Bombay High Court
Nirmala Ramswaroop Makkar Gaud ... vs The Dy.Municipal Commissioner, ... on 15 October, 2016
Bench: Dr. Shalini Phansalkar-Joshi
(902) FA 1533-06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk
FIRST APPEAL NO. 1533 OF 2006
1. Mrs. Nirmala Ramswaroop Makkar ]
Gaud (since deceased) by heirs ]
1(a) Rekha Ramswaroop Makkar Gaud ]
Age-42 years, Occ.- Service, ]
R/o. Room No. 1950, Chawl No.78, ]
Group No.7, Tagore Nagar, ]
Vikhroli (East), Mumbai-400 083. ]
1(b) Kamla Ramswaroop Makkar Gaud ]
Age-38 years, Occ.- Household, ]
Gaud
1(c) Chandrashekhar Ramswaroop Makkar ]
]
Age-37 years, Occ.- Service, ]
1(d) Bharat Ramswaroop Makkar Gaud ]
Age-32 years, Occ.- Service, ]
Nos. 1(b) to 1(d) R/o. Room No.1950, ]
Chawl No. 78, Group No.7, ]
Tagore Nagar, Vikhroli (East), ]
Mumbai - 400 083. ] .. Appellant
Vs.
1. The Dy. Municipal Commissioner ]
Brihan Mumbai Mahanagar Palika ]
Mahapalika Bhavan, Mahapalika ]
Marg, Fort, Mumbai-400 001. ]
2. The Secretary ]
Shanti Co-op. Housing Society ]
Mogul Lane, Mahim, ]
Mumbai - 400 016. ] .. Respondents
Mr. Madhav Jamdar for the Appellant.
Mrs. M. R. Bhoir for Respondent No.1-BMC.
Mr. G. V. Murti a/w. Mr. Pradip Dubey for Respondent No.2.
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(902) FA 1533-06
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 15th OCTOBER, 2016.
ORAL JUDGMENT
1. This appeal is preferred against dismissal of the L. C. Suit No.
5756 of 2000 vide Judgment and order dated 06.05.2005 by the City Civil
Court, Mumbai.
2. Facts of the appeal can be stated, in brief, as follows:
The appellant claims that he was residing along with his family
in Room No.227/6 in the compound of Shanti Co-operative Housing
Society Ltd., Mogul Lane, Mahim, Mumbai - 400 016. According to him,
the said room was made of GI Sheet wall and GI sheet roof and was
admeasuring about 25' x 9'6". It was situated in the compound of Shanti
Co-operative Housing Society. He came into possession of the said room
while he was residing along with one Budhram Arjun Singh, who has
constructed the said room, much prior to 1960, even before the building of
Shanti Co-operative Housing Society came into existence. According to
the appellant, there were in all six rooms of the same measurement and
same dimension in the compound of Shanti Co-operative Housing Society,
including his room.
3. It is further case of the appellant that in the year 1975, as the
Budhram, with whom he was residing, decided to go to his native place
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permanently, he sold the said room to the appellant and executed the
payment receipt dated 20.01.1975 for the amount of Rs.2000/-. It is, thus,
case of the appellant that while he was in peaceful possession of the said
room, his first daughter was born while he was staying there with
Budhram, since much prior to the purchase of the said room. He was also
having Ration Card and Identity Card on the address of the said room.
4. In these facts and situation, the appellant received the notice
from respondent-Municipal Corporation in the month of April, 1999,
specifically on 12.04.1999 under Section 351 of the MMC Act informing
him that he has carried out some unauthorized construction of hut with GI
Sheet wall and GI sheet roof, taking advantage of the compound wall of
the society and hence he should show sufficient cause to prove the legality
and validity of the said structure. The appellant, therefore, approached the
Trial Court seeking necessary reliefs of declaration and injunction.
5. During pendency of the suit, the appellant received another
notice dated 05.11.2004 from the Municipal Corporation, issued under
Section 488 of the MMC Act calling upon demolition of the said structure.
