1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1257 OF 2010 WITH CIVIL APPLICATION NO.3286 OF 2010 Anil Rameshwar Chauhan & Ors. .. Appellants. Vs. The Municipal Corporation of Greater Bombay and Anr. .. Respondents. Mr.Harish Shivdasani for the appellants. Mr.J.J.Xavier with Mr.Vinod Mahadik for the respondents. CORAM : D.B.BHOSALE, J. DATED : 11/10/2010. PC: 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment and order dated 8.7.2010 passed by the City Civil Court dismissing a suit filed by the appellants being L.C. Suit No.3789 of 2002. The suit was filed for declaration that the notice under section 351 of the Mumbai Municipal Corporation Act dated 6.7.2002 and the order dated 2.8.2002 passed by the Asst. Municipal Commissioner, G/North Ward so also the notice under section 488 dated 10.8.2002 are illegal and bad in law. The appellants-plaintiffs have also prayed for injunction restraining the defendant-corporation from demolishing and/or pulling down the suit premises. S 2 3. The suit premises as mentioned in the notice under section 351 is room No.18, Joshiwadi, Bhagat Lane, Mahim, Mumbai 400 016 (for short “the suit structure”). Learned counsel for the appellants fairly submitted that though room number is wrongly mentioned as 18, the address mentioned on the notice is correct. He submitted that the correct room number is 224. The appellants have also admitted that they received the impugned notice on the address of the suit structure. The suit structure is a tin structure admeasuring 21’ X 9’. 4. Learned counsel for the appellants has placed almost all relevant material/evidence on record alongwith the memo of appeal. On last occasion at the request of learned counsel for the parties, the record and proceedings was also called for. I have perused the record with the assistance of learned counsel for the parties. It is pertinent to note that none of the documents relied upon by the appellants is either proved by the appellants or exhibited by the learned Judge in the course of trial. Still, in order to give fair opportunity to the counsel for the appellants, with his assistance I have examined the documents placed on record with the appeal. I find that the address given on most of the documents do not tally with the admitted address of the suit structure. Learned counsel for the appellants placed heavy reliance upon one post-card which was allegedly received by the father of the 3 appellants - Rameshwar Chauhan on 18.9.1958. This letter, according to the appellants, was sent on the address of the suit structure to father of the appellants. It is pertinent to note that this letter has also been not proved by the appellants nor exhibited by the court below. In order to find out whether any reference is made to this letter in the affidavit of evidence filed by the appellants, I have gone through the evidence of the appellants. I do not find reference of whatsoever nature is made to this letter in the affidavit of evidence. Even the address mentioned on the letter does not tally with the admitted address on the impugned notice. The appellants in support of his case examined one witness, Smt.Savita Gangaram Darji – P.W.2. In her cross examination she has stated thus: “1. I have not received summons from the court today. I am called by the plaintiff to give evidence. I do not know what is written in my affidavit. I know plaintiff since last 20-25 years. His father was already residing before I started residing near him. The hut of the plaintiff is a temporary structure. About 4 to 5 persons reside in the suit structure. I do not know when plaintiff raised the hut. I do not know whether plaintiff is the owner of the structure or he is tenant. The hut of the plaintiff was once demolished by the Municipal Corporation. He reconstructed it. It is not true to say that I am deposing falsely as plaintiff is my neighbor.” 4 Apart from this evidence, the appellants also placed reliance upon one agreement dated 27.1.1959. This agreement is also not proved by the appellants nor have they placed original on record. The trial Court has not exhibited the said documents. The address mentioned on this document also does not tally with the admitted address of the suit structure. Apart from this the appellants have not produced any evidence on record to show that the suit structure is either authorised and/or in existence since prior to 1.4.1964. 5. The respondent-corporation has filed written statement giving history of the suit structure. In paragraph 4(a) and 4(b) thereof the corporation has stated thus: “4(a) These defendants say and submit that there is a suit being L.C.Suit No.3851 of 1996 filed by one Mr.Hansraj Ramji Ravji & Anr. V/s. Mahesh Kalyanji Ramji and Anr. Wherein Corporation is not a party in the Hon’ble High Court. With respect to the above suit, the Court Receiver High Court, Bombay has been appointed as Receiver of the immovable property known as Ramdev formerly known as Joshi Wadi situated at the junction of T.K.Marg & Bhagat Galli, Matunga (W), Bombay and the Court Receiver appointed Shri P.A.Rane as the Rent Controller. In the above matter the Court Receiver had filed the report and sought directions for the plaintiff to take 5 appropriate legal proceedings against the unauthorised occupants of the suit property. In view of the aforesaid His Lordship Mr.Justice R.J.Kochar, J., on 10.7.2001 on the request of both the Ld. Counsels for the parties directed the Court Receiver to request B.M.C. To remove the unauthorised construction. These defendants say and submit that the Court Receiver again filed a report on 10.6.2002 in the Hon’ble High Court stating that corporation is not taking any action despite several letters written by the Court Receiver. In view of the aforesaid His Lordship Mr.Justice F.I.Rebello, J., on 3.7.2002 observed that the failure on the account of Corporation to take steps amounts to obstruction of justice. In fact in view of the aforesaid directions the officers of the Defendants made a statement in the Hon’ble High Court that the entire procedure will be completed and orders according to law will be passed on or before 23.8.2002. These Defendants crave leave to refer to and rely upon the orders of the Hon’ble court and the Court Receiver’s report dated 10.6.2002. (b) These defendants say and submit that the site was inspected by the officer of the defendants Shri Rane, Rent Collector on 22.3.2002 and 4.4.2002 and a list of unauthorised construction was prepared by the said Rent Collector. These Defendants crave leave to refer to and rely upon both the inspection reports and the list of unauthorised occupants as and when produced.” 6 6. From bare perusal of contents of the written statement it is clear that the suit structure was unauthorised, apart from the fact that the appellants have miserably failed to bring any material on record to show that the suit structure was authorised and/or was in existence since prior to 1.4.1964. In my opinion, this is a case of no evidence. In the circumstances the appeal fails and dismissed as such. Consequently, civil application is also disposed of. (D.B.Bhosale, J.)