BGD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.960 OF 2007 FROM ORDER NO.960 OF 2007 FROM ORDER NO.960 OF 2007 IN IN IN L.C. L.C. L.C. SUIT NO.3605 OF 2005 SUIT NO.3605 OF 2005 SUIT NO.3605 OF 2005 Municipal Corporation of Greater ... Appellants Mumbai & Ors. Vs. Mr. Azim Kasam Mansoori ... Respondent Mrs. Geeta Joglekar, Advocate for Appellants. Mr. B. Unnikrishnan, Advocate for Respondent. CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J. DATE DATE DATE : 4TH AUGUST, 2008 : 4TH AUGUST, 2008 : 4TH AUGUST, 2008 P.C. P.C. P.C. :- :- :- 1. The Mumbai Municipal Corporation files this appeal to challenge grant of interim relief protecting the suit structure from action under Section 351 of Mumbai Municipal Corporation Act. The respondent is the owner of the suit structure and the original plaintiff. 2. The respondent was served with notice dated 2nd August, 2005 alleging that he has carried out un-authorised construction of 2nd and 3rd floor on the existing Azim Building, plot 2 no.117-D, Old Khar, 40th Rd., Khar (W), with B.M. walls ladi coba slab / A.C. Sheet roofing". He sent his reply dated 8th August,2005 claiming that Azim Building consists of ground plus three storied structure and situate at Plot nos. 42, 43 and 44. As per the reply, the notice incorrectly mentions "117-D" as plot number which actually is the house number of Azim Building. The appellant further contended that the disputed structure is an old structure relying upon documents like Ration card, regularisation of extension of structure in the year 1972, the telephone bills, School Leaving Certificate and birth certificate of his children and grand children. The reply sent by the respondent was considered by the Assistant Municipal Commissioner who rejected the contention of the respondent and confirmed the action under the impugned notice. The respondent has challgned the order of Assistant Municipal Commissioner by filing the suit herein. He took out a Notice of Motion for an interim injunction to restrain the respondents, inter alia from implementing the decision of the Assistant Municipal Commissioner. By the impugned order, the Notice of Motion came to be allowed. 3 3. It will be convenient to note at this stage the reasons given supporting the impugned order. After stating the respondent’s case in the first three paragraphs, the order observes that the assessment bills relied upon by the respondent for the structure on plot No.117, 117A and 117B with the first date of assessment as prior to 1961-1962 are enough to show authentication of the disputed structure. The argument advanced on behalf of the appellant that the documents produced by the respondent do not pertain to the disputed structure has been dismissed stating that it is not necessary for the Court to go into all these details at the interim stage. According to the impugned order, the assessment bills are not considered by the Assistant Municipal Commissioner. The other document that was found to be of weightage by the learned Judge is notice under Section 354 of Mumbai Municipal Corporation Act issued in respect of the disputed structure. 4. The written statement filed by the appellants narrates in detail how the impugned action came to be initiated by it. The officers of the appellants while surveying the dilapidated buildings in old Khar Area came across Azim 4 building. They found it to be very old and in bad condition. On inspection, it was found that at many places the reinforcement was exposed and corroded and there were major cracks found on the external walls. Therefore, the respondent was issued notice under Section 354 of M.M.C. Act dated 29th June, 2005 calling upon him to provide props (M.S./wooden) from ground floor to upper floor with a direction that the propping should be done under the supervision of licensed structural Engineer, as the building is in ruinous condition. On 6th July,2005, when the Officers of the appellants visited the building, they found that construction of 2nd and 3rd floor on the existing building had been carried out, therefore, the impugned notice under Section 351 of M.M.C. Act came to be issued to the respondent. 