Mhandas Babu Shetty vs Executie Engineer G/South ...
2021 Latest Caselaw 8337 Bom

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION

     APPEAL FROM ORDER (ST.) NO. 10026 OF 2021
                   ALONGWITH
      INTERIM APPLICATION (ST.) NO. 10028 OF 2021


Mr. Mohandas Babu Shetty                          ...Appellant
                                                  (Original Plaintiff)
       V/s.

Municipal Corporation of Greater
Mumbai and Ors.                                   ...Respondents
                                                  (Orig.Defendants)

                        ***
Mr. Arun Panicker i/by. Lalita L. Rajguru, Advocate for the
appellant.
Mr. Narendra V. Walawalkar, Senior Advocate a/w. Ms.
Madhuri More, for MCGM.
                                       ***

                      CORAM : SANDEEP K. SHINDE, J.

RESERVED ON : 9th JUNE, 2021 PRONOUNCED ON : 23rd JUNE, 2021 (Through Video Conference)

Judgment :

1. Appellant-plaintiff, in Long Cause Suit (L) No. 2921

of 2021 has preferred this Appeal from Order under Order 43

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Rule 1 read with Section 105 of the Civil Procedure Code, 1908

against the order dated 20th April, 2021 passed in Notice of

Motion No. 837 of 2021 by the Ad-Hoc Assistant Judge, City

Civil Court, Greater Mumbai.

2. Facts of the case are as under :

. In the subject suit, plaintiff is seeking directions to

declare Order bearing No. Ward Ex.Eng/GS/050/SR dated 10 th

March, 2021 passed by the Executive Engineer, concerning

Room No.1, ground floor, Municipal Shed premises, 456, Dr. E.

Moses Road, Dhobhighat, Mahalaxmi, Mumbai-400 011 ("suit

property" for short), as illegal and bad in law. Pending suit,

plaintiff sought for temporary injunction to restrain the Mumbai

Municipal Corporation of Greater Mumbai, their servants, and

agents from taking any action pursuant to the impugned notice

dated 10th March, 2021. The learned trial Court vide order

dated 20th April, 2021, declined the temporary injunction

against which this Appeal from Order is preferred.

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3. It is not in dispute that, the Corporation is owner of

the suit property and the land underneath thereto. It appears

since before five decades, Bombay Sweepers Union was

permitted to run the staff canteen in the suit premises for the

benefit of the employees of the Corporation. Mr. Punamchand

Tabubhai Patel was managing the staff canteen and this fact is

not in dispute. As a matter of fact, a document dated 8 th

August, 1962 shows that, sixteen premises were permitted to

be used as canteen for the convenience of the employees of the

Corporation. The suit premises was one of those canteens at

Mahalaxmi Refuge Sliding, Dhobi Ghat, Jecob Circle. This

document has been brought on record by the plaintiff. It may be

stated that, documents like the Shops and Establishment license

and Declaration (Form-E) show that the canteen was managed

by Mr. Punamchand Tabubhai Patel, where plaintiffs' father

was one of the employees of Mr. Patel. The evidence on record,

shows, after the death of Mr. Patel, Mr. Malji Mulji Rathod was

President of the Bombay Sweepers Union and he was running

the canteen in the suit premises. A document at page no.88

fortifies this fact. In the backdrop of the facts aforesaid, it is

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plaintiff's case that, his father Babu P. Shetty had purchased

the suit property from Mr. Punamchand Patel in the year 1971

and since then, he is in possession of it, where he runs the

canteen as a facility for the employees of the Corporation.

4. It appears, the Corporation on 7 th September, 2018

had resolved to construct a Veterinary Hospital by demolishing

the suit structure/premises. It further appears, the Veterinary

Hospital Project is to be executed on a Build-Operate-Transfer

basis (BOT) and accordingly the agreement was signed between

the Corporation and Sir Dorarji Tata Trust. Whereafter on 21 st

December, 2019, Memorandum of Understanding and BOT

agreement were executed between the Corporation and Sir

Dorarji Tata Trust. It is Corporation's case that the suit

structure is required for the project and therefore a notice was

issued on 26th November, 2020 to the plaintiff whereby he was

called upon to vacate the suit premises and handover possession

to the Officers of the Corporation.

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5. Apprehending dispossession, appellant instituted

Suit (St) No.1308 of 2021 wherein on 10 th February, 2021

following order was passed :

"1. Defendants BMC shall consider the reply dated 08.12.2020 and all the documents of plaintiff and pass order as per law.

2. Til then and in case of adverse orders if any, 10 days thereafter, defendants BMC are directed not to take any coercive action in respect of the suit premises.

3. In view of the above directions, Draft L.C. Suit and Notice of Motion No. 394 of 2021 is disposed of.

4. Suit be registered for statistical purposes."

. In pursuant to this order, appellant filed reply

alongwith the documents in support of his claim before the

Ward Executive Engineer/G/South Ward to contend that the

documents would show the suit structure, was in existence prior

to the datum line i.e. 1st April, 1962 and thus, in view of the

Corporation policy, the suit structure was a tolerable structure.

