Gorai Machhi Mar Sahakari Sanstha Limited vs Municipal Corporation Of Gr. Mumbai

Sandeep K. Shinde, J

Plaintifs in Long Cause Suit No.749 of 2020 have preferred this appeal against the order dated 22nd September, 2020 passed in the Draft Notice of

Motion by the learned Judge, City Civil Court, (Borivali Division), Dindoshi, Goregaon, Mumbai inter-alia refusing to restrain the Corporation from

executing/enforcing notice issued under Section 354A of the Mumbai Municipal Corporation Act (“MMC Actâ€​ for short)

In the subject suit, plaintifs have challenged validity of the notice issued under Section 354-A of the MMC Act and the order passed by the

Designated Ofcer dated 27th-29th July, 2020.

FACTS:

That upon receiving the complaint RC/009/22/07/2020/154, Ofcer of the Respondent-Corporation visited suit premises on 22nd July, 2020. He found

ongoing unauthorised construction of independent structure (not extention of existing structure) with brick masonary wall and AC sheet roof

admeasuring 13.10 mtrs X (4.25+5.8)/2 metres with average height of (3.0+3.6)/ 2 metres, at Gorai Macchi Mar Sahakari Sanstha Limited, Borivali

(West), Mumbai 91. Ofcer enquired about the permission for said ongoing construction but the plaintifs could not produce the same. Thereupon, Ofcer

prepared a inspection report dated 22nd July, 2020, along with twelve photographs. Inspection report is at Page 14 and photographs are at Pages 16 to

22 of the afdavit-in-reply fled by the Assistant Engineer of the Municipal Corporation of Greater Mumbai. I have perused it.

This inspection report was placed before the Designated Ofcer (Building & Factory), who after perusing the same, issued a notice under Section

354-A of the Act on 22nd July, 2020, whereby, plaintifs were directed to stop construction of unauthorised, which was in progress and further directed

to produce permission granted by the Competent Authority, i.e., Building and Proposal Department. In response to this notice, appellants submitted

documents other than ‘construction permission’. The tenor of the plaintifs’ reply suggests that permission was not required since

plaintifs’ were carrying on the ‘tenantable repairs’. In paragraph no.8 of the reply, it is stated:

“8 My client states that my client has not carried out any unauthorized construction as alleged in the impugned notice contrary to the provision of

Section 342 and 347 of the MMC Act. My client states that my client had carried out and completed only tenantable repairs to the structure in

question such as plastering, painting and replaced the decayed A.C.Sheet of the roof with new ones. My client states that only the said tenantable

repairs were carried out without any addition and alteration to the structure in question and such repairs do not require any permission u/s. 342 and 347

of the MMC Act from the Municipal Corporation.â€​

Besides, it is contended that the suit structure is situated in slum area and was in existence since before 1976. Also, contended that suit structure

was censused under RXC 29-1/1A in the name of Mr. Pascol Kiny in the year 1976 and the Competent Authority had issued Census Certifcate dated

21st December, 1978 in favour of said Pascol Kiny giving the details of structure. It is, therefore, contended that structure in question is protected one

and the same was not recently constructed as alleged the impugned notice.

In support of aforesaid contentions, plaintifs have placed on record a Census Certifcate issued by the Ofce of the Controller of Slums, Bombay and

B.S.D., Old Customs House, Yard, Fort, Mumbai. It is at Page 59 of the paper-book. This certifcate relates to structure RXC 29/1/1A admeasuring

43 X 17 sq.ft. approximately. The Plaintifs had also produced, demand notice issued by the Assessment and Collection Department of the Corporation

and a few electricity bills.

Yet another contention raised was that, notice under Section 354-A of the MMC Act could not have been issued, since at the material time, suit

construction was complete. Reliance has been placed on the judgment and order of this Court in the case of Goverdhan Ramnaresh Singh v. The

Municipal Corporation of Greater Mumbai passed in Appeal From Order No.257 of 1999.

I have perused the cited judgment wherein though stop-work notice was issued, the Trial Court had observed “here one fact is clear so far as such

stop-work notice is even though styled, no record is coming before the Court that really the work was in progress and the stages of progress of the

construction is recorded by the ofce of the Defendantsâ€. In the back-drop of these facts/material, it was held Section 354-A of the MMC Act was

not attracted. However, in this case, report dated 22nd July, 2020 shows; status of structure ongoing; and suit construction was neither extention of the

existing structure nor was in nature of repairs, but independent and it was not occupied. Soon thereafter on 23rd July, stop-work notice was issued. In

fact, photographs fully support the report. In view of these facts, appellants’ contention that notice under Section 354-A of the MMC Act could

not have been issued and acted upon, is rejected.

Appellants, would contend that for carrying out ‘tenantable repairs’ of the existing structure, building permission was not required. In support

of this contention, appellants’ counsel has relied on Census Certifcate dated 10th November, 1976 issued by the Controller of Slums. He certifed,

structure no. RXC/29-1/1 admeasuring 43 X 17 sq.ft. (emphasis supplied) was issued to one Pascol Keny at CTS 1145, Survey No.265, Gorai Village.

In my view, this piece of document no way supports the appellants’ case, in-as-much as measurement of the structure in the certifcate as shown

was 43 X 17 sq.ft., whereas inspection report dated 22nd July and the stop-work notice was issued in respect of the unauthorized construction,

admeasuring 13.10 mtrs. X (4.25 + 5.8) 2 mtrs. with average height of (3.0 + 3.6)/ 2 mtrs. approximately. It makes very clear that plaintifs had not

carried out ‘tenantable repairs’ but constructed independent structure without frst obtaining building permission from the Corporation. Moreover,

the said certifcate relates to structure occupied by Pascol Keny at CTS 1145, Survey No.265. However, no material has been placed on record by the

plaintifs to show or to establish prima-facie, as to how are they concerned with the structure certifcate issued by the Controller of Slums. Therefore,

this certifcate no way furthers plaintifs’ case.

In fact, inspection report and photographs distinctly indicate that the plaintifs started construction without permission, which was neither extention of

existing structure nor was it a work in the nature of repair. Besides, evidence sought to be produced to contend that structure was in existence since

before 1976 is not reliable and hence, not accepted.

In consideration of the facts of the case and the evidence on record, no interference is called for in the impugned order.

Appeal is dismissed. Interim stay is vacated. All the applications are, accordingly, disposed of.