1 fa954-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.954 OF 2010 WITH CIVIL APPLICATION NO.2624 OF 2010 Fatimabegum Mohd. Rafique Qureshi ..Appellant Vs. The Municipal Corporation of Greater Bombay and ors. ..Respondents ......... Mr.R.R.Sharma, for appellant. Mr.N.V.Walawalkar with Mr.Vinod Mahadik, for respondent No.1. Mr.Dhanesh Shah i/b.Mr. Anil C. Singh, for respondent Nos.2 to 9 ......... CORAM: R.G.KETKAR, J. RESERVED ON : 27 th JULY, 2010 PRONOUNCED ON : 20 th SEPTEMBER, 2010 JUDGMENT: Heard Mr. R.R. Sharma, learned counsel for the appellant, Mr. N.V. Walawalkar, learned Senior counsel for the respondent no.1 and Mr. Dhanesh Shah, learned counsel for respondents 2 to 9. 2] Admit. By consent of parties, appeal is taken up forthwith for final hearing. Mr. Vinod Mahadik waives service for respondent no.1, Mr.Dhanesh Shah waives service for respondents 2 to 9. 3] This appeal is preferred by the original Plaintiff challenging the 2 fa954-10.sxw judgment and decree dated 10 th June 2010 passed by the 5 th Adhoc District Judge and Additional Sessions Judge, City Civil Court, Dindoshi, Borivali Division, Bombay in Long Cause Suit No. 1383 or 2007. By that judgment, the learned trial Judge dismissed the suit instituted by appellant against the respondents herein, challenging the notice dated 20 th October 2006 issued under section 351 of the Mumbai Municipal Corporation Act, 1888 (for short `Act’) by the first respondent, as also the order dated 28 th March 2007 passed by the Assistant Municipal Commissioner of the first respondent. The appellant shall hereinafter be referred as the Plaintiff and the respondents shall hereafter be referred as defendants as per their status in the trial court. The facts and circumstances, giving rise to the filing of the present Fist Appeal arise as under: 4] Plaintiff instituted present suit on 7 th April, 2007 contending that she is in use, occupation, possession and enjoyment of shop bearing No.8, Jamadar House, 17, National Library Road, Bandra (West), Mumbai 400 050. It is the case of plaintiff that in front of shop no.8, there is a Khoka/Cabin attached to shop no.8 admeasuring 6ft x 6ft which consists of shutter from two sides and wall from backside and one side being south, is the entrance of shop no.8. The controversy in the present first appeal relates to said Khoka/cabin which shall hereinafter be referred as the “suit cabin”. At this stage, it is made clear that there is no controversy in respect of shop no.8 though, in the plaint, plaintiff has described shop no.8 and suit cabin together as suit premises. 5] It is the case of plaintiff that earlier the suit cabin was in possession 3 fa954-10.sxw of Smt.Roshanbi Hussain. One Rizayat Ali Abdul Khaliq had acquired the suit cabin from Roshanbi. Said Rizayat Ali sold the business, goodwill and benefit of tenancy rights in favour of one Badruddin by deed of assignment dated 5 th October, 1967. Pursuant to the said deed of assignment, Badruddin became tenant of the suit cabin and carried on business there. Said Badurddin had given the suit cabin to one Kubudullah Saidullah for carrying on business and the monthly rent was Rs.60/- and Rs.2 towards the electricity charges. On or about 24 th October, 1968, the business of mirrors and photo frames carried on in the suit cabin, was given to one Hazrat Momin on leave and licence basis. On 3 rd September, 1970, Badruddin was accepted as a tenant of the suit cabin by Roshanbi Hussain. Said Roshanbi executed in writing in favour of Badruddin in place of Riayat Ali who was earlier tenant and occupant of the suit cabin. There was dispute between Badruddin and Kubudullah and Short Cause Suit No.2858 of 1976 was instituted in the City Civil Court, Bombay for possession of business and the suit cabin. In that suit, the Court Receiver, High Court, Bombay was appointed in respect of the suit cabin as also the business carried out therefrom. The suit was contested by filing written statement and, ultimately, parties to that suit filed consent terms. 6] It is the case of plaintiff that one Usmangani Chaudhari was tenant in respect of shop no.8. She acquired shop no.8 from said Chaudhari by agreement dated 12 th December, 1988. On the basis of said agreement, she became tenant of shop no.8. After acquisition of shop no.8, rent receipt was transferred in the name of plaintiff by the land lord of the 4 fa954-10.sxw property. Plaintiff further asserted that she has acquired the suit cabin in the year 1989 and plaintiff and defendants in Short Cause Suit No.2858 of 1976 executed declaration in her favour on 6 th October, 1989 and also handed over the possession of suit cabin to her. Roshanbi’s son Tajmohammed Hussain executed declaration in favour of plaintiff on 4 th October, 1989 confirming and admitting that the suit cabin was constructed in front of shop no.8 by Roshanbi. Plaintiff further averred that she had obtained trade licence in respect of shop no.8 as also suit cabin on 5 th April, 1989. After acquisition of shop no.8 by plaintiff from said Chaudhari, by letter dated 25 th