First Appeal No. 1047 of 2000

3rd June, 2008

Petitioner Counsel: Mr. P. M. SHAH
Respondent Counsel: Mr. J. XAVIER

JUDGMENT

JUDGMENT :- This appeal is filed by the original Plaintiff/Appellant herein against the order and Judgment dated 27th September, 2000 passed by the Bombay City Civil Court at Bombay in L.C.Suit No.2715 of 1991.

2. The brief facts of the case are as under :

On 10th December, 1990 Junior Engineer working with P/North ward of the Respondent Corporation detected unauthorised construction of a structure admeasuring 34" X 25" having Brick Masonary Walls with cement plaster, wooden doors windows and flagged stone roofing at Master Wadi Marg, Mudha Road, Opp. Amrut Baug, Malad West, Mumbai - 64.

3. After submitting inspection report a notice under section 351 of the MMC Act bearing No.WOP/N/351/23/MWS dated 11th January, 1991 was issued under the signature of Deputy Municipal Commissioner (hereinafter called Dy.M.C. in short) and was served upon Shri. J. T. Shah on 11th January, 1991. The Suit structure was described in the said notice and location sketch was also given on the reverse of it.

4. The said notice was challenged by Prakash J. Shah, the Appellant herein before the City Civil Court, Bombay in L.C.Suit No.2715 of 1991.

5. The Appellant replied the said notice dated 11th January, 1991, by his reply dated 17th January, 1991 stating that the suit structure is old one and was originally having B.M.Wall and A.C.Sheet roof and is assessed under NO.P-9061 (1A)/52/18 Erangal. It was stated that Mangalore roof tiles were completely broken and he has replaced the same with flagged stone roof except that he has not carried out any work. Further he submitted that the same is in existence since 1970. He has annexed assessment bill to his reply which shows structure as tiled shed.

6. By order dated 2nd April, 1991 the City Civil Court, Bombay referred the matter to Deputy Municipal Corporation to pass an order considering the said reply and granted protection for two weeks thereafter. Pursuant to the direction of the City Civil Court, Bombay, the Dy. Municipal Corporation considered the reply as well as documents and also gave personal hearing to the Appellant.

7. The Appellant was heard by the concerned Authority. The Appellant produced only assessment bill which was scrutinized from the Assessment Department who gave remarks that the said bill does not pertain to the suit structure. Since no any other document was produced by the Appellant before the Authority, in absence of any other documents the Dy.M.C. (Zone-IV) passed order of demolition on 16th August, 1991.

8. The Appellant herein amended the plaint and challenged the order dated 16th August, 1991 passed by the Dy.M.C. The Appellant/plaintiff took out the notice of motion No.6602 of 1991 and prayed for ad-interim reliefs. The City Civil Court, Bombay refused the ad-interim relief, against said order the Appellant preferred A.O. This Court remanded the matter back to the City Civil Court, Bombay. The City Civil Court, Bombay heard the notice of motion and disposed of same by referring back the matter to the Dy.M.C.

9. The Dy.M.C. gave rehearing to the Appellant. The Dy.M.C. showed him the remark of the assessment Department, which clearly indicates that the Assessment bill does not pertains to the structure covered by notice under section 351.

10. The learned Advocate appearing for the Appellant/Plaintiff submitted original 7/12 extract showing the area of land 40,125 sq.yards and thus tried to demonstrate before Dy.M.C. that there is enough area to cover FSI of the suit structure admeasuring 850 sq.feet and therefore, the Dy.M.C. by order dated 19th May, 1992 directed the plaintiff to submit regular plan for regularisation of the suit structure by approaching E.E.B.P. (W.S.) However, the Appellant did not submit any application for regularisation as suggested by the Dy.M.C. instead claimed that the structure is authorised.

