1 fa223-09-j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 223 OF 2009 IN NOTICE OF MOTION NO. 4026 OF 2003 IN L. C. SUIT NO. 539 OF 2002 Municipal Corporation of Greater ] Mumbai, a body corporate ] constituted under the Mumbai ] Municipal Corporation Act, 1888, ] .. Appellants having office at Mahapalika Marg, ] (Orig. Defendants) Fort, Mumbai – 400 001. ] V/s. 1. Mr. Thomas Mathew ] 2. Mr. Jhonson Mathew ] 3. Mr. Sabastian Mathew ] All adults, Indian Inhabitants, ] carrying on their business at ] structure bearing assessment No. ] KW-5601 (ICB) IOB, near CST No. ] .. Respondents 844, Veera Desai Road, ] (Orig. Plaintiffs) Opp. St. Catherin Ashram, ] Andehri (W), Mumbai – 400 056. ] 2 fa223-09-j. .... Mr. Anil Singh i/b. Mr. Vinod Mahadik for the Appellant-BMC. Mr. Thomas Mathew, respondent no.1 present, in-person. .... CORAM : A. S. OKA, J. DATE : FEBRUARY 10, 2011. ORAL JUDGMENT :- By an Administrative order of the Hon'ble the Chief Justice, the Appeal was specially assigned to this Court. Accordingly, the appeal was fixed for final hearing on 31st January, 2011. With a view to appreciate the submissions made by the the parties, it will be necessary to make a brief reference to the facts of the case. 2. The Respondents are the Original Plaintiffs and the Appellant Corporation is the Original Defendant. The Respondents have stated in the plaint that they were in use, occupation and possession of the structure consisting of three shops more particularly described in paragraph No. 1 of the plaint. In paragraph No.3 of the plaint, it is contended that the three shops (for short “suit shops”) were in possession of one Jamros Itbargul 3 fa223-09-j. Khan and two others. The Respondents are relying upon agreements dated 20th July, 1993, 1st June, 1994 and 3rd February, 1995, under which they claim to have acquired the suit shops. Reliance is placed on payment of non agricultural assessment. It is contained that an application was made by the Respondents for getting the suit shops assessed for municipal taxes. In the plaint, reliance is placed on various documents in respect of electricity and water connection relating to the suit shops. It is stated that as there was a threat issued by the Appellant Corporation to demolish the suit shops without following due process of law, L.C. Suit No. 3078 of 1996 was filed by the Respondents for injunction restraining the Appellant from demolishing the suit shops without following due process of law. The Respondents are relying upon ad-interim relief granted in the said suit by the trial Court on 10th June, 1996 by which the Appellant was restrained from demolishing the suit shops without following due process of law. It is contended that notwithstanding the said order, on 27th June, 1996, a portion of the roof of the suit shops was demolished and, therefore, a Notice of Motion was taken out by the Respondents for taking action against the Appellant for breach of the order of injunction. It is stated that though the Respondents were allowed 4 fa223-09-j. to repair the roof, in reply filed by the Appellant to the Notice of Motion in the said suit, it was contended that no such demolition was carried out. The plaint discloses that notice dated 19th December, 2001, was issued by the Appellant under Section 354 A of the Mumbai Municipal Corporation Act, 1888 (herein after referred to as the “said Act”) alleging that the Respondents were carrying out unauthorized work. In the plaint, it is stated that as there was threat of demolition, L.C. Suit No. 6650 of 2001 was filed by the Respondents in which ad-interim injunction was granted by the Trial Court on 21st December, 2001. 3. On 8th January, 2002, another notice was issued by the Appellant alleging that the suit shops were demolished on 22nd April, 1998 and without obtaining permission, Respondents have reconstructed the suit shops. The Respondents were called upon to remove the suit shops within a period of 24 hours . Reply was issued on 11th January, 2002 by the Respondents through their Advocate. The present suit was initially filed for a declaration that notice dated 8th January, 2002 was illegal and for perpetual injunction. It appears that on 16th September, 2003, the suit shops were demolished by the Appellant Corporation. Various 5 fa223-09-j. allegations have been made in the suit as regards the movable properties of the Respondents taken by the officers of the Corporation. On the basis of the said subsequent event of demolition, plaint was permitted to be amended. Apart from adding averments, the Respondents prayed for declaration that action of demolition was illegal. Another prayer was added for directing the Appellant to reconstruct the suit shops with same measurement and similar material and for restoration of status- quo ante. In the alternative, it was prayed that the Respondents be allowed to reconstruct the suit shops at the same place at their own costs. Paragraph No. 17A was incorporated in the plaint by another amendment contending that the Appellant-Defendant be directed to provide alternative site and/or plinth and/or accommodation in lieu of the demolished suit shops. A prayer was added for a mandatory injunction directing the Appellant to provide the Respondents an alternative site and/or land in similar locality and/or the same size of the suit shops. 