: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1249 OF 2009 Firoz H. Kagalwala ... Appellant V/s. The Municipal Corporation of Greater Mumbai ... Respondent Mrs.V.V. Dighe for Appellant Mr.J.J. Xavier for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 11, 2009 P.C.: 1. The appeal has been preferred against the judgment and order of the City Civil Court, Bombay. The suit has been dismissed and the notice issued u/s 351 of the Mumbai Municipal Corporation Act has been upheld. 2. The learned advocate for the appellant submits that the City Civil Court has not taken into consideration various documents which were produced on record which indicated that a weather shed was permitted on the terrace above the 4th floor of Sutar Chawl. This weather shed was constructed first in 1960 and thereafter removed. Again in 1961, according to the learned advocate for the appellant permission was obtained from the Corporation and a weather shed was constructed during the monsoon. However, thereafter the shed was not removed. No action was : 2 : taken by the Corporation all these years. It is submitted that since the weather shed was not removed the plaintiff installed aluminium sliding window above the parapet walls of the terrace and also constructed a W.C. 3. The notice issued u/s 351 indicates that it is for the unauthorised construction of the 5th floor. The trial Court, after considering the documents on record, has concluded that not a single document had been placed on record which indicated that a room was in existence on the 5th floor of Sutar Chawl prior to 1962. It is observed that the map of the city survey department which was produced did not indicate the number of floors of Sutar Chawl. Furthermore, a letter which was relied on by the plaintiff which was produced at exhibit G to the plaint was also considered. This letter is issued by the Superintendent of Bombay City Survey and Land Records which has been issued with reference to the letter of the plaintiff issued to that department on 30.1.1982. The material portion of the letter reads as under: “As per this office records, it appears that the work is shown in black printed line on C.S. No.1233 of Bhuleshwar Division, which is depicted on C.S. Sheet No.132 (IV th Edition 1958). It means that the same was in existence prior to 1958. 4. Great emphasis has been laid by the learned advocate for the appellant on this letter to submit that it indicates that the structure i.e. the enclosure on the 5th floor was in existence prior to 1958. Apart from the fact that the aforesaid letter does not indicate in any manner that the Sutar chawl was situated on City Survey No.1233 of the Bhuleshwar Division nor does it mention that a weather shed had been erected and was in existence prior to 1960, all that is mentioned is that the work is shown in black printed lines. There is no reference to the nature of the work which according : 3 : to the City Survey department was in existence prior to 1958. If this letter is to be accepted to mean that the offending structure was in existence prior to 1958 then the question of obtaining permission for the weather shed in 1960 or 1961 could not have arisen. 5. The assessment and collection department has issued an extract of the inspection register for the year 1976-1977 which again shows only 4 floors in the building. Therefore, the trial Court has rightly concluded that there was no evidence at all on record to indicate that the structure was in existence prior to 1962. In fact, a stop-work notice u/s 354A of the MMC Act was issued on 9.12.1981. Despite this notice, the plaintiff continued with the work of enclosing the 5th floor with the aluminium sliding windows and constructing the W.C. Therefore, the notice u/s 351 was issued in 1982. 6. All these factors indicate that the structure did not exist prior to 1961. The City Civil Court has appreciated the evidence on record in its proper perspective and has drawn correct inferences. The appeal is therefore dismissed. The order of status quo granted earlier to continue for a period of four weeks from today. 7. In view of the dismissal of Appeal, the civil application has become infructuous and the same is disposed of accordingly.