IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 759 OF 2010 WITH CIVIL APPLICATION NO. 2061 OF 2010 Ranjeet Harvendra Dutt ..... Appellant Vs. Municipal Corporation of Gr. Bombay & ors.... Respondents Mr. R.A. Thorat with Mr. P.J.Thorat For the appellant Mr. Vinod Mahadik Adv. For the respondent no.1 BMC. Mr. S.K. Jain i/b M/s. S.K. Jain & Asso. For respondent nos.2 and 3. CORAM : R.G. KETKAR, J. DATE : 23nd June, 2010. JUDGMENT : 1. Heard Shri Thorat, learned counsel for the appellant, Shri Mahadik, learned counsel for respondent no.1 and Shri Jain, learned counsel for respondent nos.2 and 3. 2. Admit. Learned counsel for the respondent no.1 and for respondent nos.2 and 3 waive service. By consent of the parties, appeal is taken up for final hearing. 1 3. This appeal is directed against the judgment and decree dated 29-4-2010 passed by the learned 2nd Additional Principal Judge, City Civil Court, Gr. Bombay in Long Cause Suit No. 2827 of 2005. By that judgment, the learned trial Judge dismissed the suit instituted by the appellant. The parties shall hereafter be referred to as per their status before the trial court. The facts and circumstances, giving rise to the present First Appeal, briefly stated are as follows: 4. The plaintiff instituted the present suit for declaration that notice dated 25-4-2005 issued by the defendant under section 351 of the Mumbai Municipal Corporation act, 1888 (for short `Act’) and the order dated 1-7-2005 passed by the Assistant Municipal Commissioner, C-ward of the defendant are illegal, improper, malafide, bad in law and not enforceable against the plaintiff. The plaintiff also prayed for permanent injunction, restraining the defendants, their agents, servants or any one claiming through it from taking any action in pursuance of the said notice dated 25-4-2005 and the order dated 1-7-2005. 5. The plaintiff contended that structure admeasuring 14x7 sq.ft. with B.M. Walls and A.C. Sheet roof with collapsible gate situate at Ground Floor, 26/B, Mumbadevi, Opp. Sabarkantha, Dagina Bazar, 2 Mumbai 400 002 ( for short `premises’) was acquired by him from one Shekhar Chakravarti. The said Chakravarti had executed affidavit dated 15-7-1982 relinquishing all his rights, title, interest and claim in respect of the suit premises in favour of the plaintiff. The landlord issued rent receipts upto 1973 and thereafter refused to accept the rent from said Chakravarti. The plaintiff claimed that he is in possession of ration card, telephone bills and receipt from the defendant no.1 and political parties. Because of the disputes between him and the landlord, the landlord made false complaints to the defendant no.1. 6. The plaintiff further alleged that earlier on 30-6-1995 the defendant no.1 issued notice under sec. 351 of the Act, calling upon him to show cause as to why suit premises should not be demolished. The dimensions in the said notice were wrongly mentioned. It was further alleged that the suit premises is situate at 26/B and not at 26/A. He gave reply to the said notice. Apprehending demolition of the suit premises pursuant to the notice dated 30-6-1995, he had filed L.C. Suit No. 5582/95 challenging notice dated 30-6-1995. On 6-9-1995 the learned Judge of the City Civil Court directed the Deputy Municipal Commissioner of defendant no.1 to give hearing to the plaintiff and 3 thereafter take decision in accordance with the law. The Notice of Motion as also the Suit was disposed of by continuing the ad-interim injunction granted in terms of prayer clause (a) of the Notice of Motion till the decision is taken and communicate to the plaintiff and six weeks thereafter. 7. Pursuant to the order dated 6-9-1995, he made representation to the defendant no.1- Corporation on 2-7-1996. The Deputy Municipal Commissioner, Zone (I) passed order on 6-9-1996 wherein it was held that the structure mentioned in the notice dated 30-6-1995 is unauthorized and it cannot be either tolerated as per the policy of the Corporation or regularized under the D.C. Rules. The Deputy Municipal Commissioner came to the conclusion that the plaintiff had failed to prove existence of the suit premises prior to the datum line and consequently called upon the plaintiff to remove the same after six weeks from the date of service of the order. 8. The plaintiff gave statutory notice under sec. 527 of the Act through his advocate on 29-10-1996. Thereafter he instituted L.C. No. 6700/96 challenging the notice as also the order dated 6-9-1996. By order dated 5-12-1996, the learned trial Judge directed the plaintiff to 4 approach the Deputy Municipal Commissioner, within a period of four weeks from the date of the order and furnish the documents along with fresh representation. The learned trial Judge directed the Deputy Municipal Commissioner to consider the representation as also documents on which the plaintiff relies and pass a reasoned order. He further ordered that until the Deputy Municipal Commissioner passes the order, and it is served on the plaintiff and for eight weeks thereafter, the suit structure shall not be demolished. The Notice of Motion was disposed of as also the plaintiff was allowed to withdraw the suit with liberty to file fresh suit in case the order of Deputy Municipal Commissioner is against the plaintiff. 