jpc 1 wp9590-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.9590 OF 2011 Khimji Nanji Bangadi ... Petitioner Versus Municipal Corporation of Greater Mumbai and others ... Respondents Mr. Dinesh C. Shah for the petitioner CORAM: R. M. SAVANT, J. DATED : 16th December, 2011 P.C. : 1. The above petition filed under Article 227 of the Constitution of India takes exception to the order dated 2.9.11 passed by the learned Judge City Civil Court (Borivali Division), Dindoshi by which order the Notice of Motion No. 1633 of 2009 filed for interim relief pending the suit and the Contempt Notice of Motion No. 1917 of 2010 came to be dismissed. 2. In so far as the present petition is concerned the learned counsel for the petitioner states that same be restricted only to the challenge to the order passed in Contempt Notice of Motion No. 1917 of 2010 which was filed invoking Order 39 Rule 2A of the Code of Civil Procedure. The jpc 2 wp9590-11.sxw petitioner herein is the original plaintiff who has filed L.C. Suit No. 2185 of 2009 inter alia praying for a relief that the structure occupied by him should not be demolished without following due process of law. In the said suit, the plaintiff had filed Notice of Motion No. 1633 of 2009 for interim relief pending the suit, in which an ad interim order came to be passed on 16th October, 2009 directing the defendants, not to demolish the suit structure, censused under No. KEXDXXC-12-1/1a admeasuring 60 x 50 sq. ft. situated on Plot bearing CTS No.525 part, Village Kondivita, without following due process of law or otherwise than by law. It was made clear in the said order that though the suit structure is protected by the order of injunction, it does not mean that the suit structure has been legalized. 3. The plaintiff filed Contempt Motion being Contempt Notice of Motion No. 1917 of 2010 invoking Order 39 Rule 2A of the Code on the ground that the said structure has been demolished by the defendant i.e. Mumbai Municipal Corporation in breach and violation of the said injunction order dated 16th October, 2009 as no due process of law was followed by the defendants. The said Contempt Motion was replied to by the defendants and it was contended that by filing the said suit and obtaining the interim relief by way of injunction, the plaintiff has put up construction unauthorizedly and has thereby violated the order jpc 3 wp9590-11.sxw dated 16th October, 2009. It is further stated that taking advantage of the interim injunction granted, the plaintiff has put up the said structure. The officers of the Corporation when on a site visit on 20th October, 2009, noticed that on the site, construction work was going on, and a structure was being put up with Siporex block and A.C.Sheet roof admeasuring 70 x 30 sq.ft. In view thereof, a notice came to be issued to the plaintiff under Section 354-A of the Mumbai Municipal Corporation Act which was posted on the same day on site at 5.30 p.m. It was further the case of the defendants that since the plaintiff had carried out the unauthorized construction, the Assistant Commissioner K-East Ward by his office order dated 22nd October, 2009 directed the concerned officer of the Ward to visit the site and take action immediately. In terms of the said directions, the defendants had filed complaint under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 on 26th October, 2009 with the Senior Inspector of Police in respect of the said unauthorised construction carried out by the plaintiff and it is after following the due process of law that the structure has been demolished on 27th October, 2009. 4. The trial Court, as indicated above, by the impugned order rejected the said Contempt Motion as according to the trial Court, no case was made out for invoking the said provision. jpc 4 wp9590-11.sxw 5. It is pertinent to note that the plaintiff claims to be in possession of the said structure on the basis of a purported agreement of tenancy dated 15th March, 2000. Pertinently, the said agreement was not produced before the trial court. Though a host of documents were sought to be relied upon, the plaintiff has produced Census Certificate dated 18th September, 1980 issued in the name of one Chandrakant Varadkar in respect of the structure censused in the year 1976 and another document produced is the permission dated 11th May, 1983 issued in the name of the said Chandrakant Varadkar by the Corporation. It is on the said basis, that the plaintiff has filed the suit. The trial Court was of the view that on the basis of the said documents the plaintiff was not entitled to the discretionary relief of temporary injunction. The Trial Court was further of the view that the possession can only be referable to a valid title. 6. In the instant case, the plaintiff has not produced a tittle of evidence to suggest that he had some semblance of right qua the property in question. In so far as the breach of injunction is concerned, the trial court, as can be seen, has expressed a serious doubt as regards the existence of structure on the day when the injunction order was passed on 16th October, 2009. The Trial Court has accordingly recorded a finding in para 22 of the impugned order that there is absolutely jpc 5 wp9590-11.sxw nothing on record to establish that on the date of filing of the suit, the structure in dispute was in existence. 7. Having heard the learned counsel for the petitioner and having perused the impugned order and the relevant material which has been annexed to the Petition, in my view the findings recorded by the trial Court in the impugned order whilst rejecting the contempt motion cannot be taken exception to. To invoke the jurisdiction under Order 39 Rule 2A of the Code the charge has to be brought home on the basis of impeccable material. In the instant case as the facts disclose, there is not a semblance of evidence produced by the plaintiff in support of his case. The documents in question which were sought to be relied upon by the plaintiff do not, in my view, in any manner further the plaintiff's case that the defendants had breached and violated the injunction order dated 16th October, 2009. No case therefore for interdiction in the writ jurisdiction of this Court under Article 227 of the Constitution of India is made out. Writ petition is accordingly dismissed. (R. M. SAVANT, J.)