ash 1 fa-229.86 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.229 OF 1986 Premibai Jetha Shah, since deceased throug: 1.a) Shri Haresh Meghji Shah & Others. .. Appellants VS The Municipal Corporation of Greater Bombay and Others. .. Respondents -- Shri V.T. Lulia for the Appellants. Shri D.S. Sawant for Respondent Nos.3 to 5 and 8 to 16. -- CORAM ; A.S. OKA, J SUBMISSIONS WERE HEARD ON : 29TH APRIL, 2011 JUDGMENT PRONOUNCED ON : 8TH JULY, 2011 JUDGMENT : . By this Appeal, the original Appellant who is the original Plaintiff has taken an exception to the judgment and decree dated 9th July, 1985 passed by the learned Judge of the City Civil Court by which the suit filed by the Appellant has been dismissed. During the pendency of Appeal, the Appellant died and her legal representatives ash 2 fa-229.86 have been brought on record. It will be necessary to make a reference to the facts of the case in brief. 2. The Plaintiff is the owner of a structure, more particularly described in the Plaint situated on the land bearing Survey No.52 Part and corresponding to C.T.S. No.189 at Kasturba Road, Borivali (East), Mumbai. The said structure was a single storeyed structure consisting of brick masonry wall and A.C. Sheet roof. There were four shops in the said structure facing Kasturba Main Road and six shops facing Kasturba 2nd Cross Road. Apart from the shops, there were three residential rooms, three other rooms and a godown in the said structure. It is stated that the Appellant is a monthly tenant of the land below the structure and the owner of the land is of M/s. F.E. Dinshaw Estate, Malad. 3. In the plaint, it is alleged that the 2nd Respondent (2nd Defendant) was unlawful and unauthorised occupant of Shop No.1 and the Godown in the said structure. It is alleged that the 5th Respondent ( 5th Defendant ) was the unlawful and unauthorised occupant of Shop No.4 in the structure. It is alleged that the 7th and 8th Respondents ( 7th and 8th Defendants ) were the unauthorised occupants of the shops in their respective possession and rest of the Respondents, except the 1st Respondent, were occupying the rooms and shops as the tenants. It is ash 3 fa-229.86 alleged that the fire broke out in the said structure on 4th June, 1982 and the Shop Nos. 1, 2 and 3 were completely destroyed in the fire and some portions of the rooms in the structures were also affected by the fire. 4. It is alleged in the plaint that the occupants of the structure approached the Appellant’s son Meghji along with a local Corporator and requested him to repair and reconstruct the portion of the suit structure destroyed in the fire. It is alleged that the Appellant agreed to repair and reconstruct the rooms and the shops. While the work of repair and reconstruction was in progress, on 16th June, 1982 the Municipal Corporation issued a notice under Section 354A of the Bombay Municipal Corporation Act, 1888 ( hereinafter referred to “the said Act” ) to her. By the said notice, the Appellant was called upon to stop the work. It is stated that on 2nd July, 1982, the Deputy Municipal Commissioner and other officers came to the suit structure and demolished the entire work of repairs and the reconstruction carried out by the Appellant. It is alleged that on 3rd July, 1982, the 2nd to 16 Respondents and other occupants of the said structure started constructing the brick masonry walls without permission of the Appellant. It is alleged in the Plaint that the 1st Respondent Corporation illegally authorised the tenants and the occupants to construct a new structure in gross violation of the provisions of Section 342 read with ash 4 fa-229.86 Section 347 of the said Act. It is alleged that before the 1st Respondent Corporation allowed the tenants and occupants to construct a new structure, neither any consent of the Appellant was obtained nor any hearing was given to the Appellant. It is alleged that the permission granted by the 1st Respondent is completely illegal and in breach of the Development Control Regulations. It is stated that the permission granted by the 1st Respondent is mala fide and the same has been done at the instance of the local Corporator. 5. By amending the plaint, it was contended that the permission produced by the Respondent on 3rd July, 1982 before Borivali Police Station was not genuine and the purported permission dated 15th July, 1982 granted by the 1st Respondent was fraudulently obtained. Therefore, the suit is filed for declaration that the permission dated 15th July, 1982 granted by the 1st Respondent Corporation to the other Respondents and occupants to re-erect the structures is illegal and bad in law. The other substantive relief, apart from the other reliefs, is of a mandatory injunction directing the 1st Respondent to demolish the suit structure. 