1 caf669 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.669 OF 2011 IN FIRST APPEAL NO.1137 OF 2002 Mukesh Shankar Purav ...Applicant vs. Municipal Corporation of Greater Bombay ...Respondent Mr.P.G.Lad for the applicant Mr.A.Y.Sakhare, Sr.Counsel with Mr.Vinod Mahadik for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 5, 2011 P.C.: 1 Heard learned counsel for the applicant and the learned senior counsel for the respondent. The applicant is the appellant in the First Appeal. On 19 th August 2009, First Appeal was admitted. Interim relief was granted by this Court in the Appeal. A suit was filed by the appellant/applicant for challenging the notice and an order under section 351 of the Mumbai Municipal Corporation Act,1888 (hereinafter referred to as the said Act). The suit was dismissed and therefore, appeal was preferred. During the pendency of the Appeal, prayer clause (a) of the Civil Application no.3322 of 2002 was granted. Prayer clause (a) reads thus: (a)that pending the hearing and final disposal of the above appeal the operation 2 caf669 of order dated 29 th June 2002 be stayed and the Respondents their servants and agents be restrained by an order and injunction of this Hon ble Court from in any manner acting in furtherance of notice under section 351 dated 8 th January 1994 and the Deputy Municipal Commissioner s Order dated 12 th March 1994. 2 The allegation in this application is that in breach of the said order, structures described as I,J and K more particularly shown on the sketch on the reverse side of the notice dated 8 th January 1994 have been demolished by the respondent-Corporation. It is contended that the respondent-Corporation has committed gross breach of the order of injunction. It must be noted here that a contempt petition was filed by the applicant. Contempt petition has been disposed of. However, liberty was granted to the appellant to take out the present application while disposing of the contempt petition. Prayer in this application is for directing the respondent- Corporation to re-construct the structures described by letters I,J and K. There are two affidavits filed by the respondents. In the first affidavit of Mr.Sadanand Pandurang Chorge, Sub Engineer, it is contended that no breach has been committed. To the said affidavit, a photo copy of the notice dated 8 th January 1994 has been annexed. On the reverse side of the said notice, there is a sketch of the alleged unauthorized construction. It is pointed out that the structures marked as I,J. And K are not shown on the plan on the reverse side of the notice and 3 caf669 therefore, there was no injunction granted in respect of the said structures. 3 During the course of hearing of this application on 25 th March 2011, following order was passed : 1 Heard the learned counsel appearing for the applicant and the learned counsel appearing for the respondent-B.M.C. The applicant and the Assistant Commissioner G/South ward will take joint inspection of the site within a period of two weeks from today and will ascertain whether the structures which are described in the notice which is subject matter of challenge in Suit no.1170 of 1994 are in existence as of today. 4 Accordingly, Assistant Engineer, G/South Ward has filed a report. In the said report, it is stated that all structures shown on the sketch annexed to notice dated 8 th January 1994 are found to be in existence. A true copy of the notice dated 8 th January 1994 has been annexed to the report. The sketch on the reverse side of the notice does not show the existence of structures marked I, J and K. When the application was heard on 6 th May 2011, this Court passed the following order : 1 This application was heard yesterday for some time. The case made out by the applicant is that a notice dated 8 th January 1994 bearing No.G-II/101/BF-1994-95 issued 4 caf669 under Section 351 of the Mumbai Municipal Corporation Act,1888 (hereinafter referred to as the said Act) shows the structures marked by the letters I , J and K apart from other structures. The allegation in the Application is that in violation of the order of injunction passed by this Court, the structures marked by letters I,J and K have been illegally demolished by the Respondent-Corporation. Learned counsel appearing for the applicant produced on record for perusal of the Court the original notice which has been laminated. According to the learned Counsel appearing for the Applicant, after the disposal of the suit, the Applicant has taken back the said document. The said document is marked as Exhibit-K. Learned counsel appearing for the Applicant also invited attention of the Court to a rubber stamp of the Sheristedar of the City Civil Court appearing on the said original notice in which Suit no.1170 of 1994 has been mentioned and the document is numbered as Exhibit-8. 2 In terms of the order passed by this Court, the Assistant Commissioner, G/South Ward has submitted a report dated 19 th April 2011. A photocopy of the same notice dated 8 th January 1994 bearing No. GII/101/BF-1994-95 has been annexed to the said report at Pages 35 and 36. The original notice tendered across the bar by 5 caf669 the learned counsel appearing for the Applicant has a sketch showing existence of the structures marked by letters F,G,H,I,J and K. However, on a copy of the same notice annexed to the report of the Assistant Commissioner, in the sketch the structures marked by letters G,H,I J and K are missing. The report records that no part of the notice structures has been demolished in as much as structures marked by letters I,J and K are not shown on the notice. The original notice tendered by the learned counsel appearing for the Applicant which is marked as Exhibit-K and numbered as Exhibit-8 by the Trial Court is taken on record. The said notice shall be kept in a sealed envelope with the Registrar (Judicial-I). 