1 54 fa.365.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 365 OF 2011 Bansilal Niranjan Kanojia. ... Appellant Versus The Municipal Corporation of Greater Mumbai and anr. ... Respondents ----- Mr. G.S.Godbole i/b Ashoka Law Firm for the Appellant. Mrs. K.K.Soraan for the Respondent No.1 – BMC. Mr. Satish Sharma, present in-person for the Respondent No.2 ----- CORAM : A.S.OKA, J. DATE : 08 th March, 2011. P.C. 1 Heard the learned counsel appearing for the Appellant and Mr. Satish Sharma appearing in-persons for the Respondent No.2. 2 The Appellant has placed on record of this Appeal true copies of the pleadings, notes of evidence and true copies of the documents placed on record of the trial Court. 2 54 fa.365.11 3 The Appellant is the original plaintiff. The suit is filed by the Appellant for challenging the action of the Respondent No.1 – Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the said Act”). According to the case of the Appellant, he is the tenant in respect of Shop No.3 (hereinafter referred to as the suit premises) situated in the compound of Krishna Kunj Building, Main Avenue Road, Santacruz (West), Mumbai 400 054. It is stated that in the suit premises, the Appellant has been carrying on business of Dyers and Cleaners and is holding all necessary licenses in his name since the year 1976. On 5 th June, 1989, the Respondent No.1 issued a show cause notice under Section 351 of the said Act alleging that the suit premises was illegal. It must be stated here that even according to the case of the Appellant, the suit premises were earlier occupied by one Mr.M.N.Dhobi. The said Mr.M.N.Dhobi replied to the notice dated 5 th June, 1989 on the basis of which an order of demolition was passed by the Respondent No.1. The said Mr.M.N.Dhobi filed a suit in the City Civil Court in the year 1989 restraining the Respondent No.1 3 54 fa.365.11 from demolishing the suit premises. It is in the said suit, a compromise was arrived at between the plaintiff in the said suit and the predecessor of the Respondent No.2. On the basis of the said compromise, the said suit was withdrawn. In the year 1996, the present the Appellant filed a suit for challenging the notice under Section 351 of the said Act. By filing another suit in the year 1996 being Suit No. 4116 of 1996, the Appellant challenged the order dated 16 th June, 1989 passed under Section 351 of the said Act on the basis of the notice issued to the said Mr.M.N.Dhobi. In appeal from order preferred by the Appellant for challenging the interim order passed in the said suit, a permission was granted to the Appellant to apply for regularization. On 15 th December, 2003 a fresh notice under Section 351 of the said Act was issued by the Respondent No.1 alleging that the Appellant has carried out illegal construction of the structure having brick masonry wall and A.C. sheet roof admeasuring 20’x10’ with rolling shutter having height of 10 feet. The Appellant submitted a reply to the said notice. By the said reply, the Appellant called upon the Respondent No.1 to give inspection of the sanctioned plan and assessment bills. Various contentions were raised in the reply. The 4 54 fa.365.11 Respondent No.1 by order dated 17 th January, 2005 rejected the contentions raised and passed an order of demolition. Thereafter, Suit No.408 of 2005 was filed by the Appellant. Against the order of interim relief passed in the said suit, the Respondent No.2 preferred Appeal from Order No. 428 of 2005 in this Court, which was disposed of by the judgment and order dated 21 st June, 2005. While disposing of the appeal, this Court directed that the application dated 23 rd August, 1997 filed by the Appellant for regularization shall be decided by the Deputy Municipal Commissioner. On the basis of the said order, after giving an opportunity of being heard to the parties, the Deputy Municipal Commissioner passed an order holding that the suit structure was unauthorized, which cannot be regularized under the existing policy of the Respondent No.1. Therefore, he directed demolition of the suit structure. He observed that the suit structure was in the compulsory open space of Krishna Kunj Building. For challenging the said order dated 6 th July, 2005, the Appellant filed Suit No. 2828 of 2005. The earlier suit No. 408 of 2005 and Suit No. 2828 of 2005 filed by the Appellant were taken up for hearing together and by the impugned judgment and decree, both the 5 54 fa.365.11 suits were dismissed. The present appeal is confined to the decree passed in Suit No. 2828 of 2005. 