6. The 1st Respondent filed a written statement contending that on the basis of the application dated 2nd July, 1982 made by the tenants for grant of repair permission, the Deputy Municipal ash 5 fa-229.86 Commissioner by his letter dated 3rd July, 1982 directed the Ward Officer to process the application in light of the Municipal Circular dated 23rd July, 1982 and the Ward Officer by his letter dated 16th July, 1982 informed the occupants that the Deputy Municipal Commissioner vide her order dated 14th July, 1982 had approved the request to construct the structure on purely temporary basis. The 3rd to 5th and 8th to 16 Respondents have also filed their written statements. It was contended that the Appellant’s son wanted to take undue advantage of the situation created by the fire by driving out the said Respondents from their respective tenements. It is contended that the Appellant’s son had taken money from them to effect the repairs. It is stated that the Appellant’s son did not obtain permission of the Municipal Corporation and, therefore, the structure erected by him was demolished. It is contended that the suit was not maintainable as the Appellant did not seek eviction of the 2nd to 16 Respondents. 7. Various issues were framed by the Trial Court. The Trial Court recorded a finding that the suit was not maintainable in absence of notice under Section 527 of the said Act. The learned Judge held that the Appellant reconstructed the suit structure at the cost of the contesting Respondents but it is not true that the structure reconstructed by the Appellant was of the same size and area as the original structure. The learned Judge held that the Appellant has failed ash 6 fa-229.86 to prove the permission dated 14th July, 1982 granted by the Municipal Authorities to the 2nd to 16 Respondents to reconstruct the suit structure was illegal and bad in law. Therefore, the learned Judge proceeded to dismiss the suit. 8. The first submission made by the learned counsel appearing for the Appellant is that the case made out by the Appellant is that the the action of the 1st Respondent was ultra vires the provisions of the said Act and hence, the notice under Section 527 of the said Act was necessary. He submitted that the finding on this aspect is completely erroneous. He pointed out that the order passed by this Court in Appeal from Order No.414 of 1982 preferred by the Appellant in this Court against an interim order passed in the suit. He pointed out that in the said Appeal, on 13th July, 1982, the learned counsel appearing for the 2nd to 12th Respondents made a false statement that the said Respondents have already received permission from the 1st Respondent to carry out reconstruction and repairs. He submitted that the so called permission dated 14th July, 1982 has been fraudulently obtained by the concerned Respondents. He pointed out that in fact on 13th July, 1982, after recording that such permission was granted to the concerned Respondents, this Court called upon the concerned Respondents to satisfy the Court about the legal provision which justifies such a permission. He pointed out that in the order dated 15th ash 7 fa-229.86 July, 1982, this Court has noted that the statement made on the earlier date was not correct and in fact only an application for obtaining permission was made by the concerned Respondents. He pointed out that on 15th July, 1982, an order of injunction was granted by this Court in the presence of the Advocate for the 1st Respondent but on 21st July, 1982, the Advocate for the 1st Respondent informed this Court that the permission was granted on 15th July, 1982 to the 2nd to 16 Respondents to carry out the work of repairs and construction. He submitted that subsequent order passed by this Court in the Appeal from Order indicates that the 1st to 5th Respondents had agreed to revoke the said permission but it was eventually not revoked. Thus, his submission is that the permission was illegally granted in a fraudulent manner. Inviting the attention of the Court to Sections 342 and 347 of the said Act, he submitted that without consent of the appellant who was the owner of the structure, the 1st Respondent had no authority to grant permission to the tenants/occupants of the structure to reconstruct the same. He submitted that the permission dated 15th July, 1982 was purportedly granted on the basis of the circular dated 23rd June, 1982 which was admittedly not produced before the Trial Court. He stated that if the said circular is seen, it is apparent that under the circular, the permission could not have been granted to the tenants inasmuch as the