3 Yesterday, the file of the Mumbai Municipal Corporation was produced for perusal of this Court. Perusal of the file shows that there are two photocopies of the same notice in the file. On one of the photocopies, the structures by letters F,G,H,I,J and K are shown and the said photocopy is in conformity with the original tendered by the Applicant. In another photocopy, the said structures are not shown on the map. Today, learned counsel appearing for the Mumbai Municipal Corporation on instructions states that the original notice did not show the structures 6 caf669 marked by the letters F,G,H,I,J and K on the sketch on the reverse side of the notice and the sketch showed only the structures marked by letters A,B,C,D and E. He states that an affidavit to that effect of the concerned officer will be filed in this Court on or before 13 th June 2011. In short, on instructions, the learned counsel appearing for the Mumbai Municipal Corporation states that the notice produced by the Applicant which is taken on record is not a genuine document. 4 It must be stated here that in the examination-in-chief before the Trial Court the Applicant has made a reference to structures marked by letters A to K. 5 Thereafter, aforesaid affidavit dated 8 th June 2011 was filed. There is earlier affidavit of Mr.Anil C. Mistry, Sub Engineer dated 21 st April 2011. Same contention was raised in the said affidavit-in-reply. 6 The learned counsel for the appellant pointed out that original notice dated 8 th January 1994 issued under section 351 of the said Act was produced before the Trial Court in evidence and was marked as Exh.8. The said original notice has been produced by the applicant before this Court which was ordered to be kept in a sealed envelope in the custody of Registrar (Judicial-I). 7 caf669 7 Interim relief which was granted by this Court on 9 th August 2007 was for restraining the respondent from demolishing the structure on the basis of the notice dated 8 th January 1994 and order dated 12 th March 1994. 8 The controversy raised by the respondent is that the structures marked as I, J and K were not shown in the sketch on the reverse side of the notice dated 8 th January 1994 and therefore, there was no interim injunction granted by this Court as regards the structures marked as I, J and K. The learned senior counsel for the respondent stated that on the copy of the said notice on record of the respondent, the structures marked as I, J and K have not been shown. He submitted that the issue regarding genuineness of the notice dated 8 th January 1994 produced by the applicant will have to be decided and therefore, unless there is a proper adjudication in that behalf, the relief of reconstruction cannot be granted. 9 I have carefully considered the submissions. I have perused the notice dated 8 th January 1994 at Exh.8 which is produced in the evidence before the Trial Court. The allegation in the notice is that unauthorized construction as shown in the sketch on the reverse side of the notice has been carried out. In the said sketch, structures marked by letters A to K have been shown. The applicant relied upon the said notice in his examination-in-chief. Even a suggestion was not given in the cross examination of the applicant that the said notice 8 caf669 was not genuine. The respondent examined one Sadanand Pandurang Chorge, Junior Engineer. In the examination-in-chief, he stated that he himself prepared the noticed dated 8 th January 1994 which was at Exh.8. He specifically stated that on the reverse side of the notice, there was a sketch drawn by him and the sketch depicts unauthorized construction of sheds marked as A to K. The same person has filed an Affidavit dated 8 th July 2011 taking up a stand that the said three structures were not shown in the sketch. Considering his deposition, at this stage, it is very difficult to accept the contention of the respondent that the structures I,J and K have not been shown on the notice dated 8 th January 1994. Affidavit filed by the said Sadanand Chorghe is completely contrary to what has been stated in his evidence before the Trial Court. As recorded earlier, in the file produced by the respondent before this Court, there are photo copies of the said notice dated 8 th January 1994. On the reverse side of one photo copy of notice, there is a sketch showing structures marked by I,J and K. However, on another photo copy, the said structures have not been shown. There is a very strong prima facie evidence to show that the structures marked by letters I,J and K were subject matter of the notice in respect of which injunction has been granted. Admittedly, now the said three structures I,J and K are not in existence and same have been demolished. Thus, the action of demolition appears to be contrary to the interim order operating in the appeal. 9 caf669 10 Issue of legality and validity of the structures is to be decided at the time of final hearing of the Appeal. The appeal will remain pending for a long time considering the pendency of very old appeals. Therefore, considering the aforesaid aspects, a permission will have to be granted to the applicant to re-erect the structures marked as I,J and K subject to final order in the Appeal. 11 It is made clear that the applicant will erect the structures I,J and K as per the area disclosed in the sketch on the reverse side of the said notice. Reconstruction of the structures shall be made by brick masonry walls. 12 Hence, I pass the following order : i) The applicant is permitted to re-erect the structures shown as I,J and K mentioned in the notice dated 8 th January 1994 at Exh-8 of the same size as shown in the said notice. ii)The reconstructed structures shall be of brick masonry walls and A.C.Sheets iii)The construction shall be carried out at the cost of the applicant. The construction of the structures shall be subject to final outcome of the appeal and no equity shall be created in favour of the applicant by virtue of grant of this permission. iv)The work of reconstruction shall be commenced by giving an advance notice to the concerned Ward Officer of respondent-Corporation. Reconstruction shall be carried out in presence 10 caf669 of the representative of the respondent. v) It is made clear that the issue regarding legality of the structures subject matter of the notice dated 8 th January 1994 has not been finally decided by this Court and the said issue is kept open. vi)The issue whether the respondent has committed a breach of order of injunction is also kept open. vii)The original notice dated 8 th January 1994 which is at Exh.8 on the record of the Trial Court shall continue to be in custody of the Registrar (Judicial-I) which shall be kept in a sealed envelope. viii)Civil application is allowed accordingly. ix)The learned counsel for the respondent prays for stay of operation of this order. Prayer for stay is rejected. JUDGE