Bombay High Court
Nimesh J. Patel vs Municipal Corporation Of Greater ... on 21 November, 2022
Bench: Nitin W. Sambre
Digitally
signed by
VINA
VINA ARVIND
ARVIND KHADPE
KHADPE Date:
2022.11.22
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10:34:04 (11) AO 1046.2022.doc
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1046 OF 2022
WITH
INTERIM APPLICATION NO.19813 OF 2022
IN
APPEAL FROM ORDER NO.1046 OF 2022
Shri Nimesh J. Patel ... Appellant
Versus
Municipal Corporation of Greater Mumbai and .. Respondents
anr.
Mr. Mukesh M. Vashi a/w Pramod Bhosle i/b. Sharad Bhosle for the
Appellant.
Mr. R. Y. Sirsikar for the Respondent - MCGM.
CORAM : NITIN W. SAMBRE, J.
DATED : 21st NOVEMBER, 2022
P.C.:
1. On 17th February, 2014, the respondent - Municipal Corporation
of Greater Mumbai (MCGM) caused a notice on the appellant -
occupant, pursuant to the provisions of Section 55 of the
Maharashtra Regional and Town Planning Act, 1966 giving entire
description and dimensions about the illegal structure constructed by
the appellant with a direction to remove the same.
2. This led to fling a Suit for injunction in which a prayer for grant
of temporary injunction moved through Notice of Motion No.1446 of
2014 came to be rejected vide impugned order dated 16 th December,
2020.
3. Mr. Vashi, learned Senior Advocate, appearing for the appellant
would urge that the impugned notice is based on the incorrect
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information supplied by the Landlord who intended to evict the
appellant without following due procedure of law from the premises.
According to him, the said structure is authorised as the same is in
possession of the appellant for more than three decades. So as to
substantiate the said fact, he try to rely on the map issued by the
City Survey ofcer, Kurla and such other documents such as the
renewed license issued by the Senior Inspector, (License) L Ward,
License Department of Bombay Municipal Corporation of Greater
Bombay, running the Unit in question and other similar documents
issued under the Bombay Shops and Establishment Act, 1948, etc.
4. Mr. Vashi would also invite my attention to the date of issuance
of notice i.e. 17th February, 2014 which is also claimed by the
respondent-MCGM to be the date of feld inspection conducted by
the Assistant Engineer who has caused the notice in question. As
such, according to him, the contention about the biased approached
on the part of the respondents can be substantiated. As such, he
would urge that the injunction ought to have been granted
particularly having regard to the long standing possession and the
failure of the respondents for production of the sanctioned map.
5. The counsel for the respondent would support the order
impugned.
6. I have appreciated the said submissions.
7. The fact remains that the license document which permits the
appellant to mange the Industrial Unit speaks of the dimension of the
property which comes to around 161.48 meter square. However, it
does not substantiate the claim of the appellant that the structure
was in existence from the time he was put in possession of the Gala
in question. It was for the appellant before entering into the an
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agreement of lease to verify the very requirement of sanctioned
structure which he has failed to do so. Rather, the appellant could
have approved map from the competent authority about the status
of the sanctioned structure of the suit property as it is disclaimed the
suit premises as authorised one.
8. Mr. Vashi has drawn support from the Judgment of this Court
delivered in Mohamad Yusuf Abdul Sattar vs. Municipal
Corporation for Greater Bombay 1 on 19th June, 1996 so as to
canvassed his contention that the tenants can not be directed to
produce the sanctioned map. However, the observations in
paragraph 12 of the said judgment are based on the facts therein. It
appears that the tenant in the said case was called upon to produce
the sanctioned map of the disputed structure as it was claimed that
the same was standing prior to 1962 and the tenant was inducted in
1987-88. In the case in hand, it is not the case of the appellant that
the respondents has asked him to satisfy the legality of the suit
structure for a period prior to, for which he being put in possession of
the same. As such the said judgment will be hardly of any assistance
in the matter.
9. Rather, from the record it can be inferred that even the
appellant was in possession of the area to the extent of 161.48
meter square, that by itself will not lead to drawing inference that
the structure is authorised unless his claim is substantiate by the
documents issued by the competent authority to that efect.
10. In absence of any such documents, the Court below is justifed
for not granting the prayer for temporary injunction.
11. As regards to the date of issuance of notice and the date of
visit of ofcer is concerned, even if the same is mentioned to be 17 th
1 Appeal from Order No.712 of 1996
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February, 2014, however, that by itself is not legalized the notice for
the reasons stated here in above. Even otherwise, the said issue can
be appreciated at the time of leading the evidence.
12. That being so, no case for grant of interim injunction is made
out, Appeal from Order as such stands disposed of. In view of
disposal of Appeal from Order, pending Interim Application also
stands disposed of.
13. Mr. Vashi, submits that the order of protection may be kept for
abeyance for a period of four weeks.
14. Considering the contention raised and the fact that the interim
relief was not in operation for sometime, the same is continued for a
period of four weeks from today.
(NITIN W. SAMBRE, J.)
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