1 fa1250-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 1250 OF 2010 ALONGWITH CIVIL APPLICATION NO. 3250 OF 2010 Pravin Karsandas Bhanushali .. Appellant V/s. Municipal Corporation of Greater Mumbai, Mumbai .. Respondents .... Mr. R. A. Thorat i/b. Mr. P. J. Thorat for the appellant. Mr. Vinod Mahadik for respondent-BMC. .... CORAM : A. S. OKA, J. DATE : FEBRUARY 10, 2011. P.C. By consent of the parties, the Appeal is taken up for final hearing in terms of order dated 16th November, 2010. 2. The Challenge in this Appeal preferred by the Appellant who is original Plaintiff is to the Judgment and decree dated 20th July, 2010 passed by the learned Judge, City Civil Court, Mumbai, by which the suit filed by the Appellant has been dismissed. 3. The suit structure admeasuring 22.3 feet x 15.6 feet has 2 fa1250-10 been more particularly described in paragraph No.1 of the plaint. According to the case of the Appellant, the suit structure is in existence prior to the year 1960. The Appellant purchased the said suit structure on 7th September, 1981 and since than he is in possession of the suit structure. In the year 1981, a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the “said Act”) was issued on the ground that height of the suit structure is increased by one meter. Reply was submitted to the said notice. It must be stated that by communication dated 11th July, 1982, the ward officer of the Respondent Corporation informed the Appellant that if the Appellant gives an undertaking to shift the suit structure on the rear side of the regular line of L.B.S. Marg whenever Corporation calls upon him to do so and if he pay a sum of Rs.500/- towards security deposit and a sum of Rs.500/- towards penalty, the action against the suit structure will be stayed till the road widening starts. Accordingly, the Appellant deposited the amounts and submitted undertaking dated 9th December, 1992. The relevant portion of the said undertaking read thus : “1. That I am the legal owner of shop situated at and near S.N. Thakkar Petrol Pump, L.B.S. Marg, 3 fa1250-10 Ghatkopar, Bombay – 400 086 and I shall hand over peacefully the vacant possession of the portion that may be affected by road widening and shift the said structure outside regular line of L.B.S. Marg whenever the Corporation calls upon me to do so without claiming compensation for the loss of business or alternative accommodation or as such within a period of three months from the date of Order. ” 4. On 17th July, 2002, a notice under Section 351 of the said Act was issued to the said Respondent. The notice was replied on 22nd July, 2002 by the advocate for the Appellant by pointing out that the suit structure is in existence from the year 1962. After considering the reply, an order of demolition was passed and, therefore, the present suit has been filed. The suit was contested by the Respondents. After the parties adduced evidence, the trial Court dismissed the suit by holding that the Appellant failed to prove that the suit structure was constructed before the datum line. 6. The learned counsel appearing for the Appellant invited the attention of the Court to the first notice under Section 351 of the said Act issued in the year 1981 which contained the allegation that unauthorized repair work was carried out in respect of structure admeasruing 6.10 meters X 5.70 meters by raising the 4 fa1250-10 height of the structure by one meter. He pointed out as to how the undertaking was filed by the Appellant on 9th December, 1982 in terms of the communication issued by the Respondent Corporation. He submitted that the present notice dated 17th July, 2002 has been issued in respect of the same structure. He, therefore, submitted that the order of demolition is illegal. He invited attention of the Court to the undertaking of the appellant dated 12th January, 2011 which has been corrected today with the permission of the Court. 6. The learned counsel appearing for the Respondent supported the impugned Judgment and decree. 7. I have considered the submissions. The communication dated 11th July, 1992, issued by the Respondent Corporation clearly records that after undertaking as stated therein is given by the Appellant and after the Appellant deposits the amount payable by way of security deposit and penalty, the action against the suit structure will be stayed till the road widening starts. Accordingly, undertaking dated 9th December, 1982 was submitted by the Appellant which is already quoted above. In fact, in the said 5 fa1250-10 undertaking, the Appellant has stated that he will hand over vacant possession of the portion that may be affected by road widening and shift the said structure outside the regular road line whenever Respondent Corporation calls upon him to do so without claiming any compensation within a period of three months from the date of order of the Respondent Corporation. In the undertaking of the appellant dated 12th January, 2011, which is taken on record and marked “X” for identification, the Appellant has stated that as and when Respondent issues notice under Section 298 and 299 of the said Act, he shall remove the offending structure which is affected in road widening. 