1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.48 OF 2009 IN CIVIL APPLICATION NO.62 OF 2009 M/s.Kailash Parbat Hindu Hotel & anr. ..Appellants V/s The Municipal Corporation of Greater Mumbai ..Respondents & ors Mr.A.A.Kumbhakoni with Mr.Yadunath Chaudhari, for the appellants Smt.K.K.Soraan, Advocate, for the respondent No.1 – MCGM Mr.Shiraz Rustomjee a/w.Ms.Prembhari Thakkar and Ms.Shoma Maitra i/b.M/s.Desai Desai Carrimjee and Mulla, for the respondent No.3 CORAM : R.M.SAVANT, J. DATE : 17TH MARCH, 2009 P.C. . This appeal takes exception to the Order dated 17th December, 2008, passed by the learned Judge of the City Civil Court by which order Notice of Motions Exhibit Nos.2 & 7 filed by the appellants/plaintiffs came to be dismissed. 2 2. The factual matrix involved in the above Appeal is as under:- The plot in question in the suit filed by the appellants/plaintiffs is C.T.S.No.359 which was originally comprising of tin shed. The suit property came to be acquired by the SLAO by Award dated 16th May, 1974 passed under Section 11 of the Land Acquisition Act. Along with the said plot, C.T.S.Nos.337 and 358 which were also owned by one James Hallowaen were acquired. The said plots have been reserved for the purpose of a re-creation ground in the sanctioned Development Plan of the concerned ward. At the relevant time when the said plot was acquired, there was a tin shed admeasuring 29' x 107' x 10' feet constructed by one Ranbaria Singh, who was a tenant of the said James Hallowaen. It appears that the said structure was sublet by Ranbaria Singh to the plaintiff No.2. The plaintiff No.2 is one of the partners of the plaintiff No.1 – Firm which carries on business of Hotelling. The plaintiffs have their kitchen on the said suit plot. 3. After acquisition of the three plots viz. C.T.S.Nos.337, 358 3 and 359, the defendant No.2 – Mumbai Municipal Corporation instead of developing the said plots into a re-creation ground, handed over C.T.S.No.359 to the plaintiff No.2 on Leave and License basis on monthly fees of Rs.1,91,080/-. The said premises were given on Leave and License basis by an Agreement known as “Agreement of Tenament” dated 13th April, 1987. The said Agreement reserved the right of the Mumbai Municipal Corporation to terminate the Leave and License at any time by giving one week's prior notice in writing. The record discloses that the plaintiffs also gave an Undertaking which was also of the same date by which Undertaking, the plaintiffs agreed to vacate the suit premises and to handover its vacant and peaceful possession to Mumbai Municipal Corporation as and when required for development upon service of three days notice in writing. The Undertaking states the plaintiff No.2 would vacate the aforesaid premises as and when required by the Mumbai Municipal Corporation for development purpose without claiming any compensation, loss of business and alternate accommodation. It appears that the plaintiffs being in the Hotelling business, they were issued License under Section 394 of the Mumbai Municipal Corporation Act. Over a period 4 of time, the structure of tin shed which was there at the time of acquisition of the said C.T.S.No.359 has been converted into a brick masonry structure consisting of ground plus upper floor. It appears that on the basis of a complaint made by the residents of the locality, the defendant – Mumbai Municipal Corporation had issued Show Cause Notice dated 20th October, 2006, for revocation of the said License. This resulted into filing of Suit No.4836 of 2006 by the plaintiffs. In the said suit, the City Civil Court in the Notice of Motion moved by the plaintiffs restrained the Mumbai Municipal Corporation from taking any action on the basis of Show Cause Notice dated 20th November, 2006. The said proceedings were thereafter pending. 4. An important aspect which has a bearing on the issue raised in the above Appeal from Order is that the the respondent No.3 - Association had filed Writ Petition No.53 of 2007 in this Court. In the said Writ Petition No.53 of 2007, an order came to be passed on 28th January, 2008, directing the Mumbai Municipal Corporation to consider two issues namely disposal of the application for renewal of license as well as application for revocation and since the property 5 was reserved for a re-creation ground, the parties should be heard on the effect of such reservation by the Competent Authority of the Corporation. 5. It appears that pursuant to the said Order dated 21st August, 2008, passed by the Division Bench, the competent Authority of the defendant – Mumbai Municipal Corporation i. e. the Assistant Municipal Commissioner had issued notice and fixed the hearing on 4th April, 2008, when the representatives of the plaintiffs and the representatives of the respondent No.3 – Association were present before the said officer. The Assistant Municipal Commissioner passed a preliminary order in May, 2008, directing “production of documents and an inspection of the premises by the Health Officer, A Ward and the Deputy Chief Fire Officer. Thereafter, the second hearing was kept on 21st May, 2008 by the said Assistant Municipal Commissioner and ultimately an order came to be passed by the Assistant Municipal Commissioner on 19th July, 2008, by affording opportunity to all the parties. The gist of the final order of the Assistant Municipal Commissioner was that the plots in question 6 should be developed as an RG as they had been acquired for that purpose. The residents of the area did not have any other developed RG/PG nearby. The Assistant Municipal Commissioner observed that the appellants/plaintiffs have committed various breaches of the License and were not following essential safety measures. The Assistant Municipal Commissioner further observed that the appellants/plaintiffs had carried out unauthorized and illegal construction on the plot. The Assistant Municipal Commissioner, therefore, directed that notice to vacate the premises as per the Undertaking given be issued and the Leave and License Agreement be terminated and Section 394 License be revoked. 