- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO.455 OF 2008 Sarala Vijay Reddy. .. Appellant (Org.Plaintiff) Vs. The Municipal Corporation of Greater Bombay. .. Respondent (Org.Defendant) -- Shri V.R.Tripathi i/b V.R.Tripathi & Associates for the Appellant. Shri J.J.Xavier for the Respondent. -- CORAM : ABHAY S. OKA, J DATED : 13TH MARCH, 2008 P.C. 1. The submissions of the learned advocates appearing for the parties were heard on the last date. The Appellant has placed on record a copy of the plaint and other relevant documents and notes of evidence. The appellant is the original plaintiff. The appellant filed a suit for declaration that the notice issued by the respondent Corporation under Section 314 of the Mumbai Municipal Corporation Act, 1888 is null and void. According to the case made out by the appellant/plaintiff, she is residing with her - 2 - two children in Hut No.2, TPS Road No.4, Near SBI Quarters, Machiswala Compound, Santacruz (E), Mumbai - 400 055. According to the case of the appellant, the order of Additional Tahsildar passed on 5th October, 1998 proves the lawful existence of the suit premises. Reliance is placed on the order dated 5th October, 1998 permitting non agricultural user of the property. 2. It is the case of the appellant/plaintiff that the suit premises are situated near the dead end of Lane No.4. It is stated that behind the suit premises, there is a pakka wall and beyond the pakka wall, there is a railway line. It is contended that the suit premises is not on the road. 3. On 24th December, 2005, a notice under Section 314 of the said Act of 1888 was issued by the respondent-Corporation. The said notice was pasted on the suit premises alleging that the suit premises was on the road. A reply was issued by the advocate for the appellant on 26th December, 2005 controverting the allegations in the notice. 4. By the impugned judgment and decree, the learned Judge of the City Civil Court, Mumbai, dismissed the suit by holding that the suit premises - 3 - is situated on the road and therefore, there was a justification for issuing notice under Section 314 of the said Act of 1888. 5. The learned counsel appearing for the appellant has invited my attention to the fact that the respondent/Corporation did not file written statement. He submitted that as the suit was not contested by the respondent/Corporation, the trial Court ought to have passed a decree. He invited my attention to the order dated 5th October, 1998 passed by the Additional Tahsildar (NA) and corrigendum issued to the said order. He placed reliance on the receipts issued showing the payment of N.A. assessment by the appellant. He submitted that though a reply was given to the notice dated 24th December, 2005, an order was not passed by the Respondent Corporation after considering the reply. He, therefore, submitted that the trial Judge has committed an error by discarding the case made out by the respondent/Corporation and by dismissing the suit. 6. I have given careful consideration to the submissions made by the learned advocates appearing for the parties. It must be stated here that except for the order dated 5th October, 1998 passed by the - 4 - Additional Tahsildar, the appellant has not produced any evidence to show that the suit premises was authorisedly constructed. It will be necessary to refer to the said order dated 5th October, 1998. The said order does not deal with the issue of authorisation of the suit premises. The said order records that the occupant has used the land admeasuring 14.00 sq. meters for residential purpose without obtaining permission of the Collector under Section 44 of the Maharashtra Land Revenue Code, 1966. By the said order, penalty under Section 45 of the said Code was levied. The clause (7) of the order clearly records that the payment of amount mentioned in the order does not mean regularisation of unauthorised non agricultural use under the said Code and the person concerned will have to apply to the Collector for regularisation. Therefore, the said order and consequent payment of N.A.assessment is of no help to the appellant. 7. In the notice under Section 314 of the said Act, location of the suit premises has been shown. The sketch forming part of the said notice shows that the suit premises is on the road, may be near dead end of the road. - 5 - 8. It will be necessary to refer to the examination-in-chief of the appellant. It is stated in the examination-in-chief that the suit premises is in existence from 1st January, 1995. In paragraph 3 of the examination-in-chief, the appellant has stated thus:- "The suit premises situate at the end of by lane No.4. Beyond suit premises there is dead end. Behind suit premises there is pucca wall and beyond that wall there is railway line. Hence the suit premises is not on road since it is at the dead end of the said by lane." It is pointed out that the adjoining hut is a censused structure. 9. In the cross-examination of the appellant, in para 10, she has stated thus:- "On the right of suit premises there is railway track. At some distance from suit premises on back side there is compound wall of SBI quarters. The said gap is of about 1 to 1 and 1/2 inch. On the left side of my premises there is no any structure and it is - 6 - portion of the road." Thus, she admitted that on the right side of the suit premises, there is a railway track and at the rear side of the suit premises, there is a compound wall. There is a gap of about 1 and 1/2 inch between the compound wall and the suit premises. There is a clear admission that on the left side of the suit premises, there is no structure and it is a portion of the road. 10. Thus from what is stated in the examination-in-chief and the cross-examination, it is proved that the suit structure is on the road but the same is near the dead end of the road. 11. Section 314 of the said Act of 1988 reads thus:- "314. [Power to remove without notice anything erected, deposited or hawked in contravention of section 312, 313 or 313A.] - The Commissioner may, without notice, cause to be removed - (a) any wall, fence, rail, post, step, booth or other structure of fixture - 7 - which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of sub-section (1) of section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 [or in the extended suburbs after the date of the coming into force of the Bombay Municipal (Further Extension of Limits and Schedule BBA (Amendment) Act, 1956]; (b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313; (c) any article whatsoever hawked or exposed for sale in any public place or in any public street in - 8 - contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale. (d) any person, unauthorisedly occupying or wrongfully in possession of any public land, from such land together with all the things and material unauthorisedly placed, projected or deposited on such land by such person; . . Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family, etc." 12. Considering this kind of evidence on record, it is very difficult to find fault with the view taken by the learned trial Judge that the suit premises is situated on road i.e. Lane No.4. Even otherwise, as pointed out earlier, there is no evidence of - 9 - authorisation of the structure. 13. Hence, there is no merit in the appeal and the same deserves to be dismissed. 14. At this stage, the learned advocate for the appellant pointed out that the appellant has small children and therefore, it is impossible for her to move out of the suit premises. He states that time may be granted to the appellant to remove the suit premises till 31st May, 2009 and the appellant is ready and willing to file an undertaking to that effect. I have heard the learned advocate for the respondent on the said prayer who has opposed the said prayer. The evidence on record discloses that the appellant is residing in the suit premises with her two children. Moreover, the appellant has agreed to give an undertaking to remove the suit premises on her own. The suit premises is situate at near the dead end of the road, and therefore, it is not obstructing the vehicular traffic. Hence, the request made by the appellant deserves to be accepted. Hence, I pass the following order. 1. The appeal is dismissed with no order as to costs. - 10 - 2. Notwithstanding the dismissal of the appeal, the respondent will not take action of demolition till 31st May, 2009 against the suit premises subject to condition of the appellant filing in this Court an unconditional undertaking to remove the suit premises on her own at her cost on or before 31st May, 2009. 3. The Undertaking shall be filed within a period of four weeks from today. 4. If undertaking is not filed within a period of four weeks from today, it will be open for the respondent/ Corporation to proceed with the work of demolition on completion of the said period of four weeks. 5. The parties to act on an authenticated copy of this order. - 11 - ( ABHAY S.OKA, J )