1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FIRST APPEAL NO.740 OF 2010 IN L.C.SUIT NO.4479 OF 2005 WITH CIVIL APPLICATION NO.2026 OF 2010 Shri.Ratanchand Narsingji Jain .. Appellant V/s Municipal Corporation of Gr.Bombay & Ors. .. Respondents Mr.Rakesh D.Dave i/by Ms.N.N.Vaishnava & Co. for the Appellant. Mr.Vinod Mahadik for the Respondents. CORAM: R.G.KETKAR, J. DATE: 18th June, 2010. P.C.: 1. This appeal is directed against the judgment and decree dated 31st March, 2010 passed by the learned Judge, City Civil Court, Gr.Bombay in L.C.Suit No.4479 of 2005. By this judgment, the leaned trial Judge dismissed the suit instituted by the appellant. The suit was filed for declaration that the notice dated 8th October, 2005 issued by the Respondents u/s.351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the Act) is illegal, bad in law, malafide and unenforceable. 2. Heard the learned counsel for the parties. Mr.Dave, learned counsel for the appellant submitted that the appellant-original plaintiff is the tenant of Room No.15 for the last 33 years. There is terrace and it is opening from Room No.15. The said terrace room was previously covered with galvanized iron sheets. Because of passage of time, the said galvanized iron sheets were decayed. In fact one of the sheets had fallen from the third floor terrace and other sheets were also in dilapidated condition. With a view to providing the security and safety to the passerby, the appellant removed the said galvanized iron sheets and replaced the same with corrugated cement sheets and for preventing leakage to the premises, 2 mangalorian tiles were put above the said cement sheets, without increasing or changing its height or any dimension. The said terrace is open from three sides. The said terrace is covered since last more than 40 years with opening from all the three sides. He submitted that the appellant has not contravened section 351 of the Act. The notice u/s.351 of the Act was not issued to the landlord and it is consequently bad in law. He also submitted that there are no FSI violations. The Respondent Corporation did not lead any evidence to substantiate its claim that the offending structure violates sections 342 & 347 of the Act. 3. On the other hand Mr.Vinod Mahadik, learned counsel for the Respondent Corporation submitted that from case made out by the appellant plaintiff in the reply to the notice u/s.351 of the Act, in the plaint, as well as the case deposed in the oral evidence, clearly establishes that the appellant had put up roof as described in the notice issued u/s.351 of the Act. The appellant has not produced any permission in support of his submission that the said structure is authorised. He therefore prayed for dismissal of the appeal. 4. It is not in dispute that the terrace is open from three sides. What is under controversy is whether the appellant has covered the terrace in terms of schedule appended to the notice u/s. 351 of the Act. The schedule appended to the said notice describes the unauthorised work as under: “Covering of set-back Terrace on 3rd floor in front of Room No.15 by providing “C” channels, M.S.framework with A.C.sheets roofing, covering area admeasuring 13’.6” x 7’.8” x 7’.6” x 6’.0” (height) as shown in the sketch.” 5. The notice dated 22nd September, 2005 issued u/s.351 of the Act was replied by the appellant on 27nd September, 2005. In the reply it was contended that the Room No.15 consists of two rooms, one being main room and the second being covered terrace room. Opening of the said covered terrace room is from Room No.15. The said terrace room was previously covered with galvanized iron sheets and on account of passage of time they were replaced and the appellant had put up mangalorian tiles. 3 It was further contended that the notice was issued on the basis of the frivolous complaint made by Dr.Hitendra Gilitwala, who was in inimical terms with the appellant. 6. Corporation resisted the suit by filing written statement and defended the notice. Appellant examined himself, as also two other witnesses. Corporation did not lead any evidence. On the basis of material on record, the learned trial Judge dismissed the suit. 7. Perusal of the material on record indicates that the appellant himself came out with the case that he had replaced the galvanized iron sheets, which according to him were decayed on account of passage of time. Appellant produced the map at Exh.13. That map clearly records that the terrace should be kept open terrace only. This map was prepared in the year 1992 when the repairs were carried out. The appellant himself admitted the correctness of the Plan in the examination in chief in paragraph No.4. In paragraph No.6 he admitted that there is remark in the said plan that the terrace should be open only. Considering the evidence on record, I do not find that the trial court committed any error while recording the findings in paragraph Nos. 8 and 16 of the impugned judgment. It has also been recorded in paragraph No.16 that the appellant failed to adduce cogent evidence to show that the offending structure existed prior to 1972. Mr.Dave submitted that the Corporation has not issued notice to the landlord which is the mandatory requirement, but has issued notice to the appellant tenant, and the notice therefore is vitiated. I do not find any merit in this submission, having regard to the language employed in Section 351 of the Act. As pointed out earlier, it is the consistent case of the appellant that he had replaced galvanized sheets, which indicates that it is he who carried out the changes. Before carrying out changes, it is not disputed that he did not obtain permission from the Corporation. Under Section 351 notice is to be given to the person who is erecting any building or executing such work as described in section 342, or has erected such building or has executed such work or who is the owner for time being of such building or work. In the present case the appellant himself came out 4 with the case that he had executed the work by replacing the galvanized iron sheets, as according to him they were decayed by passage of time. It was further submitted that the Corporation did not lead any evidence in support of its case that the construction carried out by the appellant was unauthorised. 8. Once the notice is issued u/s.351 of the Act, it is for the person to establish that the structure was authorised. In the instant case, considering the evidence on record, in the light of the map at Exh.13 produced by the appellant, it cannot be said that the construction carried out by the appellant was authorised. Considering the case made out by the appellant himself, I do not find any substance in the submission that since the Respondent Corporation did not lead any evidence, it has to be held that the structure is authorised. 9. Considering the material on record, I find no merit in this appeal. Since the appellant had submitted compilation, I deem it appropriate to dispense with calling for record under Order 41 Rule 11 of the CPC. Appeal is dismissed, with no order as to costs. 10.On the oral application made by the learned counsel for the appellant, order of status-quo granted by this Court shall remain operative for the period of eight weeks from today. Civil application No.2026 of 2010 In view of disposal of the first appeal itself, no orders are necessary in the Civil Application No.2026/2010. Civil Application No.2026/2010 stands dismissed. (R.G.KETKAR, J.)