1 A.O.720 TO 723/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION A.O.NO.720/2010 WITH C.A.A.911/2010 Mr. N.Rajnikant Appellant Vs. Municipal Corporation of Greater Mumbai Respondent WITH A.O.NO.721/2010 WITH C.A.A. 912/2010 Vishwas Apte Appellant Vs. Municipal Corporation of Gr.Mumbai Respondent WITH A.O.NO.722/2010 WITH C.A.A.913/2010 Jagat Bhora Appellant Vs. Municipal Corporation of Gr.Mumbai Respondent WITH A.O.723/2010 WITH C.A.A.914/2010 M/s Jain Enterprises through its Proprietor Jeenalal Jain Appellant Vs. Municipal Corporation of Gr.Mumbai Respondent Mr.Asit Patel i/b Mr.Sandip Bane for appellant Mr.J.J.Xavier for B.M.C. CORAM- MRS.MRIDULA BHATKAR,J. DATE -13th DECEMBER,2010. 2 A.O.720 TO 723/2010 P.C. Heard finally by consent. 2 The appellants have filed this group of appeals against order dated 9/3/2010 passed by the City Civil Judge,Mumbai rejecting protection to the unauthorised structures i.e. the suit premises in Agra Building, Fort, Mumbai . The said building is 100 years old . The structures are standing on the mezzanine floor which is on the second floor .The Bombay Municipal Corporation i.e. the respondent/original defendantsgave show cause notice of demolition on 7/1/2005 . Pursuant to the said notice the matter was heard by the Assistant Municipal Commissioner and by order dated 22/2/2006 he held the structures in the suit are unauthorised and to be demolished. 3 In the appeal against the rejection of relief of temporary injunction the learned counsel appearing for the appellants submits that the Corporation issued notice dated 7/1/2005 to only two appellants out of four appellants and two were not served with the notice. He further pointed out that the structures were assessed in the year 1997 and under circular of the Corporation dated 15/8/1997 mezzanine floor was protected. The said circular is applicable to these structures and the learned City Civil Judge ought to have taken into account this circular.The Government has adopted policy to regularise the structures existing prior to 1/4/1962 .While answering the query in respect of existence of the structure prior to the detum line i.e. 1.4.1962 he relied on the averments made in paragraph 2 of the 3 A.O.720 TO 723/2010 Regular Civil Suit 695/1597/1992 which was filed in the Small Cause Court at Bombay by Ms.Urmila and Co.Pvt.Ltd.the land lady of Agra building against one Amar Trading Company and others. He submits that in paragraph 2 the concerned plaintiffs have averred about the lease deed dated 20/7/1960 wherein the description of whole mezzanine floor is mentioned which shows that mezzanine floor was in existence prior to the detum line 1/4/1962 . Moreover the learned counsel on the point of non availability of the plans of the building indicating the unauthorised structures he placed reliance on the judgment of the Division Bench of this Court dated 12/7/1999 .Learned counsel for the appellants has submitted that the structures were assessed in the year 1997. 4 The learned counsel appearing for the respondent while assailing the submissions of the appellants highlighted that the impugned structures are not on the mezzanine floor which is described in the paragraph 2 of the Civil Suit no. 694/1597/1992 . The mezzanine floor mentioned in the said suit is of the first floor, however, the impugned structures form a part and parcel of the mezzanine floor of the second floor. The learned counsel produced a file of the impugned structure in Agra Building to show service of the notice on all the appellants. He submits that there is an association of the occupants in the Agra Building and the said association has represented all the occupants before A.M.C. and the hearing was given to the association and the appellants. Learned counsel further submits that as the building is 100 years old so the plans are not available. 4 A.O.720 TO 723/2010 The structures prior to 1/6/1962 are protected. There is nothing on record to show that the structures impugned were in existence prior to the detum line. The ratio in the decision of the Division Bench in Appeal no.715/99 (Ramesh Divecha Vs.Municipal Corporation of Gr.Mumbai) would have helped the appellants as in the said case the building is also 100 years old and it was held that the Corporation should provide certified copy of the plans and give opportunity to the tenant of hearing of the notice u/s 351 of the B.M.C.Act. However, this ruling is not useful to the appellants because there are other documents to show that there was no structure or mezzanine floor on the second floor of the said building in 1962. The averments in paragraph -2 of the plaint of the suit filed by Ms.Urmila and Co. Pvt. Ltd. are sufficient to dislodge the submissions of the learned counsel for the appellants . The structures were assessed in the year 1997 and not earlier. This fact goes against the appellants and therefore when there are other circumstances leading positive inference of non existence of the structures then in the absence of the plan also the structures can be said as unauthorised. In the order Assistant Municipal Commissioner has specifically mentioned that no building plans were approved. The notice was served. The submissions of the appellant regarding non service of the notices are not convincing . The order passed by the Trial Judge reflects proper application of mind and the correct view is taken while deciding that the structures are unauthorised and rejecting temporary injunction. 5 There is no merit in these appeals. 5 A.O.720 TO 723/2010 Learned counsel for the appellants submits that he has given a letter to the Corporation for regularisation of the structures. However, this alone is not sufficient to give any protection to these structures. 6 The appeals are dismissed. No order as to costs. 7 In view of this, the Civil Applications do not survive. 8 Learned counsel for the appellants prays for stay of the order as he wants to challenge the order. 9 Learned counsel for the Corporation has strongly objected . 10 In the interest of justice the order is stayed till 31st January, 2011. MRS.MRIDULA BHATKAR,J. 6 A.O.720 TO 723/2010