11. The matter was finally heard by the City Civil Court, Bombay. The Appellant/Plaintiff in his examination-in-chief submitted that, the structure admeasuring 34" x 25" consisting of five rooms was constructed approximately in the year 1962, at that time it was consisting of Mangalore tiles and B.M.Walls. It was further submitted by the Appellant that he changed the roof as it was in broken condition. He further stated that the land below the structure is private land i.e. agricultural land and he is the owner. He further submitted that the suit structure is farmhouse. In his cross-examination, he admitted that the assessment in the year 1968 of the suit structure was in respect of Zavali shed. He further admits that Zavali structure is constructed with Bamboo and Zavali and thus in the year 1968 the structure was Zavali shed.

12. The City Civil Court, Bombay dismissed the suit. Aggrieved by the Judgment and order passed by the Bombay City Civil Court in L.C.Suit No.2715 of 1991 this First Appeal was filed by the Appellant.

13. The Appeal was admitted by this Court on 14th February, 2001. The matter is now finally heard. The learned Advocate appearing for the Appellant submitted that the notice under section 351 of the Bombay Municipal Corporation Act, 1888 was for alleged unauthorised work, work of brick walls and flagged stones and where as the Appellant's specific contention is that the Mangalore tiles roof was changed into flagged stone roof as Mangalore tiles were old and same was in dilapidated condition and therefore it was changed in 1980. The Advocate appearing for the Appellant further submitted that the Municipal assessment bill issued at Exh.13 before the City Civil Court, Bombay shows that first assessment is since 15th October, 1962 under the assessment No.P-9061 (1A)/52/18 and Appellant is residing with his family since prior to 1962 and in same premises and same structure pertaining to suit premises and there is no any other structure. It is further submitted that entire property is 40,125 sq.yards and suit premises are 850 sq.feet (34" x25") situated prior to 1962 which otherwise can be released by B.M.C., considering entire property. It was further submitted that the Appellant is ready to go before the concerned Authority by way of filing application for regularisation of the suit premises. It is further submitted that in the interest of justice fair and final opportunity be given to the Appellant to approach Dy.M.C. to consider the fresh proposal for regularisation of the suit premisses.

14. The advocate for the Appellant further submitted that two farm houses are in existence since 1962 and even tika sheet Exhibit (J) entry dated 20th September, 1968 reflects shed in farmhouse and therefore considering this proof suit premises be protected. It is further submitted that in the present appeal specific ground is taken by the Appellant to give him one more opportunity to apply for regularisation of the suit premises by way of filing application before the Deputy Municipal Commissioner of BMC. The Advocate appearing for the Appellant submitted that the Judgment and order passed by the City Civil Court, Bombay should be quashed and set aside and the Appellant may be given one more opportunity to file application for regularisation before the Deputy Municipal Commissioner, BMC.

15. The Advocate appearing for the Respondent Corporation submitted that the City Civil Court, Bombay has rightly dismissed the suit filed by the Appellant and no interference is called for. He submitted that the evidence which is brought on record by the Appellant does not support the case of the Appellant.

16. I have considered the arguments advanced by the respective counsel for the Parties. I have perused the evidence on record as well as reasoning given by the City Civil Court, Bombay. The main challenge by the Appellant/Plaintiff was to the notice dated 11th January, 1991 issued by the Deputy Municipal Commissioner, (Zone IV) of the Municipal Corporation of the Greater Mumbai. The said notice reads thus :-

WHEREAS contradictory to the provision or Section 347 of Bombay Municipal Corporation, you have erected/executed certain work described in the schedule below at Master Wadi, Marve Madha Road, Opp. Amrut Baugh, Erangal Village, Malad (W), without the Municipal Commissioner's permission, I hereby required you, under provisions of Section 351 of the Bombay Municipal Corporation Act, by a statement in writing subscribed by you or by the agent duly authorised by you in that behalf, and addressed to the Commissioner and delivered at the office of the Ward Officer P/North Ward, Liberty Garden, Malad (West), Bombay-64 on or before 19/1/91, to show sufficient cause as to why the said work should not be pulled down. If you are in possession of any proofs to show that the said work is not unauthorised, you are requested to produce all such documentary evidence.

I hereby further give you notice that if you fails to show sufficient cause to my satisfaction before the aforesaid stipulated date as to why the said work should not be removed or pulled down, I shall cause the said work to be removed or pulled down at your risk and cost.

