1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 335 OF 2009 Dhanaji Chagan Solanki ..Appellant versus The Municipal Corporation of Gr. Mumbai ..Respondent Mr. Kamlesh Mali i/b. R.A.Thorat for the appellant Mr. Xavier for the respondent BMC CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. The appellant received notice under Section 351 of the Corporation Act in regard to the suit structure. It was replied by the appellant and the Corporation came to the conclusion that the suit structure is unauthorized and the concerned officer of the Corporation had passed communication to that effect. The appellant instituted suit in the City Civil Court being Long Cause Suit No.2207 of 2000 to challenge the action 2 of the Corporation. The learned Judge of the City Civil Court, by judgment and decree dated 12.12.2008 dismissed the suit against which this appeal has been filed. 2. I have extensively heard learned Advocate Mr. Mali for the appellant and Mr.Xavier for the Corporation. The appellant in the course of his reply has produced certain documents like rent receipt, light bills, etc. All those documents if perused carefully would go to show that at the most he was in possession of the structure from 1993 onwards. According to the appellant, initially one Bhima was occupying the shed thereafter One Jayantilal was residing and thereafter the appellant started occupying the suit structure. The appellant has not been able to show any document to say that the structure was prior to the datum line. The appellant states that he is working as sweeper for and on behalf of the landlord and if that was the condition, the landlord was the best witness to say that the 3 suit structure was in existence prior to the datum line. The appellant has not examined the landlord. No assessment record was produced to show that the structure was assessed prior to datum line. All this clearly goes to show that the appellant has not been able to make out a case that the suit structure was in existence prior to the datum line and that the suit structure is authorised. 3. The appellant has claimed in the suit that the Corporation Officer on 4.4.2000 came to the suit site and demolished the roof and wall and left the site. The appellant claims that again on 10.4.2000 the employees of the Corporation came and threatened to demolish the suit structure by saying that 351 notice would be issued. 4. Learned Advocate Mr. Mali submitted that if in the past, notice was issued and the action was completed, how action can be initiated on second occasion in regard to the suit structure. In so far as this aspect is concerned, I am required to 4 observe that the allegations of the appellant that again on 10.4.2000 the officers of the Corporation came and gave threats, is without any specific particulars, in as much as the name of the officers are not mentioned. Undoubtedly, if the action is taken on 4.4.2000 there appears to be no reason for the officers of the Corporation to approach the same structure again. If the appellant himself admits that the roof and the wall has been demolished it is apparent that the appellant is telling half story. If the officer of the Corporation had gone to demolish the suit structure then it is highly improbable that they would demolish half of the structure and go away from the site. To that extent I am not willing to accept the word of the appellant that part of the structure was demolished. It is to be noted that the appellant has not examined a single witness to show that the structure is demolished and again the officers came on 10.4.2000 and threatened to demolish the said structure. 5 5. The learned trial Judge has applied the parameters to the suit structure and has rightly come to the conclusion that the suit structure was unauthorised. Here is a case where the appellant approaches the court for protection only after the suit structure was demolished and does not make a candid averment in the plaint that the suit structure has been fully demolished by the Corporation. 6. After having considered the entire judgment, I am inclined to observe that no interference is required in the impugned judgment and as such the first appeal is required to be dismissed. Hence the Order. ORDER i) Appeal is dismissed with no order as to costs. ii) In view of the dismissal of the first appeal, 6 Civil Application no.338 of 2009 does not survive and the same is dismissed with no order as to costs. (R.Y.Ganoo, J.)