoinder. The said
contention is factually incorrect inasmuch as a letter issued by the office of the
City Survey Officer, Borivali dated 18 November 2017 (at page 333 of the
rejoinder) categorically refers to the area of 1900 sq. meters as reserved forest,
without giving any break-up as the petitioners would contend. A perusal of the
mutation entry no.416 dated 4 August 2008 (page 287 of Rejoinder) also does
not support the stand of the petitioners inasmuch as the very document mentions
the occupier as Maharashtra Government – area of 1900 sq. meters being
reserved forest (mangroves). Thus, the petitioners’ case that their
hutment/tenements fall outside the area of reserved forest is completely contrary
to the documents submitted by them in rejoinder and belies their stand in this
regard. For such reason, it is apparent that the petitioners have attempted to
mislead the court by not disclosing the true and correct facts in invoking the
extraordinary jurisdiction of the Court under Article 226 of the Constitution of
India.
42. The primary contention of the petitioners is that they are protected
occupiers under the provisions of the Maharashtra Slums Act. For such reason,
they are legally entitled to in situ/alternate accommodation under the GRs issued
by the State Government dated 16 May 2015 and 16 May 2018 respectively. To
Pallavi/ Mayur Page 26 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
test the submission, we would refer to section 3X(c) of the Slums Act which
defines the expression ‘protected occupier’, which reads thus :-
“3X. Definitions
In this Chapter, unless the context otherwise requires,-
(a) …..
(b) …..
(c) “protected occupier” means an occupier of a dwelling structure who holds a
photo-pass;”
(emphasis supplied)
43. We would then refer to section 2(c-b) which defines the expression
‘eligible slum dweller’ which reads thus :-
“2. Definitions
In this Act unless the context otherwise requires,-
(a) …..
(b) …..
(c) …..
(c-b) “eligible slum dwellers” means the protected occupiers who fulfils such
criteria as may be prescribed, by the State Government to be entitled for
rehabilitation or relocation;”
(emphasis supplied)
44. We would also refer to the provisions of Chapter 1C of the Slums
Act which provides for special provisions for in situ rehabilitation housing
schemes for protected occupiers in slum areas. The expression ‘housing scheme’ is
defined under section 3Z-3(b) which reads thus :-
“3Z-3. Definitions
In this Chapter, unless the context otherwise requires,-
(a) …..
(b) “housing scheme” means a scheme formulated and declared by the State
Government or the Government of India, for the construction or re-construction
of dwelling units or structures in the scheme area for providing basic amenities to
the slum dwellers who are protected occupiers as defined in clause (c) of section
3X and their in situ rehabilitation in such scheme area;”
45. Section 3Z-6 of the Slums Act states that the provisions of Chapter
1C will not apply in certain cases. The said section 3Z-6 reads thus :-
Pallavi/ Mayur Page 27 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
“3Z-6. Provisions of this Chapter not to apply in certain areas
Notwithstanding anything contained in this Act, nothing in this Chapter shall
apply to the,-
(a) Scheduled areas, declared as such by the President of India by an order under
paragraph 6 of the Fifth Schedule to the Constitution of India:
(b) forest area to which the Forest (Conservation) Act, 1980 applies;
(c) Coastal Regulation Zone as declared under clause (v) of sub-section (2) of
section 3 of the Environment (Protection) Act, 1986;
(d) Eco-Sensitive Zones or Ecologically Fragile Areas as declared under sub-
section (1) and clause (v) of sub-section (2) of section 3 of the Environment
(Protection) Act, 1986;
(e) Hill Stations as notified by the State Government;
(f) Special Tourism Areas, declared as such by the Central or State Government;
(g) lands belonging to the Central Government or any entity thereof unless the
same is voluntarily offered for the housing scheme;
(h) any slum area which, in the opinion of the State Government or the concerned
Housing Committee, is unsuitable for human habitation or to which it would not be
in the public interest to apply the provisions of this Chapter.”
46. Section 3B refers to slum rehabilitation scheme which is prepared by
the Slum Rehabilitation Authority with the previous sanction of the State
Government as provided therein. Section 3C refers to declaration of a slum
rehabilitation area which is to be so declared as stipulated therein and section 4 of
the Act refers to declaration of slum areas in the mode and manner set out in the
said provision.
47. A conjoint reading of the above provisions, in the context of the
submissions advanced by the parties make it evident that the petitioners are not
eligible slum dwellers as defined under section 2(c-b) of the Slums Act. This in as
much as they are not protected occupiers claiming benefit of a slum rehabilitation
scheme which is neither notified nor declared in respect of the area bearing survey
Pallavi/ Mayur Page 28 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
no.39 i.e. Laxman Bhandari chawl, where the tenements/hutments of the
petitioners were located. There is no declaration of slum area in respect of such
land under survey no.39 in terms of section 4 of the Slums Act.
48. Before analyzing the definition of the expression ‘protected occupier’
in further detail, it is useful to refer to the provisions of section 3Z-6 cited supra.
In this context, we find substance in the submission of respondent no.3 who in its
affidavit dated 22 November 2022 which contends that the provisions of the
Maharashtra Slums Act will not apply to scheduled areas as declared by the
President of India by an order under paragraph 6 of the V Schedule to the
Constitution, forest area to which the Forest (Conservation) Act, 1980 applies
and Coastal Regulation Zone as declared under section 3(2)(b) of the
Environment (Protection) Act, 1986 as stipulated under sub-clauses (a), (b) and
(c) respectively of section 3Z-6 of the Maharashtra Slums Act. Thus, there is a
clear exclusion for the applicability of the Slums Act set out under section 3Z-6.
Juxtaposing this to the given facts, it becomes clear that the area admeasuring 55
hectares and 1900 sq. meters of the subject land bearing survey no.39 falls within
reserved forest as also within 50 meters of the buffer zone in the mangrove area
which is statutorily prohibited as also held in the decision of this Court in PIL
No. 87 of 2006 and connected matters dated 17 September 2018, (Bombay
Environmental Action Group and Anr. vs. The State of Maharashtra and Ors.)
under which no development in such buffer zone of 50 meters is permitted, for
the reason that all mangrove lands, irrespective of its area, will fall in CRZ-1 as
Pallavi/ Mayur Page 29 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
per CRZ Notifications 1991 and 2011. We have analyzed this judgment further
below.