4. Written statement was filed by the Appellant to the original suit. Various averments made in the plaint were denied. It was contended in the written statement that the suit shops were 6 fa223-09-j. demolished on 22nd April, 1998 by the Appellant after following due process of law and that the Respondents-Plaintiffs reconstructed the same without obtaining prior permission under the guise of order of injunction as well as holidays. Additional written statement was filed to the amended plaint in which the Appellant admitted that the suit shops were demolished on 16th September, 2003. Various other allegations regarding taking away articles and cash were denied. In the additional written statement, it was specifically contended that the suit shops were demolished on 22nd April, 1998 after issuing a notice dated 17th April 1998 under Section 314 of the said Act. It was contended that after demolition, the suit shops were re-erected by the Respondents by taking advantage of holidays on 16 and 17th December, 2001. It was contended that the Respondents cannot allowed to reconstruct the structure on road. 5. After the parties adduced evidence, the learned trial Judge come to the conclusion that the Appellant has failed to prove that the demolition of the suit shops was carried out on 22nd April, 1998 after service of notice under section 314 dated 17th April, 1998. Relying upon admissions of the witness examined by the 7 fa223-09-j. Appellant, the Trial Court held that the case that the suit shops were within road line, cannot be accepted. The Court held that the action of demolition carried out on 16th September, 2003 was illegal. The trial Court held that notice dated 8th January, 2002 was illegal. The trial Court permitted the Respondents to reconstruct the suit structure, however, rest of the prayers were not granted. 6. The learned counsel appearing for the Appellant submitted that after demolition of the suit shops, a road has been constructed on the land below the suit shops. He submitted that the notice dated 8th January, 2002 was itself a notice under Section 314 of the said Act. He submitted that the said contention was specifically raised before the Trial Court in one of the affidavits filed by the Appellant which was styled as additional written statement. He submitted that as the notice dated 8th January, 2002 is a notice under Section 314 of the said Act, due process of law has been followed by the Appellant Corporation. He submitted that the demolition carried out during the pendency of the suit is legal and proper as due process of law was followed by issuing a notice under Section 314 the said Act. He submitted 8 fa223-09-j. that the notice dated 8th January, 2002 itself records that earlier the structure was demolished by the Appellant Corporation on 22nd April, 1998 on the basis of notice dated 17th April, 1998. He pointed out that apart from all this, the legality of the suit shops has not been established. He relied upon unreported Judgment of this Court dated 7th December, 1970 in Appeal From Order No. 309 of 1969 in case of Sudhakar G. Rane V/s. Bombay Municipal Corporation. He submitted that in view of the said Judgment, the trial Court could not have allowed restoration of the suit shops on a road which is already constructed. He also placed reliance on a decision of the Division Bench of this Court in the case of Shriram Ramphal Patel V/s. Municipal Corporation for Greater Bombay & Ors. 2006(2)2 Bom. C. R. 631. He submitted that unless it was established that the construction of the structure was legal, relief of restoration of structure cannot be granted. He, therefore, submitted that the decree is illegal. 