Appeal From Order No.341 of 2001

6th September, 2001

Petitioner Counsel: Shri. I. V. RAO
Respondent Counsel: Ms. KHATU

JUDGMENT

JUDGMENT :- This Appeal takes exception to the order passed by the Bombay City Civil Court dated March 29, 2001 in Notice of Motion No.5495/2000 in L.C. Suit No.6510/2000. By this order, Notice of Motion has been dismissed and prayer for interim injunction during the pendency of the suit has been rejected.

2. The Appellant has challenged the action initiated by the Respondent Corporation under section 351 of Bombay Municipal Corporation Act in respect of subject structure being an unauthorised structure, by way of suit before the Bombay City Civil Court. In this suit, the Notice of Motion for interim injunction during the pendency of suit was filed, which has been dismissed by the trial Court by the impugned order.

3. The first point argued on behalf of the Appellant is that the structure was originally owned by Dayashankar Mishra and was erected much before 1982, therefore, a protected structure. In support of this submission reliance has been placed on the Notice issued to said Dayashankar Mishra by the corporation as back as in the year 1982 and thereafter another notice in the year 1984 calling upon said Dayashankar Mishra to stop unauthorised repair work. It is submitted that the suit structure is the same which is referred to in the said notices. It is contended that the Corporation had to drop action in respect of this very structure which was founded on previous notices, therefore, it was not open to the Corporation to initiate present action with regard to the suit structure on the premise that it is unauthorised structure. This submission is totally fallacious. In the present case the record indicates that the Corporation has initiated present proceedings under Section 351 pursuant to the report submitted by the Court Receiver, who is undisputedly in possession of the subject land on which the suit structure is situate. The Court Receiver informed the concerned Ward Officer of the Corporation in writing on June 16, 1994 that unauthorised hotel canteen as executive is being conducted and the Appellant, Anil Gore, has committed unauthorised encroachment on the suit property, without prior permission of the Court Receiver. In this backdrop, the Court Receiver requested the Corporation to initiate appropriate action for the unauthorised encroachment. Pursuant to the said request, the Corporation initiated action under Section 351 of the Act and issued notice to the Appellant. In response to the notice, the Appellant filed reply taking various contentions. The Concerned Deputy Municipal Commissioner, after analysing all the relevant documents produced on behalf of the Appellant rejected the stand taken in the reply and proceeded to hold that the suit structure is not the same which is referred to in the Notices issued to Dayashankar Mishra in the years 1982 and 1984. This opinion is founded on the basis of record which was available before the Corporation. The Appellant no doubt made similar grievance before the trial Court and the trial Court has adverted to all the relevant aspects of the matter to hold that the suit structure is not the same which is referred to in the Notices issued to Dayashankar Mishra in the years 1982 and 1984, respectively. On the other hand, it is found from the records that the subject structure is unauthorised structure by the side of Umashankar Mishra Chawl and not the unauthorised structure in respect of which notices were issued to Dayashankar Mishra which is by the side of Dayashankar Mishra Chawl. There is no reason to take a different view in the matter. Even before this Court the Respondent-Corporation has filed affidavit and reiterated this position and also produced the original records on the basis of which the impugned action was initiated and opinion recorded by the concerned authorities. The original record has been produced before this Court and the same has been perused. To my mind, there is no reason to doubt the view taken by the authorities as well as by the trial Court in this behalf. In the circumstances, the main basis on which the challenge to the suit notice is based would fail.