49. From the above discussion, it becomes crystal clear that the subject
land under survey no.39 where the petitioners’ hutment/dwelling/structures are
located would fall under the gamut of section 3Z-6 of the Maharashtra Slums
Act. The petitioners cannot claim the applicability of such Act in the given factual
situation. The petitioners have not controverted and or disputed such position in
their detail rejoinder affidavit filed in the present proceedings nor any concrete
case is made out in the context of the applicability or otherwise of Section 3Z-6
under chapter 1-C of the Maharashtra Slum Act, more particularly when the
expression “housing scheme” under Section 3Z-3(b) is applicable only to
protected occupiers.
50. In the alternative, let we test the claim of the petitioners of the
petitioners being protected occupiers under the GRs issued by the State of
Maharashtra dated 16 May 2015 and 16 May 2018. As noted above, the hutments
dwelling structures of the petitioners are on the subject land admeasuring 55
Hectares 1900 sq. meters which falls in the area demarcated as reserved forest.
Further, it also falls within the prohibited 50 meters mangrove buffer zone. For
such reasons, the provisions of Section 3Z-6 would apply. Consequently as noted
above, the provisions of the Slums Act will not apply to such restricted areas,
hence the petitioners cannot claim benefit as protected occupier under such Act.
Further, the GRs dated 16 May 2015 and 16 May 2018 having different
Pallavi/ Mayur Page 30 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
qualifying dates between 1 January 2000 and 1 January 2011 mandate that slum
dwellers should be actually residing in ‘declared’ and ‘enumerated’ hutments
existing on or before such qualifying cut off dates. There is nothing on record to
show that the petitioners fulfill the statutory requirement of eligible slum dwellers
as defined under Section 2(c-b) of the Slums Act. There is no legal, much less
vested right in favour of these petitioners accruing or arising under the provisions
of Maharashtra Slums Act, so as to claim any benefits thereunder. Thus, as rightly
contended by the respondents, the petitioners cannot assert any legal rights under
the four corners of GR dated 16 May 2015 followed by the GR dated 16 May
2018, as the said GRs do not apply to the petitioners, in any manner whatsoever.
51. The expression protected occupier as defined under Section 3X(c) of
the Slums Act has a reference to eligible slum dwellers as defined under Section 2
(c-b) of the Slums Act (supra). The ‘protected occupiers’ means an occupier of a
dwelling structure who hold a photo-pass. Photo-pass is defined under Section
3X(b) which reads thus :-
“3X. Definitions
In this Chapter, unless the context otherwise requires,-
(a) …..
(b) “photo-pass” means an identity card-cum-certificate issued by the
Government in the prescribed format under section 3Y, and shall include such
other document or documents declared by Government, by order issued in this
behalf, to be equivalent of photo-pass for the purposes of this Chapter;”
Further, Section 3Y of the Slums Act is a provision for issuance of photo-
pass and maintenance of Register, which reads thus :-
“3Y. Issuance of photo-pass and maintenance of Register
(1) The Government or any officer generally or specially authorised by it in this
behalf shall, after verifying certain documents or records, as may be prescribed,Pallavi/ Mayur Page 31 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCissue a photo-pass for the purposes of this Act, in the prescribed format to the
actual occupier of a dwelling structure, in existence on or prior to *[1st January,
2000].
(2) If the photo-pass issued under sub-section (1) is lost or destroyed or
defaced, the holder of the photo-pass shall forthwith intimate the loss,
destruction or defacement of the photo-pass to the concerned authority which
has granted the photo-pass and shall apply, in writing, to the said authority with
the prescribed fee for issue of a duplicate.
(3) On receipt of an application under sub-section (2), the authority shall, after
verifying the records and carrying out such inquiry, if any, as deemed fit, issue a
duplicate photo-pass to the applicant with a clear marking on such photo-pass
as “Duplicate”.
(4) If after the issue of a duplicate photo-pass, the original is found, it shall be
incumbent upon the applicant to forthwith surrender the same to the authority
by which it was issued.
(5) The Government shall maintain in the prescribed form an upto-date
Register of the photo-passes issued by it under sub-section (1).”
A conjoint reading of the above provisions would necessitate the
requirement of a protected occupier to hold a photo-pass as stipulated under the
provisions cited (supra). During the demolition drive on 9 April 2021, none of
the petitioners furnished to the Tahsildar, who was present during the demolition
drive, a single document to show that they are protected occupier under section
3X(c) of the Slums Act, so as to claim benefit of GRs dated 16 May 2015 and 16
May 2018 for rehabilitation as slum dwellers. The petitioners through Ms.
Bhattacharya would strenuously urge that various documents have been produced
by the petitioners which according to them satisfy the requirement of Slums Act
and GRs. Such documents are referred to in the petition at Exhibit-I (page 112
onward which include documents like Aadhar Card, Pan Card, irrevocable power
of attorney, election identify card, domestic gas consumer card, ration card, school
Pallavi/ Mayur Page 32 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
leaving certificate) etc., which are not even of the relevant years as specified in the
GRs. In any event, none of these documents include the primary and vital
document being photo-pass as mandated under Section 3X(b) read with Section
3Y of the Slums Act. The petitioners have failed to show that such photo-pass
which is a pre-condition for being a protected occupier as defined under Section
3X (c) of the Slums Act is issued in the form and manner contemplated under
Section 3Y of the Slums Act. There is not a whisper of such photo-pass being
issued to the petitioners as mandated under the provisions cited (supra). No
documents more particularly the photo-pass was shown or furnished by the
petitioners to the Tahsildar/competent authority, there is no explanation
forthcoming from the petitioners even in their elaborate rejoinder dated 8
October 2021. It is thus clear that the petitioners do not possess such mandatory
documents issued by the competent authority under the Slum Act which is a pre-
requisite to claim the entitlement of the protected occupiers under the said Act.