7. The first Respondent appearing in-person for himself and on behalf of second and third Respondents supported the impugned Judgment and decree. He raised a preliminary objection by pointing out that in the compilation/ paper book prepared by the 9 fa223-09-j. Appellant, the entire amended plaint has not been annexed in as much as prayer A-3 added in the plaint and paragraph 17A added in the plaint do not find place in the paper book. He submitted that the most material part of the deposition of a witness examined by the Appellant which is relied upon by the trial Court has not been annexed. He submitted that there was no evidence adduced to show that in the year 1998 the suit shops were demolished and that the demolition was carried out after service of notice under section 314 of the said Act. He submitted that the notice on the basis of which present suit has been filed was immediately replied to by the Respondents through their advocate. He submitted that the action of demolition was completely illegal and due process of law has not been followed. He submitted that the trial Court was justified in passing the decree in as much as admittedly due process of law was not followed. He, therefore, submitted that no interference is called for 8. I have given careful consideration to the submissions. The main question which arises for consideration is whether the action of demolition carried out by the Appellant on 16th September, 2003 is legal. It must be noted here that L.C.Suit No. 10 fa223-09-j. 3078 of 1996 was filed by the Respondents, admittedly, in respect of the suit shops in which ad-interim injunction was granted against the Appellant restraining the Appellant from demolishing the suit shops without following due process of law. In notice dated 19th December, 2001 issued by the Appellant under section 354A of the said Act, an allegation was made that construction of structure admeasuring 40 feet X 43 feet with B.M. walls and A.C. sheets was being carried out. Immediately on the next day i.e. on 20th December, 2001, the first Respondent issued a reply to the said notice contending that no construction work was carried out or is being carried out. In the reply, it was contended by stating the the structure mentioned in the notice is in existence much prior to the datum line. He placed reliance on order of Additional Tahsildar dated 22nd August, 1984. 9.The present suit was filed for challenging the notice dated 8th January, 2002 in which it is stated that the Respondents have reconstructed a structure and the earlier structure on the same site was demolished by the Appellant on 22nd April, 1998 in pursuance of the notice dated 17th April, 1998 issued under Section 342 of the said Act. The Respondents through their Advocate issued a 11 fa223-09-j. reply dated 11th January 2002 to the said notice dated 8th January 2002. In the reply, it is specifically stated that the notice was received by the Respondents at 3.30 p.m. on 11th January, 2002. It also was contended in the reply that notice under Section 351 of the said Act ought to have been issued. In paragraph No. 13 of the plaint, specific reliance has been placed on the reply dated 11th January, 2002, issued by the advocate for the respondents to the said notice. A photo copy of the said reply has been annexed to the Plaint which shows that the same was received by the Appellant on 14th January 2002. Incidentally, 11th January 2002 was Friday. The office of the Appellant was closed on 12 th and 13th January 2002 being second Saturday and Sunday. In paragraph No.13 of the written statement of the Appellant, the averments made in paragraph No.13 of the plaint have been dealt with. In the said paragraph No.13, there is no denial of the fact that reply dated 11th January, 2002 was issued by the advocate for the Respondents. In fact, the allegations in the reply were denied. Thus, on the very next working day after the day on which the notice dated 8th January 2002 was served, a reply was sent by the advocate for the Respondents to the Appellant in which allegations made in the notice have been specifically denied. It must be noted 12 fa223-09-j. here that it is not the case of the Appellant Corporation that any specific order was passed on the notice after considering the reply. In the written statement as well as in the additional written statement, there is no contention raised that the notice dated 8th January, 2002 is a notice under section 314 of the said Act. Even assuming that it is treated as a notice under Section 314 of the said Act, as the notice was replied by the Respondents, in view of the law laid down by this Court, an order ought to have been passed by the concerned officer of the Appellant which admittedly has not been done. Though, the written statement and in particular the additional written statement states that notice dated 17th April, 1998 was issued in exercise of powers under Section 314 of the said Act, in the notice dated 8th January, 2002, it is stated that