1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1258 OF 2010 WITH CIVIL APPLICATION NO.3289 OF 2010 Anil Rameshwar Chauhan & Ors. .. Appellants. Vs. The Municipal Corporation of Greater Bombay and Anr. .. Respondents. Mr.Harish Shivdasani for the appellants. Mr.J.J.Xavier with Mr.Vinod Mahadik for the respondents. CORAM : D.B.BHOSALE, J. DATED : 11/10/2010. PC: 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment and order dated 8.7.2010 passed by the City Civil Court dismissing a suit filed by the appellants being L.C. Suit No.3788 of 2002. The suit was filed for declaration that the notice under section 351 of the Mumbai Municipal Corporation Act dated 6.7.2002 and the order dated 2.8.2002 passed by the Asst. Municipal Commissioner, G/North Ward so also the notice under section 488 dated 10.8.2002 are illegal and bad in law. The appellants-plaintiffs have also prayed for injunction restraining the defendant-corporation from demolishing and/or pulling down the suit premises. S 2 3. The suit premises as mentioned in the notice under section 351 is room No.5 (hut No.C/H/18), Joshiwadi, Bhagat Lane, Mahim, Mumbai 400 016 (for short “the suit structure”). The appellants have also admitted that they received the impugned notice on the address of the suit structure. The suit structure is a tin structure admeasuring 14’ X 8’. 4. Learned counsel for the appellants has placed almost all relevant material/evidence on record alongwith the memo of appeal. On last occasion, at the request of learned counsel for the parties, the record and proceedings was also called for. I have perused the record with the assistance of learned counsel for the parties. It is pertinent to note that none of the documents relied upon by the appellants is either proved by the appellants or exhibited by the learned Judge in the course of trial. Still, in order to give fair opportunity to the counsel for the appellants, with his assistance I have examined the documents placed on record with the appeal. I find that the address given on most of the documents do not tally with the admitted address of the suit structure. In order to find out whether any reference is made to the documents relied upon in the affidavit of evidence filed by the appellants, I have gone through the evidence of the appellants. I do not find reference made to the documents in the affidavit of evidence, apart from the fact the address mentioned on the documents do 3 not tally with the admitted address on the impugned notice. The appellants in support of their case examined appellant no.1. In his cross examination he has stated that he does not know the area of the suit premises and when it was constructed. It would be relevant to reproduce the part of his cross examination, which reads thus: “1. I cannot tell exactly when the suit premises was constructed. Hansraj Ramji Raoji is the owner of the suit premises. I do not have any documentary evidence about tenancy. I am aware of the fact that the officers of the BMC visited suit premises in year 2002 and carried out measurements. Defendant/BMC given plaintiff notice u/sec.351 of the BMC visited suit premises in year 2002 and carried out measurements. Defendants/BMC given plaintiff notice u/sec.351 of MMC Act. I cannot tell what reply has been given by my mother and what documents were submitted with reply. I am not aware of the order of demolition passed in respect of suit premises. I do not possess any other document than the one produced by me in the Court. It is not true to say that the suit premises is constructed without permission from BMC.” The appellants, have, admittedly, not placed on record the permission granted by the corporation for construction of the suit structure. 4 5. The appellants also examined one Smt.Sarita Darji – P.W.2 in support of this case. In her cross examination she has stated thus: “1. I known plaintiff since last 50 years. She was already residing before I started residing near her. The hut of the plaintiff is a temporary structure. About 4 to 5 persons residing the suit structure. I do not know when plaintiff raised the hut. I do not know whether plaintiff is the owner of the structure or she is tenant. The hut of the plaintiff was once demolished by the Municipal Corporation. She constructed it. It is not true to say that I am deposing falsely as plaintiff is my neighbor.” Apart from this evidence, the appellants also placed reliance upon the agreement dated 21.7.1975 (Exhibit-14). The contents of the agreement have not been proved by the appellants. The address mentioned on this document also does not tally with the admitted address of the suit structure. Apart from this the appellants have not produced any other evidence on record to show that the suit structure is either authorised and/or in existence since prior to 1.4.1964. 6. The respondent-corporation has filed written statement giving history of the suit structure. In paragraph 4(a) and 4(b) thereof the corporation has stated thus: “4(a) These defendants say and submit that there is a suit being L.C.Suit No.3851 of 1996 filed by one 5 Mr.Hansraj Ramji Ravji & Anr. V/s. Mahesh Kalyanji Ramji and Anr. Wherein Corporation is not a party in the Hon’ble High Court. With respect to the above suit, the Court Receiver High Court, Bombay has been appointed as Receiver of the immovable property known as Ramdev formerly known as Joshi Wadi situated at the junction of T.K.Marg & Bhagat Galli, Matunga (W), Bombay and the Court Receiver appointed Shri P.A.Rane as the Rent Controller. In the above matter the Court Receiver had filed the report and sought directions for the plaintiff to take appropriate legal proceedings against the unauthorised occupants of the suit property. In view of the aforesaid His Lordship Mr.Justice R.J.Kochar, J., on 10.7.2001 on the request of both the Ld. Counsels for the parties directed the Court Receiver to request B.M.C. To remove the unauthorised construction. These defendants say and submit that the Court Receiver again filed a report on 10.6.2002 in the Hon’ble High Court stating that corporation is not taking any action despite several letters written by the Court Receiver. In view of the aforesaid His Lordship Mr.Justice F.I.Rebello, J., on 3.7.2002 observed that the failure on the account of Corporation to take steps amounts to obstruction of justice. In fact in view of the aforesaid directions the officers of the Defendants made a statement in the Hon’ble High Court that the entire procedure will be completed and orders according to law will be passed on or before 23.8.2002. These Defendants crave 6 leave to refer to and rely upon the orders of the Hon’ble court and the Court Receiver’s report dated 10.6.2002. (b) These defendants say and submit that the site was inspected by the officer of the defendants Shri Rane, Rent Collector on 22.3.2002 and 4.4.2002 and a list of unauthorised construction was prepared by the said Rent Collector. These Defendants crave leave to refer to and rely upon both the inspection reports and the list of unauthorised occupants as and when produced.” 7. From bare perusal of contents of the written statement it is clear that the suit structure was unauthorised, apart from the fact that the appellants have miserably failed to bring any material on record to show that the suit structure was authorised and/or was in existence since prior to 1.4.1964. In my opinion, this is a case of no evidence. In the circumstances the appeal fails and dismissed as such. Consequently, civil application is also disposed of. (D.B.Bhosale, J.)