5. The respondent heavily relies upon the Municipal assessment bills in respect of Azim building. It is also argued on behalf of respondent that the assessment bills in respect of the premises are for plots No.117, 117-A and 117-B and not for 117-D, as mentioned in the notice. Perusal of the assessment bills show that originally Azim building was assessed as a house 5 with shop indicating that there were no upper floors thereon. The plot number then i.e. in the year 1961-1962 was shown as 117. At some point of time thereafter it was assessed for ground plus first floor. Later in the year 1979-1980 it came to be assessed as ground floor plus first floor plus 2nd floor with area of 2nd floor admeasruing 37.16 sq. mtrs. at the rateable value of Rs.1585/-. In the year 2000, there was revision in the assessment of the building on account of change of user as well as additions. The respondent had converted the ground floor into a shop and constructed AC shed room on the terrace admeasuring 32 sq. mtrs. for the purpose of residence. As of today, the constructed area of the second floor is 214 sq. mtrs. with construction of the 3rd floor admeasuring 126 sq. mtrs. The records of the appellants show that the rateable value of the of Azim building has increased from Rs.1585/- in the year 1979-1980 to Rs.7490/- on account of change of user and additions to the building. This difference of the assessment from the year 1979-1980 till date has not been explained in any way by the respondent. It is patent from the impugned order that the learned Judge has not even attempted to evaluate 6 the municipal assessment bills produced by the respondent in the light of the assessment record of the appellants. On proper appreciation of the assessment bills, prima facie, it must be held that the respondent cannot get any support of the assessment bills to establish that the suit structure is an authorised structure. 6. Reliance of the respondent to assessment bill in respect of Plot No.117-A and 117-B also does not help him. The records of Building Department of the appellants show that Azim building is assessed under Ward No. HW/5119(1) situate at 117, Khar Road. As regards the assessment bills for 117-A and 117-B are concerned, as per the records, the same are assessed under Ward No. HW/5119(2) and HW/5119 (2-A) respectively. Both these properties are adjoining to Azim building. It is the contention of the appellants that the building assessed under the Ward HW 5119(2) was touching to Azim building which was assessed as shed used as shoop and store room admeasuring 38.28 sq. mtrs. and two C.I. sheds touching thereo. This structure came to be demolished by the appellants by following due process of law on 10th December,2003. The second 7 structure assessed under Ward No. HW 5119(2-A) is another building adjoining to Azim building to which also there were further additions. In the circumstances, the respondent can gain no advantage out of the Municipal assessment bills in respect of Plot No.117-A and 117-B. 7. Much controversy has been raised on behalf of the respondent as regards the description of Plot no.117-D mentioned in the impugned notice, Mr. Unnikrishnan, the learned counsel for the respondent has argued that the respondent is not at all concerned with Plot No.117-D and that he is concerned only with Plots No. 117, 117-A and 117-B. However, some of the evidence produced by respondent himself in the form of either telephone bills or electricity bills shows that the same are in respect of Plot No.117-D. In any case today there is no dispute as regards the identity of the disputed structure and it’s ownership. 8. Mrs. Joglekar, learned counsel for the appellants submits that the un-authorised construction carried out by the respondent is of particular concern to the appellants because it is already noticed by the officers of the appellants 8 that the original structure of Azim building is in ruinous condition. It’s condition is so bad, that the appellants were required to issue notice under Section 354 of M.M.C. Act to the respondent. On such a building, the respondent has carried out additional construction of adding a floor to it. Therefore, the entire building has become dangerous not only to its occupants but also to the passers by. 9. Unfortunately the impugned order does not consider any of the above aspects of the matter. The material produced by the respondent before the Court does not, prima facie, establish that the disputed structure is an authorised structure. Therefore, there could be no protection from the Court of law to such a structure and hence the impugned order cannot be sustained. 10. For the reasons stated above, the Appeal from Order is allowed. The impugned order dated 28/11/2006 passed by learned Court No.7, City Civil Court, Bombay is set aside. 11. On the application of Mr.Unnikrishnan, the learned Advocate for respondent, this order is 9 stayed for the period of four weeks from today. (SMT. R.P. SONDURBALDOTA, J.)