circular could have been acted upon provided, only 25% of the building was affected by the fire or collapsed. He ash 8 fa-229.86 submitted that in this case, the entire structure was demolished and therefore, the said circular was not applicable. He submitted that thus the permission granted is ultra vires. He submitted that without there being any evidence, the Trial Court came to the conclusion that the occupants had contributed by paying certain amounts to the Appellant for reconstruction of the structure which was destroyed in the fire. He submitted that the 2nd to 16th Respondents have not discharged the burden on them to prove that the said permission was legal. He submitted that in fact, as a result of demolition carried out by the 1st Respondent Corporation, nothing existed on the site and therefore, there was no question of grant of any permission under any of the provisions of the said Act. He submitted that the entire approach of the learned Trial Judge was perverse. He placed reliance on a decision of the Apex Court in the case of Vannattankandy Ibrayi v. Kunhabdulla Hajee, [2001(1) All MR 548]. He placed reliance on a decision of the Division Bench of this Court in the case of Mohansing Uttamsing Tanwani v. State of Maharashtra & Others [2010(5)All MR 646]. Relying upon a decision of this Court in the case of Gango Co-operative Housing Society Limited v. The Mumbai Municipal Corporation of Greater Bombay, [2004(1) ALL MR 115], he submitted that the action of granting permission by the 1st Respondent stands vitiated. He relied upon the order dated 23rd June, 1999 passed by this Court in Writ Petition No.1153 of 1999. He relied upon various provisions of the ash 9 fa-229.86 Development Control Rules for greater Bombay which were in force at the time when the alleged permission was granted. He submitted that without the proof of ownership, such permission could not have been granted to the occupants. 9. Learned counsel appearing for the 3rd to 5th Respondents and 8 to 16th Respondents supported the impugned judgment and decree. He submitted that the Trial Court has declined to grant discretionary and equitable relief of declaration and injunction to the Appellant. He relied upon a decision of this Court in the case of Quality Printing Press v. Mumbai Municipal Corporation for Greater Mumbai ( 2006(3) MhLJ 117). 10. I have given careful consideration to the submissions. I have perused the records and the notes of evidence. It must be noted here that Shri Meghji Jethabhai Shah, son of the original Claimant stepped into the witness box. In Paragraphs 7 to 12 of his deposition, he has stated thus:- “7. On 4-6-82 fire broke out and more than half of our property was destroyed in fire. 8. Municipal Corporator Chimanbhai told me to reconstruct the chawl. It was decided to reconstruct the chawl. Chimanbhai took me to one Architect. The Architect went to the Municipal Office on the next day and ash 10 fa-229.86 thereafter prepared a Plan. The plan (Ex.A) is the same plan prepared by the Architect. This plan represents the position of my structure as it existed prior to fire. I entrusted the construction work to Premjibhai, Contractor. I did not obtain Municipal permission for the construction work. Q: Why did you not take Municipal permission ? A: Chimanlal told me that he would do the needful since he was the Municipal Corporator. (Mr. Bhalekar has objected to this answer it being hearsay) 9. I wanted to erect a brick masonry structure, according to the Plan (Ex.A). Construction work commenced after a week. The Contractor demolished the remaining portion of the structure. The new structure was of brick masonry wall and with the roof of cement sheets. 10. (Shown Copy Notice dated 16-6-82 issued by the 1st Defendants to Meghji Jethabhai). The original Notice received by me was handed over to Chimanbhai, Municipal Corporator. This is the copy. ( Copy notice dated 16-6-82 put in and marked Ex.F). Thereafter we have not received any notice from the Municipal Corporation. It is not correct to say that a Municipal Notice dated 19-6-82 was pasted on the suit property. It is not correct that any notice was tendered to me and because I refused to accept it, it was pasted. 11. We sent letters to Ward Officer. ( Letters dated 5-6-82, 3-7-82 and 5-7-82 put in and marked Ex.G (colly). 