Even for such reason, the petitioners can never be treated as a protected occupier.
They have thus encroached the subject land bearing survey No. 39 which is
shown as reserved forest land falling within 50 meter mangrove buffer zone.
52. The petitioners’ contention to claim benefit of housing under the
Pradhan Mantri Awas Yojana as stipulated under the GR dated 16 May 2018 is
equally ill-founded. The petitioners, as noted above are not ‘protected occupiers’
neither are they eligible slum dwellers as stipulated under the provisions of
Pallavi/ Mayur Page 33 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
Maharashtra Slums Act which per se does not apply to the given facts. The
expression housing scheme as defined under section 3Z-3(b) of the said Act also
refers to protected occupier, which will not apply to the petitioners. For such
reason, the petitioners can claim no rights much less benefits under the Pradhan
Mantri Awas Yojana as stipulated under the said GR of May 2018, which also has
no application to the given factual situation of the petitioners. This is a case where
protection, relocation and rehabilitation of protected occupier under Section 3Z
of the Slums Act is not available to the petitioners which makes their claim
against the demolition legally untenable and unsustainable.
53. The petitioners have strenuously urged that the demolition
undertaken on 9 April 2021 is contrary to the principles of natural justice in as
much as the petitioners were not given any opportunity of representing
themselves before such demolition was carried out. In this regard, the averments
made in the affidavit in reply to the petition dated 1 July 2021 are worth noting,
more particularly, paragraph no. 6 and 7 thereof. The entire procedure before
carrying out the demolition begins with the minutes of the meeting held on 5
April 2021 under the chairmanship of Additional Collector, Mumbai Suburban
Division, Mumbai to chalk out a plan to conduct a demolition drive of the
unauthorized structures, situated within 50 meters of the mangrove area in the
subject land bearing survey no. 39. This is followed by a public notice issued on
7 April 2021 by the respondents in the manner as contemplated under the
Maharashtra Slums Act. The petitioners do not dispute the fact of issuance of the
Pallavi/ Mayur Page 34 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
said public notice but call it defective as the contents thereof are not sufficient, as
claimed by the petitioners. On one hand, the petitioners disputes issuance of any
notice and in the same breath in their rejoinder affidavit they contend that it lacks
material particulars. The petitioners are estopped from approbating and re-
probating at the same time. In the context of public notice and fulfillment of the
requirements of the statute, the relevant extract of Section 3Z-1 and 3Z-2 of the
Slums Act are required to be noted, which reads thus :-
“3Z-1. Powers to Competent Authority to demolish unauthorised or
illegal dwelling structures(1) Where a Competent Authority, upon a complaint from any person or
report from its officer or police or any other record or information in its
possession, is satisfied that any unauthorised or illegal dwelling structure
or part thereof has been constructed, or any addition to the existing
structure as recorded on photo-pass, has been erected, after the 1st
January, 2000, within the area of its jurisdiction, without obtaining
necessary permissions required to be obtained in that behalf under the
relevant laws, of the concerned statutory authorities, it shall forthwith
serve upon the owner of such unauthorised or illegal dwelling structure or
any other person claiming an interest therein and also upon the person
who is in occupation of such structure, a written notice to show cause,
within twenty-four hours as to why an order of demolition of the structure
should not be made.
(2) If the owner of such unauthorised or illegal dwelling structure or any
other person claiming an interest therein for the occupier of such structure
is, by any reason whatsoever, not available or serving or receiving the
notice, such notice shall be affixed at a conspicuous place on such
structure, and it will be deemed to be due service of notice on the
concerned person or persons.
3Z-2. Demolition of unauthorised or illegal dwelling structures and penal
liability
(1) After the commencement of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) (Amendment) Act, 2014],
where a Competent Authority, upon a complaint from any person or
report from its officer or police, or any other record or information in its
possession, is satisfied that any unauthorised or illegal dwelling structure
Pallavi/ Mayur Page 35 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
or part thereof has been constructed or is being constructed or any
addition to the existing structure is erected or being erected, within the
area of its jurisdiction, without obtaining necessary permissions required
to be obtained in that behalf, under the relevant laws, of the concerned
statutory authorities, it shall forthwith serve upon the owner of such
unauthorised or illegal dwelling structure or any other person claiming an
interest therein and also upon the person who is in occupation of such
structure, a written notice to show cause, within twenty-four hours as to
why an order of demolition of such structure should not be made.
(2) If the owner of such unauthorised or illegal dwelling structure or any
other person claiming an interest therein or the occupier of such structure
is, by any reason whatsoever, not available for serving or receiving the
notice, such notice shall be affixed at the conspicuous place on such
structure, and it will be deemed to be due service of notice on the
concerned person or persons.”
The above provisions thus make it clear that issuance of such public notice
fulfilled the statutory mandate and the petitioners who are wholly aware about
their own illegalities and have taken cognizance of the same, are estopped from
taking a contrary position and not recognizing such legal requirement, complied
by the respondents. It is in such context, the judgment of the Supreme Court in
Olga Tellis (supra) as relied by Ms. Bhattacharya, the legal principles of which are
not in dispute, does not assist the petitioners, as the present facts and
circumstances are completely distinct and more particularly, when there is no
breach of the principles of natural justice by the respondents.
54. We may also note that, sub-section (9) of section 3Z (2) of the Slums
Act stipulate penal consequences under the provisions of Code of Criminal
Procedure, 1973 for non production of document including photo-pass as and
when demanded by the competent authority, which shall be a sufficient ground or
Pallavi/ Mayur Page 36 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
evidence for the police officer to take cognizance of an offence under this
provision. Further, there is a detailed panchanama dated 9 April 2021, also
annexed to the affidavit in reply to the petition recording all details, which bears
testimony to the fact that the procedure in law is scrupulously followed by the
respondents before undertaking the demolition in the manner recognized by law.
There is no explanation, much less, justification from the petitioners who have
clearly encroached the government land demarcated for reserved forest and
mangroves area, bearing survey no. 39, unauthorizedly and illegally.