8. The relevant part of the communication dated 17th July, 1982 issued by the respondent read thus : “By directions, I have to inform you that the structure referred to above cannot be regularized. However, if you give Undertaking stating that you will shift the structure outside regular line of L.B.S. Marg, whenever Corporation calls upon to do so, and also pay Rs.500/- towards Security deposit and Rs.500/- towards penalty, the action against structure will be stayed till the road widening start.” 9. The appellant filed Undertaking as stated in the said letter. 6 fa1250-10 The earlier action of demolition in respect of the same structure was postponed till the road widening starts in view of the undertaking dated 9th December, 1992. In the said undertaking of the Appellant dated 12th January, 2011, clauses (a) to (d) of paragraph No.4 read thus: “(a) I undertake to this Hon'ble Court that as and when the Respondents issue Notice under Section 298 and 299 of the said Act to me in respect of the suit structure, I shall remove the offending structure which is affected in the road widening either in part and/or in full. I say that in the event part of the suit structure is affected in road widening, I will be entitled to make representation to the Respondents to go vertical as per the Kurar Village pattern adopted and approved by the Respondents for the area of suit structure which has been affected in the road widening. (b) I say that I will not challenge action initiated under Section 298 and 299 of the said Act by the Respondents. I say that I am entitled to the benefit of various modes which have been followed and approved by Respondents by permitting the structure owner to go on the rear side and/or in vertical direction as permitted and any representation to that effect if made by me, the same will be considered by the Respondents in accordance with law. Till may representation, if any, is considered by the Respondents in accordance with law, the structure which is affected in road widening will not be removed by the Respondents till Notice under Section 298 and 299 of the Bombay Municipal Corporation Act is issued to the Appellant. (c) I further undertake that in case the entire suit premises is affected in road widening, pursuant to the 7 fa1250-10 action initiated by the Respondents under Section 298 and 299 of the Bombay Municipal Corporation Act, I shall surrender the premises in my possession and shift to the rear side. (d) I further undertake that in the event no space is available to shift the suit structure in the rear side, I will surrender the same in its entirety, provided the representation made by me for alternate premises in lieu of suit structure and/or for any other benefit as mentioned in causes (a) and (b) abovenamed is considered by Respondents in accordance with law.” 10. If on the basis of undertaking dated 9th December, 1982, the same structure was protected till work of road widening starts, now the structure will have to be protected in view of the undertaking dated 12th January, 2011. It is not the case of the respondent-corporation that the work of road widening has commenced. In view of the said undertaking and in view of the earlier communication dated 11th July, 1982, now the Respondent Corporation cannot implement the notice dated 17th July, 2002 and order dated 19th September, 2002 till the work of road widening commences. Therefore, the impugned Judgment and decree will have to be set aside. Hence, I pass the following order : 8 fa1250-10 :: O R D E R :: i. The impugned Judgment and decree dated 20th July, 2010 passed by the learned Judge, City Civil Court, Mumbai, is set aside. ii. The undertakings and the statements of the appellant in the undertaking dated 12th January, 2011 (marked as “X” for identification) are accepted. iii. It is made clear that the said undertakings as well as undertakings incorporated in letter dated 9th December, 1992 (Exhibit 10) will continue to bind the Appellant. iv. In view of the said undertakings, by a decree of perpetual injunction, the Respondent Corporation is restrained from acting upon notice dated 17th July, 2002 and order dated 19th September, 2002 till the said corporation serves notice under Section 298 and/or 299 of the said Act to the appellant. 9 fa1250-10 v. If the Appellant commits breach of any of the undertakings, without prejudice to the right of the Respondent to proceed against the Appellant on the ground of breach of undertakings, it will be open for the Respondent to take of the demolition of the suit structure or part thereof which is required for road widening in terms of the notice which may be issued under Section 298 and/or 299 of the said Act. vi. The suit stands partly decreed in the above terms. vii. The Appeal is partly allowed in the above terms with no order as to costs throughout. viii. Civil Application No. 3250 of 2010 does not survive and the same is also disposed of. JUDGE