1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.625 OF 2009 Esteem Properties Pvt. Ltd. ..Appellants. Vs. The Municipal Corporation of Greater Mumbai and ors. ..Respondents. Mr. Ravi Kadam, Sr. Advocate i/by Mr. Y.E. Mooman for the Appellants. Mr. A. Y Sakhare,Sr. Advocate with Mrs.K.K.Soraam for the B.M.C. Respondent No.1. Mr.Chetan Kapadia i/by Sangeeta Lanjewar for the Respondent No.3. Mr. S.G.,Anney, Sr. Advocate with Pirani, Ms. Hansa Advani i/by K. Abichandani for the Respondent No.4. CORAM : R.S. MOHITE, J. DATE : 30TH JULY, 2009 PC : 1. This is an appeal from order preferred by the original plaintiffs impugning a judgment and order passed by the City Civil Court on 8.6.2009 dismissing the plaintiffs Notice of Motion No.1342 of 2008. 2 2. The brief relevant facts of the case are as follows. a) That in the records of the Bombay Municipal Corporation a person by name Tipanna Shikari was an occupier and photo pass holder of the suit premises which was bearing Room No.14 situated on the suit property. By a letter addressed to the Municipal Commissioner, Ward Office K East Ward Advocates Chitnis & Vaithy and Company acting on behalf of the appellant-plaintiffs informed the Municipal authorities that they had not taken any action against some of the encroachers on the properties bearing CTS No. 191, 215, 221, 224 to 229 of Sahar Village. The said letter mentioned that certain people were trying to construct illegal structures on the suit property. It is the case of the B.M.C. that on behalf of the plaintiffs a list of tenants was furnished to them and in 3 respect of room No.14 one Gupta Ram was shown as occupier. b) Acting upon the letter addressed on behalf of the plaintiffs in respect of Room No.14, the B.M.C. issued a notice dated 17.5.2008 to the said Gupta Ram and after following due process of law carried out the demolition of the said room. There is some dispute as to whether in the process of this demolition, the structure was completely demolished or partly damaged. It appears that after this action was taken by the B.M.C., on behalf of the photo pass holder Mr. Tipanna Shikari certain documents were produced before the B.M.C. And on perusal of those documents which were accepted as genuine, a further order dated 21.6.2008 came to be passed by the B.M.C. The said order was addressed to the widow of Tipanna and permitted her to restore the damaged structure. This order of the B.M.C. is the subject matter of challenge in the suit. The prayers in the suit seek a declaration that the notice issued by the defendant No.1 under 4 Section 53 of the M.R.T.P. Act and the action of demolition taken in pursuance thereof was lawful. The plaintiffs sought a further declaration that the subsequent order dated 21.6.2008 passed by the defendant No.1 through the Assistant Engineer (Building & Factory) was bad in law and liable to be cancelled. The plaintiffs then sought permanent injunction restraining the defendants from taking any action in pursuance of the order dated 21.6.2008. 3) In the Notice of Motion that was subsequently filed the only prayer that was made is in the following terms. a) Pending the hearing and final disposal of the suit, this Honourable Court be pleased to grant a temporary order and injunction restraining the defendants, their servants, agents, representatives and /or persons acting through or under them from 5 in any manner taking action pursuant to the order passed by the Defendant No.1 through Assistant Engineer (Building and Factories),K/East Ward bearing No. ACKE/9505/BF dated 21.6.2008. 4. It may be stated here that, there was no specific prayer either in the suit or in the motion to restrain any of the defendants from re-entering into the possession of the suit property. 5. At the hearing of the notice of motion, on behalf of the heirs of the original occupant i.e. the photo pass holder several documents were produced. One of the document produced was a Commissioner s report prepared in pursuance of an order passed in another suit pending in this court. 6. Based upon the material produced before the trial court, the impugned order has been passed. 6 7. It was contended by the counsel on behalf of the appellants that the B.M.C. had no powers to pass the impugned order dated 21.6.2008, once the procedure under Section 53 had been completed. This contention cannot be accepted as it can be inferred from the affidavit filed by the B.M.C. that they were mislead by the letter addressed to them on behalf of the plaintiffs and were made to believe that one Mr.Gupta Ram was occupant of the premises in question. In short, it is their case that the action of demolition was due to a mis-understanding caused by such misrepresentation. If this is so, then prima facie, the action of demolition in respect of the entire suit property or part thereof cannot be said to be proper. Even assuming that the entire structure was demolished by the B.M.C. and the structure was to be re-erected, it was necessary to take permission of the B.M.C. for reconstruction in accordance with law and it was open for the B.M.C. to grant such a permission for re-erection. The counsel appearing for the 7 appellants then relied upon an affidavit filed on behalf of the defendant No.4 in which the defendant No.4 had taken a stand that on 15.7.2006 they had purchased the suit structure from the defendant No. 3. The defendant No.4 has further contended that the suit structure was belonging to the defendant No.4 and the defendant No.4 was in use, occupation and enjoyment of the suit structure. The counsel contended that this stand taken by the defendant No.4 was also supported by defendant No.3 in an affidavit filed by her Constituted attorney and verified on 9.7.2009. It is however, not disputed before me that the so called Deed of Assignment executed by the defendant No.4 is an unregistered document. It is also the case of the plaintiffs that the right of the photo pass holder could not be transferred. It is therefore, the plaintiffs' own stand that the so called alienation in favour of the defendant No.4 is not valid according to law. If this stand is accepted, then prima facie , the legal owners of the structure would still be 8 the heirs of Tipanna. Though, it is contended that the Notice of the MRTP proceeding was pasted on the structure, it appears that pasting was also in the name of Gupta Ram. In this background, it appears that no proper notice was given to the Tipanna Shikari. This being the situation and as it is contended on behalf of the B.M.C. that Tipanna continued to be the owner in the eyes of law, the impugned order dated 21.6.2008 appears to have been correctly issued to the widow of Tipanna who is the heir on the record of the B.M.C. 8. Taking into account that there is voluminous evidence to indicate that Tipanna was the photo pass holder and was found to be in possession by the Court Commissioner appointed by this court, then it cannot be said that the impugned order passed by the trial court was without any basis. In the circumstances, in my view, the order does not require to be interfered 9 with. It is however, made clear that the restoration work under the impugned order dated 21.6.2008 will be carried out only by the person to whom the permission has been granted by the B.M.C. by the said order. If any other person, except the adversee of the impugned order wishes to carry out the restoration, he will have to apply for the said purpose to the B.M.C. and get permission in his name. It is also clarified that the restoration work will be subject to result of this suit. In these circumstances, appeal is dismissed. 9. The counsel for the appellants states that ad interim relief i.e. Status quo order has been granted by this court on 26.6.2009 and since then the same is running. He prays that the Status quo order granted by this court be extended for a further period of four weeks from today to enable to the appellants to approach the higher court. In this view of the matter, parties are directed to maintain Status quo as of today for a further 10 period of four weeks from today. ( R.S.MOHITE, J.)