the notice dated 17th April, 1998 was issued under section 342 of the said Act. 10.A reference will have to be made what transpired after demolition was carried out. A Notice of Motion No. 4026 of 2004 was taken out by the Respondents seeking interim relief and restoration of the structure. The said Notice of Motion was disposed of by order dated 13th April, 2006 by the learned trial 13 fa223-09-j. Judge. The learned trial Judge recorded a prima facie finding that notice dated 8th January, 2002 was illegal. The learned Judge also observed that the said notice does not state that the said notice was issued under Section 314 of the said Act. Relying upon an unreported Judgment of this Court in the case of Sudhakar G. Rane, the learned Judge observed that it was not possible to grant interim relief of reconstruction without there being any proper permission from the Appellant Corporation as required by law. Therefore, the learned Judge passed an order directing the Respondents to make appropriate application for reconstruction of the demolished structure and directing the Appellant to consider the said application. It appears that accordingly an application was made which was rejected by order dated 11th July, 2006. In the said order, it was stated that the first Respondents admitted before the Trial Court on 12th February, 2004 that the structures were demolished. It was observed that the suit shops were demolished in the year 1998 and it was stated that the road on which the suit shops were situated has been handed over to MMRDA for development and maintenance. There was one more Notice of Motion being Notice of Motion No. 2916 of 2006 taken out by the Respondents for setting aside the said order dated 14 fa223-09-j. 11th July, 2006 and for directing the Appellant to provide alternative premises in lieu of the suit shops in the said vicinity. While disposing of the said Notice of Motion , by order dated 1st November, 2006, the learned Judge held that a reference to admission of demolition by the first Respondent recorded in Roznama dated 12th February, 2004 was a reference to the demolition carried out during the pendency of the suit in the year 2003. The learned Judge observed that the first prayer regarding setting aside the order dated 11th July 2006 passed by the Appellant cannot be considered as the plaint has not been amended for incorporating a challenge to the said order. The second prayer regarding direction to provide alternative premises was not considered by specifically observing that the said prayer can be considered provided that the Respondents amend the plaint and incorporate a substantive relief in terms of the said prayer. Therefore, a liberty was granted to the Respondents to take steps for amendment of the plaint. It must be stated here that all these orders have been passed during the pendency of the suit, and therefore, neither the Appellant nor the Respondents can take advantage of these orders at this stage after the suit has been decided on evidence. Therefore, it will be necessary to advert to 15 fa223-09-j. the evidence adduced by the parties. 11.The first Respondent filed affidavit in lieu of examination-in- chief containing nearly the same averments which are part of the plaint. Various documents were produced by the Respondents which were admitted in evidence and marked as Exhibits. One of the material document at Exhibit “16” is application dated 17th July, 1984 made by the predecessor-in-title of the Respondents praying for assessing the suit shops. The document at Exhibit “20” is order dated 22nd August, 1984, passed by the Additional Tahsildar regarding payment of non agricultural assessment in respect of the suit shops. Reliance is placed on special assessment notices under Section 167 of the said Act which are at Exhibits 6, 7 and 8 respectively which relate to the assessment years 1993-1994 onwards. Letter dated 28th February, 1994 sent by the first Respondent to the Assistant Assessor of the Appellant Corporation recording protest against fixation of the rateable value of the suit shops has been produced at Exhibit 30. There are other documents produced such as a licenses under the Shops and Establishment Act in respect of the suit shops. 