ash 1 fa-1480.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1480 OF 2008 1. Joybroto S. Biswas, ) residing at House/Structure ) Plot No.249, Kambliwadi, Tejpal Road,) Vile Parle (East), Mumbai – 400 057. ) 2. Shree 1008 Parshwanath Digamber, ) Jain Mandir Trust, ) having address at Plot No.249, ) Kambliwadi, Tejpal Road, ) Vile Parle (East), Mumbai – 400 057. ) 3. Mr. Jayesh Choksey, ) Residing at Siddhi Priyay, ) N.S. Road No.4, J.V.P.D. Scheme, ) Vile Parle (W), Mumbai – 400 056. ) 4. Mr. Madhukar Choksey, ) Residing at Rajeshari Bhuvan, ) 5th Floor, Shradhanand Road, ) Vile Parle (East), Mumbai – 400 057. ) 5. Mrs. Shardaben Shah, ) Residing at Ashiyanna, ) Acharya Niwas, Park Road, ) Near Parle College, Ville Parle (E), ) Mumbai – 400 057. ) 6. Mr. Anil Shah, ) Residing at Ashiyanna, ) Acharya Niwas, Park Road, ) Near Parle College, Ville Parle (E), ) Mumbai – 400 057. ) 7. Mrs. Jyotikaben Shah, ) Representative of Shri Digamber ) Jain Visha Mewada Bhagini Mandal, ) 103, Rajhans, Nariman Road, ) Vile Parle (E), Mumbai. ) .. Appellants ash 2 fa-1480.08.sxw Vs 1. Municipal Corporation of Greater ) Mumbai, Mahapalika Marg, ) Mumbai – 400 001. ) 2. Assistant Commissioner, ) K/East Ward, Andheri (East), ) Mumbai. ) 3. The Executive Engineer (B.P) ) Western Suburbs H & K (E), ) Patkar Marg, Bandra (West), ) Mumbai – 400 050. ) 4. M/s. Shah Doshi & Co., ) 6, Galaxy Arcade, M.G. Road, ) Vile Parle (East), Mumbai – 400 057. ) 5. Naminath Co-op.Hsg.Soc. Ltd., ) A Society registered under the ) Maharashtra Co-op.Soc. Act, ) having its office at Plot No.140, ) Kambliwadi, Tejpal Road, ) Vile Parle (E), Mumbai – 400 057. ).. Respondents -- Shri Rajiv Narulla for the Appellants. Shri Vinod Mahadik for Respondent Nos.1 to 3. Shri D.H. Mehta and Ms Ankita Verma i/by D.M. Legal Associates for the Respondent No.4. Shri M.P. Vashi for Respondent No.5. -- CORAM ; A.S. OKA, J SUBMISSIONS WERE HEARD ON : 29TH APRIL, 2011 JUDGMENT PRONOUNCED ON : 28TH JULY, 2011 ash 3 fa-1480.08.sxw JUDGMENT : . By an order dated 7th August, 2008, this Court directed that this Appeal shall be disposed of finally at the stage of admission. 2. The Appellant Nos.1 and 2 are the original Plaintiffs who have preferred the present Appeal for challenging the judgment and decree dated 23rd May, 2008 passed by the learned Judge of the City Civil Court by which the suit filed by them has been dismissed. It must be noted here that till the present appeal was filed, the 2nd Appellant/Trust was not registered. It appears that during the pendency of this Appeal, the said Trust was registered. By an order dated 3rd February, 2010, this Court permitted the names of 3rd to 7th Appellants to be added who are allegedly the Trustees of the 2nd Appellant. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the Trial Court. 3. The Plaintiffs claim to be in use, occupation and exclusive possession of a structure admeasuring 2,200 sq. ft. approximately on final Plot No.148 ( Original Plot No.249) corresponding to City Survey No.1311 situated at Kambli Wadi, Vile Parle (East), Mumbai. It is contended that the suit premises comprises of a brick massonary structure along with appurtenant open spaces on the front and back ash 4 fa-1480.08.sxw side. 4. According to the case made out by the Plaintiffs in the suit, the suit structure was in existence since the year 1935 of which one Raisahib Bipinchandra Bishwas was a tenant. The said alleged tenant died on 5th November, 1972 leaving behind one Subirkumar Bipinchandra Biswas and Suchikumar Biswas as the only heirs. Both of them died in the year 1997 and 1998 respectively and according to the case of the Plaintiffs on their demise, the 1st Plaintiff became entitled to the tenancy rights in respect of the suit premises. The case made out by the Plaintiffs is that the 1st Plaintiff assigned tenancy rights to the 2nd Plaintiff-Trust. It is alleged that the 1st Plaintiff is staying in a part of the suit premises and in the other part, the 2nd Plaintiff has established a Jain Temple. In the year 1974, the landlord sold the larger property in which the suit premises are situated to the 4th Defendant. On 29th June, 1979, the Assistant Engineer of the 1st Defendant Municipal Corporation issued a notice to the 4th Defendant calling upon him to repair the roof of the structure. It is alleged that as the 4th Defendant did not carry out the repairs, the 2nd Respondent- Corporation permitted the predecessor of the 1st Plaintiff to carry out repairs. Reliance is also placed on the letter dated 3rd June, 1977 issued by the Deputy Commissioner of the 1st Defendant which allegedly permitted the tenants in the property to carry out repairs. According to ash 5 fa-1480.08.sxw the case of the Plaintiffs in the year 1981, the structure of the suit premises was in dilapidated condition and, therefore, by a letter dated 26th January, 1981, it was pointed out to the 1st Defendant that the 4th Defendant has failed to carry out repairs and, therefore, permission was sought by the 1st Plaintiff to carry out the repairs. 