55. There is another note-worthy aspect in these proceeding which
would disentitle the petitioners from claiming any relief, being the conduct of the
petitioners, when they allege contempt of an ad-interim order dated 9 April 2021
passed by a coordinate Bench of this Court. A perusal of the said ad-interim order
would clearly indicate that, it is passed in another Writ Petition No. 999 of 2018
where the petition was filed by three different residents of the said purported
slum namely Laxman Bhandari chawl. The said ad-interim order clearly applies to
those petitioners. The present petitioners cannot take benefit of the said order by
creating an impression that the respondents are in contempt of such order passed
in the other Writ Petition No. 999 of 2018 and not in these proceedings. The said
order dated 9 April 2021 passed in Writ Petition No. 999 of 2018 reads thus: –
“Mr. Nedumpara, learned advocate for the petitioners has joined through virtual
medium. He submits that since he is in Cochin and does not have papers with
him, coupled with the fact that the advocate on record is also unwell, he prays
before the Court for an order of injunction to the respondents not to proceed
further in terms of notice dated April 7, 2021 and thereby disobey and disregard
the order dated December 5, 2017 passed by the co-ordinate Bench of thisPallavi/ Mayur Page 37 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCCourt on this Writ Petition.
2. We have been informed by Ms. Chavan, learned AGP that in pursuance of the
notice dated April 7, 2021, a demolition drive was initiated and in midst thereof,
without identification of the hutments belonging to the petitioners in this writ
petition, inadvertently the hutment of petitioner no. 1 has been demolished.
However, the hutments of other two petitioners have not been touched. We
called upon the respondents to file an affidavit and place the above facts on
record.
3. Although we are prima facie of the view that the petitioners can claim no
right to encroach the Government land and construct hutments, that too on
mangroves, since an order was passed on December 5, 2017 directing the parties
to maintain status quo, we restrain the respondents from demolishing the
hutments of the other petitioners until further order of this Court.
4. List this writ petition on April 20, 2021 once again for further consideration.
It is made clear that the Court shall endeavour to hear the writ petition finally at
the admission stage.
5. Mr. Nedumpara shall be free to address the Court by participating in the
proceeding physically.”
(emhpasis supplied)
A perusal of the above would demonstrate that the petitioners’ attempt
once again is to mislead the court by alleging contempt against the respondents of
the above order and the directions contained therein. It is pertinent to note that
the court has clearly recorded its prima facie view in paragraph 3 that those
petitioners can claim no right to encroach government land and construct
hutments, that too on mangroves.
56. We may observe that the conduct of the petitioners to misconstrue
the orders of the court does not stop here. The petitioners have very cleverly
suppressed a subsequent order of this Court 14 November 2022, also passed the
said Writ Petition No. 999 of 2018, which reads thus:-
“1. We will require a further clarification from the State Government particularly
in regard to the 20th February 2019 public notice referred to at Exhibit F at
page 51. We also require learned Advocate for the State Government to take
instructions as to what is the applicable policy, if any, in regard to PetitionersPallavi/ Mayur Page 38 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCand others like them on survey nos. 38 and 39 of Charkop Gaon, Kandivali
(West), Mumbai 400067 and said to being occupying a slum called ‘Laxman
Bhandari Chawl’. The Petition asserts that all these persons were or are
protected occupiers within law. Some of the Petitioners were evicted from the
site in 2017. There was second eviction drive in April 2021, and it is this
2021 eviction that is challenged in the present Petition. We are informed that
some of the occupants were asked to produce documents. If this be so, then
obviously such a demand for documents or even a notice to show cause must
be relatable to some existing policy. It may also relate to a cut off or datum
line.
2. We are making it clear that we do not propose at this or at later stage to
permit an in-situ rehabilitation of any of these persons particularly in view of
the Judgment of this Court in PIL No. 87/2006 regarding maintaining a
buffer zone of 50 meters around all mangrove areas.
3. The State Government’s further Affidavit is to be filed and served by 23 rd
November 2022.
4. List the Petition on 25th November 2022.”
(emphasis supplied)
A bare perusal of the above order it is evident that the Court has minced no
words in observing that it does not propose at any stage to permit in-situ
rehabilitation of any of these persons particularly in view of the judgment of this
Court in PIL No.87 of 2006 (supra) regarding maintaining buffer zone of 50
meters around the mangrove area. It is pursuant to the directions passed by the
Court to the State Government to file a further affidavit, that respondent no. 3
filed an affidavit dated 22 November 2022 and made submissions in that regard
as noted above. However, there is no response from the petitioners to this
affidavit.
57. We may further observe that the petitioners have ceased to be law
abiding citizens when with impunity they have decided to violate all legitimate
norms to adhere to the law when they willfully decide to encroach not only an
Government land but a sensitive/prohibited area on which no construction of any
Pallavi/ Mayur Page 39 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
nature whatsoever can ever be permitted. They have constructed shanties on the
buffer zone around the mangroves. The respondents have submitted in their reply
affidavit dated 1 July 2021 that time and again the authorities were required to
demolish their shanties by undertaking a demolition drive under the provisions of
Environment (Protection) Act unlike a phoenix rising from the ashes, the
petitioners unlawfully, have again and again put the unauthorized structure in the
prohibited mangroves areas also resulting in an FIR dated 21 November 2020
being registered against them and other 130 persons including petitioners in this
petition, under the provisions of Section 16(1) (2) of Environment (Protection)
Act.
58. The petitioners have not approached this Court with clean hands by
suppression of facts amounting to Suggestio Falsi and Suppressio Veri. Thus, this
is a case where the petitioners have breached the clean hands doctrine being the
sine qua non in approaching the court under writ jurisdiction. It would be
apposite to refer, in this context, to the decision in the case of the State of Bombay
vs. Morarji Cooverji.3 where a Division Bench of this Court was pleased to hold
that in a case where justice is not on the side of the petitioner, it is on the side of
the State, there is no reason why any relief should be granted to the petitioner.
This in our view, would squarely apply to this petition.
