* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1899 OF 2009 Mrs. Archana Ajit Gulwani .........Appellant V/S. Municipal Corporation of Greater Bombay .............Respondent -------------- Mrs. Nilima Sanglikar, adv.for appellant. Mr. Vinod Mahadik, adv.for BM.C CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 14TH DECEMBER, 2009. P.C. :- 1. This Appeal is preferred against the judgment and order dated 13th November, 2008 by which the suit filed by the appellant was dismissed. The respondent to the appeal is Mumbai Municipal Corporation, the original defendant. 2. The appellant is the owner of the premises admeasuring 55 sq. feet which is situated below the staircase of a building of Jani Chambers Premises Co-operative Society Ltd, having purchased the same by a registered deed of conveyance in the year 1995. The respondent issued notice dated 7th June, 2005 under Section 351 of the Mumbai Municipal * 2 * Corporation alleging that the suit premises are unauthorized and calling upon the appellant to show cause as to why the premises should not be demolished. The appellant replied the notice. Thereafter the Additional Municipal Commissioner passed his order dated 13th July 2005 holding that the appellant was unable to establish the authorization of the suit premises by producing either the plan sanctioned by the Corporation for its construction or by showing that the same has been existence since prior to the year 1962. The appellant then filed Long Cause Suit No. 2974 of 2005 to challenge the same. The appellant led her evidence in the suit. The respondent did not file any written statement. On appreciation of the evidence, the Bombay City Civil Court came to the conclusion that the appellant was unable to establish that the suit premises are not an unauthorized structure. 3. The only material relied upon by the appellant to establish authorisation of the suit premises is the assessment extract of the Building dated 4th January, 2004 for the years 1998-99 & 1999-2000 (Exhibit-L). The footnote to the extract states that the Building was assessed prior to the year 1988-89. Mrs. Sanglikar submits that when the appellant sought information and copies of the assessment for the period prior to the year 1988-89, she was told that the respondent does not possess the same since * 3 * it maintains records only for the past 15 years. She submits that the appellant having purchased the premises in the year 1995, she cannot be expected to have evidence of assessment prior to 1995. If the respondent also does not possess the record for the period prior to 15 years, the appellant should get benefit of the situation. The assessment of the structure is just one circumstance to prove it s existence at the relevant ’ time. It is not the only evidence of authorisation of the structure. Mrs. Sanglikar, then refers to the records of the society-Jani Chambers and submits that the records of the society establish that the premises have been in existence since prior to the year 1962. There is no record produced by the society showing that the premises have been in existence prior to that time for the simple reason that the society itself came into being, sometime after 1985. 4. Mrs. Sanglikar then refers to the evidence of Rajesh Shah, the Treasurer of Jani Chambers Premises Co-operative Society Ltd, who deposed that as per the Society s record and also his personal knowledge there is ’ no change in the premises by Mr. R.K. Verma, predecessor in title of the appellant since the year 1960. He has stated that his father owns the premises on the fourth floor of the building since prior to the year 1960. This evidence is not controverted by the respondent by cross examining * 4 * the witness. Even if witness is not cross examined and his statement controverted, it is not possible to accept the same for the reason, because it is not the evidence of p.w. No.2 that R.K. Verma had been occupying the premises since prior to the year 1962. In these circumstances, the trial court has rightly inferred on proper appreciation of the evidence led by the appellant, that she has failed to establish that the suit premises are authorized. 5. It is well established that the challenge to the order passed by Assistant Municipal Commissioner under Section 351, Mumbai Municipal Corporation Act is in the Civil Court and is limited. Such order of Assistant Municipal Commissioner is a quasi judicial order. The scrutiny of such an order by the Civil Court is limited to finding out whether the order suffers either from non application of mind or lack of hearing or malafides. If the order exhibits that Assistant Municipal Commissioner has granted hearing to receiver of notice by giving him an opportunity to file reply and tender documents in support of his stand, considered the documents and passed a speaking order, there can be no interference by the Civil Court with the order. It is seen that the order passed by Assistant Municipal Commissioner in the instant case does not suffer from any of the above three infirmities. He has applied his mind to the contention of the * 5 * appellant, considered the documents produced by him and passed a speaking order. 6. Mrs. Sanglikar tenders copy of the order dated 16th November, 2009 by which the learned city civil court has stayed effect and operation of the impugned judgment till today. She requests that this order be continued for a period of 8 weeks from today to enable the appellant to challenge the order before the higher court. When it is pointed out to Mrs. Sanglikar that the impugned decree is of dismissal of the suit, she submits that the order be continued for whatever it is worth. Hence, the order dated 16th November, 2009 passed by Bombay City Civil Court is extended by a period of 8 weeks from today. [SMT. R.P. SONDURBALDOTA, J]