5. It is stated in the plaint that on 12th August, 2000, the 1st Defendant issued a notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 ( hereinafter referred to as “the said Act of 1888”) addressed to the 4th Defendant calling upon the 4th Defendant to carry out the work of repairing the structure which was in dilapidated condition. The 4th Defendant was called upon to do the work of gunitting the RCC pillars and to fill up the cracks therein. The 4th Defendant was also called upon to carry out the repairs to the roof, flooring and to plaster the wall both external and internal. The case of the Plaintiff is that as the 4th Defendant did not carry out the repairs, the Plaintiffs themselves proceeded to carry out the repairs. It is contended that as the officers of the 1st Defendant threatened to stop the work and hence, a suit was filed by the Plaintiffs. The Plaintiffs are relying upon the letter dated 16th November, 2000 sent by the 1st Plaintiff to the Assistant Engineer of the 1st Defendant recording that the existing structure has been repaired and requesting the 1st Defendant to allow the Plaintiffs to retain the existing half inch ash 6 fa-1480.08.sxw diameter water connection of temple premises. It is contended that the suit structure has been assessed for taxes. 6. A Writ Petition was filed in the year 2000 by the 5th Defendant Society seeking action of demolition against the suit premises on the ground that the same was unauthorisedly constructed. By the order dated 26th June, 2002, this Court directed the 1st Defendant to take necessary action after giving hearing to the parties. 7. Notice dated 3rd August, 2004 under Section 351 of the said Act of 1888 was served to the Plaintiffs alleging that unauthorised construction of a structure of brick massonary walls and A.C. Sheet roof in the open space of the building of the 5th Defendant Society has been constructed. A reply was submitted by the Plaintiff. The Plaintiffs have referred to a report dated 25th August, 2004 made by the Assistant Commissioner of the 1st Defendant. On 19th January, 2005, an order was passed by the Assistant Commissioner directing the Building Proposals Department to issue notice to the 4th Defendant calling upon him to vacate the tenant. Thereafter, a notice dated 4th February, 2005 was issued under Section 53(1) of the Maharashtra Regional Town Planning Act, 1966 ( hereinafter referred to as “the said Act of 1966”) by the Executive Engineer of the 1st Defendant stating therein that all the existing structures on the final Plot No.148 were required to be ash 7 fa-1480.08.sxw demolished as per the conditions imposed in the IOD of 1974. Therefore, by the said notice addressed to the 4th Defendant, the 1st Defendant called upon to remove the structure in one month. Copies of the said notice were forwarded to one Anil Shah, a Trustee of the 2nd Plaintiff and to the 1st Plaintiff. Therefore, the present suit was filed for challenging the notice dated 3rd August, 2004, the order dated 19th January, 2005 and the notice dated 4th February, 2005 and a declaration was prayed for that the notices and the order are bad in law, illegal and null and void. A consequential relief of injunction was prayed for. 8. The suit was contested by the 1st to 3rd Defendants. It was contended that it was a condition imposed in the IOD that the three existing structures will be demolished before issuing full occupation certificate. It was contended that the three structures were on the lay out of the recreation ground. It is contended that the occupation certificate of the ground floor of the building constructed by the 4th Defendant was withheld on the ground of failure to demolish the said structures including the suit structure. It is contended that in the approval, a condition was imposed that one flat admeasuring 850 sq. feet shall be kept reserved to accommodate the person in possession of the suit structure. It was contended