Bombay High Court
Abdul Hamid Mapkhan Shah vs The Municipal Corporation Of ... on 26 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:12742
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO.305 OF 2023
WITH
INTERIM APPLICATION NO.3856 OF 2023
WITH
APPEAL FROM ORDER NO.306 OF 2023
WITH
INTERIM APPLICATION NO.3857 OF 2023
Abdul Hamid Mapkhan Shah ...Appellant/
Ori. Plaintiff
vs.
The Municipal Corporation of Greater Mumbai ...Respondent/
Ori. Defendant
Mr. P.J. Thorat a/w. Mr. S.S. Yadav i/b. B.S. Shukla, for the
Appellant.
Mr. Rajiv Chavan, Senior Advocate a/w. Ms. Smita Tondwalkar, for
MCGM.
Mr. Harish Chavan, and Mr. Deepak Manjare, R/C Ward present.
CORAM : N. J. JAMADAR, J.
RESERVED ON : APRIL 20, 2023
PRONOUNCED ON : APRIL 26, 2023
JUDGMENT :
1. These appeals are directed against a common order dated 13 th
April, 2023 passed by the learned Judge, City Civil Court at
Dindoshi (Borivali Division) in Notice of Motion No. 1229 of 2021
and 1231 of 2023 in L.C.Suit No. 539 of 2020 whereby the Notices
of Motion taken out by the appellant/ plaintiff to restrain the
defendant from demolishing 5 structures bearing No. RXX-25/1/1,
RXX-26-1/1, RXX-27-1/1, RXX-28-1/1 and RXX-29-1/1 (the suit
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structures) pursuant to notice dated 15th February, 2020 and the
speaking order dated 30th June, 2021 and the notice dated 10 th
February, 2023 under section 351 of the Mumbai Municipal
Corporation Act, 1888 (the Act, 1888) and the speaking order dated
23rd March, 2023, respectively, came to be dismissed.
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.
3. The background facts leading to these appeals can be stated
as under:-
a} The plaintiff claims to be in the occupation and possession of the
suit structures. Those structures have been in existence since prior
to 1961-62. They are censused structures. Census certificates in
respect of RXX-25-1/1 and RXX-26-1/1 with the record year 1976
were issued on 20th February, 1980 in favour of Gaul Vincent
Pimenta. Whereas census certificates in respect of structure No.
RXX--27-1/1, RXX-28-1/1 and RXX-29-1/1 with record year 1976
were issued in favour of Govindram R. Kalra on 20 th February, 1980
by the office of the Controller of Slums.
b} The plaintiff claims to have acquired first two structures from
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Gaul Pimenta in the year 1994 under an Agreement for Sale dated
17th May, 1994. The remaining 3 structures were acquired by the
plaintiff from Govindram Kalra under an Agreement for Sale dated
16th June, 1994. Thus the plaintiff claims to be entitled to and
possessed of all the suit structures.
4. In the year 2014 a notice was issued to the plaintiff
purportedly under section 351 of the Act, 1888 alleging
unauthorized construction of 5 structures, swimming pool and WC
block with BM wall covered with AC sheets roof. It was followed by a
speaking order dated 7th May, 2014. The plaintiff instituted LC Suit
No. 1166 of 2014 assailing the legality and validity of the said notice
and speaking order. However, by an order dated 22 nd May, 2014, ad-
interim relief was declined by the City Civil Court in the said suit.
Consequently, the structures described in the said notice were
demolished by the defendant- Corporation on 27th August, 2014.
5. The plaintiff asserts the defendant, on the strength of a
motivated complaint of Municipal Councilor falsely alleging that the
plaintiff has re-erected the unauthorized structures, addressed a
notice dated 15th February, 2020 and called upon the plaintiff to
either submit approval for development issued by the competent
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authority or remove the unauthorized work within three days
thereof, lest the defendant would demolish those structures.
6. The plaintiff thus instituted the instant suit and sought an
interim relief to restrain the defendant from acting upon the said
notice and order. The City Civil Court by an order dated 13 th March,
2020 directed the defendant to pass a reasoned order after
considering the reply filed by the plaintiff. Yet, the designated
officer passed a cryptic unreasoned order on 4 th June, 2021. By an
order dated 26th June, 2021 the City Civil Court refused ad-interim
relief.
7. The plaintiff approached this Court in an Appeal From Order
No. 180 of 2021. By an order dated 10 th August, 2021 this Court was
persuaded to allow the appeal by setting aside the order passed by
the City Civil Court and directed the learned Judge, City Civil Court
to decide the Notice of Motion No. 1229 of 2021 expeditiously.
8. While the suit and the said Notice of Motion were subjudice,
the defendant issued a fresh notice under section 351 of the Act,
1888 on 10th February, 2023 alleging erection of 16 unauthorized
structures. The plaintiff gave reply on 17th February, 2023. Again
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by a laconic order dated 23 rd March, 2023 the designated officer
directed the plaintiff to remove the notice structure within 15 days
lest they would be demolished. The plaintiff was thus constrained to
amend the plaint and assail the legality and validity of the aforesaid
notice dated 10th February, 2023 and the order dated 23 rd March,
2023.