12. On 2 nd July 1982 the entire structure was demolished by the Municipal Corporation, under the supervision of Municipal Officers ash 11 fa-229.86 including Kunda Kadam, D.M.C. and Police Officers and constables. RCC Construction was never put up.” ( Underline supplied) 11. The aforesaid portion of his deposition indicates that the entire structure was not destroyed in fire. The deposition shows that the Appellant agreed to reconstruct the structure and therefore, the Contractor appointed by the Appellant demolished that part of the structure which was in tact even after the fire. The Appellant intended to erect a brick masonry structure as per the plan which was put up. Accordingly, the new structure of brick masonry wall was erected. On 2nd July, 1982, the re-erected structure was demolished in its entirety by the Deputy Municipal Commissioner. Thus, the admission of the Appellant is that only a part of the suit structure was affected by the fire and remaining part was intact. Even the Appellant intended to re- erect the suit structure. Instead of repairing or re-erecting the portion gutted in the fire, the Appellant demolished the entire suit structure and re-erected the same. The Appellant did not obtain permission of the 1st Respondent-Corporation. Therefore, the contention that the entire structure was totally destroyed, and therefore, there was no question of grant of repair permission connot be accepted. It was the Appellant who demolished the entire structure though he could have repaired only that part of the structure which was affected by the fire. Whether ash 12 fa-229.86 the evidence of monetary contribution made by the 2nd to 16 Respondents is there or not, the fact remains that even the Appellant was intending to repair/re-erect that part of the structure which was destroyed due to fire. 12. It appears that only after the demolition was carried out by the 1st Respondent, on 2nd July, 1982 some of the Respondents made applications addressed to the Deputy Municipal Commissioner. What is stated in the said application has been quoted by the learned Trial Judge in his judgment which reads thus:- “(1) Brick masonary walls of 6” width may be allowed to be constructed. (2) Tabular poles/wooden supports as pillars may be allowed to support the roofs. (3) We will use asbestos cement sheets for roofing. (4) The plan showing original area as enclosed herewith. The repair area will not exceed the original area. (5) We will file indemnity bond on Rs.22.50 stamp paper in case the consent of the Landlord for carrying out above repairs is not forthcoming.” 13. On 14th July, 1982, the Deputy Municipal Commissioner granted permission to the tenants-occupants to construct a structure purely on temporary basis with 4½ inches brick wall in the original ash 13 fa-229.86 shape with A.C. Sheet roofing. The permission was communicated by a letter dated 15th July, 1982 (Exhibit-9) issued by the Ward Officer. Some of the conditions incorporated in the said permission read thus:- “(1) The tenants should immediately give the registered undertaking on the stamp paper that as and when the T.P. Scheme is finalised and it is proposed to develop this portion on the road as the T.P. Scheme, they will voluntarily give vacant possession of the structures which would have affected by proposed road without claiming any compensation or alternative accommodation. (2) They shall not sublet or dispose of Shops/Stalls/Residential rooms in any manner whatsoever without permission of the Corporation. (3) They would give an Indemnity Bond on Stamp Paper of Rs.22.50 indemnifying the Corporation from any damages or loss that the Corporation would be required to pay or suffer in case the Landlord claims the same from the Corporation. (4) This permission does not entitle the occupiers to become the owners of the structures. They will continue to be the monthly tenants of the Landlord as before and continue to pay the monthly rent to him.” 14. Thus, the permission was granted on temporary basis with a rider that the occupant will not become owners of the reconstructed structure and the Appellant will continue to be the owner. A submission was made that the circular dated 26th June, 1982 was not applicable as ash 14 fa-229.86 it deals with the grant of permission for reconstruction of collapsed/gutted/demolished portion of the building provided the demolished portion is not more than 25% of the building excluding certain portions like sanitary portions, common facilities, passages, walls, stair-cases, etc. Even according to the case of the Appellant only a part of the structure was affected by the fire and he admittedly demolished even the other part of the said structure. All this was done by the Appellant without obtaining permission of the Respondent/Corporation for re-erecting the same. The applicability of circular will have to be tested by examining whether more than 25% of the said structure excluding the areas of sanitary portion, commons facilities, passages etc. was destroyed due to fire. The Appellant has not adduced specific evidence that more than 25% of the