Hence, the appellant was constrained to amend his suit and to seek
necessary consequential reliefs that the said notice under Section 488 of
the MMC Act was bad in law and the respondent-Municipal Corporation be
restrained from acting in pursuance of the said notice. However before
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the order of injunction could be passed by the Trial Court, respondent-
Municipal Corporation demolished the suit room, evicting him therefrom.
The appellant has, therefore, amended the plaint and sought the relief of
mandatory injunction directing the respondent-Municipal Corporation to
forthwith reconstruct the suit room which they have demolished illegally
and unauthorizedly.
6. This suit came to be resisted by the Municipal Corporation
contending, inter alia, that the construction of the suit room was illegal,
unauthorized and as a result thereof, the notice under Section 351 of the
MMC Act dated 12.04.1999 was issued to the appellant. As the appellant
failed to prove the legality and validity of the suit structure, despite an
opportunity of hearing being given to him, the requisite order was passed
and thereafter the necessary action of demolition of the suit room was
taken against the appellant. It was denied that the suit structure was in
existence since prior to 1960 or before the building of Shanti Co-operative
Housing Society was constructed. It was also denied that the suit
structure was in existence since prior to datum line of 17.04.1964.
According to the Municipal Corporation, out of the six structures, only three
structures were found to be in existence, since prior to datum line and they
were allowed to be retained. As the entire action was taken in accordance
with law, there is no question of directing the respondent-Municipal
Corporation to reconstruct the suit structure. Hence, the suit is liable to be
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dismissed.
7. Respondent No.2 Shanti Co-operative Housing Society also
resisted the suit contending, inter alia, that the construction of suit room
was unauthorized and was on the property of respondent No.2-Society. It
was submitted that when the construction of society's building was in
progress in the year 1978, the builder erected some shade type temporary
structure in the compound in order to enable the workers to stay there.
Some encroachment took place near the said shade.
ig The society,
therefore, made complaints to Municipal Corporation. However, as no
action was taken, the society filed Writ Petition No. 2128 of 1998 for
removal of the unauthorized structure. The said Writ Petition came to be
disposed of on 24.11.1998 with direction to the Municipal Corporation to
take necessary action. It is submitted that thereafter only, after giving
opportunity to the appellant to prove legality of the structure, the order was
passed for its demolition in accordance with law. Hence, no case is made
out by the appellant to get the relief as sought by him.
8. In support of their case, the appellant No.1 examined her son
as Power of Attorney holder, namely, Bharat Ramswaroop Gaud and one
witness, by name, Shewanti Nagina Gaud. On behalf of the Municipal
Corporation, its officer, namely, Avinash Manohar Ahire, Junior Engineer,
was examined, whereas, on behalf of respondent No.2-Shanti Co-
(902) FA 1533-06
operative Housing Society, its member-the Ex-Chairman, Suresh Shankar
Salgaonkar was examined.
9. In the light of this evidence adduced on record, the Trial Court
was pleased to hold that the appellant has failed to establish that the suit
structure was in existence since prior to datum line. Moreover, the Trial
Court also held that the appellant has failed to prove the legality and
validity of the said structure as no document was produced on record to
show that the construction thereof was legal and authorized. The Trial
Court, accordingly, dismissed the suit upholding the action of the Municipal
Corporation of demolishing the said structure.
10. This Judgment and order of the Trial Court is challenged in
this appeal by learned counsel for the appellant by submitting that there
were in all six structures in the form of huts to which the notices were
issued by the Municipal Corporation under Section 351 of the MMC Act.
Out of the six structures, three structures were protected and only against
remaining three structures, it was held that they were not in existence prior
to the datum line and, therefore, the action of the demolition of the same
was taken against them. It is urged by the learned counsel for the
appellant that, if those three structures were held to be in existence, much
prior to the building of Shanti Co-operative Housing Society, then there
was no reason at all to differentiate them with other three structures. If the
(902) FA 1533-06
other three structures, which were given protection, were in existence prior
to datum line, it follows that the appellant's structure was also in existence
prior to the datum line. According to learned counsel for the appellant,
therefore, the Trial Court has committed an error in dismissing the suit and
hence the impugned Judgment and order is liable to be quashed and set
aside.
