Shanta Babuso Bhagat vs Canacona Municipal Council

F.M. Reis, J.—Heard Shri R. G. Ramani, learned Counsel appearing for the Appellants and Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondent.

The above Appeal came to be admitted on 06.08.2008 on the following substantial question of law :

(i) Whether the learned Courts below were right in holding that the respondent had demolished the suit shop as per the directives of the High Court?

Shri R. G. Ramani, learned Counsel appearing for the Appellants, has pointed out that the property where the disputed structure was existing was belonging to the Appellants and despite of an Order passed in the Second Appeal by the Municipal Tribunal Authorities, retaining an area of approximately 6 x 7 metres of the disputed shop, the Respondents in a high handed manner, had demolished the disputed structure. Learned Counsel further pointed out that the Respondents have illegally thrown shelter in the directions issued by this Court in a Public Interest Litigation, wherein the Municipal Authorities were directed to demolish the kiosk/gadas which were located on the road widening open spaces within the Municipal areas. Learned Counsel further pointed out that as the area where the disputed structure was located belonged to the Appellants, the question of initiating such action on the basis of such direction of this Court are totally without any justification. Learned Counsel has thereafter taken me through the notice at exhibit 25 and pointed out that without giving any hearing to the Appellants or any show cause notice, straightaway directions were issued to demolish the structure. Learned Counsel has taken me through the Judgment of the second Appellate Authorities and pointed out that the authorities had protected the structure of the Appellants to the extend of 6 x 7 metres. Learned Counsel further pointed out that in the year 1982 there was a deemed permission granted by the Appellants for repair of the said structure. Learned Counsel further pointed out that both the Courts below have misconstrued the evidence on record and have been influenced by the directions of this Court in the Public Interest Litigation to come to the conclusion that the Appellants were not entitled for any damages. Learned Counsel further pointed out that the substantial question of law be answered in favour of the Appellants.

On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondent pointed out that though it is sought to be contended by Shri R. G. Ramani, learned Counsel appearing for the Appellants, that the structure which was existing was in fact the structure which was protected by the Municipal Authorities whilst disposing of the Second Appeal there are no pleadings or any material adduced by the Appellants on that count. Learned Counsel has taken me through the pleadings as well as the issues framed before the Trial Court and pointed out that as there was no foundation on that count, no issue was framed by the Tribunal. Learned Counsel further pointed out that the whole suit filed by the Appellants was on the premise that the disputed structure is located in their own property when the suit filed by the Appellants to declare such ownership came to be dismissed. Learned Counsel further pointed out that the area where the disputed structure was located was within the road widening open area adjoining to the bus stand used for public service and, as such, the Appellants were entitled to proceed in terms of the direction of this Court. Learned Counsel further pointed out that the Appellants have failed to establish that the disputed structure was not located in the open space and, as such, there was no reason for any interference in the impugned Judgment.

I have carefully considered the submissions of the learned Counsel. I have also gone through the records. Though Mr. R. G. Ramani, learned Counsel, would otherwise be justified to contend that the Respondents were not entitled to demolish the structure which was protected in Second Appeal No. 5 of 1995 by the concerned Authority, by Order dated 10.07.1995, nevertheless, there is no material adduced by the Appellants to suggest that the disputed portion of the structure which has been demolished is in fact the area which was protected by the said Order. Shri R. G. Ramani, learned Counsel, was trying to suggest that the plan prepared by Shri Vikas Desai, P.w.3, discloses the location of the disputed structure, but I am afraid that the said depiction by the Engineer cannot be accepted as admittedly, he has visited the site only after the demolition and there are no reasons given by Pw.3 as on what basis the structure which was otherwise demolished much before his inspection was identified by the said expert in the said plan. Apart from that, the said witness has not depicted the structure which was the subject matter of the said Second Appeal No. 5 of 1995 to appreciate the contention of Shri R. G. Ramani, that pursuant to the said Order, a substantial portion of the shop was already demolished and only an area of 7 x 6 metres approximately was retained. As there is no intrinsic evidence adduced by the Appellants to disclose such aspect, the question of contending that a legal structure has been demolished on the garb of the direction of this Court, cannot be accepted. On perusal of the Judgment passed by this Court, there are specific directions issued to the Municipal Authorities to demolish the structures which are coming within the road widening area. In the present case, considering that the illegality of the existing structure was already accepted by the authorities as referred to in the Judgment passed in Second Appeal No. 5 of 1995, the question of contending that the legal structure has been demolished, cannot be accepted.

Apart from that, the whole suit has been filed on the basis that the Appellants are owners of the property. As pointed out by Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondents, the said suit has already been dismissed. In such circumstances, the question of giving any protection to the Appellants would not arise. Admittedly, the Appellants have not produced any documentary evidence to show that the business which was conducted in the disputed structure was legal as no such material has been adduced and as such the question of claiming any damages against the Respondents would not arise. It is also to be noted that only a part of the structure is demolished and the remaining part is retained. In such circumstances, the question of re-appreciating the evidence on record to ascertain whether the structure which has been retained is in fact the legal portion or illegal portion, would not arise. The substantial question is answered accordingly.

In view of the above, I find no merit in the above Appeal which accordingly stands rejected.