February, 1989 Chaudhari requested the land lord to transfer the tenancy rights of shop no.8 in her favour. Plaintiff also obtained Weather Frame Licence as well as Stall Board Licence from defendant no.1 sometime in June, 1989. Said licence is renewed from time to time. 7] It is the case of plaintiff that she received notice dated 6 th March, 1990 under Section 351 of the Act. In that notice it was alleged that she had carried out unauthorised extension and enclosure of Otla by brick masonry walls at East side and rolling shutter at front side and at West side wall admeasuring 9ft x 6 ft as shown in rough sketch. Plaintiff gave reply on 12 th March, 1990 through her advocate and denied the allegations made in the notice. After receipt of reply, defendant no.1 Corporation did not pass any speaking order as also did not take any action. Defendant no.1 was satisfied with the reply given by plaintiff and, consequently, dropped the proposed action. 5 fa954-10.sxw 8] Plaintiff further asserted that she received notice dated 20 th October, 2006 under Section 351 of the Act and the same was pasted on the suit cabin on 20 th October, 2006. In that notice, it was alleged that plaintiff carried out unauthorised extension in front of the premises with B.M. Wall and wooden partition on sides and rolling shutter at front side covered with R.C. Shed having Coba loft inside the premises admeasuring 8’6” x 6’8” inches. Plaintiff replied the said notice through advocate on 24 th October, 2006 and denied the allegations made in that notice. It is the case of plaintiff that the said notice was issued by defendant no.1 with ulterior motive at the instance of the landlord of the property and political leaders who were intending to develop the same. Plaintiff further denied that she carried out or executed any unauthorised extension as alleged. 9] It is the case of plaintiff that the Asstt. Municipal Commissioner of defendant no.1 did not properly consider the reply and passed the impugned order on 28 th March, 2007. Plaintiff, therefore, instituted present suit for declaration that the order dated 28 th March, 2007 passed by the Asstt. Municipal Commissioner as also the notice dated 20 th October, 2006 issued by defendant no.1 under Section 351 of the Act is illegal, malafide and the same is not binding and enforceable against plaintiff in respect of shop no.8 as also suit cabin. She further prayed for perpetual injunction restraining defendants from demolishing shop no.8 as also suit cabin pursuant to the impugned order dated 28 th March, 2007 and notice dated 20 th October, 2006. 6 fa954-10.sxw 10] Defendant no.1 resisted the suit by filing Written Statement dated 26 th June 2007. It was contended that upon receiving the complaint from the landlord of Jamadar House, the site under reference was inspected by Mr. Arun B. Chauhan, Jr. Engineer (Building) on 27 th September 2006. During the course of visit, the officer observed extension to the existing structure with B.M. Wall and wooden partition on sides and rolling shutter on front side covered with A.C. Shed and having ladi coba loft inside the premises. Accordingly he prepared the inspection report. The inspection report was placed before the higher officer, who after perusing the same accorded sanction for issuing notice under sec. 351 of the Act. Accordingly, notice came to be issued in the name of Plaintiff and the same was pasted on the suit cabin on 20 th October 2006. In the notice it was stated that Plaintiff has carried out unauthorized extension in front of his premises i.e. shop no.8 with B.M. Wall and wooden partition on sides and rolling shutter on front side covered with A.C. Shed and having ladi coba loft inside the premises, admeasuring 8’6” x 6’8” at shop no.8. The said work was executed contrary to sec. 342 and 347 of the Act and without permission of the competent authority. Plaintiff was called upon to show cause along with documentary evidence establishing authorization of the offending structure. Defendant no.1 tried to serve notice on 16 th October 2006 and since she was not available, it could not be served. On 17 th October 2006 Plaintiff refused to accept the notice and again on 18 th October 2006 the notice was tried to be served but Plaintiff was not available and therefore the notice came to be pasted at the suit cabin on 20 th October 2006, and copy was also sent by Registered A.D. on 26 th October 2006. Plaintiff replied this notice on 24 th October 2006 which was 7 fa954-10.sxw received on 26 th October 2006. The reply was considered by the Assistant Municipal Commissioner, who passed a detailed speaking order on 28 th March 2007. The Asstt. Municipal Commissioner after going through the reply of Plaintiff as also after considering the documents relied on by Plaintiff, passed the order that the documents relied on by the plaintiff do not prove the authorization of the notice structure. The said documents are not prior to datum line i.e. 1-4-1962. The defendant no.1 therefore prayed for dismissal of the suit. 11] Defendant no.1 thereafter filed additional written statement. Defendant nos.2 to 9 filed written statement as also additional written statement resisting the suit. It was submitted that the suit cabin is unauthorized structure constructed by the Plaintiff. 