1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1005 OF 2009 Mr.Suresh Shankar Nagvekar .... Appellants & Sudhir Shankar Nagvekar LRs of late Mrs.Shakuntala Nagvekar (deceased) original plaintiff Vs. Municipal Corporation of .... Respondents Greater Mumbai & Anr. Mr.Laxman Venkatesan, Advocate for Appellants. Mr.J.J. Xavier, Advocate for respondent no.1. Ms.Naseem Patrawala i/by M/s Pravin Mehta & Mithi & Co.for respondent no.2. CORAM : Smt. R.P. SondurBaldota, J. Date : 5th December , 2009 P.C. : 1. This First Appeal arises out of the judgment and decree dated 2nd February 2009, by which the Bombay City Civil Court dismissed the L.C. Suit No.1524 of 2003 filed by the appellants. The respondents are Mumbai Municipal Corporation, State of Maharashtra and Lokhandwala Infrastructures Private Limited, the original defendants no.1 to 3. 2. The facts of the case stated in brief are as follows : The original plaintiff, Shakuntala was issued notice under Section 351 of Bombay Municipal Corporation Act dated 23rd October 2002 bearing No.AMCGS/1626/351/III/BF/02-03 alleging that she had carried out unauthorized construction 2 admeasuring 10”x6’ x 11”x6’x8” (height) partly of brick masonry walls and partly with tarpolian sheet. Shakuntala did not send any reply to the notice allegedly under impression that the other tenant on the property, Mr.Thakur who had also received similar notice would send the reply. As Shakuntala did not send any reply to the show cause notice, the Assistant Municipal Commissioner, on 16th December 2002, passed final order and directed Shakuntala to remove unauthorized structure within a period of 15 days from the date of receipt of notice. When Shakuntala did not remove the structure, she was served with the intimation dated 4th February 2003 under Section 488 Bombay Municipal Corporation Act that the Officers of Municipal Corporation would visit the property on 6th February 2003 at 11 am. for demolition of unauthorized structure. Only thereafter Shakuntala filed the suit herein to challenge the notice under Section 351 Bombay Municipal Corporation Act and the order dated 16th December 2002 of Assistant Municipal Commissioner thereon. She also sought permanent injunction to restrain the respondents from taking any action pursuant to the impugned notice and the order. The suit as filed originally was only against respondents no.1 and 2. Respondent no.3 was added to the suit in the year 2001 on the application filed by it after it purchased the entire property on which the suit premises are situate. 3 3. It is the contention of the appellants that the suit premises in fact is a bathroom, which has been in existence since the year 1955. It is situate near the well on the suit property and therefore the same is not an unauthorized structure and not liable to be demolished. According to the appellants, earlier the suit premises were covered with palm fonds known as zaveli and later at some point of time, it was changed into a structure of brick masonary walls and tarpaulin. The appellant does not specify the time when the change took place. 4. The appellants relied upon certified copy of extract of cadastral survey sheet no.538-4TH-EDI-1954. Mr.Venkatesan, learned counsel for the appellants submitted that red mark shown on the extract with a small structure noted by “B” is the disputed structure. This contention is denied by the respondents who state that the structure pointed out by the appellants is not the suit structure, but is the pump room. PW-1 stated in his evidence that in the year 1957 one coconut tree fell on the roof of the disputed premises which caused substantial damage to the same. But as the owner did not permit the appellants’ to repair damage to roof of the premises the appellants’ were constrained to use tarpaulin sheets to cover the suit premises. However, there is nothing to support this claim. It is the case of the appellants that their father Shankar Nagvekar had acquired tenancy in respect of two rooms 4 in the structure bearing No.68B situate on the said Dolarwadi along with the disputed structure. However, there is no evidence that the demised premises were inclusive of the disputed structure. The appellants next relied upon identity card issued by Election Commission of India which shows their residential address as Worli, Sonaur Lane, 68A, Dolar Wadi. This document can hardly help the appellants to show that the disputed structure is part of the demised premises and hence authorised. 5. The appellants thus having failed to establish authorisation of the disputed structure, the trial Court has rightly dismissed the suit. The appeal is therefore dismissed. (Smt.R.P. SondurBaldota, J.)