* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1713 OF 2009 Premchand Ramkhilavan Yadav & anr. ..........Appellants. V/S. The Mumbai Municipal Corporation for Greater Mumbai & Ors. .......Respondents ---------- Mr. S.K.Dubey, adv.for appellants. Mr. Vinod Mahadik, adv.for respondent-BMC. CORAM : SMT. R.P. SONDURBALDOTA, J. DATED : 18TH DECEMBER, 2009. P.C. :- 1. This first appeal is preferred to challenge the judgment and order dated 26th August, 2009 passed by the Bombay City Civil Court dismissing L.C.Suit No.5222 of 2001, filed by the appellants. By the said suit, the appellants challenged the notice issued under Section 351 of the Mumbai Municipal Corporation Act dated 11th September, 2001 and the order of the Assistant Municipal Commissioner passed thereon on 3rd October, 2001. * 2 * 2. The appellants claim to be the tenants in respect of rooms No.25 and 25A respectively situated at Mathurdas Thakkar Chawl, Sambhaji Chowk, Kurla (West). It is the specific case of the appellants that appellant no.1 is the tenant in respect of Room no.25 which is not the subject mattter of the notice and hence the present proceedings. Appellant no.2 claims to be the tenant in respect of Room No.25A. The impugned notice alleges that there is unauthorized horizontal extension on the open plot with brick masonry walls and ladi coba roof over M.S. Sections admeasuring 11 ft 6 inches x 13 ft 6 inches at Ground floor with with 9 ft height and 13 ft x 16 ft 9 inches at roof level as shown in the sketch in the impugned notice. These premises according to the appellants is Room No.25A. 3. Both the appellants replied by their letter dated 13th September, 2009 claiming that there is no unauthorized extension carried to Room No.25 as alleged in the notice. They contended that there are infact two premises i.e. Room No.25 and 25A. It is stated in reply that the portion shown as existing structure in the sketch accompanying the notice is Room No.25 and the portion shown as extension is Room No. 25A. Mr. Dubey, the learned counsel for the appellants submits that the Assistant Municipal Commissioner as well as the learned trial Judge failed to * 3 * appreciate the fact that there had been rent receipts issued to appellant no.2 in respect of Room No.25A since the year 1984-85. Strangely, though appellant no.1 claims no right over the disputed structure i.e Room No. 25A, he is the only witness examined by the appellants in the trial. Appellant no.2 has not stepped into the box at all. The documents relied upon by the appellants which are essentially the rent receipts issued by the landlord a well as the Official Assignee for some time do not establish authorization of the structure. The appellants claim to have become tenants in respect of the premises since the year 1985. It is nobody s case that the premises have been constructed by getting the ’ plans sanctioned from the the Corporation. In that case, it was necessary for the appellants to establish that the suit premises have been existence since prior to the datum line, that is prior to the year 1964. There is no evidence of such existence before the court at all. 4. Mr. Dubey, the learned advocate for the appellants, submits that since the suit premises have been in existence at least since the year 1985 i.e. for a long period of more than 20 years, it must be inferred that the premises have been tolerated by the Mumbai Municipal Corporation and therefore the notice ought to have been discharged. There cannot be any substance in this argument because for a structure to be authorized there * 4 * can be only two tests. Either the structure is constructed by getting the plans sanctioned from Mumbai Municipal Corporation or by establishing that the structure has been in existence since prior to the datum line. Since the appellant has failed to establish either of them, the Bombay City civil court has rightly dismissed the suit. 5. It is well established that the challenge to the order passed by Assistant Municipal Commissioner under Section 351, Mumbai Municipal Corporation Act is in the Civil Court is limited. Such order of Assistant Municipal Commissioner is a quasi judicial order. The scrutiny of such an order by the Civil Court is limited to finding out whether the order suffers either from non application of mind or lack of hearing or malafides. If the order exhibits that Assistant Municipal Commissioner has granted hearing to receiver of notice by giving him an opportunity to file reply and tender documents in support of his stand, considered the documents and passed a speaking order, there can be no interference by the Civil Court with the order. It is seen that the order passed by Assistant Municipal Commissioner in the instant case does not suffer from any of the above three infirmities. He has applied his mind to the contention of the appellant, considered the documents produced by him and passed a speaking order. * 5 * 6. Hence, the Appeal is dismissed. With the dismissal of the Appeal, Civil Application No. 4388 of 2009 taken out for injunction does not survive. The same is accordingly disposed off. 7. Mr. Dubey states that the plaintiff desires to make an application to the Mumbai Municipal Corporation for regularization of the structure. The plaintiffs are at liberty to do so. [SMT. R.P. SONDURBALDOTA, J]