9. Interim reliefs were sought by taking out Notice of Motion No.
1231 of 2023. The defendant resisted the Notice of Motion by filing
a reply contending, inter alia, that the plaintiff has carried out
unauthorized development despite demolition of unauthorized
structures in the year 2014. The suit structures are neither
authorized nor tolerated. Hence, the defendant was within its rights
in initiating action under section 351 of the Act, 1888.
10. The learned Judge, City Civil Court, after appraisal of the
rival contentions and the material on record, was persuaded to
dismiss the Notices of Motion holding, inter alia, that the plaintiff
could not succeed in demonstrating that 16 notice structures were
in existence prior to datum line. The census certificates relied upon
by the plaintiff were of no assistance to the plaintiff as the plaintiff
was running a hotel and resort at the subject premises which
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consisted of several rooms including a swimming pool. The learned
Judge found that the plaintiff was provided a fair opportunity of
hearing and the designated officer was justified in passing the order
dated 23rd March, 2023. Thus, no prima facie case was made out.
Having regard to the nature of the development, the learned Judge
was persuaded to hold that balance of convenience did not tilt in
favour of the plaintiff nor the plaintiff would suffer irreparable loss.
11. Being aggrieved the plaintiff is in appeal.
12. I have heard Mr. P.J. Thorat, learned counsel for the appellant
and Mr. Rajiv Chavan, learned senior advocate for the Corporation
at some length. With the assistance of the learned counsel for the
parties, I have perused the pleadings and the material on record.
13. Mr. Thorat, the learned counsel for the appellant, strenuously
submitted that the notice dated 15th February, 2020 lacked
elementary particulars. It neither indicated the unauthorized
structure nor the statutory provisions in exercise of which the said
notice was issued. Moreover, the fact that the said notice was issued
at the behest of a local politician was self evident. Though this
aspect was considered by this Court in Appeal From Order No. 180
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of 2021, the trial Court committed an error in discarding the said
aspect which bears upon the bonafide of the defendant's action.
14. Mr. Thorat would further urge that the fresh notice dated
10th February, 2023 and the speaking order dated 23 rd March, 2023
also suffer from the same taint. Mr. Thorat advanced a severe
criticism against the order passed by the designated officer dated
23rd March, 2023 on the count that there was no consideration at
all and the documents were brushed aside by a singular sentence
that the documents did not prove the authorization and existence of
the notice structure before the datum line i.e. 1 st April, 1962 fixed
for tolerated commercial structures. The trial Court committed an
error in upholding such un-reasoned order, urged Mr. Thorat.
15. Taking the Court through the census certificates and the
documents which indicate that the competent authorities have
granted requisite certificates and/or licenses for carrying out the
business in the subject premises, Mr. Thorat would urge that, at this
interim stage, the plaintiff has made out a strong prima facie case
and he could not have been non-suited without providing an
opportunity to substantiate his case at the trial.
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16. Per contra, Mr. Rajiv Chavan, learned senior advocate for the
defendant, submitted that the plaintiff by his conduct has
disentitled himself from any equitable relief. Despite the
unauthorized structures erected by the plaintiff having been
demolished in the year 2014, the plaintiff has again erected as
many as 16 unauthorized structures. Taking the Court through the
notice structures, Mr. Chavan would urge that unauthorized
development is simply unimaginable. Mr. Chavan further submitted
that the plaintiff has approached the Court with a case to protect 5
censused structure. However, the notice structures do not relate to
those 5 allegedly censused structures, even remotely. In any event,
the fact that the structures are censused does not grant immunity
from action for unauthorized development, submitted Mr. Chavan.
To this end, a strong reliance was placed on a judgment of Division
Bench of this Court in the case of High Court on its own motion (In
the matter of Jilani Building at Bhiwandi vs. Bhiwandi Nizampur
Municipal Corporation and Others1.
17. To begin with few facts which are rather un-controverted.
First it is incontrovertible that the plaintiff had instituted LC Suit
No. 1166 of 2004 assailing the legality and validity of notice under
section 351 of the Act, 1888 in respect of certain structures over
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the subject premises and as the plaintiff failed to obtain any ad-
interim relief, those structures were demolished by the defendant
on 27th August, 2014. Second, the plaintiff claims to have acquired
interest in the 5 censused structures, by virtue of the Agreements
for Sale executed by the predecessors in title on 17 th May, 1994 and
16th June, 1994, who were granted the census certificates on 20 th
February, 1980. Third, the plaintiff approached the Court with
Notice of Motion Nos. 1229 of 2021 as well as 1231 of 2023 to
protect those 5 censused structures only.