9. The plaintiff made representation to the Deputy Municipal Commissioner of defendant no.1 on 10-12-1996 and requested to give personal hearing in the matter. It is his case that no hearing took place and no further orders were passed by the Deputy Municipal Commissioner. On the basis of the false complaint made by the landlord against the plaintiff to defendant no.1-Corporation, the impugned notice dated 25-4-2005 was issued under sec. 351 of the Act. Without properly considering the reply and the documents produced by the 5 plaintiff, the Asstt. Municipal Commissioner C-ward passed the impugned order on 1-7-2005 wherein it was held that the plaintiff did not prove the authorization of the suit premises and called upon him to remove the same within 15 days from the receipt of the order. It is against the notice dated 25-4-2005 and the order dated 1-7-2005, the plaintiff instituted the present suit for declaration and injunction. 10. The defendant no.1-Corporation filed written statement at Exh.5 and resisted the suit. It was asserted that the premises were inspected on 11-4-2005 by one Mr. D.M. Satam, Junior Engineer, along with office staff at ground floor, 26/A Sabarkata Lodge, Mumbadevi, Mumbai 400 002 when unauthorized construction of A.C. Sheet roof shed with M.S. Angle and B-Masonry side walls admeasuring 14 ft. (7’ +9’3”) with height of 8’6” and 7’ was noticed. It was asserted that the structure under reference was used by the plaintiff for commercial purpose and the same was an extension of the existing structure. Based upon the inspection report dated 11-4-2005, notice under section 351 of the Act was issued on 25-4-2005 and it was replied by the plaintiff on 27-4-2005 along with documents. After going through the reply as also the documents, Asstt. Municipal Commissioner came to the conclusion that 6 the structure under reference was unauthorized and cannot be regularized or tolerated as per the D.C. Rules and Regulations and passed speaking order on 1-7-2005. The defendant therefore prayed for dismissal of the suit. 11. The defendant nos.2 and 3 filed their written statement at Exh.4 and resisted the suit. It was asserted that the plaintiff did not come before the court with clean hands and the documents submitted by the plaintiff does not prove his title. Under the agreement dated 6-8-1975 the defendant nos.2 and 3 jointly purchased property at Street No.26/A and the plaintiff encroached on their property. In view of the same several complaints were made to defendant no.1 against the plaintiff and since the plaintiff is a rank trespasser the defendant no.1 was justified in taking action against him. It was further contended that the plaintiff was never a tenant as alleged by him. It was therefore contended that the plaintiff is not entitled to any relief as prayed for. 12. On the basis of rival contentions of both the sides, the learned trial Judge framed necessary issues. The parties led oral as well as documentary evidence and after considering the material on record, the learned trial Judge dismissed the suit. The learned trial Judge came to 7 the conclusion that the plaintiff claims right and interest in respect of the suit premises on the strength of the affidavit dated 15-7-1982 executed by Shekhar Chakravarti in his favour. The plaintiff did not examine the said Chakravarti and consequently the affidavit was not exhibited. Even the person who issued the rent bills was not examined before the court and consequently the rent bills were also not exhibited. As far as the ration card, telephone bills and electricity bills produced by the plaintiff on record the learned trial Judge observed that these documents do not show authorization of the structure prior to the datum line. Accordingly he came to the conclusion that no document filed by the plaintiff on record shows that offending structure is in existence prior to the datum line. It was with these findings, the learned trial Judge dismissed the suit by the impugned judgment and decree dated 29-4-2010. It is against this judgment and decree the present First Appeal is filed. 13. The learned advocate for the appellant has filed compilation of relevant documents on record. In view of this, I deem it appropriate to dispense with the calling of record and proceedings under Order 41 Rule 11 of the Code of Civil Procedure, 1908. 14. In support of the appeal Mr. R.A. Thorat, learned counsel for the 8 appellant submitted that the suit premises bears no. 26/B and the impugned notice under sec. 351 of the Act is issued at 26/A. The impugned notice does not pertain to 26/B. He further submitted that notice is not given to the owner of the building and therefore also the impugned notice is vitiated. He submitted that by order dated 5-12-1996 in L.C. Suit No. 6700/96, the plaintiff was directed to approach the Deputy Municipal Commissioner. The Deputy Municipal Commissioner was directed to consider the representation of the plaintiff as also the documents on which the plaintiff relies upon and thereafter pass a reasoned order. The defendant no.1-Corporation has not made it clear that pursuant to the said order dated 5-12-1996, any decision was taken by the deputy Municipal Commissioner. In fact no hearing was given to the plaintiff pursuant to the order dated 5-12-1996. He therefore submitted that the defendant no.1 was satisfied with the representation and the documents submitted by the plaintiff and consequently the proposed action was dropped. At any rate he submitted that the suit premises existed prior to the datum line and consequently the action of the defendant no.1 in issuing the impugned notice dated 25-4-2005 as also passing of the order dated 1-7-2005 are 9 illegal and liable to be quashed and set aside. 