structure was destroyed in fire. A vague statement made in evidence is not sufficient to discharge the said burden as the exact area of the destroyed structure excluding sanitary portion, passages etc. is not brought on record by the Appellant. After having demolished even the part of structure which was not affected by the fire, now it does not lie in the mouth of the Appellant to say that the circular will not be applicable inasmuch as 100% of the structure was demolished. Perusal of the said circular shows that what is required to be seen is that what is the percentage of the structure which was collapsed or gutted excluding certain areas like passages sanitary area etc. In the present case, the illegal structure re- ash 15 fa-229.86 erected by the Appellant was demolished by the first Respondent Corporation. 15. Reliance was placed by the learned counsel appearing for the Appellant on the decision of the Apex Court in the case of Vannattankandy Ibrayi (supra) by contending that on destruction of the tenanted shop the tenancy in respect of a shop cannot be said to be continued. The said decision will not apply here inasmuch as the total destruction was made by the Appellant himself and the total destruction was not by the actual fire. Only a part of the suit structure was affected by the fire. Moreover, the Appellant has not filed this suit for eviction of the occupants. Whether the tenancy subsisted or not is the issue which will arise only in a suit for eviction. 16. It must be noted here that the permission granted to the concerned Respondents is of a temporary nature and the said permission does not confer any right in respect of the reconstructed structure. It is not in dispute that the 2nd to 16th Respondents were in possession of the distinct portions of the suit structure before the fire broke out. Even the Appellant intended to re-erect the structure but his attempt was foiled by the 1st Respondent as he proceeded with the construction without obtaining permission. Thereafter, the Mumbai Municipal Corporation granted the permission on the basis of which the structure was re-erected. It is pertinent to note that the Appellant has ash 16 fa-229.86 not filed a suit for possession. The Appellant has merely filed a suit for declaration of illegality of the permission and for mandatory injunction directing the 1st Respondent to demolish the suit structure. This is nothing but an effort to get rid of the concerned Respondents who were admittedly in possession when a part of the original suit structure was gutted with the fire and another part was demolished by the Appellant. The part which not affected by fire was also demolished by the Appellant with the intention of reconstructing the same for accommodating the occupants. Assuming that there was some illegality on the part of the 1st Respondent in not obtaining consent of the Appellant or on account of failure to give hearing to the Appellant, the net result of the permission dated 15th July, 1982 is that the tenants- occupants who were admittedly in possession on 2nd July, 1982 have been permitted to re-erect structures on temporary basis with the clarification that they will not be entitled to claim ownership over the reconstructed structure. The remedy of the Appellant was to proceed to the Competent Court for eviction of the tenants. 17. Some criticism has been made by the learned counsel appearing for the Appellant that a false statement was made on 13th July, 1982 in the Appeal from Order before this Court that the permission has been already granted. However, that is no ground to direct the first Respondent to demolish the reconstructed structure ash 17 fa-229.86 which will have the effect of evicting the persons who were admittedly in possession when the Appellant herself demolished the structure. 18. It is well settled that the grant of relief of declaration and mandatory injunction under the Specific Reliefs Act, 1963 is always discretionary. In the case of American Express Bank V/s. Calcutta Steel Company [(1993) 2 SCC 199], the Apex Court held that “undoubtedly declaration of the rights or status is one of discretion of the Court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of relief of declaration and injunction under the provisions of that Act is discretionary. The Plaintiff cannot claim the relief as of right. It has to be granted ex-debito justitiae. The Court cannot convert itself into an instrument of injustice and vehicle of oppression.” Considering the aforesaid facts, it cannot be said that the Trial Court has committed any error by not granting equitable and discretionary relief of injunction and declaration to the Appellant. Hence, it is not necessary to deal with the other