17. The perusal of the notice reproduced herein above makes it clear that the suit premises is not unauthorised construction. The notice further calls proper reply/explanation from the Appellant that if he is in possession of any proof to show that the suit work is not unauthorised he should submit the explanation or proof before the Authority. The notice further requests the Appellant to produce all documentary evidence in support of his case that the suit structure is not unauthorised structure. The notice further indicates that in case no satisfactory explanation is offered by the Appellant, the said structure will be removed or pulled down. The said notice further specifies unauthorised construction of a structure that is admeasuring 34' X 25' B.M.Wall and AC roof and the same is asposed under No.P-9061(1A)/52/1A Erangal.

18. The Appellant replied the said notice on 17th January, 1991. In the said reply the Appellant admits that the said suit premises are owned by him and he is paying regularly municipal taxes and same premises are being used for residential purposes. In his reply he has referred to the documents like ration cards, water connection etc., to show that the suit premises belongs to him and same are authorised. He admits in the reply that Mangalor roof tiles was completely broken and same were replaced by him by flagged stone roof. He further states that except replacing the roof by him, he has not carried out any additions or alterations to the suit premises. According to him, additions and alterations are in existence from 1970.

19. On 16th August, 1991 the hearing was fixed by the Deputy Municipal Commissioner (Zone IV) in pursuance to the directions given by the City Civil Court, Bombay. At the time of hearing the present Appellant/Plaintiff produced only one document i.e. assessment bill dated 1st October, 1989 in which the date of assessment is mentioned as 1st October, 1962. The concerned authorities also refers to the Assessment bill dated 1st October, 1990 which was submitted by the Appellant earlier.

20. The Deputy Municipal Commissioner after going through the evidence produced by the Appellant i.e. assessment bill dated 1st October, 1989 found that the bill produced by the Plaintiff/Appellant does not pertain to the suit structure under reference. The Deputy Commissioner noticed that the Appellant has not produced any documents to bring the existing suit structure since prior to 1964, which is the datum light in tolerance of residential structure and came to the conclusion that the suit structure is purely unauthorised and liable for demolition. Deputy Municipal Commissioner passed the order as follows :

In the absence of any authentic proof, the structure is proved to be unauthorised, I, hereby order that the plaintiff should demolish the suit structure himself immediately after 15 days from the receipt of this order, afiling which W.O.P./North should demolish the same at the risk and cost of the plaintiff.

21. The order dated 16th August, 1991 was challenged by the present Appellant by way of amendment of the Plaint.

22. Thereafter on 19th May, 1992 the Deputy Municipal Commissioner passed another order. The Dy. Municipal Commissioner heard the matter in pursuance to the order passed by the then City Civil Judge.

23. Before passing the order dated 19th May, 1992 the Dy. Municipal Commissioner offered sufficient opportunity to the plaintiff to putforth his case. The Plaintiff was presented by Shri. R. P. Singh, Advocate and on behalf of Respondent Corporation Assistant Engineer (Building) and Factories F Ward was also present. During the course of hearing, it was brought to the notice of the Advocate appearing for the Plaintiff by the concerned Authorities that the Assessment Bill which was submitted by the Plaintiff earlier were examined by the assessment department and they have clearly mentioned that the same does not pertain to the structure covered by the Notice under section 351 of the Bombay Municipal Corporation Act, 1888.

24. The learned Advocate submitted the original 7/12 extract issued by the Talathi, Goregaon on 28th March, 1990 and extract of 7/12 in which the total area of the plot is shown as 40125 sq. yards. On the basis of this 7/12 extract and area mentioned therein, the Advocate for the Plaintiff submitted that the Plot is enough to cover the F.S.O. concerned by the suit structure.

25. The Dy. Municipal Commissioner directed the plaintiff to approach the Executive Engineer (Building proposals) (Western suburbs) and submit the regular plan for regularisation of the said structure and get it regularised by 30th May, 1992 failing which the suit structure will be treated as unauthorised and the plaintiff should demolish it himself. If the plaintiff fails to remove this structure, the ward officer N/North Ward will demolish it at the risk and cost of the Plaintiff after the expiry of the period granted above.