As many as, eleven documents were produced by the plaintiff to

show his possession in the suit property and its existence prior to

the datum line i.e. 1st April, 1962. The documents produced for

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verification were; the Shops and Establishment License of 1988;

Electricity Bills of 1999, Fire Brigade NOC of 2012; NOC issued

by the Assistant Insecticide Officer dated 9 th January 2003;

Demand Notice of Maharashtra Labour Welfare Board dated

18th December, 2010; Water bills of 1976 and 1992 Telephone

Bill of 1995 and Property Tax payment bills for the year 2013-

14 onwards. The Ward Executive Engineer, after verifying the

documents, found neither of these documents, could prove the

existence of the suit structure, prior to 1 st April, 1962. Thus, on

10th March, 2021, the Ward Officer passed the following order :

"You are hereby directed to demolish the canteen structure occupied by you situated on the plot belongs to M.C.G.M. bearing C.S. no.2 of Lower Parel Division, MRTS, Mahalaxmi, Mumbai-400 011 within 10 days from receipt of this order failing which same will be demolished by this office entirely at your risk & cost & the cost of demolition will be recovered from you, which please note."

6. Soon thereafter, on 17th March, 2021, the appellant

instituted the subject suit seeking a declaration that the order

dated 10th March, 2021 passed by the Executive Engineer, is

illegal, bad in law and liable to be withdrawn, revoked and

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cancelled. The another prayer was, pending suit, the

Corporation be restrained from taking any action in pursuance

to order dated 10th March, 2021 passed by the Ward Executive

Engineer.

7. It may be stated that, the plaintiff has not challenged the

notice dated 26th November, 2020 issued by the Corporation,

whereby he was called upon to handover possession of the suit

premises to the officers of the Corporation. He challenged the

order of the Ward Executive Engineer. The impugned order

shows the Ward Executive Engineer had exceeded the scope of

notice dated 26th November, 2020. That to say, Corporation had

called upon the plaintiff to handover possession of the suit

premises, however, Ward Executive Engineer directed to

demolish the suit structure.

8. In the backdrop of the facts of the case, it may be

stated that, Corporation is the owner of the suit structure and

land underneath. This fact is not in dispute. Although, the

appellant claimed that, his father had purchased and/or

acquired interest in the suit structure under the agreement

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executed by Mr. Patel, the document was not produced on

record. The appellant, has not explained as to why the

document purportedly executed in 1971, in favour of his father

by Mr. Punamchand Patil, has not been produced by him, either

before the Ward Executive Engineer or even before this Court,

when infact it was the best piece of evidence to prove his claim.

Having not produced it, an adverse interference is to be drawn.

That to say either such a document was not executed or

assuming it was executed, it was not supporting the Plaintiffs'

claim. In the circumstances, it is to be held that Petitioner is

"trespasser" and therefore he cannot withhold the possession of

the suit premises against its lawful owner.

9. The evidence shows, the President of Bombay Sweepers

Union, Mr. Punamchand Patel, was permitted to run the

canteen for the benefits of employees of the Corporation and

father of the appellant, Babu Shetty was working in the said

canteen as an employee of Mr. Punamchand Patel. The

material on record shows after Mr. Punamchand Patel, one

Malji Mulji Rathod, President of the Bombay Sweepers Union,

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was running and managing the canteen in the suit premises. In

these circumstances, the contention of the appellant that his

father had acquired interest in the suit premises from Mr.

Punamchand Patel was, improbable and particularly when the

appellant did not produce the document/agreement of 1971 on

record. In light of the facts of the case and the evidence on

record, the appellant could not prove his character of possession

in the suit premises. Admittedly, he is neither a licensee of the

Corporation, nor there is any evidence to suggest that, he was

inducted either by Malji Mulji Rathod or by Mr. Patel, in the

suit premises with the consent of Corporation. Infact plaintiff

neither pleaded his right to possess or occupy the suit premises,

nor pleaded his character of possession therein. It may also be

stated that, the plaintiff is not seeking a declaration, qua his

character of possession in the property. The suit is simplicitor

for declaration, that the order passed by the Executive Engineer

is illegal and improper. In the backdrop of the facts of the case as

stated above, reliance placed on document dated 8 th August,

1962 authored by Corporation, showing canteen was being run

in the suit premises since 1962, a Shops and Establishment

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Licence and Survey of suit premises allegedly made by the Slum

Authorities would not prove existence of suit premises prior to

April, 1962.

10. In the circumstances, in my view, order passed by the trial

Court declining the interim relief as prayed, cannot be faulted

with. No interference is called for in the impugned order.

Appeal is dismissed.

11. With dismissal of the Appeal, Interim Application does not

survive. The same stands disposed of.

(SANDEEP K. SHINDE, J.)

At this stage, learned Counsel for the appellant prays for

continuation of the interim order, which was enforced till date.

Mr. Walawalkar, learned Counsel for Corporation opposed the

prayer. In consideration of the facts of the case, the Corporation

shall not demolish the suit structure for a period of four weeks

from today.

(SANDEEP K. SHINDE, J.)