59. We may observe that the contentions of the petitioners with regard
to undue hardship and violation of their fundamental rights is of no avail to the
3. (1959) SCC OnLine Bom.188
Pallavi/ Mayur Page 40 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
petitioners in the given facts, when the petitioners have failed to establish any
legal right much less fundamental right in their favour. The petitioners have
attempted to unwarranted portray a picture of gross violation of their human
rights, inter alia, relying on letters of political leaders, busy bodies, human rights
organizations, including orders of State Human Rights Commission. This with a
view, to justify the unauthorized and illegal encroachment on reserved forest land
and mangrove area where human habitation is prohibited. The submission by the
petitioners relating to undue hardship, etc. in the given facts and circumstances is
of no assistance to persons who are encroachers on one hand and seeking to
justify such illegal encroachment, on the other. We cannot be oblivious to the fact
that delays and inaction of the State machinery does exists in certain situations,
which cannot be glossed over. However, this is not a case of that type. The
reliance of Ms. Bhattacharya on the decision of Shantisar Builders (supra) of the
Supreme Court will have no application to the factual complexion in the given
case. In fact, considering the legal principles as laid down by the Supreme Court
coupled with our constitutional scheme, we cannot countenance the stand of the
petitioners which the law would never mandate.
60. We may gainfully refer to the decision of a coordinate bench of this
Court in PIL No. 87 of 2006 where the court was dealing with the issue of
destruction of mangrove in the entire State of Maharashtra. It is in such context,
the court passed a detailed judgment dated 17 September 2018 where certain
elaborate directions were passed in the following terms, some of which reads
Pallavi/ Mayur Page 41 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
thus:-
“(I) That there shall be a total freeze on the destruction and cutting of
mangroves in the entire State of Maharashtra;
(II) Dumping of rubble/garbage/solid waste on the mangrove areas shall be
stopped forthwith;
(III) Regardless of ownership of the land having mangroves and the area of
the land, all constructions taking place within 50 metres on all sides of all
mangroves areas shall be forthwith stopped. The area of 50 meters shall be
kept free of construction except construction of a compound wall/fencing for
its protection.;
(IV) No development permission whatsoever shall be issued by any authority
in the State of Maharashtra in respect of any area under mangroves. All
authorities including the Planning Authorities shall note that all mangroves
lands irrespective of its area will fall in CRZ-I as per both the CRZ
notifications of 1991 and 2011. In case of all mangrove areas of 1000 sq.
meter or more, a buffer zone of 50 meters along the mangroves will also be a
part of CRZ-I area. Though buffer zone of 50 meters in case of mangroves
area of less than 1000 meters will not be a part of CRZ-I, it will be subject to
above restrictions specified in clause IlI above;”
A bare perusal of the aforesaid directions would show that the petitioners
have acted in absolute breach of the said judgment by encroaching upon the
government land demarcated as reserved forest within the 50 meters buffer zone
around the mangroves which is impermissible for human habitation. The above
decision was followed in a recent judgment of a Co-ordinate Bench of this Court
in Maharashtra Maritime Board vs. Union of India and Ors.4 where one of us
(G.S. Kulkarni, J. was a member) wherein the Court has emphasized on the
applicability of the public trust doctrine, in light of which the State is bound to
protect and preserve mangroves.
61. It would be further apposite to refer to a decision in High Court on
Its Own Motion (In the matter of Jilani Building at Bhiwandi vs. Bhiwandi
4. 2021 SCC OnLine Bom. 3667
Pallavi/ Mayur Page 42 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
Nizampur Municipal Corporation and Ors. 5 of the Coordinate Bench of this
Court where one of us (G.S. Kulkarni, J. was a member). The court is dealing
with a similar situation of illegal structures in the context of collapse of a building
known as Jilani Building at Bhiwandi, Mumbai was confronted with an issue
relating to mushrooming of slums, illegal encroachments and unauthorized
constructions. In such context, the relevant observations of the Court read thus:-
“44. Illegal construction and encroachment on Government land, without fear of law or of
public officials have resulted into a loss of twelves lives, due to the collapse of three storeyed
structure at Malvani. Therefore, at the first instance, we deal with the issue of encroachment on
public lands and illegal constructions thereon.
45. There can be no two opinions that the issues of encroachment on public land, mushrooming
of slums on such lands and illegal constructions on such land, as also, on any open land in the
city, and the total collapse of the machinery available in law to control these issues, adversely
affecting the urban agglomeration, is a sad story of an invited misery and a massive failure on the
part of the State Government and the municipal bodies. An overview of these adversities, depicts
a sorry and painful state of affairs, having a harmful and an overbearing effect not only on those
who are residing in the slums and unauthorized constructions, but also, the hard impact it creates
on the infrastructure in cities and the continuous and successive damage to the limited
resources. The consequence of all this, is ghastly and harmful. As to what is in store for the future
generations cannot be imagined. Admittedly, these are larger issues to be effectively looked into
by the policy makers before things further worsen, albeit there appears to be a stage of no return,
unless aggressive planning and commitment to the constitutional principles is kept at the
forefront by the policy makers. Happening of encroachments, unauthorized and illegal structures
being put up and deliberate neglect to these issues, when all this is unpleasantly happening before
the open eyes and to the knowledge of
the authorities, is not without purpose. From the report of the learned Commissioner, it appears
to be a deep rooted menace, perpetrated for years together, which has ruined the cities and its
scare resources. There are vested interests as pointed out by the learned Commissioner, namely
political interest, slumlords and ultimately the cancer of corruption, which is the primary cause,
for the authorities not taking action to remove illegal structures which continue to exist for years
together.
46. …….
