1 903 caf 3625.10 3691.10 3720.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3625 OF 2010 IN FIRST APPEAL (STAMP) NO.24316 OF 2010 Municipal Corporation of Brihanmumbai ..Applicants. Vs. Smt. Maniben Devraj Shah ..Respondent. WITH CIVIL APPLICATION NO. 3691 OF 2010 IN FIRST APPEAL (STAMP) NO.24312 OF 2010 WITH CIVIL APPLICATION NO. 3720 OF 2010 IN FIRST APPEAL (STAMP) NO.24352 OF 2010 Municipal Corporation of Brihanmumbai ..Applicants Vs. Shri Damji Devrajbhai & Anr. ...Respondents. Mr. S.U.Kamdar, Senior Counsel with Mr.Vinod Mahadik i/b Mr. R.A.Malandkar for the applicant-appellant/BMC. Mr.B.P.Shukla for respondents. CORAM : D.B.BHOSALE, J. DATED : 21/12/2010. PC: 1 Heard learned counsel for the parties. By consent all the three civil applications are disposed of by common order. 2 The Applicants-Corporation, which is a statutory body incorporated under the provisions of Mumbai Municipal 2 903 caf 3625.10 3691.10 3720.10.doc Corporation Act, 1888 (in short ‘the Act’) has filed this application for condoning the delay of 7 years and 108 days caused in filing the appeals against the separate judgments and orders dated 02.05.2003 passed by the City Civil Court in three suits being L.C.Suit Nos. 2726 of 1999, 2727 of 1999 and 2728 of 1999. All the three suits were decreed by the City Civil Court, Mumbai. The operative portion of the judgments in all the three suits, read thus: “Suit of the plaintiff is decreed. No order as to costs.” 3 The prayers in all the three suits were identical, which, in my opinion, are necessary to be reproduced: “The Plaintiffs, therefore, prays:- a) that it may be declared by this Hon’ble Court that the impugned Notice dated 20th April, 1999 issued U/s 314 of the B.M.C. Act, in respect of the suit structure, are illegal, bad-in-law, mala-fide unexecutable in law and not binding upon the Plaintiff; (a)(i) That the Defendants be directed by an order of this Honourable Court to provide shops in lieu of portion of land vacated for the purpose of Road Widening in pursuance of Notice issued U/s. 314 of B.M.C.Act in the market proposed to be constructed by the Plaintiffs for and on behalf of the Defendants Corporation on the land bearing C.T.S.No.997, at Bharucha Marg, Near Purnapragya High School, Dahisar, Bombay – 400 068; 3 903 caf 3625.10 3691.10 3720.10.doc (b) that the Defendants, their Officers, servants and agents or any person or persons claiming through or under them be permanently restrained by an order and injunction of this Honourable Court from executing and/or enforcing the impugned notice dated 20/4/1999 in respect of the suit chawl issued U/s 314 of the B.M.C.Act in respect of the suit structure or any part thereof admeasuring 15’ x 70’ bearing C.T.S.No.985(pt) situated at Bharucha Road, Dahisar (E), Mumbai – 400 068, made of brick masonary wall and A.C. sheet roof; 4 I have perused the civil applications, so also the reply affidavit dated 15.12.2010. The Corporation has also placed on record the affidavit of Ravindra Sirsikar, Junior Law Officer of the Corporation, further explaining the delay in filing the appeal. It would be relevant to reproduce the following paragraphs from the affidavit, in order to appreciate the cause shown for condoning the delay: “2) I say that the present suits bearing No. (1) 2726 of 1999, 2727 of 1999 and 2728 of 1999 was decreed on 02.05.2003 by Hon’ble City Civil Court. I say that I was on leave from 30.04.2003 till 11.05.2003. I resumed my office by 12.05.2003. A copy of leave application is annexed herewith and marked as Exhibit-A. I say that as per the office procedure, the necessary intimation was also forwarded to the concerned department and informed them about the court orders dated 02.05.2003. A copy of dispatch extract regarding intimation to the concerned ward on 12.05.2010 is annexed herewith and marked as Exhibit-B. I say that thereafter, from the record it seems that concerned department misplaced the papers and were not traceable so nobody followed up on the matter. I say that from 02.01.2004, I was transferred to Miscellaneous Court. A copy of the 4 903 caf 3625.10 3691.10 3720.10.doc office order regarding transfer is annexed herewith and marked as Exhibit-C. I say that I was again transferred from Miscellaneous Court to Criminal Court from 05.06.2004. A copy of the office order regarding transfer is annexed herewith and marked as Exhibit-D. I was with the Criminal Section from 05.06.2004 to 28.09.2005. I was again transferred from Criminal Court to High Court Original Side w.e.f. 28.09.2005 till date. A copy of the office order regarding transfer is annexed herewith and marked as Exhibit-E. I say that in view of the facts, I was transferred from City Civil Court, and various courts, I could not follow up with the matter. 