4. The Learned Counsel next contends that in any case it was obligatory on the part of the Corporation to give notice to the landlord in respect of the suit structure in as much as the Appellant has come in possession of the suit structure only in the year 1982 and whereas the suit structure is in existence much prior to that. However, in the reply filed before the authorities, pursuant to the suit notice, no such stand was taken. On the other hand, the Appellant has specifically contended that he himself had constructed the suit structure. Be that as it may, the fact remains that the suit structure has been held to be entirely different from the structure owned by Dayashankar Mishra and there is nothing on record to show that the present structure is authorised or was erected after obtaining prior permission. The trial Court has dealt with this aspect as can be seen from para 7 of the impugned order. The trial Court has rightly negatived the contention and distinguished the decisions on which reliance was placed on behalf of the Appellant. I find no reason to take a different view in the matter. The Respondent has rightly contended that the Appellant did not agitate this matter before the first forum (authorities) and it is too late for him to raise such a plea for the first time before the Court and to blame the authorities for not having issued notice to the owner of the structure. There is substance in this argument in an much as, if the Appellant was keen in contesting this position, he should have had insisted before the authorities, to issue notice to the landlord so as to ascertain the correct fact situation, but that is not what has happened in the present case. In that sense the Appellant has waived his right to raise this point. Even for this reason the authorities cannot be blamed for not issuing the notice to the Landlord /owner of the structure. The question of issuing notice to the landlord would arise only when the tenant expresses his inability to offer any explanation because the structure, as it exists was constructed by the landlord/owner and that the tenant insists that notice be issued to the landlord/owner to explain the fact situation. In law, it is suffice if notice Under Section 351 is given to the occupier. On receiving such notice the occupier will have to then assert that, when he obtained possession, the structure was the same and he has not done any changes and call upon the Authorities to seek explanation from the owner. Ordinarily, the Authorities are not expected to give notice to the owner/landlord. Moreover, the Respondent has rightly pointed out that the Appellant did not indicate the name of the owner of the structure or provide any details except mentioning in para 8 of the reply that the structure was constructed by Dayashankar Mishra. As observed earlier the Appellant has taken inconsistent stand in as much as in the reply to the notice stated that he had constructed the structure. In any case, having held that suit structure was different than the Dayashankar Mishra Chawl, which was the bone of contention, it necessarily follows that this plea is unavailable to the Appellant. In my view, this plea is, therefore, devoid of merits.

5. Next point argued on behalf of the Appellant is that, the structure is situated in slum area and, therefore, no action could be taken against the said structure. This submission is again misconceived and clearly over looks the policy of the Corporation that what is protected is only the censused structures in the slum area. In other words, if the structure is not a censused structure, no protection is available to such a structure though it may be situated in a slum area. In that sense, the Respondents were justified in taking action under section 351 of the Act in respect of the suit structure since the same was not censused and no record has been produced on behalf of the Appellant that it has been censused as such. On the other hand, the Appellant contends that he is the tenant in respect of the structure which is part of Dayashankar Mishra Chawl, whereas the finding recorded by the authorities as well as the trial Court is that the suit structure is by the side of Umashankar Mishra Chawl. In this view of the matter, this contention does not merit any interference.

6. The next point raised on behalf of the Appellant was that the Deputy Municipal Commissioner did not consider all the documents which were relied upon by the Appellant. Even this submission is totally devoid of merits. The Deputy Municipal Commissioner has adverted to all the relevant documents while taking decision in the matter. Even the trial Court has referred to all the relevant documents by holding that the suit structure was unauthorised and the action under the provisions of Section 351 was justified.

7. In the circumstances, I find no reason to interfere with the conclusion reached by the Appellate Court and this appeal should fail and is dismissed accordingly.

8. From the nature of pleadings before the Court below as well as before this Court, it is seen that the Appellant has tried to take advantage of similarity of the names of the two Chawls and placed reliance on documents which pertain to structure by the side of Dayashankar Chawl, whereas the suit structure is by the side of Umashankar Mishra Chawl, which is an independent structure. In that sense, the Appellant has not approached the Court with clean hands and has set up a false and dishonest claim. This clearly amounts to abuse of process of law and, therefore, I am inclined to impose compensatory costs of Rs.3,000/- in view of the mandate of Section 35-A of the CPC, to be paid within one week.

9. At this stage, the Learned Counsel for the Appellant prays for stay of this order. Having regard to the facts of the present case, and the fact that the Appellant has not approached the Court with clean hands, I am not inclined to entertain this request and the same is, therefore, rejected.

Appeal dismissed.