Aniruddha Sitaram Singh vs Municipal Corporation Of Greater ...
2003 Latest Caselaw 1019 Bom

JUDGMENT

Nishita Mhatre, J.

1. This Chamber Summons has been taken out in an Execution Application for a declaration that the order/decree dated 3rd July 1986 passed in Writ Petition No. 1162 of 1982 is a nullity as against the applicant and his premises and that the order is not executable. A further direction is sought to quash the warrant of possession dated 7th April, 2000.

2. The facts giving rise to the present Chamber Summons are as follows:--

A writ petition being writ petition No. 1167 of 1982 was filed against the Bombay Municipal Corporation (hereinafter referred to as "the Corporation") by the erstwhile owners of Plot No. 348 of the Town Planning Scheme of Bombay City (Mahim). The petition was filed against the occupants of unauthorised structures situate on this plot including the applicant. The learned Judge by the order dated 3rd July 1986 made Rule absolute in terms of prayer (a) of the petition. Prayer (a) of the petition reads as under:--

"(a) that a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India be issued against the 1st Respondents requesting them to demolish and remove the unauthorised structures situate on plot No. 348 of the Town Planning Scheme of Mahim and shown on the plan Exhibit A hereto with red and blue hatched lines and a red cross and deliver to the petitioners vacant and peaceful possession of the land over which the said structures stand."

The plan annexed at Exhibit "A" to the petition included the applicant's structure and, therefore, the Corporation was also directed to demolish the structure of the applicant. The premises i.e; final plot No. 348 changed hands and is now in possession of respondent No. 2. Respondent No. 2 has purchased these premises from respondents Nos. 3 and 4. The applicant claims that his father was a tenant of respondents Nos. 3 and 4, who owned the plot, and he is, therefore, now entitled to continue as a tenant in possession of those premises. He claims that the order passed in the writ petition cannot be executed against him as the Corporation i.e. Respondent No. 1 has found that his structure is not a contravening one. This order was passed on 7th August 1993. The present claim by the applicant that the structure which he occupies today cannot be demolished pursuant to the order passed in the writ petition is founded on the aforestated basis.

3. According to the applicant, a notice was issued to him on 16th February 1991 calling upon him to show sufficient cause as to why the structure occupied by him should not be removed or demolished for enforcing the final scheme under the Development Control Rules as also in accordance with the order of 3rd July 1986 passed in writ petition No. 1167 of 1987. On 14th August 1991, the applicant was informed that his structure was not shown in the Town Planning Scheme Plan, Bombay City No. III (Mahim Area) and, therefore, he was called for a personal hearing. By a communication of 15th June 1993, pursuant to the hearing given to the applicant on 29th June 1992, the applicant was called upon to remove his structures which were found on the portion of final Plot No. 348 in the Town Planning Scheme. A notice was, therefore, given to him under Section 89 of the Maharashtra Regional Town Planning Act, 1976 to remove himself from the land. Soon thereafter, a representation was made by the applicant and a further hearing was given to him by respondent No. 1. It appears that thereafter the Deputy Law Officer of respondent No. 1 brought to the notice of the Ward Officer that the demolition should not be effected in view of the Municipal Commissioner's order that the developer should provide alternate accommodation to the applicant since he had been staying there as a tenant of the erstwhile owner of the premises and that the structure occupied by the applicant was in existence prior to 1st April 1964. The Deputy Law Officer also cautioned the Ward Officer by requesting him to obtain the submission of the Executive Engineer, Town Planning Scheme in respect of the proposed demolition. On 7th August 1993, the Ward Officer issued a letter to the applicant that the structure which he occupied was not a contravening one. However, there is nothing to show that this structure was not an unauthorised structure.