that the suit structure was unauthorised. The 5th Defendant Society filed a separate written statement. It was contended that the whereabouts of the 1st Plaintiff ash 8 fa-1480.08.sxw were not known and the suit has been prosecuted by one Anil Shah of the 2nd Plaintiff on the basis the alleged Power of Attorney of the 1st Plaintiff and the said Anil Shah was related to the partner of the 4th Defendant. It was contended that the Power of Attorney was not genuine. It was contended that the structure admeasuring 2,200 sq. feet is unauthorised which was allegedly constructed in the year 2000 after demolishing a small old structure which was a residential premises held by the 1st Plaintiff. Reliance was placed on the photographs showing that the original structure was dismantled and a new structure was erected. It was contended that the said Anil Shah and the 4th Defendant have played a fraud. 9. The Trial Court framed various issues. The issues and the findings recorded by the Trial Court read thus:- “ISSUES FINDINGS 1. Whether this Court has jurisdiction to decide about the validity of the Notice dated 4.2.2005 issued under Sec. 53(1) of the MRTP Act ? In the Negative. 2. Whether the Defendant No.5 prove that suit is maintainable in absence of the first Plaintiff ? In the Negative 3. Whether Plaintiffs prove that the suit is maintainable by second Plaintiff unregistered Trust and without In the Negative joining all the trustees of the Trust? ash 9 fa-1480.08.sxw 4. Whether the Defendant No.5 prove that the suit is filed in collusion between Anil Shah of the second Plaintiffs and the Defendant No.4 and therefore liable to be dismissed? In the Affirmative. 5. Whether the suit against Defendant Nos.1-3 is not maintainable for want of Notice under Sec.527 of the Bombay Municipal Corporation Act ? In the Affirmative 6. Whether the Plaintiffs prove that the suit structure was/is in existence prior to 1961? In the Negative. 7. Whether the Defendants No.5 prove that the Plaintiff’s present structure is entirely a new construction made without permission from the Corporation in the year 2000 or thereabout, on the recreation ground ? In the Affirmative 8. Whether the Defendant Nos.1-3 are liable to provide alternate accommodation in the name of the first Plaintiff in lieu of the existing structure ? In the Negative. 9. Whether the Plaintiffs prove that they are entitled to an injunction as prayed by them in prayer (b) ? As per the final order. 10. What relief and order ? As per the final order. 10. Learned counsel appearing for the Appellants submitted that the finding of the Trial Court that the suit is bad on account of ash 10 fa-1480.08.sxw absence of notice under Section 527 of the said Act of 1888 is perverse. He placed reliance on a decision of this Court in the case of Motilal Mahadev Sharma & Others Vs Municipal Corporation of Greater Bombay (1996(2) Bom.C.R. 409). He submitted that a bar under Section 149 of the said Act, 1966 will not be attracted as the contention of the Plaintiff is that the notice under Section 53(1) of the said Act of 1966 is null and void. He submitted that on the basis of the impugned notice dated 3rd August, 2004 issued under Section 351 of the said Act of 1888, there is no order of demolition passed by the 1st Respondent- Corporation. He submitted that in view of the settled law, only if an order of demolition is made after considering the reply of the Plaintiff, the action of demolition can be carried out under Section 351 of the said Act of 1888. He submitted that there is a voluminous evidence on record to show that the suit structure was in existence in the year 1961-1962. He placed reliance on the city survey map which, according to him, shows the suit structure admeasuring about 2,200 sq. feet in existence in the year 1961-1962. He submitted that note/opinion of the Assistant Commissioner of the 1st Respondent dated 25th August, 2004 also notes that except for two rooms admeasuring 12’ x 11’ and 11’ x 9”.8’, the rest of the structure was in existence in the year 1961-1962. He submitted that as per the policy of the 1st Respondent, the suit structure will have to be protected as it was in existence prior to 1962. He submitted that merely because in the building permission ash 11 fa-1480.08.sxw granted to the 4th Defendant, the suit structure is shown as to be demolished, a structure which is required to be tolerated as per the policy of the 1st Defendant – Corporation cannot be demolished in exercise of powers