Bombay High Court
Sudeep Cooperative Housing ... vs Municipal Corporation Of Greater ... on 26 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:12825
28-AO211-2023+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 211 OF 2023
WITH
INTERIM APPLICATION NO. 2640 OF 2023
WITH
INTERIM APPLICATION NO. 2579 OF 2023
Sudeep Cooperative Housing Society Ltd.
through Chairman Shri Rajan Joshi ...Appellant
Versus
Municipal Corporation of Greater Mumbai ...Respondent
Mr. Pradeep J. Thorat, a/w Bipin Joshi and Arundhati
Walawalkar, for the Appellant.
Ms. Smita Tondwalkar, for the MCGM/Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 26th APRIL, 2023
Oral Order:-
1. Heard the learned Counsel for the parties.
2. The learned Counsel for the appellant seeks leave to
tender an affidavit-in-rejoinder to the affidavit-in-reply.
Leave granted.
3. This appeal is directed against an order dated 16th March,
2023 passed by the learned Judge, City Civil Court in
unregistered Notice of Motion in Suit (St) No.2894 of 2023,
whereby the learned Judge declined to grant ad-interim relief to
restrain the respondent - defendant, MCGM, from acting upon a
28-AO211-2023+.DOC
notice under Section 299 of the Mumbai Municipal Corporation
Act, 1988 to acquire 9.55 Mtrs. area purportedly falling within
the regular road line.
4. When the appeal was listed before the Court, on 21st
March, 2023, a grievance was made on behalf of the appellant
that despite notice having been given to the respondent -
Corporation about the interim application being moved in this
appeal against refusal of ad-interim relief, respondent
Corporation has demolished the compound wall and the
security cabin.
5. Thereupon an affidavit-in-reply was filed by the
respondent on 3rd April, 2023. It was inter alia contended that
respondent has already taken action in respect of certain land,
not occupied by the building, by demolishing the ancillary
structures i.e. compound wall, which was causing obstruction
to the road widening project of Sant Dnyaneshwar Marg. The
said structure was demolished on 23rd March, 2023 after
following due process of law.
6. In view of the aforesaid statement, the respondent
Corporation was directed to maintain status quo as regards the
suit property.
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7. The appellant has annexed the photographs to bolster up
the contention that the structures, which were demolished on
23rd March, 2023, formed the part of the building and the area
which the respondent Corporation intends to lay road over
contains sewage water drainage chamber and storm water
drainage chamber.
8. It is submitted on behalf of the appellant that the security
cabin which has been demolished by the respondent and the
aforesaid tanks form part of the building and, thus, the land
covered by the said structure and tanks could not have been
acquired under Section 299 of the Act, 1888. Reliance is placed
on a judgment of the Supreme Court in the case of Indian City
Properties Limited and another vs. Municipal Corporation of
Grater Mumbai and another1 to lend support to the submission
that the said structures render the area, which is sought to be
acquired for road widening, occupied by the building.
9. The learned Counsel for the MCGM contests this position.
10. In the case of Indian City Properties Limited (supra) it was
enunciated that in terms of Section 299 if the land is occupied
by a building it is outside the scope of Section 299; but if there
are only structures external to a building, action may be taken
1 (2005) 6 SCC 417.
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under Section 299 by the Corporation to take possession of the
land and demolish the structure.
11. The Supreme Court further expounded the import of
Section 299 as under:
"19. The word "structure" is used as a generic term so that
while all buildings may be structures, all structures are not
buildings. That structure which is not a building and is a
platform, verandah, step or some other such structure
external to a building may be taken over by the
Commissioner under Section 299(1) if it is within the regular
line of the street. The words "some other such" must be
construed as structures similar or like platform, verandah
and step. The words must be read ejusdem generis with the
preceding words wince the word "such" meas "of the type
previously mentioned (see Concise Oxford English Dictionary
(10th Edn.)". The word "other" has also been held to indicate
that it must be construed ejusdem generis. The underlying
characteristic of platforms, verandahs and steps is that they
are not independent structures and are external to a
building, that is they are attached to the outside and form an
inessential part of a building. In our opinion, therefore in
order to be a building for the purpose of Section 299 the
structure would have to be an independent, permanent
structure. Thus, there is no repugnancy if one were to read
the definition of building and Section 299 and in our opinion
the word "building" has been used in Section 299 in the
sense defined in Section 3(s)."
12. It is imperative to note that the impugned order was
passed at an ad-interim stage. The question as to whether the
structures which have been demolished and which are stated to
exist in area, which is sought to be acquired for road widening,
constitute structures occupied by the building or they were/are
independent structures external to the building, is required to
be determined by the trial court on the basis of the pleadings
and material on record. It is essentially a fact finding exercise.
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It would, therefore, be expedient that the Notice of Motion is
decided by the City Civil Court after providing an effective
opportunity of hearing to the parties.
13. Mr. Thorat, the learned Counsel for the appellant, submits
that in view of the subsequent developments, the plaintiff would
be required to amend the plaint to make appropriate averments
and also seek additional reliefs.
14. The appeal thus stands disposed with liberty to the
appellant - plaintiff to take out an appropriate proceeding to
amend the plaint.
15. In the event such a proceeding is taken out, the City Civil
Court shall decide the same in accordance with law.
16. The Notice of Motion be also decided on its own merits and
in accordance with law after providing an opportunity to the
respondent - defendant to meet the case, to be set up by the
plaintiff by way of amendment.
17. In the meanwhile, till the decision of the Notice of Motion
the status quo ordered to be maintained by this Court shall
continue to operate.
18. The learned Judge, City Civil Court, is requested to decide
the Notice of Motion as expeditiously as possible.
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19. In view of disposal of the appeal, interim applications do
not survive and stand disposed.
[N. J. JAMADAR, J.]