4. The submission of the learned Counsel on behalf of the applicant is that the Execution Application was invalid in view of the fact that the notice under Order XXI. Rule 22 of the Civil Procedure Code was not served on the applicant and has not been served on him till today. The next contention raised by the learned Counsel for the applicant is that the applicant is a tenant in view of the fact that the suit filed by the erstwhile owners of the property before the Small Causes Court, for eviction and for arrears of rent, was dismissed for default. It is the submission of the learned Counsel that the suit was filed specifically on the footing that the applicant is a tenant of the erstwhile owners of the property and, therefore, once the suit was dismissed, there was a finality of the decree of the Small Causes Court. He urges that in view of the dismissal and the statement made in the plaint filed before the Small Causes Court, there is no doubt that the applicant is a tenant of the structure. The next submission of the learned Counsel is that all events which occurred after the decree was passed i.e. the order in the writ petition upto the Execution Application being filed have to be taken into consideration. The learned Counsel further submitted that in a writ petition, the High Court cannot assume jurisdiction over the lis between the landlord and the tenant and, therefore, the direction given in the order in the writ petition, which is now sought to be executed, is contrary to law. It is urged that respondent No. 2 Society came into the picture in 1990 and did nothing to execute the decree till 1998 when the Execution Application was filed i.e. twelve years after the order in the writ petition making Rule absolute in terms of prayer (a). The learned Counsel submits that the execution is barred by limitation and, therefore, the warrant of possession issued must be quashed and/or set aside. He also places reliance on the rent receipts which the Applicant claims have been issued to his predecessor-in-title. To buttress his arguments, the learned Counsel for the applicant relies on the following judgments:--

(a) Raghunath Das v. Sundar Das Khetri, AIR 1914 Privy Council 129.

(b) Rajagopala Aiyar v. Ramanujachariyar, AIR 1924 Mad 431.

(c) Ajab Lal Dubey v. Hari Charan Tewari alias Hari Tewari, AIR 1945 Pat 1 (FB).

(d) Ramlal Sahu v. Mt. Ramia, AIR 1947 Pat 454 (FB).

(e) Topalmal Chhotamal v. Kundomal Gangaram, .

(f) Satyadhyan Ghosal v. Smt. Deorajin Debi, .

(g) The Municipal Corporation of Greater Bombay v. The Advance Builders (India) Pvt. Ltd., AIR 1977 SC 793.

(h) BhavanVaja v. Solanki Hanuji Khodaji Mansana, AIR 1977 SC 1371.

(i) Satyanarain Bajoria v. Ramnarain TibrewaL, .

(j) S.P. Chengalvaraya Naldu v. Jagannath (dead) by LRs., .

(k) Mansu v. Shadi Ram, .

(l) Hope Plantations Ltd. v. Taluk Land Board, Peermade, .

5. Mr. Tembe, learned Counsel for respondent No. 2, submits that all the contentions which the applicant is seeking to raise in the present Chamber Summons ought to have been raised by him to oppose the writ petition filed by the erstwhile owners of the plot. He contends that although the applicant was a party to that writ petition, he chose not to appear before the Court and defend his cause. An appeal was preferred by the applicant against the order of the writ Court directing demolition of the structures. The same contentions as are raised in the present Chamber Summons were raised in the Appeal. This appeal was dismissed and, therefore, the present Chamber Summons also deserves to be dismissed. He further submits that the judgments of the Privy Council in Raghunath Das's case (supra) and of the Patna High Court in Ajab Lal's case (supra) referred to on behalf of the applicant have no application to the present case in view of the Bombay Amendment to the Civil Procedure Code in 1966. He then submits that service of the notice issued in the Execution Application was effected only on the Corporation i.e. respondent No. 1 herein, as the order in the writ petition direct the Corporation to take action and demolish the structures which were unauthorised or contravening structures. He, therefore, submits that since the writ was filed in order to ensure that the Corporation carries out its legal duties, there was no need for a specific notice to be issued against the applicant in the Execution Application. As regards the contention of the learned Counsel that respondent No. 2 had played a fraud on the Court by not disclosing the suit filed before the Small Causes Court. Mr. Tembe brought to my notice the pleadings in the writ petition where it has been specifically pleaded that the applicant is a tenant of the premises. However, he had unauthorisedly extended his structure and, therefore, action was sought against the Corporation, directing them to demolish the unauthorised structures situated on Final Plot No. 348 of the Town Planning Scheme. He further submits that in 1951 permission had been granted by the Corporation to the then occupant to build only a temporary shed. This shed was then transferred to the father of the applicant. Therefore, the applicant had no legal right to continue in the premises. He then submits that assuming the applicant is a tenant, the structure which he occupies can still be an unauthorised structure. One of the contention raised by the learned Counsel for the applicant was that notice is required to be given to the judgment-debtor when there is an assignment of the decree under Order XXI, Rule 16 of the Civil Procedure Code, in reply, Mr. Tembe submits that the entire property was purchased and there was not merely an assignment of the decree and hence no notice was required to be given. Mr. Tembe relies on the judgment in Ram Awadh v. Deputy Director of Consolidation, .