47. The menace of continued encroachments on Government lands and thereafter, illegal and
unauthorized constructions being undertaken post encroachment, are also a result of an
unwarranted protection being conferred on the slum dwellers by the policies of the State
Government, which protect the interest of the slum dwellers by awarding a premium on such
illegality. This merely for the reason that the government machinery failed to take any action to
remove such encroachments and with impunity continued these encroachers to remain on
government land for years together. The encroachments are of two categories, those who have
encroached for commercial purpose (those who have grabbed public land for installing shops
etc.) and those who have encroached for putting up structures for residential user. Under the
government policies both these encroachers are recognized and rewarded by providing alternate
tenements of the nature they were occupying. The government policies issued from time to time
to protect such encroachers, if their names are found in the voters list on a cut-off date being
fixed at the ipse dixit of the Government. In our opinion, fixing of such arbitrary dates to protect
the illegality of encroachment and ultimately to reward the encroachers with a free of cost
permanent structure on the same government land, is certainly not an exercise of power, the
5. 2022 SCC OnLine Bom.386
Pallavi/ Mayur Page 43 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
constitutional principles would permit. These situations have added to the alarming woes of the
city. It is no more a secret that these policies, which appear to be innocuous and intended to
primarily protect the slum dwellers, resulted to be also of a political concern, as these large slums
also constituted potential vote banks.
48. What can be the logic and any legal sanctity to a policy which rewards encroachment on
public land by granting free of cost tenements, on the very same land amounting to a bonanza for
its private exploitation? By such modus operandi, public land, merely because of it being
encroached, vanishes from the public holding and most astonishingly the basis for the allotment
of tenements under the redevelopment process, is identification of an encroacher by his voters
ID, on the basis of an arbitrary cut-off date fixed by the government. In fact, such policies create a
mechanism being made available to the slum dwellers and thereafter private interest like that of
the developers, to obtain a surreptitious allotment of public/government land for commercial
exploitation, for profits by a backdoor method, completely contrary to the well settled principles
of allotment of State largesse, known to the Constitution. This more particularly, when there is an
allotment of a small piece of public land for a lawful purpose, many a times there is a hue and cry.
However, when large tracts of public land are being gulped by encroachers, would the legal
machinery remain a mute spectator?”
(emphasis supplied)
62. Another decision which requires to be noted, following the
judgment in the Jilani Building’s case (supra), is in Mujibbir Rehaman Chaudhary
vs. Municipal Corporation for Greater Mumbai 6 where a Coordinate Bench of
this Court of which one of us (G.S. Kulkarni, J. was a member). The relevant
observations in the said decision read thus :-
“36. This Court in Mohammed Iqbal Abdul (supra) in paragraph 21 was
confronted with similar facts, which was also a case in regard to a commercial
structure in a slum area. Referring to the decision of the Division Bench of
this Court in ‘Jilani Building’s Case’ (supra) as also the decision of the
Supreme Court in Friends Colony Development Committee V. State of
Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee V. Kolkata Municipal
Corporation and Ors. (2013)3 SCC (Civ) 72; Supertech Ltd. Vs. Emerald
Court Owner Resident Welfare Association & Ors, [(2021)10 SCC 1], this
Court upheld the action of the Municipal Corporation in issuance of notice
under Section 351 of the MMC Act on removal of such unauthorized
commercial structure. Paragraph 20 of the said order of this Court reads
thus:-
20. It may be observed that once a construction is unauthorised and
illegal, the course of law to be taken in that regard is well settled by the
catena of decisions of the Supreme Court [See: Friends Colony Development
Committee V. State of Orissa (2006)3 SCC 581; Dipak Kumar Mukherjee
V. Kolkata Municipal Corporation and Ors. (2013)3 SCC (Civ) 72;
Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association and
Ors. (2021)10 SCC 1.] In Jilani Building at Bhiwandi (supra), the Division
6. 2023 SCC OnLine 579
Pallavi/ Mayur Page 44 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCBench has considered such mandate of law as laid down by the Supreme
Court in paragraphs 85 to 87 which reads thus:-
“85. In Friends Colony Development Committee V/s State of
Orissa (2006)3 SCC 581, the Court was concerned with an unauthorized
construction being undertaken by the builder, as instead of sanction of a
four storeyed building, he had constructed a 5 th floor and for which an
action came to be initiated against him. On the plea of the builder being
accepted by the High Court that he be permitted to make a fresh
application and submit a revised plan for approval qua the construction he
had already undertaken, the appellant had moved the Supreme Court. It is
in such context the Supreme Court made significant observations in regard
to the threat to the society, illegal and unauthorized constructions pose.
These observations are important not only in the context of unauthorized
and illegal constructions but also in the context of the plight of those who
purchase premises in unauthorized buildings. The relevant observations
are required to be noted, which reads thus:
“20. The pleadings, documents and other material brought on record
disclose a very sorry and sordid state of affairs prevailing in the matter of
illegal and unauthorized constructions in the city of Cuttack. Builders
violate with impunity the sanctioned building plans and indulge
deviations much to the prejudice of the planned development of the city
and at the peril of the occupants of the premises constructed or of the
inhabitants of the city at large. Serious threat is posed to ecology and
environment and, at the same time, the infrastructure consisting of water
supply, sewerage and traffic movement facilities suffer unbearable burden
and are often thrown out of gear. Unwary purchasers in search of roof
over their heads and purchasing flats/apartments from builders, find
themselves having fallen prey and become victims to the design of
unscrupulous builders. The builder conveniently walks away having
pocketed the money leaving behind the unfortunate occupants to face the
music in the event of unauthorized constructions being detected or
exposed and threatened with demolition. Though the local authorities
have the staff consisting of engineers and inspectors whose duty is to keep
a watch on building activities and to promptly stop the illegal
constructions or deviations coming up, they often fail in discharging their
duty. Either they don’t act or do not act promptly or do connive at such
activities apparently for illegitimate considerations. If such activities are to
stop, some stringent actions are required to be taken by ruthlessly
demolishing the illegal constructions and non-compoundable deviations.
The unwary purchasers who shall be the sufferers must be adequately
compensated by the builder. The arms of the law must stretch to catch
hold of such unscrupulous builders. At the same time, in order to secure
vigilant performance of duties, responsibility should be fixed on the
officials whose duty it was to prevent unauthorized constructions, but
who failed in doing so either by negligence or by connivance.
