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Judgment
Roshan Dalvi, J.—All these Appeals challenged the impugned order of the learned City Civil Court Judge dated 23.03.2010 in the Suits filed by the Plaintiffs in the aforesaid Appeals dismissing their Notice of Motion challenging the issue of notice by the Mumbai Municipal Corporation (MMC) u/s 351 of the Mumbai Municipal Corporation Act (MMC Act). The Plaintiffs in each of the Suits are flat purchasers of various flats wholly unauthorizedly constructed which were not in the sanctioned plan. The plot on which the buildings came to be constructed belong to Defendant No. 2 in the Suits. Certain plans came to be passed for construction of nine buildings of ground plus five upper storeys. Defendant No. 2 through their Constituted Attorney as Developers sought development. Certain amended plans were submitted for construction of five buildings; amongst them two buildings of stilt + 24 and stilt + 16 storeys. The amended plan came to be rejected on 06.09.1984. Nevertheless the buildings came to be constructed. A stop work notice came to be issued u/s 354A of the MMC Act which also did not deter the construction. The flats came to be sold to the Plaintiffs in the Suits.
The agreement with the Plaintiffs as flat purchasers in a proposed co-operative society being constructed upon buildings in a layout were essentially agreements under the Maharashtra Ownership of Flat Act, 1956 (MOFA). It is for the flat purchasers to see sanctioned plans and specifications and thereafter make an informed choice of purchasing their flats. They are deemed to have inspected the plans and specifications. It is stated that the agreements specifically show that the plans were not sanctioned. The Plaintiffs purchased the flats nonetheless.
The MMC lodged the criminal prosecution against the developers. Consequently the MMC sought whatever action civil as well as criminal that was available to it against the developers and against the construction.
The Plaintiffs who were flat purchasers filed Writ Petition to apply for water connection to their flats which was obviously not granted for want of occupation certificate. The Division Bench of this Court directed the Corporation to take necessary action against the various constructions itself.
The flat purchasers themselves applied for regularization of their structure u/s 53(3) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act) which came to be rejected in the year 2002 itself. An Appeal came to be filed u/s 47(1) of the MRTP Act and which was pending at the time of the Suit and which has come to be rejected.
Much later and consequent upon the order in the Writ Petition passed on 11.10.2005 a notice u/s 351 of the MMC Act came to be issued on 19.11.2005. This was to follow the last due legal process by the MMC. The notice showed the unauthorized construction. The fact that the construction is unauthorized and in fact the fact that the construction is not shown to be authorized is an admitted fact. The reply to the notice did not and could not show the authorized construction. The reply instead called upon the MMC to produce authorized plans and documents as the Plaintiffs, who replied the notice, claimed to be unaware of the unauthorized construction. They demanded personal hearing. An absurd argument on their behalf has been made that the initial burden to produce these documents, which was with MMC, has not been discharged. Hence the flat purchasers did not show how the construction was authorised.
Nevertheless the flat purchasers claim that they are bonafide purchasers. They lived in the building for the two decades. They have expended monies for the purchase of the flats. The construction was to the knowledge of the MMC as well as lessee and they were victimized instead.
The reply of the flat purchasers was not indeed a reply to the notice which called upon them to show why the construction, which was shown to be unauthorized, should not be demolished and consequently required them to show if it was authorized. Consequently the Officers of the MMC issued their order that they have not replied to the notice and not produced the documents which were called upon.
Exception is taken to the fact that the reply is sent albeit only by demanding the documents and personal hearing. Hence it is contended that by total non application of mind it is stated that the reply is not sent. The order based upon the letter of the Plaintiffs, which did not reply what they were called upon to reply, came to be passed on 05.12.2005 calling upon the Plaintiffs to remove the unauthorized construction.
The MMC accordingly undertook due legal process as finally decided in the case of Sopan Maruti Thopte and another etc. etc. Vs. Pune Municipal Corporation and another, .
It may be mentioned that for immovable properties authorized construction can be shown only by documentary evidence. No party can contend orally that the construction is authorized without showing documentary evidence. In a case such as this, where flats have been constructed in the building and have been sold under agreements to flat purchasers in a proposed co-operative society under the provisions of MOFA, the documentary evidence must be present to the mind of the flat purchasers upon taking inspection of the plans and specifications statutorily required to be shown and inspected. Consequently in such a case the only documentary evidence would be expected to be with the flat purchasers who, under the specific statutory mandate, would require to inspect the title contained in the sanctioned plan and the specifications. If that is shown in reply to the notice, of course, the notice would not proceed. That essential document which would be only to the knowledge of the party receiving the notice and the party purchasing the flat would have to be shown by that party alone and not by the MMC just because the party orders or directs the MMC to produce the plans which never were.
The fact that the flat purchasers purchased flats which are shown not to have been specifically under sanctioned plans shows that they are not bonafide purchasers. The fact that the regularization application has been made itself shows that the admitted position that the structure was illegal which required regularization. No party can apply for regularization of a regular structure. Consequently it is self-contradictory to state that the structure is authorized and yet apply for regularization.
In fact a preposterous argument is that the lease of the lessees is not terminated by the MMC who is the lessor and the lessees have malafide sought to complain and get the impugned notice enforced.
It is gratifying to note that the learned Judge has passed a legal order upon seeing a blatant defiance of law and the legal procedure throwing to the winds all legal requirements and mandates of construction under the supervision of the planning authority obviously upon the conviction and expectation that such extensive construction, however illegal, would not be demolished.
The order is correct. The Appeals are dismissed with costs of Rs. 25,000/- each.
Civil Applications are disposed off as infructuous. This order is stayed for two weeks.