1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 301 OF 2010 WITH CIVIL APPLICATION NO. 801 OF 2010 Yeshwant Atmaram Patil ..... Appellant Vs. Municipal Corporation of the City of Navi Mumbai .... Respondents Mr.N.V. Walawalkar Sr. Adv. i/b. Amit B. Borkar For the appellant Mr. R.S. Apte Sr. Adv. i/b. A.A. Garge For the respondent. CORAM : R.G. KETKAR, J. DATE : 30th June, 2010. P.C. : 1. Heard Mr. Walawalkar, learned senior counsel for the appellant and Mr. R.S. Apte, learned senior counsel for the respondent. 2. This Second Appeal challenges the judgment and decree dated 30-4-2010 passed by the learned District Judge, Thane in Civil Appeal no. 36/09. By this judgment, the learned District Judge allowed the appeal preferred by the respondent/original defendant and set aside the judgment and decree dated 29-4-2009 passed by the learned Civil Judge, Junior Division, Vashi in Regular Civil Suit No.51/98. 2 3. The respondent instituted the suit for declaration that the notices issued by the defendant Corporation bearing nos. (i) 04/135/1998 to (ii) 04/154/1998 dated 17-4-1998 are illegal and for perpetual injunction restraining the defendant Corporation from demolishing the suit structures. It is the case of the plaintiff that the property bearing Gat no.57 at village Digha, Navi Mumbai is in his exclusive possession for last more than 50 years. He constructed galas on the portion of the said property. The structures was erected at the time when it was not included in the Municipal Corporation limits i.e. to say when the land was included in the limits of Gram Panchayat. Village Digha was included in the Municipal Corporation limits in the year 1993. It is case of the plaintiff that the Corporation has no power to issue such notices as the structures are not in violation of any of the provisions of Bombay Provincial Municipal Corporations Act, 1949 (B.P.M.C.Act). It is further contended that MIDC did not transfer the property in favour of the defendant Corporation and consequently no title is conferred upon the defendant. On these amongst other grounds, the suit was instituted for declaration that the notices issued by the defendant Corporation are illegal. 3 4. The defendants resisted the suit by filing written statement interalia contending that the plaintiff has not obtained any permission before carrying out construction of galas on Gat no.57. Gat no.57 was acquired by MIDC and the same was handed over to defendant Corporation on 1-10-1997. The defendant justified issuance of notices on 17-1-1998. 5. The parties led oral as well as documentary evidence on record. After considering the material on record, the trial court decreed the suit, against which the defendant Corporation went in appeal and the said appeal was allowed by the District Judge. The plaintiff has preferred this Second Appeal against the District Court’s judgment and decree. 6. In support of this appeal Mr. Walawalkar submitted that the structure under notices were in existence for more than 50 years and at any rate before inclusion of village Dighe within the Municipal Corporation limits in the year 1993. The structures also do not violate any provision of the BPMC Act. Consequently the defendant was not justified in issuing notices. These notices are malafide with a view to taking over the land on which the galas are constructed. He further submitted that the notices issued under section 260 of the BPMC Act are 4 illegal as the construction of the appellant does not violate and is not contrary to Sec. 260 of the BPMC Act. 7. On the other hand Mr. Apte, learned counsel for the respondent supported the impugned judgment. He submitted that in the cross examination of the plaintiff, he admitted that the plaintiff had not obtained any permission from Gram Panchayat for construction. He further admitted that the land covering the suit property was acquired by MIDC. He therefore submitted that after acquisition, the plaintiff was divested of his title. There is no permission granted by any appropriate authority which indicates that the structures constructed on Gat No.57 are authorised. 8. After hearing the learned counsel appearing for the parties and after considering the material on record, it is evident that the plaintiff has not taken any permission for carrying out the structure. Infact the learned District Judge in para 29 of the judgment, recorded that the plaintiff has not led any evidence with regard to any permission for construction of work. He further observed that the plaintiff did not reply to the notice at Exh. 25 as also he did not produce any material to substantiate the claim that the construction is authorized. It is evident 5 that the land of the plaintiff was acquired by MIDC. It is also evident that the plaintiff has not substantiated his claim that the construction is authorized. If that be so, no fault can be found in the notices which were impugned by the plaintiff. In the result I do not find that the learned District Judge has committed any error and it cannot be said that the impugned judgment is perverse. The Second Appeal does not involve any substantial question of law and hence the same is dismissed. 9. In view of the dismissal of the Second Appeal, Civil Application does not survive and the same is also dismissed. 10. On oral application made by Mr. Borkar, the operation of this order is stayed for a period of eight weeks to enable the appellant to carry this matter further, subject to the appellant furnishing undertaking to this court within two weeks from today incorporating therein that the appellant has not created any third party interest in respect of the offending structure and that hereafter also during the period of eight weeks the appellant shall not create any third party interest in respect of the structure. The undertaking should further incorporate that in case the appellant is unable to obtain any suitable order from the superior court within the stipulated period, the appellant himself shall demolish 6 the structure at his costs. The appellant to furnish the undertaking within two weeks from today. 11. It is made clear that in the event the appellant is unable to obtain suitable order from the superior court within eight weeks from today, and the appellant fails to demolish the structure at his costs, defendant Corporation shall be at liberty to demolish the structure and recover the expenses incurred by it from the appellant. It is also made clear that in case the appellant fails to furnish the undertaking within two weeks from today, the defendant Corporation will be at liberty to demolish the structure and recover the expenses from the appellant. [R.G. KETKAR, J.]