1 AO-695-696-697-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 695 OF 2011 WITH CIVIL APPLICATION NO. 936 OF 2011 Asit Mangilal Kundaliya ... Appellant vs. Municipal Corporation of Greater Mumbai. Respondent ALONG WITH APPEAL FROM ORDER NO. 696 OF 2011 WITH CIVIL APPLICATION NO. 937 OF 2011 Umesh Karsandas Chawda ... Appellant vs. Municipal Corporation of Greater Mumbai. Respondent ALONG WITH APPEAL FROM ORDER NO. 697 OF 2011 WITH CIVIL APPLICATION NO. 938 OF 2011 Sunil Bhagwanji Hingu ... Appellant vs. Municipal Corporation of Greater Mumbai. Respondents Mr. R.A.Thorat i/b. P.J.Thorat,Advocate for the appellant Mrs. K.K.Soraan,Advocate for the respondent CORAM: J.H.BHATIA,J. DATE : 20th July, 2011. P.C. 2 AO-695-696-697-11.sxw 1. These three Appeals are preferred by the original plaintiffs against rejection of Notices of Motion taken out by them in their respective suits whereby they had challenged the notice and the order passed under Sec. 351 by the defendants/Respondents for demolition of their respective structures which are allegedly unauthorised. These three structures are shown as Shop Nos.1, 2 and 3 in the campus of Sai Krupa Building situated abutting Manubhai P.Vaidya Marg, Ghatkopar (East). According to the plaintiffs, they are in occupation of these premises for long time as tenants. The plaintiff - Umesh Chawda in A.O.696/2011 claims that the shop No.2, which is in his occupation, is in existence since prior to 1962 and in fact his father was in occupation of the same since before 1962 as a tenant of the original landlord Chandubhai V. Patel and after death of his father, the plaintiff continues to be in possession of the same and carries on business. It appears that the plaintiffs could not produce any document to show that these three shops, which are occupied by these three plaintiffs/appellants, were constructed as per the approved plan. At least, no such material was produced by the plaintiff before the trial Court nor any such document is shown to me. 2. On the other hand, the learned Counsel for the Municipal Corporation has produced the original sanctioned plan which is brought today to the Court by the concerned officer and the said sanctioned plan does not reveal 3 AO-695-696-697-11.sxw existence of these three shops. That plan was approved in 1956 and construction of Sai Krupa Building was made. From this, it appears that Sai Krupa Building itself is in existence since prior to 1962. The question is whether these three disputed shops were also constructed by the owner prior to 1962 or thereafter. 3. Fact remains that all these three plaintiffs are in occupation of these shops as tenants and certainly they are not the persons who had made construction recently. The learned Counsel for the plaintiffs pointed out that on 22.1.1992, the concerned Ward Officer of the Municipal Corporation had given a letter to the shop owners of Seven Star Tailors, Siddhivinayak Dairy and Gokul Enterprises (Giriraj A.C.Works) informing that the repairs carried out by them in their shop Nos. 1, 2 and 3 on plot No.125, Sai Krupa Compound, M.P.Vaidya Marg, Ghatkopar (East) were found to be of a very minor nature during the inspection of the site by the office staff and as the shopkeepers had complied with the requirements of Municipal Corporation, there was no necessity to regularise the same nor the Municipal Corporation intended to initiate any action about those works. This letter indicates that this was the response from the ward officer to a request letter by the occupants of shop Nos. 1, 2 and 3 whereby they had requested for regularization of the repairs carried out by them. This indicates that these three shops must have been in existence for long time before 1994. In 4 AO-695-696-697-11.sxw 1994, the shopkeepers made certain repairs in those shops and the said repairs were found to be of a very minor nature which did not require any permission or regularization. Most important thing is that by the said letter, the Municipal Corporation informed that the Corporation did not intend to initiate any action about the same. In view of these circumstances, it will be necessary to find out whether the structures were in existence even prior to 1962 or 1964 after the datum line. If the structures were raised prior to 1962 or 1964, as the case may be, they will be protected under the law. These aspects need to be examined and scrutinized at the time of trial of the suit. Therefore, the interest of justice requires that these structures should be protected till decision of the suits. 4. Out of the three plaintiffs/appellants, the appellants in A.O. No. 695/2011 and 697/2011 originally do not appear to be in possession of these premises for long time, but Umesh Chawda claims that shop No.2 is in his occupation since the time of his father since prior to 1962. It is possible that the plaintiffs may not have any documents to show when and how these structures were constructed. For this purpose, the original landlord would be in better position to explain the same. 5. Therefore, all these Appeals Nos. 695/2011, 696/2011 and 697/2011 5 AO-695-696-697-11.sxw are hereby allowed. The impugned orders are hereby set aside. The respective Notices of Motion are allowed and the Defendant/Municipal Corporation is hereby restrained from demolishing the said structures on the basis of the impugned notices and the orders passed under Section 351 till decision of the suits. The plaintiffs shall also implead the original and present landlords as defendants so that they may explain the construction of the disputed structures. The defendant/Municipal corporation shall file written statement in all the suits within six weeks and the trial Court shall expedite the hearing and dispose of the suits as early possible and preferably within six months. 6. As the Appeals are finally disposed of, the Civil Applications do not survive and stand disposed of accordingly. (J.H.BHATIA,J.)