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Judgment
Sandeep K. Shinde, J
Pending suit, vide order dated 22.10.2020, the learned trial Court declined to protect the suit structure in respect of which the respondent,
Corporation on 24.2.2012, had issued a notice under Section 351 of the Mumbai Municipal Corporation Act. Aggrieved by the order, the plaintiff has
preferred this Appeal, under Order 43 Rule 1 of the Civil Procedure Code.
Facts of the case are as under :
On 25.4.2012, the respondent, Corporation issued a notice to plaintiff under Section 351 of the Mumbai Municipal Corporation Act, calling upon him
to show cause, why the suit structure described in the notice schedule, should not be removed or pulled down. The structure described in the schedule
is “unauthorised construction of structure with B.M. wall and bamboo and tarpaulin sheet admeasuring 15 ft.3 inches x 32 feet and height 10 feet
(“suit structure†for short) situated at Champa Niwas, Plot no.17, H.F. Society, Road No.5, Jogeshwari (East). Plaintiff respondend the notice
vide reply dated 30.04.2012; but did not submit ‘construction permission’. He, simply stated that the suit structure came into being since before
30 years. Tenor of the reply therefore suggests, suit structure was constructed without permission of the Planning Authority but since it exists prior to
the datum line i.e. 1.04.1962, fixed for commercial structures, it cannot be demolished, which was being used for ‘commercial purposes’. The
authorised officer, after considering the reply, vide order dated 19.05.2012 rejected the explanation/reply and called upon the plaintiff to remove the
suit structure within seven days. Soon thereafter, the appellant instituted Long Cause Suit No.1204/2012 and challenged the validity of notice dated
24.4.2012 issued under Section 351 of the Mumbai Municipal Corporation Act. Pending suit, vide ad-interim order dated 30.05.2012, trial Court
protected the, suit structure, which was in force till 22.10.2020, a date on which Notice of Motion was dismissed.
Admittedly, no construction permission is coming forth in respect of the suit structure, nor there is acceptable evidence to suggest that the suit
structure, was in existence prior to the datum line i.e. 1.4.1962 fixed for commercial structures. A solitary piece of document on which heavy reliance
has been placed by the appellant/plaintiff, is ‘assessment extract’ which is at page-49 of the paper-book. This extract is in relation to property;
K4182(2), Plot no.23, (emphasis supplied), AC shed, Hindu Friend Society, Lessee; Smt. Lalita M. Mehta. It shows, described property on Plot no.23
was assessed to municipal taxes first time on 01.04.1979. Except this document, no other document has been placed on record to substantiate that the
suit structure was in existence prior to the datum line. Be that as it may, in my view, even this assessment extract does not further the plaintiff’s
case, since it is in relation to structure, on Plot no.23 (not 17), in as much as, the notice issued under Section 351 was issued in respect of the structure
standing on Plot no.17. When the learned Counsel for the appellant was countered with this anomaly, Counsel would contend that, another notice
under Section 354 dated 16.5.2012 addressed to the plaintiff was at Plot no.23, Natwar Nagar, Road no.5, HF Society Road, Jogeshwari (East).
Relying on this notice, it is contended that the assessment extract produced by the plaintiff was in respect of the suit structure. In the alternative, it is
argued, that the suit structure was purchased by the plaintiff from its erstwhile owner, Lalita Mehta, whose name reflects in the Assessment extract,
as “lessee†of Plot no.23. However, for the first time, this plea has been advanced, but in absence of pleadings to that effect, this plea cannot be
accepted. Thus, confusion is sought to be created by producing tax assessment extract of other property, though suit notice relates to structure
standing on Plot no.17.
Thus, as stated above, except this property assessment extract, that too of 1979, no other document is coming forth to prima-facie establish
existence of the suit structure was since before the datum line, I do not see any reason to interfere with the well reasoned order passed by the learned
trial Court.
It would not be out of context to state that, the suit structure, is a part of Champa Niwas, Plot no.17, a part of City Survey no.45. Champa Niwas,
was constructed by plaintiff’s father, Vasudeo in 1965, on Plot no.17 allotted to him by the Hindu Friends Co-operative Society Limited. After
demise of, Vasudeo Rao, applicant acquired interest therein by succession, with his brothers. Plaintiff is therefore a co-owner of Champa Niwas.
Champa Niwas was occupied by the applicant, his brothers and 13 tenants. The Technical Advisory Committee of the Corporation, categorised
“Champa Niwas†situated on plot no.17 in the “C-1†category. Resultantly, all the tenants vacated their respective tenaments. The evidence
on record suggest, the plaintiff herein constructed the ‘suit structure’ abutting Champa Niwas, as is evident from the sketch shown in the notice
issued under Section 351 of the Mumbai Municipal Corporation Act. It further appears that, the plaintiff constructed the suit structure abutting
Champa Niwas, somewhere in the year 2012 whereupon the tenants filed a complaint with the Corporation. Thus, Inspector of the Corporation visited
the suit structure, submitted report and thereafter, notice under Section 351 was issued. Now so far as categorizing Champa Niwas in Category
“C-1†is concerned, it may be stated that, though the tenants and plaintiff’s brothers (co-owners) vacated their respective tenaments, neither
the Corporation, nor the co-owners could demolish or pull down the structure because the suit structure is abutting and/or forming a part of Champa
Niwas. In view of the ad-interim relief granted by the City Civil Court, Mumbai in the suit filed by the appellant herein. In the circumstances, though
the T.A.C. recommended that, the structure “Champa Niwas†is required to be demolished immediately, it could not be done in view of the ad-
interim injunction order and also for the reason, that demolition of the Champa Niwas would have damaged the suit structure, which is abutting and/or
forming a part of Champa Niwas. In these circumstances, the tenants of Champa Niwas approached this Court in its writ jurisdiction seeking
directions to the Corporation to pull down the structure of Champa Niwas. When the Division Bench of this Court, while entertaining writ petition, had
noticed that the structure could not be pulled down because of ad-interim order passed in the subject suit instituted by the appellant-plaintiff and that
too in the year 2012, this Court was pleased to direct the learned trial Court to decide Notice of Motion No. 1229/2012 in time bound period. It is only,
after the directions were issued by the Division Bench, the learned trial Judge heard the Motion and dismissed it vide order dated 22.10.2020; which is
impugned in this Appeal by the plaintiffs.
It may also be stated that, the plaintiff herein, is the co-owner and occupying one of the tenaments in the Champa Niwas. There are pending
disputes between the plaintiff and the co-owners, of Champa Niwas. Prima-facie it appears, the other co-owners of Champa Niwas were supporting
demolition and reconstruction of Champa Niwas; whereas, the appellant-plaintiff is opposing it.
Thus, in the consideration of the facts of the case, and after perusing the relevant documents on record, in my view, the plaintiff has neither made
out a prima-facie case, nor the balance of convenience tilts in his favour, nor irreparable loss would be caused to him, if the suit structure is
demolished. Infact, on account of the unauthorised construction made by the plaintiff, the tenants who have vacated their respective tenaments in
Champa Niwas are ‘sufferers’. That for the reasons stated hereinabove, no interference is called for in the impugned order. The Appeal is
dismissed.
Learned Counsel for the appellant, seeks stay of the order for the period of 8 weeks, however, in consideration of the peculiar facts of the case, the
prayer is rejected.