22. ……….. It can be stated in a way that power to plan development of
city and to regulate the building activity therein flows from the police
power of the state. The exercise of such governmental power is justifiedPallavi/ Mayur Page 45 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOCon account of its being reasonably necessary for the public health, safety,
morals or general welfare and ecological considerations; though an
unnecessary or unreasonable inter- meddling with the private ownership
of the property may not be justified.”
(emphasis supplied)
86. Apart from the above observations, what is significant is that the
Supreme Court also observed that if the High Court feels that the
illegal/unauthorized building activities are so rampant, so as to be noticed
judicially, it may suo motu register a public interest litigation and
commence monitoring the same by issuing directions so as to curb such
tendency and fixing liability and accountability. Such observations are
required to be noted, which reads thus:
“(7) The High Court, if it feels that illegal/unauthorized building
activities in Cuttack are so rampant as to be noticed judicially, may suo
motu register a public interest litigation and commence monitoring the
same by issuing directions so as to curb such tendency and fixing liability
and accountability.”
(emphasis supplied)
87. In Dipak Kumar Mukherjee v Kolkata Municipal Corporation and
Ors. (2013)3SCC(Civ.)72, again the Supreme Court was concerned with
an illegal and unauthorized construction of buildings and other structures
put up by respondent no. 7 in the said proceedings, who had undertaken
construction in violation of the sanctioned plans. An order was passed by
the Municipal Corporation ordering demolition of the disputed
construction. Respondent no. 7 having approached the High Court, an
order came to be passed by the High Court directing the competent
authority to pass an appropriate order after giving an opportunity of a
hearing to respondent no. 7. The Supreme Court held that such an order
could not be sustained, as the construction undertaken by respondent no. 7
was in clear violation of the sanctioned plans and for which a notice was
issued by the competent authority of the Corporation and more so because
an application for regularization was made by respondent no. 7 after
completion of the construction. It is in such context, the Supreme Court
considering the position in law as laid down in the earlier decisions
emphasized that illegal and unauthorized constructions of buildings and
other structures not only violate the municipal laws and the concept of
planned development of the particular area but also affect various
fundamental and constitutional rights of other persons. It was observed
that the common man feels cheated when he finds that those making
illegal and unauthorised constructions are supported by the people
entrusted with the duty of preparing and executing master
plan/development plan/zonal plan. In commenting on the menace of
illegal and unauthorized constructions, the Supreme Court considering its
decisions in K. Ramadas Shenoy V. Town Municipal Council, Udipi
(1974)2 SCC 506, Pratibha Coop. Housing Society Ltd. v. State of
Maharashtra (1991)3 SCC 341, Friends Colony Development Committee
v. State of Orissa (supra), Shanti Sports Club v. Union of India (2009)15
SCC 705 and Priyanka Estates International (P) Ltd. v. State of Assam
Pallavi/ Mayur Page 46 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
(2010)2 SCC 27. the Supreme Court made the following observations:
“29. It must be remembered that while preparing master plans/zonal plans,
the Planning Authority takes into consideration the prospectus of future
development and accordingly provides for basic amenities like water and
electricity lines, drainage, sewerage, etc. Unauthorized construction of
buildings not only destroys the concept of planned development which is
beneficial to the public but also places unbearable burden on the basic
amenities and facilities provided by the public authorities. At times,
construction of such buildings becomes hazardous for the public and
creates traffic congestion. Therefore, it is imperative for the concerned
public authorities not only to demolish such construction but also impose
adequate penalty on the wrongdoer.”
(emphasis supplied)
37. In Abdul Rehman Jamadar Shaikh & Anr. Vs. The Municipal
Corporation of Gr. Mumbai & Anr. (Appeal from Order No.73 of 2023
decided on 10 February, 2023) this Court in similar facts wherein a case
relying on a photo-pass was urged by the appellant’s therein, rejecting such
contentions had made the following observations:-
“8. From a perusal of the document of what is contended by the
appellants/plaintiffs to be a photo-pass, there is a grave doubt as to whether
the document (receipt) pertains to the unauthorized structure of the
appellants/plaintiffs. Even assuming that the structure in question is issued a
photo-pass, however, it appears that the photo-pass has not been issued in
the name of subsequent purchasers like the appellants/ plaintiffs who have
purchased the premises recently in the year 2019, under an illegal sale deed
dated 13 September, 2019. Hence the appellants/plaintiffs cannot be given
benefit under any such document or under the slum scheme. It is also not
pointed out that there is any provision under the Slums Act or any other law
that a slum structure becomes an authorized structure and it becomes
transferable by a sale deed and even the benefit of photo-pass if any issued is
available to a transferee of the slum structure. Such contention as urged on
behalf of the appellants/ plaintiffs if accepted, in fact, would lead to mockery
of the Slums Act and slums scheme. As clearly seen from the provisions of
the Slums Act, photo-pass is issued only for dwelling house and not for
commercial structure.”
38. It would thus be required to be held that on a mere issuance of a photo-
pass, the appellant would not be entitled to a protection to the illegal vertical
extension as undertaken to the slum structure in question.”
(emphasis supplied)
In our view, both the above decisions duly address the issues and concerns
before us which we are inclined to follow in letter and spirit.
63. In the aforesaid backdrop, and at this juncture, we would deal with
Pallavi/ Mayur Page 47 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
the judgments cited by Ms. Bhattacharya in the compilation tendered by her. The
first judgment of Sudama Singh & Ors. vs. Government of Delhi and Anr. 7
would apply to eligible slum dwellers, which is not the case in the present
petition. In fact, the Supreme Court in the said decision was dealing with the
right of way of certain persons. In such context it was held that the amenities of
relocation is available to them, which is completely inapplicable to the given
factual scenario.
64. We would next refer to the decisions cited by Ms. Bhattacharya in
Ajay Makan and Ors. Vs. Union of India and Ors. 8 and Chameli Singh and Ors.
vs. State of U.P. and Anr.9 which were cases where the emphasis was on the right
to shelter which is a facet of fundamental rights, such proposition is not disputed.
However, the facts and circumstances in the present case are completely different
where the slum dwellers are neither eligible nor protected occupiers not entitled
to any right much less protection under the Slums Act in any manner whatsoever.