under Section 53(1) of the said Act of 1966. He submitted that without passing an order on notice under Section 351 of the said Act of 1888, the Municipal Corporation has taken recourse to action under Section 53(1) which is completely illegal and null and void. The learned counsel appearing for the 1st Defendant supported the impugned judgment and decree. He submitted that a new structure has been erected in the year 2000 in place of old structure and hence, the Plaintiffs are not entitled for protection. He submitted that as per the terms and conditions of the sanctioned plan, the 4th Defendant who is the landlord of the Plaintiffs is under an obligation to demolish the suit structure and to accommodate the Plaintiffs in the main structure. 11. Learned counsel appearing for the 4th Defendant submitted that the 4th Defendant has kept a flat admeasuring 850 sq. feet reserved for the Plaintiffs. He submitted that the proposal of the 4th Defendant to relocate recreation area could have been lawfully considered by the 1st Respondent-Corporation. 12. The learned counsel appearing for the 5th Defendant ash 12 fa-1480.08.sxw Society submitted that the 1st Plaintiff has not stepped into the witness box and Shri Anil Shah, who claims to be the constituted attorney of the 1st Plaintiff has no personal knowledge about the existence of the structure. He submitted that the 2nd Plaintiff claims tenancy on the basis of the Deed of Assignment executed by the 1st Plaintiff and the said document has not been produced. He submitted that the orders passed by the 1st Defendant under Section 354 of the said Act permitting repairs to be carried out are without prejudice to the legal status of the suit structure. He submitted that there are photographs placed on record to show the old structure and the demolition of the old structure. He submitted that only one rent receipt was produced by the Plaintiffs in the name of the 2nd Plaintiff which is of the year 2003 and the said rent receipt has not been admitted in evidence. He submitted that in the year 2000, by demolishing the old structure, a new structure has been illegally erected for which there is a sufficient evidence. 13. I have given careful consideration to the submissions. The first challenge in the suit is to the notice dated 3rd August 2004 issued by the 1st Respondent under the provisions of Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the said Act of 1888”). In the said notice it is alleged that construction of a structure admeasuring 43 feet x 45 feet 6 inches x 35 feet 6 inches ash 13 fa-1480.08.sxw has been illegally carried out. The second challenge is to the order dated 19th January 2005 passed by the Assistant Commissioner of the 1st Respondent Corporation. The third challenge is to the notice dated 4th February 2005 under Section 53(1) of the Maharashtra Regional and Town Planning Act,1966 (hereinafter referred to as “the said Act of 1966”). It is alleged that the aforesaid notices/order are illegal and void. 14. The first question which arises is of legality and validity of the notice dated 4th February 2005 under Section 53(1) of the said Act of 1966. The said notice is addressed to the fourth Defendant and copies thereof have been forwarded to 1st Plaintiff and his constituted attorney Shri Anil Shah who is also a trustee of the second Plaintiff. In the said notice it is stated as under: “WHEREAS the undersigned has been appointed as an Officer by the Municipal Commissioner under Section 152(1) of the Maharashtra Regional & Town Planning Act, 1966 ( hereinafter for brevity’s sake referred to as “the said Act”.) AND WHEREAS the undersigned has been empowered to exercise the powers and functions of the Planning Authority under Section 53 of the said Act. AND WHEREAS it has been reported to me that you have not demolished the existing structure on Recreation ground of plot bearing F.P. No.148, TPS I, which was proposed to be demolished as per approved plan under No.CE/4806/BSIL/AK dt. 21.8.74. ash 14 fa-1480.08.sxw You are therefore hereby called upon to demolish the structure on Recreation Ground of F.P. No. 148, TPS II, Kambliwadi, Neminath C.H.S. Ltd. Tejpal Road, Vile Parle (East), within one month from the date of receipt of this notice. Please note that, on failure to comply with the aforesaid requisition, you will be liable for prosecution under the said act and the aforesaid requisitions will be carried out at your risk and cost. SCHEDULE (Description of the unauthorized development together with the particulars of land). Unauthorized structure on Recreation ground which was proposed to be demolished as per approved plan under No.CE/4806/BSII/AK dt. 21.8.1974 on plot bearing F.P. No.148, TPS II, Tejpal Neminath C.H.S. Tejpal Road, Vile Parle (East), Mumbai.” 