1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER (ST) NO.9965 OF 2008 WITH CIVIL APPLICATION (ST) NO.9967 OF 2008 Kirit Shah ..Appellant V/s The Municipal Corporation of Greater Mumbai ..Respondent Ms.K.P.Reshma Ravi i/b.M/s.K.P.Ravi & Co., Advocate, for the appellant Mr.Vinod Mahadik, Advocate, for the respondent – MCGM CORAM : R.M.SAVANT, J. DATE : 13TH FEBRUARY, 2009 P.C. . Not on board. 2. Mentioned for urgent reliefs. 3. Taken on board. 2 4. This Appeal is moved on an urgent basis on account of the notice dated 12th February, 2009, issued by the respondent no.1 – Municipal Corporation informing the appellant that the premises situated on the first floor, Shanti Bhavan, Pandu Patil Lane, J.P.Road, Andheri (W), Mumbai – 400 058 would be demolished on 14th February, 2009. The notice further states that the said action is as per the notice dated 6th December, 2007 and final order of the Assistant Municipal Commissioner dated 16th January,2008. 5. The Appeal is directed against the Order dated 28th March, 2008, passed by the learned Judge of the City Civil Court in Notice of Motion No.134 of 2008. The appellant is the original plaintiff, who has filed the suit impugning the notice dated 6th December, 2007, issued by the respondent No.1 – Municipal Corporation under Section 351 of the Mumbai Municipal Corporation Act and the Order of the Assistant Municipal Commissioner dated 16th January, 2008. 6. In the said suit, the plaintiff filed Notice of Motion No.134 of 3 2008 for injunction restraining the respondent no.1 – Municipal Corporation from taking action against the structure in respect of which the said notice under Section 351 had been issued. By the said notice the plaintiff was called upon to show cause why action should not be taken against the unauthorised construction of a room and WC on the first floor of the existing structure. The dimensions of the structure was mentioned as 5.6 meter x 1.70 meter with height of 2.75 meter approximately with brick masonry wall and AC Sheet roof. The said notice was replied by the appellant/plaintiff by his letter dated 14th December, 2007. Thereafter, the Assistant Municipal Commissioner passed an order on 16th January, 2008 calling upon the plaintiff to demolish the structure within a period of seven days as the plaintiff had failed to submit documentary evidence such as City Survey Plan, Assessment Bill, approved plan proving authorisation of the structure or of its existence prior to datum line dated 1st April, 1964. In the said Notice of Motion, initially ad-interim reliefs were refused against which the plaintiff had filed an Appeal from Order being No.144 of 2008 which was disposed of by this Court by Order 4 dated 21st February 2008, by directing the City Civil Court to dispose of the said Notice of Motion within a particular time frame. The plaintiff in the said appeal was also directed to implead the landlord in the suit. However, inspite of the said direction, the plaintiff did not implead the landlord. 7. The Trial Court considered the said Notice of Motion and on the basis of the material that was produced by the plaintiff recorded a finding that the plaintiff has failed to prove the authorisation of the structure covered by the notice or its existence prior to the datum line. The Trial Court was of the view that the description of the structure in question varies in the plaint and that there are three different descriptions in respect of the premises which are in possession of the plaintiff. The plaintiff laid much emphasis on the probate on the basis of which he claimed that the tenancy of the probate in question was transferred to him. However, the Trial Court considering the probate as well as the Rent Bills observed that the said documents relate to room No.6 only and that the probate also confirmed the transfer of 5 tenancy of room No.6. The Trial Court was also of the view that the plaintiff in the said circumstances ought to have explained as to how the other room i.e.room No.5 has come in existence or his possession. There was no explanation forthcoming from the plaintiff in that behalf. The Trial Court also recorded a finding that the documents like Electricity Bill, Telephone Bill and Ration Card show the address as Flat No.6 on the first floor. The said documents also did not show the existence of the other room i.e. room No.5. Since the plaintiff has not described the property in the plaint on the basis of the said City Survey number, the Trial Court was of the view that the City Survey Plan showing the room Nos.4, 5 & 6 could not be relied upon. The Trial Court was also of the view that the City Survey Plan being a copy of the plan obtained by one Mr. Raju R. Kakad whereas the plaintiff is one Kirit Shah and the landlord of the premises is one Jain Shwetramber Murthy and therefore, the plaintiff could not place reliance on the said plan. The Trial Court also taking into consideration the fact that the plaintiff in his reply dated 7th November, 2007, to the letter dated 29th October, 2007, which was earlier in point 6 of time to the notice issued under Section 351, has merely denied carrying out any unauthorised construction. Taking all the aforesaid facts into consideration, the Trial Court was of the view that the plaintiff has not made out a prima facie case for the grant of any relief and therefore, dismissed the Notice of Motion. 8. I have heard the learned counsel for the parties and I have also gone through the documents on record. Admittedly, the datum line date in question is 1st April, 1964. There is not a single document on record which is contemporaneous to the said datum line. The documents, if any, produced by the plaintiff also relate to room No.6 and not room No.5 in respect of which the notice has been issued. In my view, the Trial Court was, therefore, right in coming to a conclusion that the plaintiff has not made out a prima facie case. It is also significant to note that though, the order impugned in the present appeal was passed in the month of March, 2008, the above appeal was not moved and was kept pending, only when the Corporation issued notice dated 12th February, 2009, informing that the demolition 7 of the premises would take place on 14th February, 2009, the instant appeal was moved on an urgent basis. In my view, considering the findings recorded by the Trial Court and the reasons cited by the Trial Court for refusal of the reliefs in the Notice of Motion, there is no merit in the above appeal which is accordingly dismissed. 9. In view of the dismissal of the Appeal from Order, Civil Application (ST) No.9967 of 2008 does not survive and the same is accordingly disposed of. (R.M.SAVANT, J.)