65. Ms. Bhattacharya has placed reliance on the decision in State of
Maharashtra vs. Charudatta Pandurang Koli and Ors.10 of this Court. A perusal of
this judgment would make it clear that the Court was dealing with a case with
censused slum and in that context, rehabilitation of those eligible slum dwellers.
Such not being the situation in this present petition, the said decision is of no
assistance to the petitioners.
7. (2010) SCC OnLine Del. 7618
8. 2019 SCC OnLine Del.7618
9. (1996) 2 SCC 549
10. 2019 SCC OnLine Bom.1993
Pallavi/ Mayur Page 48 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
66. We may now refer to the judgment in the case of Pani Haq Samiti
and Ors. vs. Brihan Mumbai Municipal Corporation and Ors. 11 of this Court
where the Court observed that even if a citizen has no right to retain the illegally
constructed hut, he cannot be deprived of the fundamental right to food and
water which is an integral part of the right guaranteed under Article 21 of the
Constitution of India. This cannot be disputed. However, the factual matrix in
the given case is entirely different and the said decision thus cannot be juxtaposed
to the given facts and circumstances. We refrain from dealing with the interim
orders of this Court cited by Ms. Bhattacharya which are not precedents.
67. The order relied on by Ms. Bhattacharya in the case of Utran Se
Besthan Railway Jhopadpatti Vikas Mandal vs. Government of India and Ors. 12
where the Supreme Court laid down certain guidelines for the project affected
persons to be rehabilitated under the applicable scheme. The petitioners in the
given case are not project affected persons as also noted above can claim no
protection, relocation and rehabilitation applicable to protected occupiers which
is not the case. For such reason, the said decision is also of no assistance to the
petitioners.
68. Before concluding we may observe that this is a case where the State
Authorities have acted in accordance with law to protect the forest land. It is
undoubtedly a herculean task for the State Officers to keep a continuous vigil on
persons who repeatedly attempt to challenge the official machinery which is
11. PIL No.10 of 2012
12. SLP (C) No.12366 of 2022
Pallavi/ Mayur Page 49 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
attempting to take all reasonable steps, care and caution that the government/
public lands are not encroached. However, as the experience in this regard would
show that it may not be that every time they are successful in their endeavour as
the limited government/public land in the city of Mumbai is already lost by
encroachments as observed in the decisions of this Court, some of which we have
noted hereinabove. Unfortunately, in such endeavour to protect public lands,
there are number of hurdles which are faced by the official machinery from
different sectors which are powerful interventions to protect unauthorised use
and encroachment on government land. However, as observed by this Court in
Jilani Building at Bhiwandi (supra), the question is of public accountability and
the accountability of not only to safeguard such government lands from
unauthorized use and encroachment, but also of a fundamental duty cast on the
citizens to abide by law and not resort to encroachment on a misbelief that in
future there is likelihood of some rehabilitation or a hope of premium on such
illegality. The State Government and the public officers are required to take all
possible steps as the law would mandate to prevent the unauthorized use of the
public lands, illegal construction and encroachments and to make an endeavour
to bring about a situation that the public lands are available for public utility and
not to the encroachers or any other persons, who can reap monumental gains
from the public lands. In the event these objects are not achieved by a rigorous
exercise of powers and authority, so as to stop such unauthorized activities, it is
not too far that Mumbai and its adjoining areas which have limited public open
Pallavi/ Mayur Page 50 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
land would be lost forever. Such concerns are noted by this Court time and again
(see: Galaxy Enterprises vs. State of Maharashtra & Others 13 as also in New Janta
SRA CHS Ltd. vs. State of Maharashtra & Ors. 14.) The observations of the Court
in these decisions are referred with approval by the Supreme Court in a recent
decision in Yash Developers vs. Harihar Krupa Co-operative Housing Society
Ltd. & Ors.15. It is thus high time that the government officials rise to the
expectations as reposed in them under the laws and the constitution, and remain
alive to the public trust as reposed in them, as in the present case and protect the
government/public lands. Also the municipal authorities need to take stringent
steps in removing encroachment and illegal construction. We may also add a note
of caution that merely as the concerned State and Municipal Officials do not take
timely steps, by passage of time such illegal occupants unfortunately start
believing that the rights are created in them. This has brought about avalanche of
litigation on unauthorized construction and encroachment not only before the
High Court but several other Courts. As observed by this Court in Galaxy
Enterprises (supra), “it is never too late”.
69. In the light of the above discussion, we are certain that in this case
we are concerned with a situation of the petitioners who were encroachers having
illegal structures/hutments on government/public land. Accordingly, we cannot
grant any reliefs in such gross and glaring facts and circumstances of the case.
13 2019 SCC OnLine Bom 897
14 2019 SCC OnLine Bom 3896
15 2022 SCC OnLine Bom 3712
Pallavi/ Mayur Page 51 of 52
::: Uploaded on – 06/06/2025 ::: Downloaded on – 07/06/2025 09:40:28 :::
JUDG-WP-157-2022- SLUMS – 4.6.2025.DOC
Doing so would tantamount to a premium on illegality which the law would
never permit. It is in the light of the foregoing discussion, we find no merit in the
petition. The writ petition is accordingly dismissed. Accordingly, interim
application/s also do not survive and the same are accordingly dismissed.
70. We may observe that this is a fit case wherein we need to impose
exemplary costs considering that the present petition is an abuse of process of law.
However, despite the fact that the petitioners have good resources not only to re-
erect their tenements and also resort to several other techniques to protect such
illegality we refrain from doing so. This for the reason that although we would be
justified in imposing costs, the untold mantra is that ultimately they are slum
dwellers which in our opinion in the facts of the case needs to be held to be totally
misconceived.
71. Disposed of in the aforesaid terms.
(ADVAIT M. SETHNA, J.) (G. S. KULKARNI , J.) Pallavi/ Mayur Page 52 of 52 ::: Uploaded on - 06/06/2025 ::: Downloaded on - 07/06/2025 09:40:28 :::