26. The said order of the Deputy Municipal Commissioner was challenged by the Appellant/Plaintiff by way of amending the plaint before the City Civil Court, Bombay. The Appellant/Plaintiff originally at the time of filing the plant challenged the notice issued by the Dy. Municipal Commissioner dated 11th January, 1991 and thereafter he challenged order passed by the same Authority on 16th August, 1991 and 19th May, 1992 by amending the plaint.

27. At this juncture it would be relevant to refer to the provisions of Section 351 of the Bombay Municipal Corporation Act, 1888 which reads thus :

Proceeding to be taken in respect of buildings or work commenced contrary to section 347 - (1) If the erection of any building or the execution of any such work as is described in section 342, is commenced contrary to the provisions of [section 342 or 347], the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 354, shall.

(a) by written notice, required the person who is erecting such building or executing such work, or has erected such building or executed such work, [or who is the owner for the time being of such building or work], [within seven days from the date of service of] such notice, by a statement in writing subscribed by him or by an agent duly authorized by him in that behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down; or

(b) shall require the said person on such day and at such time and place as shall be specified in such notice to attend personally, or by an agent duly authorized by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.

(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person. [In case of removal or pulling down of the building or the work by the Commissioner, the debris of such building or work together with one building material, if any, at the sight of the construction, belonging to such person, shall be seized and disposed of in the prescribed manner and after deducting from the receipts of such sale or disposal, the expenditure incurred for removal and sale of such debris and material, the surplus of the receipt shall be returned by the Commissioner, to the person concerned.]

[(3) No Court, shall stay the proceeding of any public notice including notice for eviction, demolition or removal from any land or property belonging to the State Government or the Corporation or any other local authority or any land which is required for any public project or civil amenities, without first giving the Commissioner a reasonable opportunity of representing in the matter.]

28. The perusal of the provisions of section 351 makes it abundantly clear that the erection of any building or execution of any work cannot be commenced contrary to the provisions of section 342 or 347 of the Act and in case any person starts the erection of any building or the execution of any such work, the authority under the Act is competent to initiate the proceedings against such person who has started the erection of any building for the execution of any such work contrary to this Act.

29. On perusal of the evidence on record as well as the Judgment and order passed by the City Civil Court, Bombay, one thing is clear that the Appellant/Plaintiff has not obtained any permission from the Municipal Corporation for construction or alteration of the suit structure. Even taking case of the plaintiff as it stands, he has replaced the Mangalore tile roof into a flagged stone roof. When the Appellant/Plaintiff was given opportunity by the authority of the Municipal Corporation, the only assessment bills were submitted as a proof of existence of structure prior to 1964. However, Dy. Municipal Commissioner found that the assessment bill produced by the Plaintiff does not pertain to the suit structure under reference. The Dy. Municipal Commissioner himself perused the assessment bills and found out the remarks from the assessment department that the assessment bill produced by the Plaintiff does not pertain to the suit premises under reference. The Appellant/Plaintiff did not produce any other evidence before the authority and therefore the order passed by the Authority on 16th August, 1991 cannot be faulted. Apart from this, the Inspector of the Respondent Corporation visited the suit premises on 10th December, 1990 and detected unauthorised construction of structure admeasuring 34" x 24" having broken Masnori walls with cement plaster, wooden windows and flagged stone roof at Master Wadi, Marve Madha Road, Opp. Amrut Baug, Erangal Village, Malad (West), Bombay 400 061. The said inspector submitted inspection report to the corporation and after perusal of the said report notice was issued to the Appellant/Plaintiff under section 351 of the Mumbai Municipal Corporation Act on 11th January, 1991. There is no denial on the part of Appellant/Plaintiff that the said notice was not received by him.

30. The City Civil Court, Bombay after perusal of the evidence produced on record and after hearing the respective counsel for the respective parties, came to the conclusion that the notice issued by the Dy. Municipal Commissioner, Mumbai was legal and valid.