4 The learned counsel appearing for the Appellant has taken the Court through the pleadings and relevant documents on record. He submitted that even evidence on record shows that the suit structure was in existence in the year 1960 and business was being carried out therein. He submitted that though the order dated 6 th July, 2005 records that the suit structure is in the compulsory open space of the Krishna Kunj Building, no such allegation was made in the notices issued either to the Appellant or to his predecessor. He submitted that the suit structure is shown to have been existing in the year 1960 and therefore, it must have been shown on the sanctioned plan. He submitted that the Appellant being tenant is handicapped and is unable to produce the relevant documents as the same may be in the custody of either the Respondent No.2 or the Respondent No.1. He, therefore, submitted that the suit structure ought to have been protected. 6 54 fa.365.11 5 I have given careful consideration to the submissions. The plaintiff examined himself by filing his affidavit in lieu of examination in chief. The plaintiff examined two other witnesses. The plaintiff produced several documents such as Shop and Establishment Licenses, Trade licence, rent receipt, electricity bill, telephone bill, deposit receipt etc. In the cross-examination, the Appellant stated that he was running the shop from the year 1976. He admitted that in the year 1989, the Respondent No.1 issued notice to one Mr.Madarilal, who is his brother. He admitted that he has no document to show that the suit structure was constructed prior to 1 st April, 1962. In the cross-examination, he stated that he was unable to say whether the suit structure was shown on the sanctioned plan at Exhibit – 47. He admitted that this Court has passed an order permitting him to apply for regularization. 6 The witness No.2 examined by the Appellant was cross- examined by the Respondents. He stated that he met the Appellant for the first time in the year 1975 and he saw the suit structure in the year 1973-74. He stated that he was not aware of the name of the person who 7 54 fa.365.11 was running the laundry business in the suit structure in the year 1960. 7 It must be stated here that a copy of the sanctioned plan was produced at Exhibit – 47 on which the suit structure has not been shown. As pointed out earlier, the Appellant admitted that he was not in possession of any document to show that the suit structure existed prior to 1 st April, 1962. The Appellant admittedly applied for regularization of the suit structure. In the order dated 4 th August, 1997 passed by this Court in Appeal from Order preferred by the Appellant against order passed in earlier Suit No.4116 of 1996, this Court has recorded that after arguing the Appeal, a request was made by the Appellant to give an opportunity to apply for regularization. If the structure was authorized, there was no reason for the Appellant to apply for regularization of the suit structure. Even according to the case of the Appellant, he was carrying on business in the suit premises from the year 1976. Though he claims that the suit structure was purchased by the said Madarilal, witness No.2 examined by the Appellant, who claims to have seen the suit structure from the year 1960, admitted that he has never seen the 8 54 fa.365.11 said Madarilal. That is the reason why the evidence of witness No.2 examined by the Appellant has been discarded. It must be noted here that the Appellant came out with a case that the Krishna Kunj Building was constructed in the year 1975. 8 Thus, the finding of the trial Court is that the Appellant failed to prove that either the suit structure was constructed before the datum line (i.e. 1 st April, 1962) or it was constructed as per the sanctioned plan. The said finding of the trial Court is supported by the oral and documentary evidence on record and especially the sanctioned plan, which does not show existence of the structure. 9 The burden was on the Appellant to show that either the structure has been lawfully constructed or that the same can be tolerated as per the policy of the Respondent No.1. Both the aspects have not been established by the Appellant. Hence, no case is made out for interference. The appeal is accordingly dismissed with not order as to costs. 9 54 fa.365.11 10 Civil Application No. 648 of 2011 does not survive and the same is disposed of. 11 On the prayer made by the learned counsel appearing for the Appellant, it is directed that status-quo as of today, shall be maintained in respect of the suit structure by the parties to the appeal for a period of eight weeks from today. [ A.S.OKA, J ]