12. Now returning back to the cross-examination of the first 16 fa223-09-j. Respondent by the advocate for the Appellant , it must be stated here that the first Respondent admitted that he was not possessing permission granted for construction of the structure. However, he stated that he purchased the three shops in the year 1993, 1994 and 1995. There is no specific suggestion given in the cross- examination of the first Respondent that notice dated 17th April, 1998 under Section 314 of the said Act was served to the Respondents. The very basis of the defence of the Appellant was the said notice and alleged action of demolition on the basis of the said notice on 22nd April 1998. Apart from giving a very vague suggestion in paragraph No. 5 of the cross-examination regarding notice under Section 314, no attempt was made to place any document on record to prove that the said notice dated 17th April 1998 was duly served to the Respondents. No document has been placed on record to show that on 22nd April, 1998 demolition of the suit shops was carried out. The Appellant examined Mr. Umesh Bodke, Assistant Engineer by filling affidavit in lieu of examination-in-chief. He deposed in terms of the written statement of the Appellant. There is no specific assertion in his affidavit in lieu of examination-in-chief that the notice dated 17th April was served to the Respondents. Even at that stage, no 17 fa223-09-j. attempt was made to produce any proof of the service of the alleged notice dated 17th April, 1998 or to produce documents showing that the suit shops were demolished on 22nd April 1998. As pointed out earlier, in the notice dated 8th January, 2002, which is subject matter of challenge in the present suit, the Appellant has stated that notice dated 17th April, 1998 was issued under Section 342 of the said Act. In paragraph No.6 of the cross-examination, the witness of the Appellant admitted that the suit structure was assessed before its demolition. The witness states that the area of structure assessed was 29.4 square meters on 29th May, 1993 and the area of the structure assessed on 1st April, 1994 was 37 square meters. He further stated that if a structure is in the road line, the Appellant Corporation cannot assess the said structure. In paragraph No.7 of the cross-examination, the witness of the Appellant admitted that no documentary evidence has been produced by the Appellant to show that the suit structure was on the property of the Appellant. He admitted that the suit shops were beyond the area of the road in the year 1993. He stated that he was unable to tell the year in which the suit shops came within the area of the road. He admitted that the Appellant had not produced documentary evidence to show that the land below 18 fa223-09-j. the suit shops was handed over to MMRDA for development and maintenance. 13. As pointed out earlier, the entire basis of the defence of the Appellant was that on 17th April, 1998, a notice under Section 314 of the said Act was issued to the Respondents. Photo copy of the said notice was produced on record. There is absolutely no evidence to show that the notice was served to the Respondents. Not a single document has been produced on record to show that demolition was carried out on 22nd April, 1998. Moreover, the witness Mr. Bodke admitted that the suit structure was assessed in the year 1993 and that till the year 1993, the suit structure was beyond the area of the road. The witness could not tell in which year the suit shops came within the road line. Though a stand was taken by the Appellant in the order passed on regularization application made during the pendency of the suit that the land below the suit shops was handed over to MMRDA for development and maintenance, the witness Mr. Bodke admitted that no documentary evidence was produced by the Appellant regarding handing over the said land to MMRDA for development and maintenance. The notice dated 8th January 2002 under challenge 19 fa223-09-j. in the suit proceeds on the assumption that in the year 1998 due process of law was followed and the suit shops were demolished. However, Appellant could not lead any evidence to substantiate the said contention. Moreover, the notice dated 8th January, 2002 is not in accordance with law and in any case, a reply was submitted by the Respondents to the notice on the very next working day. Even assuming that the said notice can be considered as a notice under Section 314 of the said Act, no order was passed by the Appellant after considering the reply . Without passing order on the consideration of reply, action of demolition could not have been taken. Thus,the law laid down by this Court has not been followed. Thus, what follows is that the demolition carried out in the year 2003 during the pendency of the suit is completely illegal as the same has been done without following due process of law. 13. The learned counsel appearing for the Appellant relied upon a decision of Division Bench of this Court in the case of Shriram Ramphal Patel(supra). By a Writ petition, the petitioner therein was seeking a direction by way