12] On the basis of rival pleadings of the parties, the learned trial Judge framed necessary issues. The parties led oral as well as documentary evidence on record. In support of Plaintiff’s case, she examined herself at Exh.10 as also P.w. no.2 Laxman Dharmaji Shinde Exh.35, the surveyor working in the office of city survey office, Bandra (west). Plaintiff examined her husband Mohammed Rafique Qureshi P.w.no.3 at Exh.36 as also her son Mohammed Shafique P.W. No.4 at Exh.51. She also filed several documents along with lists 12 and photographs Exh.33 collectively. 13] On the other hand defendant no.1 filed affidavit of Arun Chauhan D.W. no.1 at Exh. 57 and Siddharth P. Sawant D.W. No.2 at Exh.63. The 8 fa954-10.sxw defendant nos.2 to 9 have filed affidavit of Sheikh Mohammed, defendant no.9 at Exh.65. Defendant no.1 filed inspection report at Exh.58, impugned notice dated 20 th October 2006 at Exh.59, photograph Exh. 60, assessment remark at Exh.61. Defendant nos.2 to 9 also filed several documents at Exh.66 collectively, certified copy of CTS plan at Exh.43 and photograph at Exh.67. 14] Considering the evidence on record, the learned trial Judge came to the conclusion that the suit cabin is unauthorized and the plaintiff has carried out extension in front of shop no.8 which was unauthorized. The photographs produced by Plaintiff at Exh. 33 clearly show that the suit cabin is beyond building line and it is in front of the building. The suit cabin is not part and parcel of shop no.8. The learned trial Judge also considered the agreement of sale dated 12-12-1988 between Usman and plaintiff and in particular clause 6 thereof. In clause 6, the seller namely Usman agreed to remove the stall admeasuring about 4 ft. x 6 ft. which necessarily meant the suit cabin in question. He therefore came to the conclusion that the suit cabin is not part and parcel of shop no.8. The documents produced by plaintiff did not establish that the suit cabin was in existence prior to the datum line i.e. 1-4-1962. On the contrary the evidence led by defendants established that the offending structure was unauthorized. 15] I have heard Mr. R.R. Sharma, learned counsel for the appellant – original plaintiff and Mr. Walawalkar, learned senior counsel for respondent no.1 /original defendant no.1 and Mr. Anil Singh, learned 9 fa954-10.sxw counsel for defendant nos. 2 to 9 at great length. 16] Learned counsel for the appellant-original plaintiff as also learned counsel for defendant nos.2 to 9 have submitted compilation of all the relevant documents. In view of this, I deem it appropriate to dispense with calling for record and proceedings of the case as per Order 41 Rule 11 of the Code of Civil Procedure 1908. 17] Mr.Sharma submitted that the suit cabin is authorized and is in existence prior to datum line. He submitted that the suit cabin is part and parcel of shop no.8 and plaintiff is owner and in possession of shop no.8. In the past, the defendant no.1 had issued notice on 6 th March 1990 under section 351 of the Act. It was alleged therein that plaintiff carried out unauthorized extension and enclosure of otla by brick masonry walls at east side and rolling shutter at front side and at west side wall admeasuring 9’ x 6’ as shown in the rough sketch. Plaintiff replied this notice on 12 th March 1990. The defendant no.1 was satisfied with the explanation and therefore no action was taken, pursuant to that notice. He further submitted that the impugned notice is issued on 20 th October 2006 at the behest of the defendant nos. 2 to 9 and is clearly malafide and illegal. He invited by attention to the evidence on record which establishes the case of plaintiff. On the other hand Mr. Walawalkar and and Mr. Anil Singh supported the impugned judgment and decree. They submitted that the evidence on record as also the photographs Exh.33 produced by Plaintiff clearly establishes that the suit cabin is unauthorized extension of shop no.8. The Plaintiff has failed to establish that the suit 10 fa954-10.sxw cabin is part and parcel of shop no.8. 18] Considering the rival contention of the learned counsel appearing for the parties, following points arise for my consideration: 1) Whether the Plaintiff proves that the impugned notice dated 20 th October 2006 and the order dated 28 th March 2007 are illegal, bad in law and not binding on her ? Answer : In the negative. 2) Whether the Plaintiff is entitled to claim relief of declaration and injunction ? Answer : In the negative. 19] Both these points are interlinked and therefore I propose to decide them together. Mr. Sharma submitted that the suit cabin is part and parcel of shop no.8 of Jamadar House. He submitted that the documents filed by plaintiff unequivocally prove that the suit cabin is in existence prior to datum line and consequently is a tolerable construction. He submitted that the order dated 28 th March 2007 passed by the Asstt. Municipal Commissioner ignored the voluminous documentary evidence produced by Plaintiff. 