6. The plaintiffs, thereafter, filed Long Cause Suit No.1905 of 2008 in the City Civil Court challenging the said Order dated 19th July, 2008. The challenge in the said suit was as regards both to the termination of the License granted under Section 394 as well as the direction regarding eviction from the suit premises. The Notice of Motion filed in the said suit was moved for ad-interim relief on 13th August, 2008, when the ad-interim reliefs were refused but the parties 7 were directed to maintain status-quo until 29th August, 2008. 7. Against the refusal of the ad-interim reliefs, the appellants/plaintiffs filed Appeal from Order No.868 of 2008 in this Court challenging the Order dated 13th August, 2008, passed by the learned Judge of the City Civil Court refusing the ad-interim relief. In the grounds of challenge in the Appeal from Order, the grounds qua eviction as well as the revocation of the License under Section 394 were incorporated. In the Ground (f) of the Appeal from Order, it is specifically contended that Section 105B of the Mumbai Municipal Corporation Act had not been complied with. The said Appeal from Order was heard by a learned Single Judge of this Court and by Order dated 8th September, 2008, the said Appeal from Order came to be dismissed. The said order took into consideration the notice dated 4th August, 2008, issued by the Mumbai Municipal Corporation to the appellants/plaintiffs refusing to renew and revoke the License issued under Section 394 on account of breach of the conditions as also the notice dated 5th September, 2008, calling upon the appellants/plaintiffs to vacate the premises within a period of seven 8 days as per it's Undertaking. In spite of the said notice dated 5th September, 2008, being a subject matter of the Suit No.1905 of 2008, the appellants/plaintiffs filed a Suit being Suit(L) No.2819 of 2008, in this Court challenging the eviction notice dated 5th September, 2008, on the ground that Section 105B of the Mumbai Municipal Corporation Act had not been complied with. The said suit, thereafter, was withdrawn stating that the plaintiffs would amend the plaint in the suit filed by them in the City Civil Court being Long Cause Suit No.1905 of 2008. The plaintiffs, thereafter, filed Chamber Summons for amendment of the said Long Cause Suit No.1905 of 2008 so as to incorporate a challenge to the vacation notice dated 5th September, 1998. The Chamber Summons was allowed by the City Civil Court pursuant to which the amendments were carried out in the plaint. 8. The plaintiffs, thereafter, filed Notice of Motion Exhibit No.7 in the said suit seeking an injunction in respect of the notice dated 5th September, 2008. The respondent No.3 - Association herein filed an application for impleadment which came to be allowed by Order dated 1st October, 2008, and the respondent No.3 was accordingly 9 impleaded as defendant No.3 in the said suit. The plaintiffs filed Writ Petition No.6856 of 2008, challenging the order directing impleadment of the respondent No.3 herein which was dismissed by this Court by Order dated 17th October, 2008. The said Notice of Motion Exhibit No.7 was heard by the City Civil Court and by the impugned Order dated 17th December, 2008, both the Notice of Motions Exhibit Nos.2 and 7 came to be dismissed. The Trial Court took into consideration the fact that the plot in question was reserved for a re-creation ground which was seen from the Development Plan produced by the Mumbai Municipal Corporation. The Trial Court also took into consideration the fact that the appellant No.2/plaintiff No.2 had given an Undertaking on 13th April, 1987. The relevant extract of the Undertaking being as under :- “I also hereby agree to vacate the said tenament and handover vacant and peaceful possession of the same to the Corporation as and when the same is required by the Corporation for any development without claiming any compensation, loss of business etc. and also without alternate accommodation in lieu of said premises from the Corporation on receipt of 7 days notice in writing from the Municipal Commissioner or any other office authorized on that behalf.” The Trial Court was, therefore, of the view that the Mumbai Municipal 10 Corporation has rightly called upon the appellants/plaintiffs to vacate the suit premises in terms of the said Undertaking and it was not fair on the part of the appellants/plaintiffs to call upon the Mumbai Municipal Corporation to follow the procedure prescribed under Section 105B of the Mumbai Municipal Corporation Act. The Trial Court also took into consideration the fact that since the Mumbai Municipal Corporation now wants to develop the said plot as re- creation ground in terms of the Development Plan, the appellants/plaintiffs would have to abide by the said Undertaking given by them. The Trial Court also took into consideration the fact that though at the time of acquisition there was only a tin shed, at present the suit premises consists of ground + upper floor, the appellants/plaintiffs had not produced any document to show that they have obtained permission of the concerned Authority for construction of the said structure. 