BGD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.732 OF 2007 FROM ORDER NO.732 OF 2007 FROM ORDER NO.732 OF 2007 IN IN IN NOTICE OF MOTION NO.3009 OF 2006 IN SUIT SUIT SUIT NO.3438 OF 2006 NO.3438 OF 2006 NO.3438 OF 2006 Mr. Quezar Fida Hussein ... Appellant Motiwala (Ori. Plaintiff) Vs. The Municipal Corporation for ... Respondent Greater Mumbai. (Ori. Defendant) Mr. V.P. Sawant i/by A.Q. Motiwala Advocate for the Appellant. Mrs. Geeta Joglekar, Advocate for Respondent. CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 6TH AUGUST, 2008 : 6TH AUGUST, 2008 : 6TH AUGUST, 2008 P.C. P.C. P.C. :- :- :- 1. By this Appeal from Order, the appellant- original plaintiff seeks to challenge the legality and correctness of interim order dated 30th August,2007 passed by the learned City Civil Court at Bombay in Notice of Motion No.3009 of 2006 in L.C. Suit No.3438 of 2006. The respondent is the Mumbai Municipal Corporation. 2 2. The appellant is the owner of the property situate on City Survey No.A/503(B) at 11-A, Bazar Cross Road, Bandra (West), Mumbai - 400 050. The ground floor of the property is in occupation of the tenant and the first floor is being used by the appellant himself for residence. The present dispute is in respect of the room admeasuring approximately 300 sq. feet situate at the second floor level (hereinafter described as "the suit premises". 3. In the year 1997, the appellant was served with the notice dated 8th October,1997 issued under Section 351 of the Bombay Municipal Corporation Act in respect of the suit premises which were described in the notice "unauthorised construction of room on terrace above 1st floor with brick wall and A.C. Sheet roof". The appellant replied the notice by his letter dated 21st October,1997. The Deputy Municipal Commissioner considered the reply and by his order dated 8th January,1998 held that the appellant had failed to prove either authorisation of the suit premises or its existence prior to the datum line, 17th April,1964 and called upon the appellant to 3 remove the suit premises. Thereafter the appellant filed Suit bearing No.455 of 1998 challenging the decision of the Deputy Municipal Commissioner. He was unable to get any interim reliefs in the suit. Ultimately he withdrew the suit stating that he would make a representation for regularisation of the suit premises. 4. The appellant contends that thereafter he made a representation for regularisation of the suit premises which is still pending for decision. He alleges that his tenant against whom he has filed a suit in the Court of Small Causes being Suit No.741 of 2004 has been instigating the officers of the respondent to harass the appellant. It is alleges that the officers of the respondent have been repeatedly visiting the suit premises and threatening the appellant with demolition of the same. Therefore, the appellant has filed the instant suit for declaration that the threats given by the officers of the defendants of demolition of the suit premises are illegal and bad in law. He also seeks permanent injunction to restrain the respondent from taking any action of demolition in respect of the suit premises. He had applied for interim injunction 4 in the same terms as a permanent injunction, that has been rejected by the trial Court by its order dated 30/08/2007. 5. It is the case of the appellant that after withdrawal of the suit, he made a representation to the respondent for regularisation of the suit premises. The plaint does not state either the date of withdrawal of the suit or the date of the representation. No copy of the representation is produced either before the trial Court or this Court. The respondent- Corporation has denied that any representation has been received by it from the appellant. In the circumstances, on prima facie view, there is nothing to show that a representation was in fact made by the appellant as claimed in the plaint. The learned Judge also in the impugned order has observerd that though the Appellant-plaintiff has given chronological several events since the year 1963 till 2006 in the plaint, he has deliberately not mentioned the date of representation to the respondent. It is further observed that the appellant has produced voluminous documents but not copy of the representation made to the respondent alongwith the acknowledgment of receipt of the 5 representation. 6. The appellant alleges that the Officers of the respondent have been visiting the suit premises and threatening to demolish the same. These allegations are seen to be vague and without necessary particulars. At paragraph 10 of the plaint, the appellant states as follows : "The said tenant repeatedly instigated the officers of the MCGM to visit the suit premises and threaten the Plaintiff with demolition of the same. Consequently, the officers of the MCGM would repeatedly visit the suit premises during any hours of the day and threaten the Plaintiff and his family members to remove the suit premises forthwith". . Significantly, the appellant neither mentions the date nor the time nor the number of alleged visits of officers of the respondent. Even if the officers of the respondent were to visit the appellant and ask him to remove the suit premises, it cannot be said that their action is illegal. This is because the respondent had already issued a notice to the appellant to show cause as to why the suit premises should not be demolished. After considering the reply sent by the appellant, the Deputy Municipal Commissioner 6 has passed an order confirming the show cause notice with an observation that the appelant has failed to establish that the suit premises are authorised. In the circumstances, no fault can be found with the impugned order. 7. The Appeal from Order is dismissed. ( SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.) SMT.R.P. SONDURBALDOTA, J.)