Bombay High Court
Devendra Ramchandra Palsamkar vs The Municipal Corporation Of ... on 25 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:12495
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO.202 OF 2023
WITH
INTERIM APPLICATION NO.2504 OF 2023
IN
NOTICE OF MOTION NO.4118 OF 2017
Devendra Ramchandra Palsamkar ...Appellant/
Ori. Plaintiff
vs.
The Municipal Corporation of Greater
Mumbai and Another ...Respondents/
Ori. Defendants
Mr. J.S. Yadav i/b.Mr. B.P. Shukla, for the Appellant.
Ms. Smita Tondwalkar, for Respondent- MCGM.
CORAM : N. J. JAMADAR, J.
RESERVED ON : MARCH 31, 2023
PRONOUNCED ON : APRIL 25, 2023
JUDGMENT :
1. This appeal is directed against an order dated 10 th February,
2023 passed by the learned Judge, City Civil Court, Dindoshi
(Borivali Division) in Notice of Motion No. 4118 of 2017 in L.C. Suit
No. 3231 of 2016 whereby the Notice of Motion taken out by the
appellant/plaintiff for temporary injunction came to be rejected.
2. For the sake of convenience and clarity, the parties are
hereinafter referred to in the capacity in which they are arrayed
before the City Civil Court.
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3. Shorn of superfluities, the facts are:
a] The plaintiff claimed to be in use, occupation and possession
of a structure admeasuring 15 x 9 ft. made up by B.M. Wall and A.C.
sheet roof and a shed in front of the said structure admeasuring 45'
x 15' situated at Survey No. 163, Kandivali (w), Mumbai (the notice
structure). The plaintiff asserts the notice structure is duly
censused in the year 1976. Ravi (Rev) Joseph Pareira was the
original occupant of the notice structure. It was censused vide
Census No. RXC-1-1/1A. A census certificate was issued on 29 th
November, 2016 in favour of the previous occupant. The factum of
the notice structure being a censused property is also recorded in
the census form dated 22nd October, 1976 maintained by the
Additional Collector (ENC) which has been furnished to the plaintiff
under the Right to Information Act. A repair permission dated 10 th
November, 1982 was issued to the previous occupant. Since the
previous occupant was carrying on the business of auto spare parts
and repair work under the name and style of "Janta Auto Garage",
according to the plaintiff, Municipal Corporation has issued shops
and establishment certificate. An electric connection was provided
to, and electricity bills were also issued in respect of, the notice
structure.
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4. The plaintiff avers that the plaintiff acquired the suit
premises under the agreement for sale dated 12th January, 2000 for
a valuable consideration and there are documents which evidence
the occupation of the notice structure by the plaintiff.
5. On the basis of a false complaint, according to the plaintiff, the
designated officer issued notice dated 7th July, 2016 under section
351 of Mumbai Municipal Corporation Act, 1888 alleging that the
plaintiff has unauthorizedly erected the notice structure. An
appropriate reply with supporting documents was submitted on 14 th
July, 2016. The speaking orders came to be passed on 21 st
November, 2016 and 30th November, 2017 without adverting to the
contentions and documents submitted by the plaintiff calling upon
the plaintiff to remove the alleged unauthorized structure within 15
days thereof. The plaintiff was thus constrained to institute the suit
seeking a declaration that the notice dated 7 th July, 2016 and the
speaking orders dated 21st November, 2016 and 30th November,
2017 are illegal, malafide, and to permanently restrain the
defendant No. 1 and its agent from demolishing the notice structure
pursuant to the said notice and orders.
6. An affidavit in reply was filed by defendant No. 1 resisting the
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prayer in the Notice of Motion. The impugned notice and the
speaking orders were stated to be in order and issued and passed in
conformity with the governing provisions of law. The documents
relied upon by the plaintiff, according to the defendant No. 1, did not
establish that the notice structure is either a censused premises or
a slum or otherwise tolerated commercial structure which is in
existence prior to 1st April, 1962, nor the plaintiff could establish
that the notice structure is a slum and has been in existence prior
to 1st January, 2000. The plaintiff, according to defendant No. 1,
failed to produce any authentic document like city survey plan and
assessment bills showing existence of the notice structure prior to
the datum line. Consequently, the notice structure being wholly
unauthorized was liable to be demolished.
7. After appraisal of the rival contentions and the documents
tendered for his perusal, the learned Judge, City Civil Court was
persuaded to reject the Notice of Motion opining, inter alia, that the
census certificate relied upon by the plaintiff had already been
cancelled. There was no prima facie material to show that the notice
structure existed prior to datum line. The fact that before the
competent authority the plaintiff had claimed that the land over
which the notice structure is situated is the land of defendant No. 2
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- society, also weighed with the learned Judge in holding that the
plaintiff had not approached the Court with clean hands. Holding
thus, the parameters which govern the grant of temporary
injunction were answered against the plaintiff.
