1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 922 OF 2009 Pradeep B. Sodha ..Appellant versus The Municipal Corporation of Gr. Mumbai & Anr. ..Respondents Mr.A.A.Kumbhakoni i/b. K.D.Jha for the appellant Mr. Vinod Mahadik for the respondent No.1 BMC Mr.Abhay Khandeparkar for the respondent NO.3 CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. The appellant received notice under Section 351 of the Corporation Act. The reply to the same came to be filed by him and the Competent Officer of the Corporation declined to accept the documents produced by the appellant. Being aggrieved by the action of the Corporation, the 2 appellant filed Long Cause Suit No.4855 of 1999 in the City Civil Court, Bombay. The learned Judge of the Civil Civil Court by his judgment and decree dated 7.3.2007 dismissed the suit against which this appeal is filed. 2. I have heared learned Advocates appearing on both sides. The notice under Section 351 of the Corporation Act clearly indicated that the suit structure is on a compulsory open space. The respondent No.2 landlord attended to the matter and has produced certain documents on record opposing the case of the present appellant. 3. It is admitted by the appellant that he came into the said premises in the year 1975. Certain documents have been produced before the Court. However, they are after the period 1975 and therefore those documents do not show the authenticity of the suit structure and to that extent the view taken by the learned trial Judge is right. It is admitted by the appellant that 3 the main suit is assessed under Building NO.T-1270 and the said date of assessment is prior to 1961-1962. One more structure, namely a pan shop is assessed under No.T-1270(2) and the third is separate another structure i.e. the said structure was assessed under T-1270(3). It is the case of the appellant that at some point of time the three structures came to be assessed together by merger and the bill so issued after merger showed first date of assessment as prior to 1961-62. 4. Undoubtedly, when the three structures are taken together for assessment and merged the Corporation has shown the first date of assessment as prior to 1961-62 taking the main building as principal structure which was undoubtedly assessed prior to 1961-62. 5. Therefore, the mute question before the learned Judge was what is the first date of assessment in regard to the suit structure which came to be assessed for the first time under No.T-1270(3). On 4 record there is a document at Exhibit 27 which shows that the suit structure came to be assessed for the fist time w.e.f. 1.4.1978 under No.T-1270(3). In the impugned judgment one finds a specific reference to these observations and there is specific finding recorded by the learned trial Judge at paragraph 22. Before this Court, in addition to what is observed by the learned trial Judge, learned Advocate Mr.Khandeparkar appearing on behalf of the respondent NO.2 brought to the notice of the Court that at the relevant time Corporation addressed a letter to the respondent No.2 landlord that shop bearing No. 1270(3) is assessed initially from 1.4.1978. If this is the position it is apparent that the suit structure got assessed for the first time w.e.f. 1.4.1978 vide No.T-1270 (3). If this is the factual situation undoubtedly the claim of the appellant that the suit structure is assessed prior to 1961-62 cannot be accepted. The net result of the aforesaid discussion is the appellant before the learned trial Judge as also 5 before this Court failed to show that the suit structure was assessed prior to the datum line namely 1961-62. It is required to be noted that it is not the case of the appellant that the suit structure was constructed after obtaining permission from the Corporation. If these two points are against the appellant undoubtedly the action taken by the Corporation will have to be treated as legal and proper. In absence of documents in favour of the appellant to show that the suit structure was authorised, the claim of the appellant that the Corporation was wrong in calling the suit structure as unauthorised cannot be accepted. 6. I have considered the entire judgment and the points raised before this Court by the learned Advocate for the appellant. The impugned judgment delivered by the learned Judge is legal and proper and no interference is required. Hence the first appeal is required to be dismissed. Hence the Order. 6 ORDER First appeal is dismissed. There shall be no order as to costs. Civil Application No.261 of 2007 is dismissed in view of dismissal of the appeal, with no order as to costs. (R.Y.Ganoo, J.)