31. The Appellant/Plaintiff in his evidence has stated that he repaired the structure and only changed the ACC sheet roof into flagged stone roof. The City Civil Judge on the basis of the evidence on record found that initially the structure was Zavali Shed and thereafter the suit structure became tiles shed and thereafter the suit structure became flagged stone roof. While considering the status of the structure from one or the other, the Plaintiff/Appellant did not obtain permission from the Respondent Corporation. It is the admission of the Appellant/Defendants before the City Civil Court, Bombay that the Zavali Shed is constructed with Bamboo and Zavali and at present the suit structure is a structure consisting of Mangalore tiles and B.M.Walls admeasuring 34' x 25'. On perusal of the assessment bills produced by the Plaintiff/Appellant which were at Exhibit (sic) collectively before the City Civil Court, Bombay, the City Civil Judge found that the suit structure cannot be assist (sic) structure as a description of the suit structure as mentioned in Exh."A" collectively does not tally with Exh."A". The City Civil Court, Bombay observed that the evidence produced by the Appellant/Plaintiff is not trustworthy and does not support the case of the Appellant/Plaintiff.

32. Taking overall view of the matter in respect of notice issued by the Corporation on 11th January, 1991, there is no doubt that same was legal and valid and proceedings initiated by the Deputy Municipal Commissioner of the Respondent Corporation finds support in Plaintiffs/Appellants admission in his examination-in-chief as well as cross-examination that alterations have been made without seeking permission from the corporation. Therefore, the notice issued by the Deputy Municipal Commissioner, Mumbai was legal and valid.

33. Coming to the order passed by the Deputy Municipal Commissioner, Mumbai on 16th August, 1991, I do not find any infirmity in the said order. Infact the Appellant/Plaintiff was given full opportunity to putforth his case before Dy. Municipal Commissioner. The Plaintiff/Appellant utterly failed to produce relevant documents in support of his case. He submitted only assessment bills which did not support the case of the Plaintiff that the existance of suit structure was prior to 1964. Therefore, the order passed by the Dy. Municipal Commissioner (Zone IV) on 16th August, 1991 was absolutely correct and City Civil Court, Bombay was absolutely right in upholding the said order.

34. The Plaintiff/Appellant by way of amendment challenged one more order dated 19th May, 1992 which was passed by the Dy. Municipal Commissioner (Zone IV). The said order was challenged by the Appellant/Plaintiff though said order dated 19 th May, 1992 gave an opportunity to the Appellant/Plaintiff to approach the Executive Engineer (Building Proposals)(Western Suburbs) and submit his regular plan for the regularisation of the said structure and get it regularised by 30th May, 1992. The Appellant/Plaintiff did not take that opportunity and challenged the order dated 19th May, 1992 by way of amending plaint before the City Civil Court, Bombay.

35. In my opinion, the Appellant/Plaintiff should have availed opportunity granted by the Dy. Municipal Commissioner to submit regular plan for the regularisation of the suit structure and get it regularised by 30th May, 1992. The attitude of the Appellant/Plaintiff was adamant and his contention before the City Civil Court, Bombay was that there is no necessity for referring the matter to the Executive Engineer (B-F) for regularisation and on this ground alone he has challenged the said order before the City Civil Court, Mumbai.

36. Infact the order dated 19th May, 1992 was passed by the Dy. Municipal Commissioner, Mumbai in pursuance to the direction by the City Civil Court, Bombay to rehear the plaintiff/Appellant. Before passing order dated 19th May, 1992, the submission was made by the Advocate appearing for the Plaintiff that the original 7/12 extract issued by the Talathi Goregaon on 28th March, 1980 and extract of 7/12 shows that the total area of the plot is 40, 125 sq.yards and F.S.I.consumed by the suit structure is admeasuring only 850 sq. feet. On the basis of this submission the Dy. Municipal Commissioner, Mumbai was fair enough to cover the F.S.I. consumed by the suit structure which admeasures 850 sq.ft. The plaintiff was directed to approach the Executive Engineer (Building Proposals) (Western Suburbs) and submit a regular plan for the regularisation of the said structure and get it regularised by 30th May, 1992, and in case plaintiff failed to approach the Executive Engineer and submit a regular plan for regularisation of the said structure, it was further made clear in the said order that the suit structure will be treated as unauthorised and same will be demolished at the risk and costs of the Plaintiff after the expiry of period granted above.