11. Per contra, learned counsels for respondent Nos.1 and 2 have
fully supported the impugned Judgment and order.
12. It need to be stated that the burden was on the appellant to
prove that his suit structure was in existence much prior to the datum line
of 17.04.1964. However, absolutely no evidence worth the name is
produced on record by the appellant to that effect. It is significant to note
that in the evidence before the Court, the appellant has made out a totally
different case than the one stated in the pleadings. In the plaint he has
merely stated that he has purchased the suit structure from Budhram Arjun
Singh in the year 1975 by paying amount of Rs.2,000/- on 20.01.1975 and
produced the receipt to that effect. He has also stated that he was
residing with Budhram, even prior to 1975. However, in evidence before
the Court, it is deposed by appellant Bharat that the suit premises
belonged to one Kamathi Katlappa and he has sold the said premises to
Budhram on 12.11.1958. Thus, the case is tried to be made out that the
(902) FA 1533-06
suit premises were in existence since 1947 and at that time Kamathi
Katlappa was in possession of the suit premises. It is further deposed that
Kamathi Katlappa was tenant of Mr. Ahmed Moosa, who had issued rent
receipt in respect of the said premises.
13. Now, this case that premises belonged to Mr. Ahmed Moosa
and Kamathi Katlappa was tenant of the said premises, till he sold the
same to Budhram is not at all pleaded in the plaint. For the first time, it is
made out in the evidence before the Court, the reason for the same is
because some documents were found showing that one structure out of
the six structures was standing in the name of Kamathi Katlappa.
However, there is no evidence produced on record to prove that the suit
structure of the appellant was the same structure belonging to Kamathi
Katlappa. Significantly, there is no explanation as to why this specific case
was not put up in the pleading. Therefore, it follows that the said case is
made out as an afterthought to take advantage of certain documents. It is
without having any foundation in the pleading. Hence, needs to be and
has to be ignored.
14. Even the documentary evidence on which the appellant is
placing reliance like the voters' list at Exhibit 'D' goes to show that the
room number mentioned as standing in the name of Budhram is 820,
whereas the room number of Kamathi Katlappa as given in the document
(902) FA 1533-06
at Exhibit 'B' is 831. The description of the said room as given in the
document at Exhibits 'B' and 'C' is also not tallying with the description of
the suit room as given in the voters' list, Exhibit 'D'. In one voters' list of
the year 1967 to 1972, room number of Kamathi Katlappa is given as 385,
whereas the number of Budhram is given in the same voters' list of the
same period as 383. Therefore, there is absolutely nothing to show that
the room which Kamathi Katlappa was having was purchased by Budhram
and from him by the present appellant.
15.
In my considered opinion, therefore, the Trial Court has, after
considering the entire record, rightly held that there was no evidence,
either oral or documentary, to show that the suit structure was in existence
prior to the datum line and, therefore, it needs protection. Not only the
Trial Court, even the officer of the Municipal Corporation has also
considered all the documents produced by the appellant before taking the
action of demolition. The documents on record, on which the appellant is
placing reliance, clearly reveal that the appellant has failed to prove that
his suit structure was the same, which was of Kamathi Katlappa and from
Kamathi Katlappa, Budhram has purchased the same, and from Budhram,
he has purchased. Merely because some structure was standing in the
name of Kamathi Katlappa, since prior to 1958, it cannot be said that the
appellant had purchased the same structure, especially, in the absence of
any pleading to the effect that the structure of Kamathi Katlappa was
(902) FA 1533-06
purchased by Budhram and from Budhram, the appellant has purchased
the same structure. Hence, the case made up by the appellant as an
afterthought cannot be believed upon or accepted.
16. In view of the failure on the part of the appellant to establish
the necessary link between these two structures and also on the failure of
the appellant to prove that the suit structure was in existence since prior to
the datum line, I do not find the Trial Court has committed any error in
dismissing the appellant's suit. The appeal, therefore, holds no merits and
hence stands dismissed. In the circumstances, the parties to bear their
own costs.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
