1 905 caf.949.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL APPLICATION NO. 949 OF 2011 IN FIRST APPEAL (stamp)NO. 7229 OF 2011 The Municipal Corporation for Greater Mumbai. ... Applicant Versus Kanoba Pandurang Doiphode. ... Respondent ----- Mr. N.V.Walawalkar, Senior Counsel a/w Mr. Vinod Mahadik for the Applicant / BMC. Mr. Nitin S. Parkhe for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 20 th October, 2011. P.C: 1 Heard the learned senior counsel appearing for the Applicant and the learned counsel appearing for the Respondent. 2 The delay in preferring an appeal is of 586 days. The challenge in the appeal is the the judgment and decree passed by the trial Court by which the notice and the order of demolition passed by the Appellant – Corporation under Section 351 of the Mumbai 2 905 caf.949.11 Municipal Corporation, 1888 has been held to be illegal and void. Apart from the application for condonation of delay, there is additional affidavit filed by the Appellant for explaining the delay. There is a reply filed to the original application for condonation of delay as well as to the additional affidavit. 3 The opposition of the Respondent is on the ground that there is no explanation for delay. Inviting attention of the Court to the various documents which are annexed to the reply, which were obtained under the Right to Information Act, the learned counsel appearing for the Respondent submitted that all along the file of the case was available and the grounds set out in the additional affidavit regarding transfer of the concerned officer is a flimsy ground. Inviting attention of the Court to various documents annexed to the affidavits filed by the Respondent, he submitted that the action of the Corporation is at the instance of Mr.Sunil Katkar. He submitted that the papers of the case were always available and there is no explanation for such a long delay of 586 days. 3 905 caf.949.11 4 It is well settled that while deciding the application for condonation of delay, a liberal and justice oriented approach is contemplated. 5 The impugned judgment and decree was passed on 23 rd June, 2009. Perusal of the application as well as the additional affidavit shows that the applicant has not acted with the promptness which is expected of a local authority. However, an occasion for applying for condonation of delay arises only when there is some default on the part of a litigant. It must be noted hear that in the impugned judgment, there is no finding recorded that the alleged offending structure is authorized. The finding appears to be on the basis of an inference drawn that as the suit structure was in a dilapidated condition in the year 1990, it must have been constructed prior to the year 1961. The finding of the trial Court appears to be that the structure deserves to be tolerated as it was in existence prior to the year 1961. As pointed out earlier, the said finding appears to be based 4 905 caf.949.11 only on the ground that in the year 1990, the structure was in a dilapidated condition. 6 The correspondence annexed by the Respondent to the affidavit shows that to some extent, the counsel for the Respondent is right who he says that one Mr.Sunil Katkar was after the officers of the Municipal Corporation for filing the appeal and for taking the action against the Applicant. 7 However, going by the finding of the trial Court recorded in favour of the Respondent, it appears to me that the structure is sought to be tolerated only on the ground that it was in existence prior to the datum line. Therefore, prima-facie, this is not a case where the Corporation is acting at the instance of the some busybody. There is no finding recorded by the Trial Court that the suit structure has been lawfully constructed. 8 The applicant – Municipal Corporation is required to face large number of litigations not only this Court, but also various Courts 5 905 caf.949.11 in the city. As reflected from the averments made in the application and the additional affidavit, the delay appears to be a procedural delay at various levels of a large local authority like the Mumbai Municipal Corporation. Taking justice oriented approach, the delay will have to be condoned. However, considering the length of the delay, the Respondent will have to be compensated by ordering payment of costs. 9 The amount of costs is quantified at Rs.15,000/-. 10 Accordingly, the application is allowed in terms of prayer clause (a). The Applicant shall pay costs to the Respondent quantified at Rs.15,000/- within a period of eight weeks from today. Deposit of the amount of costs with the trial Court within the stipulated time shall be treated as sufficient compliance. [ A.S.OKA, J ]