3) I say that in the instant case, the Local Councillor Shri Prakash Karkar wrote a letter on 20.07.2010 to the Concerned Additional Municipal Commissioner requesting for joint meeting regarding widening of road and expediting the development and construction of Municipal Market i.e. property under reference. A copy of letter dated 20.07.2010 of Local Councillor Shri Prakash Karkar is annexed herewith and market as Exhibit-F. I say that accordingly joint meeting was held in the Chamber of Addl.M.C. On 2.8.2010, when all concerned officers alongwith Jt. Law Officer (City Civil Court Section) of Legal Department of the Appellant was also present in the said meeting. In the course of said meeting, it came to the notice that the respondents are claiming the right of alternative accommodation pursuant to impugned order in view of that matter, respective Addl. Municipal Commissioner directed Jt. Law Officer (City Civil Court Section) of Legal Department to study entire matters and also ascertain above appeal and its stage against the judgment and order dated 02.05.2003 passed by City Civil Court. A copy of minutes dated 02.08.2010 is annexed herewith and marked as Exhibit-G. 4) I say that, thereafter the Jt. Law Officer (City Civil Court Section) of Legal Department orally directed undersigned on 06.08.2010 to ascertain 5 903 caf 3625.10 3691.10 3720.10.doc whether any appeal is filed in the Hon’ble High Court or not against the judgment and order dated 02.05.2003. I say that upon the inquiry on 10.08.2010 with the concerned section of the City Civil Court, I have been told that original papers were missing and not traceable after deligent search. 5) I say that though papers were misplaced and not traceable, I personally inquired with the staff of High Court (Appellate Side High Court Section of the Legal Department) on 17.08.2010, whether any appeal has been filed against the order and judgment dated 02.05.2003. I came to know on 19.08.2010, that appeal has not been filed. I say that this was for the first time, I came to know that the appeal has not been filed as neither the said proceedings nor copy of order dated 02.05.2003 were put up before undersigned for drafting an appeal. I immediately directed to the concerned Managing Clerk on 19.08.2010 to file an application for certified copy of judgment and order dated 02.05.2003. Accordingly, an application for certified copy was made on 23.08.2010 and same was made available on 06.09.2010 and certified copy of order dated 02.05.2010 was also delivered on 06.09.2010 and accordingly, appeal has been filed on 16.09.2010. 5 As against this, the respondent has filed reply affidavit to the application stating that the delay is not explained properly. It was submitted on behalf of the respondents that the delay caused on account of “official hassle” and approval at different levels would not constitute sufficient or reasonable cause so as to condone the delay. It was further submitted that the right accrued to the respondents by virtue of the impugned judgment is very valuable right and that cannot be taken away by 6 903 caf 3625.10 3691.10 3720.10.doc exercising discretionary power in a routine and liberalised manner. In support of his contentions he placed reliance upon the judgment of this court in State of Maharashtra & Ors. vs. Vithu Kalya Govari & Ors., 2008 (4) ALL MR 856. 6 The learned counsel for the parties also addressed the court on merits of the case. Mr.Kamdar, learned senior counsel for the Applicant-Corporation invited my attention to the impugned judgment in the appeal to contend that decreeing the suit in terms of prayer clause (a)(i) was patently illegal. The learned Judge while decreeing the suit in terms of this prayer has completely ignored that hardly 25% of the original structure was demolished by the Corporation and in lieu thereof the respondents were allowed to either construct mezzanine floor or have regularized the mezzanine floor, unauthorizedly constructed by them. He further submitted that issuance of the direction to allot shop to the respondents in the Municipal market in view of demolition of the structure only to the extent of 25% was contrary to the policy dated 25.02.2004 issued by the Corporation and if judgment, such as in the present case, is not set aside, in every such case the Corporation will have to allot premises in the Municipal markets in lieu of the unauthorised structures. He submitted that in view of the 7 903 caf 3625.10 3691.10 3720.10.doc policy/guidelines, the Corporation will have to accommodate several persons/occupants of the structures in the market, which were fully affected/demolished. He submitted that looking to the number of such persons whose structures are fully affected and the space available in the market it is not possible to accommodate the respondents in the Municipal market, except the respondents in the First Appeal (Stamp) No.24352 of 2010 arising from L.C.Suit No.2728 of 1999. He fairly submitted that the structure of the respondents in this suit has been fully affected and hence they are entitled to be accommodated in the market. 