20] It is not in dispute that Plaintiff is a tenant of shop no.8 of Jamadar House. The question is whether the suit cabin is part and parcel of shop 11 fa954-10.sxw no.8 of Jamadar house. Perusal of paragraph 1 of the plaint indicates that plaintiff has claimed that she is in use, occupation, possession and enjoyment of shop no.8. It is further averred that in front of shop no.8 there is khokha/cabin attached to shop no.8 admeasuring 6’ x 6’ which consists of shutter from two sides and wall from back side and one side being south side, is the entrance of shop no.8. It is further averred that shop no.8 and the suit cabin admeasuring 6 x 6 feet or thereabout is in front of shop no.8 at ground floor. The Plaintiff further claims to have acquired the suit cabin from Usmangani Chaudhari under an agreement dated 12-12-1988. Clause 6 of the said agreement reads as under : “That the seller hereby agreed to remove the stall admeasuring about 4 ft. x 6 ft. wherein rexin bags are manufactured prepared at the cost of the seller”. Thus, the case of Plaintiff herself is that the suit cabin is in front of shop no.8. P.W. No.1 in para 2 of her affidavit in examination in chief stated that in shop no.8 there is a covered otla wherein the suit cabin/khokha is situate. 21] PW 3 Mohammed Qureshi, husband of plaintiff, also stated in his affidavit in lieu of examination-in-chief that the suit cabin is situate on the Otla of shop no.8. Shop inside was in possession of Usmangani Chaudhari and suit cabin was in possession of Badruddin and Kubudullah Saidullah. Thus, plaintiff’s own pleadings as also evidence makes it clear that the suit cabin is not part of shop no.8. This also 12 fa954-10.sxw indicates that the suit cabin is different from shop no.8. Thus, suit cabin is distinct and different from shop no.8. 22] On behalf of the defendants D.W. No.1 Arun Chavan deposed that the suit cabin is an extension in front of shop no.8 and this construction is unauthorised. The plaintiff has not elicitated anything from his cross examination and practically the statement made by Arun Chavan that the suit cabin is an extension in front of shop no.8 remain unchallenged. The photographs produced by plaintiff at Exh.33 clearly shows that the suit cabin is beyond building line. It is not in dispute that the shop no.8 is part of the said building and is obviously inside the building line. However, the photographs produced by plaintiff as also the defendants clearly show tht in front of shop no.8 extension was made and the same is beyond the building line. 23] Plaintiff acquired shop no.8 from Usmanghani under agreement for sale and transfer dated 12 th December, 1988. Clause (6) extracted hereinabove, clearly provided that the seller i.e. Usmanghani agreed to remove the stall admeasuring 4 x 6 feet. If at all the suit cabin was part and parcel of shop no.8, the vendor Chaudhary would not have agreed for removal of the stall. Equally plaintiff would have insisted retention of the suit cabin. 24] Considering the material on record and after hearing the learned counsel appearing for the parties, I do not find any justifiable ground for taking a different view. Plaintiff has failed to establish that the suit cabin 13 fa954-10.sxw is in existence prior to the datum line i.e. 1 st April, 1962. No document is produced by plaintiff to substantiate that the suit cabin was in existence prior to the datum line. Considering the material on record, in my opinion the appeal is devoid of any substance and consequently is liable to be dismissed. Accordingly, the Appeal fails and the same is dismissed, with no order as to costs. In view of dismissal of Appeal, the Civil Application also stands dismissed. 25] After pronouncement of judgment, Mr.Sharma orally applied for stay of this order for a period of twelve weeks from today. Mr.Mahadik on behalf of defendant no.1 opposed the prayer Considering the controversy raised between the parties and having regard to the fact that plaintiff desires to carry the matter further, this order is stayed for a period of twelve weeks from today subject to the following conditions:- a) Plaintiff shall file undertaking in this court within a period of two week from today incorporating in that, as of today, plaintiff has not created any third party interest in the suit cabin and he shall not create any third party interest in respect of the suit cabin. b) In case plaintiff is unable to obtain suitable orders from the higher court within a period of twelve weeks from today, he shall demolish the suit cabin at his own costs within two weeks thereafter. 26] It is made clear that if the plaintiff is unable to obtain suitable orders 14 fa954-10.sxw from the higher court within the time stipulated above and further fails to demolish the suit cabin within two weeks thereafter, defendant no.1 will be at liberty to demolish the same and recover the costs thereof from plaintiff. [R.G. KETKAR, J.]