1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1491 OF 2011 Smt.Venubai Baburao Patil, Aged about 82 years, Hindu, India Inhabitant rs. at Ramdas Dharamdas Wadi, Bhawani Shankar Road, F.P.512, TPS IV Mahim Division, Off V.S.Agashe Path, Dadar (West), Mumbai 400 028 ...Appellant (Original Plaintiff) Versus 1. Municipal Corporation of Gr.Mumbai having its office at Mahapalika Marg, Mumbai 400 001 2. Pravin Meghji Nishar Aged about 42 years, Adult of Mumbai, Hindu, Indian Inhabitant, residing at Flat No.11, Lila Niwas, 341, Chandavarkar X Road, Matunga (C.R.) Mumbai 400 019 3. Rajesh Meghji Nishar Aged about 33 years, Adult of Mumbai, Hindu, Indian Inhabitant, residing at Flat No.11, Lila Niwas, 341, Chandavarkar X Road, 2 Matunga (C.R.) Mumbai 400 019 4. Haresh Meghji Nishar Aged about 42 years, Adult of Mumbai, Hindu, Indian Inhabitant, residing at Flat No.11, Lila Niwas, 341, Chandavarkar X Road, Matunga (C.R.) Mumbai 400 019 ...Respondent (Original Defendants) Mr.P.B.Shah for the Appellant Mr.Vinod Mahadik for the Respondent No.1 Mr.Javed Hussein for the Respondent Nos.2 to 4 CORAM:- A.V.NIRGUDE J. DATED:- 22nd NOVEMBER, 2011. ORAL JUDGMENT. 1. This appeal is filed against the judgment and order dated 18.6.2011, passed by the learned Judge, City Civil Court, Gr, Bombay in Long Cause Suit No.943 of 2008. The facts giving rise to the appellant's suit in short can be stated as under: The appellant and her husband are in possession of a structure since prior to 1961-62. Initially the structure had a Mangalore tiled roof and subsequently the roof was covered with C.I. sheets in 1974. The Corporation initiated certain action against the appellant’s 3 husband for certain unauthorized work to the structure. The appellant’s husband then made representation to the Corporation, and vide letter dated 7.12.1974 the Corporation regularized the unauthorized work imposing certain penalty. Thereafter, in 1998, the appellant’s son Sadashiv, received a notice under Section 351 of the Bombay Municipal Corporation Act alleging that he had unauthorizedly constructed mezzanine floor on the structure by raising its height. A copy of the notice which is annexed to the plaint clearly described the extent of additional work with detail measurements. The notice showed existance of a staircase inside the structure for going up on the mezzanine floor. The appellant’s son submitted a reply to this notice and waited for further action. But no action was taken by the Corporation till today pursuant to the said notice of 3.6.1998. For sometime, nothing happened between the parties and in the meantime the land under the suit structure was acquired by the respondent nos.2, 3 and 4. 2. On their complaint the Corporation once again issued notice to the appellant on 28.2.2001 alleging that the appellant has constructed ground + one structure with brick masonary walls etc, with Chajja projected on first floor level and the staircase leading to the first floor 4 constructed from outside the structure. The plan of the offending structure is also annexed to the notice showing measurements etc. 3. The notice thus creates an impression that the Corporation is under assumption that the appellant has unauthorizedly constructed the new structure altogether a few days prior to the notice. The appellant then submitted a reply on 1.3.2008 and explained her stand that the structure was in existence since prior to 1961-1962 and that a notice was given by the Corporation in 1998 and no action was taken thereafter etc. She denies the allegations that the structure was new etc. However, the Assistant Commissioner, G North Ward, vide his order dated 17.4.2008 held that the reply submitted by the appellant was not convincing and held that the action under Section 351 of the Mumbai Municipal Corporation Act would continue for demolition. 4. The appellant, thereafter filed the present suit. The respondents filed W.S. and defended their action. The learned Judge of the Lower Court framed issues and allowed the parties to lead evidence and ultimately came to the conclusion that the appellant could not prove that the notice was illegal. 5. The only question that arises for my consideration in this appeal is whether the notice was legal. My answer to this is in negative. As 5 said above, it is an admitted fact that the respondent Corporation had issued notice to the appellant’s son in respect of the same structure way back in 1998 and the action was not taken to its logical end. I have already narrated above as to what allegations were made in the said notice. It seems that the said notice was quite accurate when it described the unauthorized part of the structure as only the mezzanine floor. The notice clearly mentioned that the son of the appellant was responsible for increasing the height of the existing structure so as to accommodate an habitable area as mezzanine floor which earlier was not in existence. The notice further indicates that earlier to the notice, there probably existed a small loft above the ground floor. The loft thus was allegedly improved with increased height etc. The notice further mentioned that on the mezzanine floor the provision of W.C. was also made. The notice thus indicated that with additional mezzanine floor became an independently habitable area with an additional W.C. This was thus the admitted position of the suit structure way back in 1998. 6. The Suit Notice of 2008 was given at the complaint lodged by the respondent nos.2 to 4.The suit notice is annexed with a location sketch with measurements etc. and the description of the structure in 6 minute details. If one compares the description of the suit structure given in 1998 notice with that of 2008 notice, one finds that there are several additions apparently made after 1998 to the structure. It can therefore be said that there was certainly a valid reason for making a complaint against the appellant. But the Suit Notice was incorrect. This time the notice does not make any reference to the earlier notice or the action taken pursuant to such notice. In fact, the person who prepared the suit notice apparently was not aware of the contents of the earlier notice of 1998. The suit notice as said above contends that the entire structure ground floor + first floor is new structure. This makes the notice not only incorrect, but also illegal. If the action under this notice is not stopped, the entire structure would be demolished, which would cause serious and irreparable harm to the appellant. In other words, the Corporation ought to have given a notice to the appellant only in respect of such area of the suit structures which according to them was unauthorized. They could have given a composite describing the earlier allegations and new ones if any. In other words, they could even have added the improvements mentioned to the structure after 1998. Inspite of giving such incorrect and illegal notice, the Officer of the 7 Corporation refused to accept the explanation given by the appellant and thereby committed serious error in not understanding the factual aspect of this case discussed above. He brushed aside the reply by passing a perfunctuory order. In view of this, the appeal should succeed. The suit is decreed in terms of the following order. ORDER i. The suit Notice of 28.2.2008 and action taken is declared to be illegal and the Corporation is prevented from pursuing such action. ii. The Corporation is at liberty to take specific action, as may be advised, against the suit structure. Iii. In view of disposal of the suit, Civil Application No.3001 of 2011 does not survive, and the same is disposed of accordingly. (A.V.NIRGUDE, J.) !!