IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.354 of 2009. FIRST APPEAL NO.354 of 2009. FIRST APPEAL NO.354 of 2009. Kalimuddin Abdul Hussain Master ..Appellant/s versus Municipal Corporation of Gr. Bombay & Others ..Respondent/s Mr. Shailesh Shah for the appellant Mr.Xavier for the respondent CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th April, 2009. DATED : 6th April, 2009. DATED : 6th April, 2009. P.C. 1. Heard Senior Counsel Mr. Shailesh Shah for the appellant and Mr.Xavier for the respondent. 2. After issuance of notice under Section 351 dated 26.12.1994 in regard to unauthorised construction shown in the sketch admeasuring 7ft & odd x 6 ft & odd, the Deputy Municipal Commissioner passed an Order dated 21.3.1998, thereby holding that the impugned structure is unauthorised. That order became the subject matter of suit before the learned Judge City Civil Court in Suit No.856 of 1999. The appellant herein had full opportunity to place his case before the learned trial Judge and before the Deputy Municipal Commissioner or even to -2- show that the impugned structure existed prior to datum line i.e. in the year 1962. 3. Two witnesses were sought to be placed before the Court by way of oral testimony to show and prove the existence of the suit structure. 4. After having heard counsels on both the sides, I am inclined to observe that the Deputy Municipal Commissioner as well as the learned trial Judge have taken correct view of the matter. The impugned notice under Section 351 of the Mumbai Municipal Corporation Act indicated the description of the structure as unauthorised extension of the shop above mezzanine floor. The sketch on the reverse clearly shows that there exists ground floor and something in the nature of mezzanine floor on it and according to the Corporation new structure was constructed so as to form part and parcel of the structure which was in existing on the first floor and that was treated as unauthorised. In reply to the notice under Section 351 the appellant has admitted that the structure earlier was wooden structure and it was converted into steel girder and plastering was done. This was sought to be argued without producing any -3- photograph of the earlier structure or the after the new structure was brought into existence. Nothing was placed before the Court to show that the replacement of steel girder was done with the permission of the Corporation. Before the Deputy Municipal Commissioner no document was placed to show that the structure was prior to the datum line. My attention was drawn to the Order of the Deputy Municipal Commissioner where some reference is made about the relevant description in the impugned Notice under Section 351. Be that as it may, the sketch on the reverse of the notice under Section 351 gave complete idea to the appellant as to what was been alleged as unauthorised. If that is so, primarily it was for the appellant to show that the structure was in existence prior to the datum line. Apart from it, it had been open for the appellant to show photograph of the structure as was prior to the changing by steel girder and plastering. That has not been done. The oral testimony of the two witnesses, if perused would clearly go to show that the evidence of those two persons cannot be appreciated in favour of the appellant as much as in view of the existence of the structure prior to the datum line should be primarily proved by documents. Mere oral testimony -4- of certain persons in favour of such person cannot form basis to hold in favour of the appellant. . After hearing the counsels on both the sides, I am inclined to observe that the learned Judge, City Civil Court has arrived at proper conclusion and no interference is required. Hence, I pass the following Order. ORDER . Appeal is dismissed at the stage of admission. Protection which is granted to the impugned structure shall continue till 4.5.2009. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)