Bombay High Court
Shri Ramawatar Babulal Jajodia vs Municipal Corporation Of Greater ... on 3 December, 2013
Bench: Anoop V. Mohta
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dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1162 OF 2013
WITH
CAA/1383/2013
Shri Ramawatar Babulal Jajodia .... Appellant
vs
Municipal Corporation of Greater Mumbai .... Respondents
Mr. Anil Rajnath Mishra for the Appellant / Applicants.
Mr. J. F. Reis, Senior Advocate with Mr. S.K. Sonawane for the
respondent/Corporation.
CORAM: ANOOP V. MOHTA, J.
DATE : December 03, 2013
ORAL JUDGMENT:
Heard finally by consent.
2 The Appellant/original Plaintiff has challenged order dated
14.10.2013 passed by the learned Judge, City Civil Court, Borivali
Division Dindoshi, Mumbai, whereby his Notice of Motion is
dismissed.
3 The Plaintiff has filed Suit in view of notice under Section
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351 of Mumbai Municipal Corporation Act, 1888 (MMC Act) dated 7
January 2013 and order dated 18 January 2013 passed by the
Assistant Commissioner in respect of the suit premises. The Plaintiff,
on the date of impugned notice/order, admittedly, being the owner of
the suit premises i.e. Survey No.139-A with structure, situated at
village-Parle, taluka Andheri, doing the business of selling Marbles.
The Appellant is in use, occupation and possession of the premises as
per the rent receipt prior to 1.1.1995, initially as a tenant and later on
by a Lease Deed dated 21.03.1997, and now in view of registered
Conveyance dated 6 May 2004, the owner of the property.
4 The notice under Section 351 of MMC Act called upon the
Applicant to give details and explanation with regard to the alleged
unauthorised structure on the ground and first floor (the suit
premises). It was replied on 11.01.2013 along with supporting
documents to show the ownership and the possession even prior to
year 1995.
5 The Assistant Commissioner dealt with the zerox copies of
12 documents filed by the Appellant and not accepted the same by
giving one or two liner remarks and thereby decided the reply and the
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case against him.
6 Admittedly, the suit premises fall within the declared
Slum area by a Government Gazette dated 24 February 1977. The
provisions of Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 therefore are applicable for all the
necessary action including demolition and/or taking possession of the
unauthorised premises from the unauthorised occupier. The
protection contemplated under the Act also cannot be overlooked.
The power of Authorities under MMC Act even based upon the State
policy declared whereby unauthorised occupiers of the premises are
required to be protected to the extent of providing them an alternative
accommodation in case the Government/concerned Authority, wants
to develop the slum area. The suit structure, if according to the
Corporation is unauthorised and so also the occupation, the
explanation sought and ordered to demolish, in view of the
provisions of the Slum Act, is required consideration.
7 The policy upon which the reference/reliance is made, to
what extent is applicable to the owner of the property, is again a
matter which just cannot be overlooked merely because the
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Corporation has issued notice under Section 351 treating the premises
as unauthorised and so also the occupation. There are ample
documents to show the ownership and the occupation of the suit
premises prior to 1.1.1995, the whole approach and the action so
initiated, is unsustainable, so also the impugned order.
8 The Appellant being the owner, cannot be treated as
"unauthorised occupier" of the suit premises. The owner of the
property, in my view, cannot be compared with the unauthorised
occupier of the property. The structure, even if unauthorised, as
sought to be averred and contended by the Respondent/Corporation,
still the document so placed on record, including the existence of the
structure, whether ground floor, first floor, just cannot be decided by
referring to and/or deciding the issues in such fashion by the Assistant
Commissioner, the basis on which the learned Judge has also passed
the order. The approach of Assistant Commissioner, in the
background, to decide and conclude the issue against the Appellant,
who is the owner of the property is also debatable. The reason so
given as reflected in the order passed by the Assistant Commissioner,
in my view, are also self contradictory. The documents which are prior
to 1.1.1995 just cannot be rejected by single liner finding basically
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when the same are of the years, ranging from 1990-uptodate. There
is nothing on record to show that the Assistant Commissioner has
passed order on 18.1.2013 by giving any personal hearing and/or
opportunity to the Appellant though the reply was filed.
9 The learned Judge has also accepting the submission and
the case of the Corporation, refused to grant ad-interim relief by
holding that the Appellant was not in possession of the property, and
the premises was also not in existence prior to 1.1.1995. The
Applicant never claimed that he is owner of the property prior to
1.1.1995. The occupation of the premises prior to 1.1.1995 though as
tenant but now become owner just cannot be overlooked while
invoking section 351 of MMC Act, though Slum Act is applicable.
10 The owner cannot be treated as the unauthorised occupier
as contemplated under the policy and/or as contemplated under
Section 351 of MMC Act. The authorisation of such structure
specifically when there are assessment bills of the year 1995-1996,
referring to the year 1.4.1996; and other supporting documents like
the electricity supply bills, DP remarks and the conversion of the land
for a commercial purpose since 1990, cannot be overlooked to deny
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the protective relief as sought in the matter.
11 The existence of unauthorised structure, even if any,
subject to evidence and/or material, need to be tested in the trial.
The Assistant Commissioner has no Authority and/or jurisdiction to
decide the complicated issue and specifically when the suit premises is
in a slum area and the Slum Act itself provides for taking effective
steps against unauthorised occupier on the slum area. The Applicant,
if, is owner as on the date of the notice, the situation changes and
therefore, it required a detail hearing and the trial. The suit premises,
therefore, cannot be demolished merely because of such finding given
by the Assistant Commissioner. The Corporation, if waited for so
many years, there is no reason that abrupt drastic action of demolition
is necessary. The fair and reasonable opportunity is a must, not only
the formality.
12 Therefore, taking overall view of the matter and
considering the above facts and reasons, I am inclined to interfere
with the order so passed. Order dated 14.10.2013 is quashed and set
aside. The Notice of Motion is allowed in terms of prayer (a). The
Appeal from Order is allowed accordingly. However, considering the
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fact and as notice is issued under Section 351 of MMC Act, it is
desirable that the Suit be expedited and be disposed of preferably
within nine months. No costs.
13 In view of disposal of Appeal, Civil Application
No.1383/2013 is also disposed of.
ig (ANOOP V. MOHTA, J.)