8. Being aggrieved the plaintiff is in appeal.
9. I have heard Mr. Yadav, learned counsel for the appellant and
Ms. Tondwalkar, learned counsel for the MCGM at some length.
With the assistance of the learned counsel for the parties, I have
perused the material on record.
10. Mr. Yadav, the learned counsel for the appellant, would urge
that the learned Judge, City Civil Court committed a manifest error
in non-suiting the plaintiff at an interim stage despite there being
voluminous material to show that the notice structure has been in
existence since prior to 1974. The fact that the notice structure is
censused structure was unjustifiably discarded by the learned
Judge on the ground that census certificate have been cancelled by
an order of the State Government dated 15 th July, 2000. Inviting
the attention of the Court to the said order dated 15 th July, 2000,
Mr. Yadav strenuously submitted that the import of the said order
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was not to deprive the protection available to the censused
structure completely. According to Mr. Yadav, the documents
placed on record by the plaintiff, if properly construed, make out a
strong prima facie case. Without providing an opportunity to
establish its case at the trial, the notice structure can not be
permitted to be demolished. From this stand point, according to Mr.
Yadav, the balance of convenience tilts in favour of the plaintiff.
Irreparable loss would undoubtedly be caused to the plaintiff if
temporary injunction is not granted, urged Mr. Yadav.
11. On the contrary, the learned counsel for defendant No.1
stoutly submitted that none of the documents placed on record
prima facie indicate that either the notice structure has been in
existence prior to the datum line or it is a censused structure.
Neither photopass nor a declaration under the Slum Act has been
placed on record by the plaintiff. In the absence of any material to
show that the notice structure is a tolerated structure, no other
inference than that of structure being unauthorized is deducible.
Moreover, the ambivalent stand of the plaintiff as to the ownership
of the land over which the notice structure is situated renders the
plaintiff's claim wholly unsustainable. Therefore, the learned Judge,
City Civil Court was fully justified in declining to exercise the
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discretion in favour of the plaintiff.
12. I have given careful consideration to the submissions
canvassed across the bar.
13. The thrust of the submission of Mr. Yadav was that the notice
structure being a censused structure could not have been termed as
unauthorized and thus subjected to an action under section 351 of
the Code. A strong reliance was placed on a communication dated
29th September, 1980 addressed to the predecessor in title of the
plaintiff by the then Controller of the Slums that the structure No.
PXC 1 x 1/1 A, Surve No. 163, Pareira Compound, Kandivali
Gaonthan Road, Kandivali (west) was censused on 14th August,
1976. Reliance was also placed on repairs permission granted by
the Municipal Corporation and the Certificate under Shops and
Establishment Act. The learned Judge was not persuaded to give
weight to the census certificate as the census certificate stood
revoked pursuant to the Government order dated 15 th July, 2000.
14. Mr. Yadav endevoured to impress upon the Court that the
said order dated 15th July, 2000 has been misconstrued as it did not
imply that the protection stood revoked. Fresh certificates were to
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be issued by the Competent Authority.
15. In the facts of the case, the question as to what is the import of
the order dated 15th July, 2000 issued by the State Government
does not necessarily arise for determination. It is imperative to note
that the defendant No. 1 Corporation got the census certificate
relied upon by the plaintiff verified from the Dy. Collector
(Encroachment). The communication dated 10 th February, 2017
addressed by the Dy. Collector (Encroachment) categorically
records that the census certificate in question having been issued in
the year 1976 stood cancelled, in view of Government Resolution
dated 15th July, 2000, and fresh photo passes have been issued in
accordance with the Government Resolution dated 11 th July, 2001.
Indisputably, the plaintiff has not placed on record any photo pass.
16. In any event, the fact that the structure is censused by itself
does not provide absolute immunity to the holder of such structure.
If unauthorized development is carried out by the holder of
censused structure either in relation to the said structure or
otherwise, the planning authority is not precluded from taking
action against such unauthorized development.
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17. A Division Bench of this Court, in the matter of High Court on
its own motion (In the matter of Jilani Building at Bhiwandi vs.
Bhiwandi Nizampur Municipal Corporation and Others 1 after an
elaborate consideration of all the relevant provisions and the
specific contention of the parties that in view of the provisions
contained in the Slums Act, 1971, the Municipal Corporation is not
authorized to take action against unauthorized development,
enunciated law as under.