7 As against this Mr.Shukla, learned counsel for the respondents submitted that the land where shops (suit structures) are situated is owned by the respondents and therefore, the Corporation is obliged to allot shops in the Municipal market and that the City Civil Court has rightly decreed the suit. 8 The Mumbai Municipal Corporation is largest litigant before every court in the city of Mumbai and more particularly in the City Civil Court. In the City Civil Court, large number of suits are instituted every day against the Corporation challenging the notices under section 351, 314, 354-A and 299 8 903 caf 3625.10 3691.10 3720.10.doc of the Act. I have perused the impugned judgments, whereby, the learned judge has decreed the suits also in terms of prayer clause (a)(i). In the first suit being L.C.Suit No.2726 of 1999 (First Appeal (Stamp) No.24316 of 2010) three shops/structures are involved. There is no dispute that insofar as one shop/structure is concerned, hardly 20% of its part was demolished, which was affecting the road widening, whereas in case of the remaining two shops only 25% each portion thereof was demolished, which were affecting the road widening. Presently, all the three shops are in existence and they all have mezzanine floor. In the next suit being L.C.Suit No.2727 of 1999 (First Appeal (Stamp) No.24312 of 2010) the part of the structure demolished by the Corporation was only 25%. In both these suits the Corporation has, either allowed the respondents to construct mezzanine floor in lieu of the demolished portion of the structure and/or offered the respondents to apply for regularization of the existing mezzanine floors. There does not appear to be any dispute, that the structures, though were erected by the respondent on their own land, they had done so unauthorisedly. Admittedly, necessary permission from the Corporation was not obtained. Insofar as L.C.Suit No.2728 of 1999 is concerned, the structure involved in this suit was affected more than 50% as provided for under section 298 of the 9 903 caf 3625.10 3691.10 3720.10.doc Act and in view thereof, Mr. Kamdar, learned senior counsel for the Applicant-Corporation, submitted that he has instructions not to press this appeal and accommodate the respondents therein in the municipal market. He submitted that the Corporation has decided to accommodate them in the municipal market. Hence, Civil Application No.3720 of 2010 in First Appeal (Stamp) No.24352 of 2010 filed by the Corporation is dismissed as not pressed. 9 Having regard to over all facts and circumstances of the case, the cause shown by the Corporation for condonation of delay, in my opinion, is sufficient and the delay deserves to be condoned. It is well settled that the expression “sufficient cause” is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. The courts are expected to take liberal approach in such matters where refusal to condone delay is likely to result in a meritorious matter being thrown out at the very threshold. It would be relevant to reproduce the observations made by the Supreme Court in State of Nagaland vs. Lipok AO and others, (2005) 3 SCC 752: “This Court reiterated that the expression “every day’s delay must be explained “ does not mean that a pedantic approach should be made. The doctrine 10 903 caf 3625.10 3691.10 3720.10.doc must be applied in a rational, common-sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant. The delay was accordingly condoned.” 10 Similarly in Collector, Land Acquisition, Anantnag and Anr. vs. Katiji & Anr., (1987) SCC 107, Supreme Court made the following observations: “3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life-purpose for the existence of the institution of courts. It is common knowledge 11 903 caf 3625.10 3691.10 3720.10.doc that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: 1 Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2 Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3 “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4 When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5 There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6 It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 11 Taking the law laid down by the Supreme Court in view and considering over all facts and circumstances of the case, so 12 903 caf 3625.10 3691.10 3720.10.doc also the fact that if the delay is not condoned the meritorious appeal is likely to be thrown at the very threshold, I am inclined to condone the delay in filing these appeals. Hence, the Civil Application nos. 3625 of 2010 and 3691 of 2010 are allowed in terms of prayer clause (a). The First Appeals to come up for admission after the ensuing Christmas vacation. (D.B.Bhosale, J.)