Bombay High Court
Gorai Macchi Mar Sahakari Sanstha ... vs The Municipal Corporation Of ... on 7 January, 2021
Bench: S. K. Shinde
32-AOST-94528-
Shambhavi 2020.odt
N. Shivgan
Digitally signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N.
Shivgan CIVIL APPELLATE JURISDICTION
Date: 2021.01.07
16:20:08 +0530
APPEAL FROM ORDER (ST) NO.94528 OF 2020
WITH
INTERIM APPLICATION (ST) NO.94529 OF 2020
Gorai Machhi Mar Sahakari
Sanstha Limited.,
A Co-operative Society duly
Registered under the Maharashtra
Co-operative Societies Act, 1960
Having address at Survey No.265,
CTS No.1145, Near Gorai Cross
Bus Stand, Gorai Manori Road,
Borivali (West), Mumbai 400 091 ... Appellants
(Org. Plfs.)
Vs
The Municipal Corporation of
Gr. Mumbai, a body corporate
Duly constituted under the
provisions of M.M.C. Act, 1888,
Having their head ofce at
Mahapalika Bhavan,
Mahapalika Marg,
Mumbai 400 001
(R/Central Ward Ofce) ... Respondents
(Org. Defts.)
...
Mr. Pradeep Thorat i/by Ms. Aditi S. Naikare for the
Appellants.
Ms. Madhuri More for MCGM/Respondents.
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CORAM : SANDEEP K. SHINDE J.
RESERVED ON : 14th DECEMBER, 2020.
PRONOUNCED ON : 7th JANUARY, 2021.
JUDGMENT:
Plaintifs in Long Cause Suit No.749 of 2020
have preferred this appeal against the order dated 22 nd
September, 2020 passed in the Draft Notice of Motion
by the learned Judge, City Civil Court, (Borivali
Division), Dindoshi, Goregaon, Mumbai inter-alia
refusing to restrain the Corporation from
executing/enforcing notice issued under Section 354A
of the Mumbai Municipal Corporation Act ("MMC Act"
for short)
2 In the subject suit, plaintifs have challenged
validity of the notice issued under Section 354-A of the
MMC Act and the order passed by the Designated
Ofcer dated 27th-29th July, 2020.
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FACTS:
3 That upon receiving the complaint
RC/009/22/07/2020/154, Ofcer of the Respondent-
Corporation visited suit premises on 22 nd July, 2020. He
found ongoing unauthorised construction of
independent structure (not extention of existing
structure) with brick masonary wall and AC sheet roof
admeasuring 13.10 mtrs X (4.25+5.8)/2 metres with
average height of (3.0+3.6)/ 2 metres, at Gorai Macchi
Mar Sahakari Sanstha Limited, Borivali (West), Mumbai
91. Ofcer enquired about the permission for said
ongoing construction but the plaintifs could not
produce the same. Thereupon, Ofcer prepared a
inspection report dated 22nd July, 2020, along with
twelve photographs. Inspection report is at Page 14
and photographs are at Pages 16 to 22 of the afdavit-
in-reply fled by the Assistant Engineer of the Municipal
Corporation of Greater Mumbai. I have perused it.
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4 This inspection report was placed before the
Designated Ofcer (Building & Factory), who after
perusing the same, issued a notice under Section 354-A
of the Act on 22nd July, 2020, whereby, plaintifs were
directed to stop construction of unauthorised, which
was in progress and further directed to produce
permission granted by the Competent Authority, i.e.,
Building and Proposal Department. In response to this
notice, appellants submitted documents other than
'construction permission'. The tenor of the plaintifs'
reply suggests that permission was not required since
plaintifs' were carrying on the 'tenantable repairs'. In
paragraph no.8 of the reply, it is stated:
"8 My client states that my client has not
carried out any unauthorized construction as
alleged in the impugned notice contrary to the
provision of Section 342 and 347 of the MMC
Act. My client states that my client had carried
out and completed only tenantable repairs to
the structure in question such as plastering,
painting and replaced the decayed A.C.Sheet
of the roof with new ones. My client states that
only the said tenantable repairs were carried
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out without any addition and alteration to the
structure in question and such repairs do not
require any permission u/s. 342 and 347 of the
MMC Act from the Municipal Corporation."