15. In support of his submission Mr. Thorat took me through the evidence on record and submitted that the action of the defendant no.1 is illegal. 16. On the other hand, Shri Mahadik, learned counsel for the defendant no.1 submitted that the rent receipts produced by the plaintiff do not indicate any number and infact column pertaining to godown no/shop no/room no. is blank. The offending structure is situate on the ground floor of building bearing No. 26/A situate at Mumbadevi, Sabarkata, Mumbai 400 002. The defendant no.1 issued impugned notice on 25-4-2005 which was replied by the plaintiff through advocate on 27-4-2005 wherein it was specifically asserted that the plaintiff is the owner of the premises at ground floor 26/A. It therefore cannot be said that the notice was given at the wrong address as alleged by the plaintiff. 17. He further submitted that perusal of the notice dated 30-6-1995 would indicate that in that notice structure admeasuring 14x7 ft. was mentioned. However, the plaintiff extended the existing structure and therefore the impugned notice was issued on 25-4-2005. Comparison of 10 the unauthorized structure in the notice dated 30-6-1995 and the present notice dated 25-4-2005 would clearly substantiate the claim of the defendant no.1 that the plaintiff had extended the existing structure. He further submitted that the plaintiff failed to establish that the offending structure was in existence prior to the datum line and submitted that he has not made out any case and therefore the learned trial Judge rightly dismissed the suit. He prayed for dismissal of the appeal. 18. Shri Jain, learned counsel for defendant nos.2 and 3 submitted that the plaintiff is not their tenant and infact he is a rank trespasser. The plaintiff has failed to establish that the offending structure was in existence prior to datum line. He submitted that the offending structure of the plaintiff is situate on the ground floor of building no. 26/A and therefore it cannot be contended that the notice does not pertain to the suit premises. 19. With the assistance of the learned counsel appearing for the parties, I have gone through the pleadings and oral as well as documentary evidence on record. Perusal of the show cause notice dated 25-4-2005 indicates that it is addressed to the plaintiff and the 11 address given is ground floor, 26/A, Mumbadevi, Sabarkata Lodge, Mumbai 400 002. This was replied by the advocate of the plaintiff on 27-4-2005 wherein it was specifically averred that the plaintiff is the owner of the premises at ground floor 26/A, Mumbadevi. In fact no case whatsoever was made out in the reply that the plaintiff is in possession of premises bearing no. 26/B. I therefore do not find any substance in the contention raised on behalf of the appellant that the notice does not pertain to 26/B and that the plaintiff is in possession of the premises described as 26/B. Even the order dated 1-7-2005 described the unauthorized work of shed on the ground floor at 26/A. The submission of the plaintiff that the documents show existence of premises at 26/B, does not advance the case of the plaintiff any further. In the first place, the affidavit dated 15-7-1982 executed by Chakravarti in favour of the plaintiff and rent bills were not exhibited before the trial court. Secondly, the ration card, telephone bills and electricity bills which are on record do not show that the offending structure is in existence prior to datum line. I therefore do not find any substance in the contention raised by the plaintiff that the plaintiff is in possession of the structure bearing no. 26/B and the notice pertains to 26/A and the 12 notice cannot be implemented qua 26/B. As indicated earlier in the reply dated 27-4-2005 the plaintiff claimed ownership of 26/A. 20. The learned counsel for the appellant further submitted that the notice is not given to the owner of the building and therefore the notice under sec. 351 is vitiated. I do not find any substance in this submission as well. Sec. 351 of the Act provides that : “if the erection of any building or the execution of any such work as described in section 342 is commenced contrary to the provisions of sec. 342, 347, the Commissioner may by written notice require the person who is erecting such building or executing such work or has erected such building or has executed such work call upon such person or owner to show sufficient cause why such building or work should not be removed”. In the present case the offending structure is erected by the plaintiff by executing the work. The defendant no.1 Corporation was fully justified in issuing notice to the plaintiff. Consequently the contention that notice was given only to the plaintiff and not to the owner of the building is wholly misconceived. 21. The learned trial Judge in para 18 of the impugned order has given categorical finding that the documents produced by the plaintiff 13 do not show that the offending structure was in existence prior to the datum line. I am in complete agreement with the finding recorded by the trial Judge. In the result the appeal is devoid of any substance and the same deserves to be dismissed. Hence appeal is dismissed with no order as to costs. 22. In view of the dismissal of the First Appeal, no orders are necessary in the Civil Application No. 2061/2010 and the same is also dismissed with no order as to costs. The order passed by the trial court on 29-4-2010 shall remain operative for a period of ten weeks from today. [R.G. KETKAR, J.] 14