5. On behalf of the Corporation, Ms. Ajitkumar submits that the concept of a contravening structure was not the same as an unauthorised one. She urges that though a structure may not be a contravening structure, it may be an unauthorised one. According to the learned Counsel, in 1951 the Corporation intended to prepare a scheme of Town Planning for the city of Mumbai. Accordingly, Plan I was drawn. This plan indicated a scheme boundary without any structure thereon. Objections were invited from the members of the public. After consideration of these objections. Plan II was drawn up which bore the original plots and structures thereon. After objections in respect of this plan were heard. Plan III was executed bearing the original plots, the final plots and the existing authorised structures thereon. This process took about ten years and in 1961 the scheme was sanctioned. Plan IV was drawn up in 1964 showing the final plots. It is submitted that any structure which was constructed after the final plots were drawn up without the permission of the Planning Authority, was an unauthorised structure. The structure of the applicant was on the original plot No. 326 and final plot No. 348. However, it was not shown on Plan III or IV and hence it was an unauthorised structure. However, it was conceded that the structure is not a contravening structure as it did not contravene the Town Planning Scheme.

6. The only issue that one has to consider is whether the structure fell within the purview of the judgment of 3rd July 1986 in writ petition No. 1162 of 1982. There is no manner of doubt that the structure of the applicant was shown in the plan annexed at Exhibit "A" to the petition. The writ petition was made absolute in terms of prayer (a) thereby direction the Bombay Municipal Corporation to demolish and remove the unauthorised structures situated on plot No. 348 of the Town Planning Scheme and shown in the plan with red and blue hatched lines and red crosses. After perusing the papers in the writ petition. I have no doubt that the applicant's structure was one of those structures which were to be demolished by the Corporation in accordance with the order passed in the writ petition. Merely because the applicant is a tenant, as he claims to be one. It does not mean that the structure which he occupies is not unauthorised. In fact, in the writ petition, there is an averment that the applicant's pred-ecessor-in-title was let one gala admeasuring 18' x 12'. According to respondent No. 2, extensions were made by the predecessor-in-title of the applicant to this gala unauthorisedly without the permission of either the landlord or the Corporation. The other adjacent unauthorised structures have been removed by the Corporation in compliance with the order in the writ petition.

7. The applicant, it appears, has moved various authorities in order to have the structure occupied by him regularised. The Corporation has no doubt stated that the structure is not a contravening one. However, it does not deny that it is an unauthorised structure and, therefore, it is bound to demolish it in accordance with the order of the High Court.

8. The contention of Mr. Kumar, learned counsel for the applicant, that the order in the writ petition is obtained without disclosing that the applicant is a tenant of the petitioners' in the writ petition is not correct. The applicant was respondent No. 5 in the writ petition. He had every right to oppose the same. He chose not to remain present. An appeal filed by him on these very grounds has been dismissed. In fact, one of the ground taken in the appeal is that there was no disclosure of the suit filed by respondents Nos. 3 and 4 for eviction. Despite these contentions having been raised in the appeal, the appeal has been dismissed. Obviously, the applicant seems to be clutching at the last straw in order to save his unauthorised structure.

9. The contention of the learned Counsel for the applicant that once the Corporation has issued a letter to the applicant that the structure was not a contravening one in August 1993, no demolition of the structure could take place is also unfounded. The concept of an "unauthorised structure" and a "contravening structure" are two different concepts. A structure may be unauthorised, but may not contravene the Town Planning Scheme or the Development Scheme. On the otherhand, a structure may be authorised, but if it contravenes the scheme, certain steps can be taken by the Corporation to demolish such structures. It appears, that the main apprehension of the applicant is that he would not be given any alternate premises by either the Corporation or respondent No. 2. It is for this reason that the learned Counsel for the applicant relied on the case of Advance Builders supra. Whether the applicant has any right to alternate accommodation either from the Corporation or respondent No. 2 in the Chamber Summons is not an issue which is necessary to be decided in the present Chamber Summons. The Chamber Summons is for a declaration that the order/decree of 3rd July 1986 passed by this Court in writ petition No. 1162 of 1982 is a nullity and not executable. This contention of the applicant cannot be accepted and the relief claimed in the Chamber Summons cannot be granted. More so when the appeal filed by the applicant against this order has also been dismissed.

10. For the foregoing reasons, Chamber Summons dismissed.

11. Learned Counsel for the applicant seeks stay of this judgment. Stay granted for four weeks. Ad interim relief granted earlier will continue till then.

Certified copy expedited.