IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 101 OF 2005 DATTA MANDIR TRUST .. APPELLANTS Vs. THE MUN. CORPN. OF GR.BOMBAY & ORS... RESPONDENT Mr. P.K. Dhakephalkar with Ajay Mishra for appellants Mr. A.. Y. Sakhare with J. Xavier for BMC CORAM:-SMT. RANJANA DESAI, J. DATED:-7/4/2005 P.C. Appellant 1 is a trust and appellants 2,3 and 4 are its trustees. They are the plaintiffs in L. C. Suit No. 5067 of 2002. The suit premises are a shed made of G.I. Sheet walls and A.C. Sheet roof attached to the rear side of Datta Mandir situated at Parel, Bhoiwada, G. D. Ambekar Marg, Mumbai admeasuring about 23' – 6” x 15' – 6”. A notice under Section 351 of the Mumbai Municipal Corporation Act dated 3/5/02 came to be issued to Manohar Mohite the occupant of the suit premises calling upon him to show cause as to why the suit premises being unauthorised construction put up by him should not be pulled down. To that notice the said Manohar Mohite as well as the appellant trust submitted reply dated 14/5/02 which was received by the defendant corporation on 15/5/02. It was followed by yet another reply dated 19/6/02. The Asstt. Commissioner F/South Ward considered the reply dated 15/5/02 and found that the said Manohar Mohite had failed to prove authorisation or existence of the suit premises prior to the datum line i.e. 1/4/62. The appellant was, therefore, directed to remove the said unauthorised suit premises within 15 days. 2. In the instant suit the plaintiffs have challenged the said notice and the said order. Notice of motion No. 3086 of 2004 was taken out by the plaintiffs praying for an order of injunction restraining the defendant Corporation from demolishing or pulling down the suit premises. By the impugned order the trial court has dismissed the motion and hence the present appeal from order. 3. I have heard at considerable length Mr. Dhakephalkar, learned counsel appearing for the appellant. He contended that one Mohan Tekawade, who is a lawyer by profession is behind the notice issued by the Corporation. He submitted that Mohan Tekawade's office is in the adjoining premises. Mohan Tekawade has filed a suit in respect of the suit premises against the plaintiffs and the defendant Corporation. Mr. Dhakephalkar contended that in the said suit some unwarranted allegations are made against the appellant-trust. It is falsely alleged that the suit premises are situated on drainage line. The defendant Corporation filed its written statement in that suit. However, no affirmative statement is made in that written statement that the suit premises are unauthorised. 4. Mr. Dhakephalkar further pointed out that in the second reply dated 19/6/02 sent by the appellant trust it was made very clear that the suit premises belonged to the appellant-trust. It was clearly stated that since the year 1963 the shed was in existence and one Yusuf Seth Pathan used to keep wood in the said shed. The said shed was given to him on rent. Thereafter the appellant trust allowed Manohar Mohite to stay in the suit property to look after the Datta Mandir. However, before this reply was received by the office of the Asstt. Commissioner F/South Ward, the Asstt. Commissioner had already passed his order on 6/12/02. Therefore, the documents like receipts, rationcard etc. which were sent alongwith this reply were not considered by him. Mr. Dhakephalkar drew my attention to certain rent receipts which have been issued to said Yusuf Seth Pathan. One Gangabai Joshi has signed on them as a trustee of the appellant trust. The learned counsel contended that these documents clearly indicate that the suit premises were in existence prior to the datum line i.e. 1/4/62. 5. I have also heard Mr. Sakhare, the learned counsel appearing for the defendant-Corporation. He submitted that no evidence whatsoever was produced by the appellant-trust to substantiate its case that the suit premises are authorised and hence no interference is necessary with the impugned order. 6. The suit is filed by the appellant trust through its Secretary one Prabhakar Tambe and three trustees. In this appeal appellant 2 Prakash Mohite has filed his affidavit. It is stated in the affidavit that on 16/11/2000 the rationing authority had issued a new ration card in Prabhakar Tambe's name. Inadvertently in the said ration card it has been mentioned that Prabhakar Tambe is residing inside the Datta Mandir. It is difficult to accept this story. The ration card clearly establishes that Prabhakar Tambe is residing in the Datta Mandir and not in the suit premises. 7. The appellants can draw no support from the rent receipts because the rent receipts do not indicate as to in respect of which premises they are issued. They do not indicate that they pertain to the suit premises. 8. It is also important to note that on 8/6/02 a letter was sent by the defendant Corporation to the appellant trust in which the subject is described as “Issue of Inspection extract in respect of the property bearing Ward No. F/S-924(2-2A) at 10, Bhoiwada Road, for the year 1999-2000. The important extract from the said letter may be quoted: 1999 – 2000 Ward No. : /F/S-924 (2-2A) Location : 10, Bhoiwada Road. Temple & Land. One Temple with surrounding Land Rs. 6.50 (as before) Extension -C.I.shed with C.I. Roof On three side C.I. Walls on one side Temple Wall & coba flooring used as residential purposes. Rs.100.05 ER Flat Rent Rs.106.55 Total R.V. Rs.1145/NPA RRV – Rs.1080/- NPA Ex. R.V. Rs. 65/- NPA With effect from 1/4/99. This letter shows that construction was made on one side of the temple wall. Coba flooring was used. This structure was used for residential purpose. After this extension from 1/4/99 rateable value which was Rs 65 NPA is increased to Rs.1145/NPA. 9. My attention is also drawn to yet another letter dated 7/6/2000 sent by the defendant Corporation to the appellant. In that letter it is clearly stated that as per record of Form-I, the rateable value for the year 1985-86 is Rs.65/-NPA. It is thereafter mentioned that however the rateable value of the said property has subsequently been revised to 1145/- NPA with effect from 01/4/99 on account of extension of C I shed on rear side of the Temple. This in my opinion makes a dent in the plaintiff's case. It is clear that extension of C. I. shed on rear side of the temple is a subsequent development and it was not there prior to the datum line i.e. 1/4/62. 10.The trial court therefore, cannot be faulted for having dismissed the motion. No interference is called for. Hence the appeal is dismissed. 11.Civil Application also is disposed of. 12.Parties to act on authenticated copy of this order. 13.Certified copy expedited. .....