15. It will be necessary to make a reference to Sections 52 and 53 of the said Act of 1966 which reads thus: “52. Penalty for unauthorised development or for use otherwise than in conformity with Development plan.- (1) Any person who, whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or changes the use of any land - (a) without permission required under this Act; or (b) which is not in accordance with any permission granted or in contravention of any condition subject to which such permission has been granted; ash 15 fa-1480.08.sxw (c) after the permission for development has been duly revoked; or (d) in contravention of any permission which has been duly modified shall, on conviction, [be punished with imprisonment for a term [which shall not be less than one month but which may extend to three years and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees, and in the case of a continuing offence with a further daily fine which may extend to two hundred rupees] for every day during which the offence continues after conviction for the first commission of the offence. 2. Any person who continues to use or allows the use of any land or building in contravention of the provisions of a Development plan without being allowed to do so under section 45 or 47, or where the continuance of such use has been allowed or without complying with the terms and conditions under which the continuance of such use is allowed, shall, on conviction be punished [with fine which may extend to five thousand rupees;] and in the case of a continuing offence, with a further fine which may extend to one hundred rupees for every day during which such offence continues after conviction for the first commission of the offence. 53. Power to require removal of unauthorised development.- (1) Where any development of land has been carried out as indicated in sub-section (1) of section 52, the Planning Authority may, subject to the provisions of this section, serve on the owner a notice requiring him, within such period, being not less than one month, as may be specified, therein after the service or the notice, to take such steps as may be specified in the notice, (a) in cases specified in clause (a) or (c) of sub-section (1) of section 52, to restore the land to its condition existing before the said development took place. (b) in cases prescribed in clauses (b) or (d) ash 16 fa-1480.08.sxw of sub-section (1) of section 52, to secure compliance with the conditions or with the permission as modified: Provided that, where the notice requires the discontinuance of any use of land, the Planning Authority shall serve a notice on the occupier also. (2) In particular, such notice may, for purposes of sub-section (1), require - (a) the demolition or alteration of any building or works: (b) the carrying out on land of any building or other operations; or (c) the discontinuance of any use of land. (3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of buildings or works or the continuance of such use. (4) The foregoing provisions of this Chapter shall, so far as may be applicable apply to an application made under sub-section (2). (5) If the permission applied for is granted, the notice shall stand withdrawn; but if the permission applied for is not granted, the notice shall stand; or for the continuance of use of only a part of the land, the notice shall stand withdrawn as respects such buildings or works or such part of the land, but shall stand as respects other buildings or works or other part of the land, as the case may be and thereupon, the owner shall be required to take steps specified in the notice under sub-section (1) as respects such other buildings, works or part of the land. ash 17 fa-1480.08.sxw (6) If within the period specified in the notice or within the same period after the disposal of the application under sub-section (4), the notice or so much of it as stands is not complied with, the planning Authority may- (a) prosecute the owner for not complying with the notice; and where the notice requires the discontinuance of any use of land any other person also who uses the land or causes or permits the land to be used in contravention of the notice; and (b) where the notice