37. Taking overall view of the matter and taking into consideration the evidence on record and the Judgment and order passed by the City Civil Court, Bombay and arguments advanced by the Advocate appearing for the Appellant as well as the Advocate appearing for the Corporation, I have no doubt, in my mind that the notice issued by the Municipal Corporation of Greater Bombay on 11th January, 1991 to the Appellant/Plaintiff was in accordance with provision of law and same was legal and valid. The order passed by the Dy. Municipal Commissioner on 16th August, 1991 was passed after giving full opportunity to putforth the case of the Plaintiff and Plaintiff failed to establish his case by way of adducing documentary proof to show that the structure was existing prior to 1964. In my opinion, the order passed on 16th August, 1991 by the Deputy Municipal Commissioner, Municipal Corporation, Greater Bombay which is confirmed by the City Civil Court, Bombay was correct and same was in accordance with law.

38. Coming to the order dated 19th May, 1992, same was very equitable order passed by the Deputy Municipal Commissioner by giving one more opportunity to the Plaintiff/Appellant and by accepting statement of the Plaintiff that the plot area is big and therefore the structure of the suit premises ademasuring 850 sq.feet. (Sic). The plaintiff was directed to approach the Executive Engineer and submit regular plain for the regularisation of the said structure and get it regularised by 30th May, 1992. In fact, in my opinion, the Plaintiff/Appellant failed to avail this opportunity and on the contrary challenged this order by way of amending plaint before the City Civil Court, Bombay, I do not find any infirmity in the order dated 19th May, 1992 passed by the Deputy Municipal Commissioner. However, at belated stage and wisely, the appellant has taken ground in the present appeal that if he was given opportunity, he is ready to approach the Executive Engineer and submit a regular plan for the regularisation of the suit structure and get it regularised. The Advocate appearing for the Appellant also submitted during the course of hearing of appeal that now the Appellant is ready to approach the Executive Engineer and submit a regular plan for regularisation of the structure and get it regularised.

39. Though, I do not find any infirmity in order passed on 19th May, 1992 by the Dy. Municipal Commissioner (Zone IV), Municipal Corporation of Greater Bombay, I feel that the ends of justice would meet, if Appellant is given opportunity to approach the Executive Engineer (Building Proposals) (Wester Suburbs) and submit a regular plan for regularisation of the said structure and get it regularised in accordance with rules and regulations.

40. In view of the above discussion the Judgment and order passed by the City Civil Court, Bombay and the notice issued by the Municipal Corporation on 11th January, 1991 to the Plaintiff was legal and valid. The order passed by the Municipal Corporation on 16th August, 1991 was in accordance with law and after proper appreciation of the evidence produced on record by the Plaintiff and after giving full opportunity to the Plaintiff/Appellant. Though I hold that order dated 19th May, 1992 is legal and valid, however, I feel that part of the order that the Appellant to approach the Executive Engineer and submit a regular plan for regularisation of the suit structure and get it regularised by 30th May, 1992 needs to be modified by holding that the Plaintiff to approach the Executive Engineer (Building Proposals)(Western Suburbs) and submit a regular plan for regularisation of the said structure and get it regularised if otherwise permissible in accordance with rule and regulations by 30th August, 2008.

41. The Appeal is allowed to the extent that the Appellant/Plaintiff is given opportunity to approach the Executive Engineer (Building Proposals) (Western Suburbs) and submit a regular plan for the regularisation of the said structure and get it regularised by 30th August, 2008. However, it is made clear that the concerned Authority will have liberty to consider the regular plan/application by the Plaintiff for the regularisation in accordance with rules and regulations of the corporation. The rest of the contentions of appellant in Appeal are rejected. Judgment and order passed by the City Civil Court, Bombay dated 21st September, 2001 is confirmed to the above extent. The appeal is allowed to the above extent. The protection granted to the Appellant by the trial Court and subsequently by this Court during the pendency of appeal to continue till 15th September, 2008. Appeal is disposed of accordingly.

Appeal partly allowed.