9. On behalf of the appellants/plaintiffs the principal contention of the learned counsel Mr. A. A. Kumbhakoni is that the case of the appellants/plaintiffs squarely falls within the provisions of Section 11 105B of the Mumbai Municipal Corporation Act and hence, the appellants/plaintiffs cannot be ousted from the premises without following the procedure prescribed by the said provision. The learned counsel submitted that continuance of the appellants/plaintiffs in the teeth of the termination of the Leave and License Agreement would amount to the appellants/plaintiffs at the highest occupying the premises unauthorizedly but they cannot be ousted without the Mumbai Municipal Corporation following the due procedure of law and in the instant case the provisions of Section 105B of the Mumbai Municipal Corporation Act and since the said procedure has not been followed the eviction is illegal. 10. Per contra, it is submitted on behalf of the respondent No.3 - Association that in view of the Undertaking given by the appellants/plaintiffs dated 13th April, 1987, Section 105B is not attracted at all. In the alternative, it is contended by the learned counsel for the respondent No.3 – Association submitted that in view of the hearing granted by the Assistant Municipal Commissioner pursuant to the Order passed by a Division Bench of this Court dated 12 28th January, 2008, which hearing was in respect of the renewal/revocation of the License, as also as regards the plot being reserved for a re-creation ground, there is substantial compliance of Section 105B of the said Act. The learned counsel for the respondent No.3 – Association further submitted that at the time when the appellants/plaintiffs gave the said Undertaking on 17th April, 1987, Section 105B was very much on the statute book and in spite of the same the plaintiffs had agreed to a notice of quit of only seven days and therefore, according to the learned counsel for the respondent No.3 - Association, the appellants/plaintiffs have deemed to have waived their right, if any, under Section 105B of the Mumbai Municipal Corporation Act. The learned counsel for the respondent No.3 – Association lastly submitted that the appellants/plaintiffs in view of the Order passed in Appeal from Order No.868 of 2008 wherein this issue of the Mumbai Municipal Corporation being required to follow Section 105B was specifically taken, in view of the dismissal of the Appeal from Order, the said issue is deemed to have been rejected by this Court and therefore, now the appellants/plaintiffs are estopped from raising the said issue again. The learned counsel for the respondent 13 No.1 – Corporation adopted the submissions of the learned counsel for the respondent No.3 11. I have heard the learned counsel for the parties. It would be pertinent to note that the appellants/plaintiffs have in terms at the time of entering into the Agreement of Leave and License given an Undertaking, the Clause of which has been reproduced earlier in this order. The appellants/plaintiffs knowing fully and being well aware that the said plot was reserved for a re-creation ground had assured the Mumbai Municipal Corporation that they would handover possession of the said plot whenever called upon by the Mumbai Municipal Corporation without claiming any compensation and alternate accommodation. In the teeth of the said Undertaking, in my view, it does not befit the appellants/plaintiffs to contend that assuming that their possession is unauthorized after the termination of the License and notice to vacate the Mumbai Municipal Corporation is obliged to follow Section 105B of the said Act. The issue can be looked at from another angle. A reading of Section 105B of the MMC Acts discloses that it embodies the principles of natural justice, the procedure prescribed thereunder contemplates notices, hearing and 14 order to be passed by the Corporation. In the instant case, by virtue of the order passed in Writ Petition No.53 of 2007 the directions were given to the Mumbai Municipal Corporation to hear the concerned parties and thereafter, pass appropriate orders. The hearing before the Assistant Commissioner was as regards the two issues i.e.renewal of the license, revocation of the license and the aspect that the plot in question was reserved for re-creation ground. Before the Assistant Commissioner the parties were represented. The Assistant Commissioner followed an elaborate procedure. The proceedings before the Assistant Commissioner went on almost for a period of about three months. In my view, therefore, there is compliance of the principles of natural justice, the plaintiffs having been heard in respect of the eviction cannot now be heard to say that the provisions of Section 105B ought to be followed and therefore, the said contention of the plaintiffs is without any merit. 12. It would be significant to note that the plaintiffs did not raise the said issue of Section 105B before the Assistant Commissioner. The Minutes of the meeting before the Assistant Commissioner 15 disclose the various contentions that were raised by the appellants/plaintiffs. However, the issue of Section 105B does not find a place there. The plaintiffs having not raised the issue before the Competent Authority are now seeking to raise the said issue only because the proceedings before the said officer have gone against them and the order of eviction calling upon the appellants/plaintiffs to vacate the premises has been passed against them. In my view, therefore, the appellants/plaintiffs are now dis entitled to raise the said issue. 