5 Besides, it is contended that the suit
structure is situated in slum area and was in existence
since before 1976. Also, contended that suit structure
was censused under RXC 29-1/1A in the name of Mr.
Pascol Kiny in the year 1976 and the Competent
Authority had issued Census Certifcate dated 21 st
December, 1978 in favour of said Pascol Kiny giving the
details of structure. It is, therefore, contended that
structure in question is protected one and the same
was not recently constructed as alleged the impugned
notice.
6 In support of aforesaid contentions, plaintifs
have placed on record a Census Certifcate issued by
the Ofce of the Controller of Slums, Bombay and
B.S.D., Old Customs House, Yard, Fort, Mumbai. It is at
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Page 59 of the paper-book. This certifcate relates to
structure RXC 29/1/1A admeasuring 43 X 17 sq.ft.
approximately. The Plaintifs had also produced,
demand notice issued by the Assessment and
Collection Department of the Corporation and a few
electricity bills.
7 Yet another contention raised was that,
notice under Section 354-A of the MMC Act could not
have been issued, since at the material time, suit
construction was complete. Reliance has been placed
on the judgment and order of this Court in the case of
Goverdhan Ramnaresh Singh v. The Municipal
Corporation of Greater Mumbai passed in Appeal
From Order No.257 of 1999.
. I have perused the cited judgment wherein
though stop-work notice was issued, the Trial Court had
observed "here one fact is clear so far as such stop-
work notice is even though styled, no record is
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coming before the Court that really the work was in
progress and the stages of progress of the construction
is recorded by the ofce of the Defendants ". In the
back-drop of these facts/material, it was held Section
354-A of the MMC Act was not attracted. However, in
this case, report dated 22nd July, 2020 shows; status of
structure ongoing; and suit construction was neither
extention of the existing structure nor was in nature of
repairs, but independent and it was not occupied. Soon
thereafter on 23rd July, stop-work notice was issued. In
fact, photographs fully support the report. In view of
these facts, appellants' contention that notice under
Section 354-A of the MMC Act could not have been
issued and acted upon, is rejected.
8 Appellants, would contend that for carrying
out 'tenantable repairs' of the existing structure,
building permission was not required. In support of this
contention, appellants' counsel has relied on Census
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Certifcate dated 10th November, 1976 issued by the
Controller of Slums. He certifed, structure no. RXC/29-
1/1 admeasuring 43 X 17 sq.ft. (emphasis supplied)
was issued to one Pascol Keny at CTS 1145, Survey
No.265, Gorai Village. In my view, this piece of
document no way supports the appellants' case, in-as-
much as measurement of the structure in the
certifcate as shown was 43 X 17 sq.ft., whereas
inspection report dated 22nd July and the stop-work
notice was issued in respect of the unauthorized
construction, admeasuring 13.10 mtrs. X (4.25 + 5.8) 2
mtrs. with average height of (3.0 + 3.6)/ 2 mtrs.
approximately. It makes very clear that plaintifs had
not carried out 'tenantable repairs' but constructed
independent structure without frst obtaining building
permission from the Corporation. Moreover, the said
certifcate relates to structure occupied by Pascol Keny
at CTS 1145, Survey No.265. However, no material has
been placed on record by the plaintifs to show or to
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establish prima-facie, as to how are they concerned
with the structure certifcate issued by the Controller of
Slums. Therefore, this certifcate no way furthers
plaintifs' case.
9 In fact, inspection report and photographs
distinctly indicate that the plaintifs started
construction without permission, which was neither
extention of existing structure nor was it a work in the
nature of repair. Besides, evidence sought to be
produced to contend that structure was in existence
since before 1976 is not reliable and hence, not
accepted.
10 In consideration of the facts of the case and
the evidence on record, no interference is called for in
the impugned order.
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11 Appeal is dismissed. Interim stay is vacated.
All the applications are, accordingly, disposed of.
(SANDEEP K. SHINDE, J.)
Shivgan