74. We are, thus, of the clear opinion that the MCGM
being a Planning Authority for the entire Greater
Mumbai area (excluding those areas in which by law
other planning authorities are appointed), the MCGM
has jurisdiction to exercise all powers under the MMC
Act as also the MRTP Act and the Slums Act, to take
action against illegal structures as permissible in law,
not only in regard to all such areas within its
jurisdiction, but also the slum areas falling under the
Slums Act, except when a demolition order has been
made under the Slums Act. We find that even Section
4 of the Slums Act would cast no embargo on the
MCGM to take appropriate action in regard to any
buildings which are unauthorized and/or dilapidated.
Per se, Section 4 does not prohibit the planning
authority to exercise any of its authority in regard to
the structures of the nature Section 4 would
contemplate either before the area is declared as a
"slum area" or after it is declared as a "slum area". It is
nobody's case that prior to an area being declared as
slum, the planning authority namely the MCGM would
not have any authority under the MMC Act and the
MRTP Act to take action against unauthorized
construction in such areas in regard to structures in
these areas. From a holistic reading of the provisions
of the Slums Act as discussed above, it is difficult to
conceive that merely because an area is declared to be
a slum under Section 4, the planning authority would
lose its control and authority to regulate the structure
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by implementing the provisions of the MMC Act and
the MRTP Act in the event the structures are
dilapidated and/or in any manner unauthorized.
75] The above discussion would lead us to conclude
that Chapter I-B of the Slums Act imposes no embargo
on the powers of the Municipal Corporation(s) to take
action against unauthorised structures in the slum
areas, including the slums declared under Section 4 of
the Slums Act which may include slums on the State
Government's land or land belonging to any other
public authority, under the provisions of the MMC Act,
Maharashtra Municipal Corporations Act and the
MRTP Act. Such statutory mandate cannot be
curtailed by any executive fiat including the
Government Circulars dated 7 September 2010 and 10
October 2013, which we have discussed above in
paragraph 46. We accordingly answer questions (i)(a)
and (i)(b) as posed by Mr.Jagtiani and as noted by us
in paragraph 43, to hold that the MCGM and/or
Municipal Corporations would wield all powers and
authority to take actions against any structure
beyond the photo-pass structure found to be
unauthorized which is situated in such slums.
18. The Division Bench has thus declared in empathetic terms
that the Municipal Corporation has every power and authority to
take action against any structure beyond the photo pass structure
which is found to be unauthorized, even if situated in the slums.
19. As noted above in the case at hand, the plaintiff does not bank
upon any photo pass. Reliance on the census certificate simplicitor,
in the circumstances of the case, does not seem to advance the
cause o the plaintiff. Endevour of the plaintiff to bank upon the
other documents like the certificates issued under Shops and
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Establishment Act and electricity bills etc. to show that the notice
structure is tolerated can not be countenanced. Moreover, the
authenticity of the certificates purportedly issued under the Shops
and Establishment Act to THE predecessor in title of the plaintiff
namely, "M/s. Janta Auto Garriage" was also impaired as the
concerned department informed the designated officer of the
defendant that no details could be found as regards the registration
certificate purportedly issued in favour of Janta Auto Garage.
20. The learned Judge was justified in adverting to the
ambivalence of the stand of the plaintiff as regards the ownership
over the land beneath the subject structure. At one breath, the
plaintiff claimed that the subject structure, being censused, was
located on a Government land and, at another breath, the plaintiff
claimed that the notice structure was situated on the land of
defendant No. 2 society. In fact, the defendant No. 2 society has filed
a written statement contending that the plaintiff has erected the
unauthorized structure over the premises without permission. The
defendant No. 2 also adverted to the fact that the plaintiff had
resisted the grant of Deemed Conveyance certificate under section
11 of the Maharashtra Ownership Flats (Regulation of the
promotion of construction, sale, management and transfer) Act,
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1963 before the Dy. Registrar Cooperative Societies on the ground
that his predecessor in title had sold the subject structure and land
beneath the same to him and the defendant No. 2 society was not
entitled to grant of Deemed Conveyance over the entire land and it
was required to be subdivided. This stand of the plaintiff dismantles
the substratum of his case that the subject structure, being a
censused structure, is tolerated. Undisputably, the plaintiff does not
claim to have obtained any permission for the development.
21. In the aforesaid view of the matter, this Court does not find
any ground to interfere with the discretionary jurisdiction
exercised by the learned Judge, City Civil Court. Resultantly, the
appeal fails. Hence, the following order.
ORDER
1} The appeal stands dismissed.
2} In view of the dismissal of the appeal, the Interim Application
also stands dismissed.
(N. J. JAMADAR, J.)
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