13. The conduct of the plaintiffs would also have to be taken into consideration whilst considering whether they are entitled to the discretionary relief. The appellants/plaintiffs had filed the suit being Long Cause Suit No.1905 of 2008, challenging the Order dated 19th July, 2008, passed by the Assistant Municipal Commissioner both with regard to the eviction as also termination of the License granted to the plaintiffs under Section 394 of the Mumbai Municipal Corporation Act. In the Notice of Motion filed by the plaintiffs the relief claimed was to restrain the Mumbai Municipal Corporation from acting 16 pursuant to the Assistant Municipal Commissioner's Order dated 19th July, 2008, in respect of eviction as well as termination of the License under Section 394 of the Mumbai Municipal Corporation Act. As indicated above, the ad-interim reliefs were refused to the plaintiffs, against which an Appeal from Order No.868 of 2008, came to be filed which also came to be rejected and therefore, the reliefs qua the eviction as well as termination of License stood rejected. However, on receipt of the notice dated 5th September, 2008, which was only consequential to the said Order dated 19th July, 2008 asking the appellants/plaintiffs to vacate the premises within a period of seven days, the appellants/plaintiffs filed the Suit (L) No.2819 of 2008 in this Court challenging the said eviction notice and thereafter, have withdrawn the said suit to raise a challenge to the said notice in the pending suit being Long Cause Suit No.1905 of 2008. Thereafter, the appellants/plaintiffs have amended the plaint and filed the Notice of Motion Exhibit No.7 claiming the relief of injunction against the eviction. In the teeth of the rejection of the ad-interim reliefs in the Notice of Motion Exhibit No.2 and confirmation of the same by this Court in the Appeal from Order, in my view, the appellants/plaintiffs 17 were not entitled to file the proceedings challenging the notice dated 5th September, 2008, which was only consequential to the Order passed by the Assistant Commissioner dated 19th July, 2008. It would also be significant to note that the appellants/plaintiffs have filed Municipal Appeal No.79 of 2008 in the Small Causes Court challenging the notices dated 20th October, 2006 and 12th September, 2008, for revocation of the License under Section 394. This is in teeth of the fact that the notice dated 20th October, 2006, had become irrelevant in view of the fact that the License had expired in December, 2006. In so far as the notice dated 12th September, 2008 is concerned, the said notice was in continuation of the notice dated 4th August, 2008. It, therefore, appears from the aforesaid facts that the plaintiffs want to perpetuate their possession over the suit plot by filing proceedings after proceedings so that the interim orders are continued and the plaintiffs continue their possession though they have no semblance of right. 14. It would also be significant to note that the plot in question has been reserved in the Development Plan as a re-creation ground, 18 the total reservation is to the extent of 20996.96 Square Feet comprising of nine plots. Out of the nine plots, three plots have been acquired in view of the purchase notice given by the owner of the said three plots totally admeasuring 9201 Square Feet. The plaintiffs, therefore, cannot be heard to say that evicting the plaintiffs from C.T.S.No.359 would survive no purpose. In my view, an area 9201 Square Feet comprising of CTS Nos.337, 358 and 359 amounts to almost 35% of the original reservation and since the Mumbai Municipal Corporation now desires to implement the reservation, in my view, looking to the provisions of the M.R.T.P.Act, the Mumbai Municipal Corporation is in fact obliged to do so. In my view, the local residents of the area, who are represented by the respondent No.3 – Association have also a stake in the said reservation. A useful reference could be made to the Judgment of the Apex Court reported in (1974) 2 Supreme Court Cases 506 in the matter of SRI K. RAMADAS SHENOY Versus THE CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL, UDIPI AND OTHERS. Paragraph 28 of the said Judgment is relevant and is reproduced herein under :- “An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons 19 residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.” It is laid down in the said Judgment that the Scheme is for the benefit of the residents of the locality and that the Municipality has to act in aid of the Scheme. In the instant case, though, the plots have been acquired as long back as in the year 1974 for the purpose for which they have been reserved in the development plan, the plaintiffs have been allowed to use the said plot which they are using for their kitchen in complete disregard to the Development Plan. 15. Having considered the impugned order passed by the Trial Court and in the conspectus of facts, as mentioned here inabove in my view, no interference is called for with the impugned order. The above Appeal from Order is accordingly dismissed. 20 16. In view of the dismissal of the Appeal from Order, Civil Application does not survive and the same is accordingly disposed of. 17. The order of status-quo which is operating till today to continue for a period of four weeks. (R.M.SAVANT, J.)