18. In the aforesaid view of the matter to appreciate the
controversy in a correct perspective, it may be apposite to note the
description of the 5 suit structures in respect of which census
certificates were issued. The particulars are tabulated as under:-
Sr. Name Structure Number Area
1 Gaul Vincent Pimenta RXX-25-1/1 50 x 50 Sq.ft.
2 Gaul Vincent Pimenta RXX-26-1/1 50 x 50 Sq.ft.
3 Govindram R. Kalra RXX-27-1/1 102 x 17 Sq.ft.
4 Govindram R. Kalra RXX-28-1/1 120 x 12 Sq.ft.
5 Govindram R. Kalra RXX-29-1/1 50 x 50 Sq.ft.
19. It would be contextually relevant to note that the
unauthorized structures in respect of which notice was issued in
the year 2014 and which were eventually demolished. The
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description of the unauthorized work in the said notice read as
under:-
"Unauthorized construction of structure with B.M. walls and
covered with (A) A.C. sheet roof admeasuring 1) 77'-3" x 16'-6"
x 11'-0" height, 2) 32'-0" x 37'-0" x 10-0" height, 3) 21'-0" x 26-
3" x 11'-0" height, 4) 41'-0" x 41'-0" x 11'-0" height 5) 41'-0" x
81'-0" x 5'-0" depth (swimming pool), B) unauthorized
construction of W.C. block with B.M. wall and covered with A.C.
sheet roof admeasuring 1) 16'x 42' x 9'0" height 2) 10'-0" x 20'-
0" x 9'-0" height at Survey No. 42, CTS No. 41 (pt.), Plot No. 1,
village Gorai, Gorai Beach, Borivali (West), Mumbai-92."
20. At this juncture, the structures in respect of which the
impugned notice came to be issued under section 351 of the Act,
1888 on 10th February, 2023 deserves to be noticed. They are
described as under:-
1} Unauthorised construction of shed with A.C. sheet and I
Section admeasuring 8.0 m x 7.0 m x 2.0 m (ht.).
2} Unauthorised construction of reception shed with A.C. sheet,
B.M. Wall and G.I. pipe admeasuring 8.0 m x 7.0 m x 2.0 m (ht.).
3} Unauthorised construction consisting of rooms with BM wall
& AC sheet roof admeasuring 14.0 m x 4.0 m x 2.0 m (ht.).
4} Unauthorised construction of ladies toilet with ph. Roof sheet
roof admeasuring 9.0 m x 4.5 m x 2.0 m (ht.).
5} Unauthorised construction consisting of 12 rooms with BM
Wall & AC sheet roof admeasuring 46.0 m x 4.5 m x 2.0 m(ht.).
6} Unauthorised construction consist of 5 rooms of Ground + 1 st
floor structure with BM Wall, AC sheet and ladi coba ladi slab
admeasuring 12.0 m x 2.0 m (ht.).
7} Unauthorised construction consisting of 6 rooms of ground +
1st floor structure with BM Wall, AC sheet and ladid coba ladi
slab admeasuring 65.0 m x 12.0 m x 2.0 m (ht.).
8} Unauthorised construction consisting of 6 rooms of Ground +
1st floor structure with BM Wall, AC sheet and ladi coba ladi slab
admeasuring 40.0 m x 12.0 m x 2.0 m (ht.).
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9} Unauthorised construction of open shed near Swimming pool
with A.C. sheet roof, I-section & M.S. pipe admeasuring 6.0 m x
3.0 m x 2.0 m (ht.).
10} Unauthorised construction of security cabin with BM wall &
AC sheet roof admeasuring 3.0 m x 3.0 m x 2.0 m (ht.).
11} Unauthorised construction of shed with FRP material &
concrete pole admeasuring 5.0 m x 4.0 m x 2.0 m (ht.).
12} Unauthorised construction of room with BM Wall and A.C.
sheet roof admeasuring 10.0 m x 6.5 m x 2.0 m (ht.).
13} Unauthorised construction of kitchen with BM Wall and AC
sheet roof admeasuring 9.0 m x 12 m x 2.0 m (ht.).
14} Unauthorised construction of Banquet with BM Wall and AC
sheet roof admeasuring 33 m x 9.0 m x 2.0 m (ht.).
15} Unauthorised construction of open air platform with ladi
coba admeasuring 30.4 m x 15.2 m x 0.6 m (ht.).
16} Unauthorised construction of 19 number of wooden shacks
in which 7 shacks are ground + 1st floor and 12 shacks are
ground floors admeasuring 6.0 m x 3.0 m x 4.0 m (ht.) and 6.0
m x 3.0 m x 3.0 m (ht.) respectively situated at Sun Beach
Resort, Ponda Wadi, Gorai Beach, Gorai Village, Borivali (West),
Mumbai 400 091.
21. In the backdrop of the aforesaid clarity on facts as to the
nature of the censused structures, the structures which were
unauthorizedly erected and demolished in the year 2014 and the
nature of the allegedly unauthorized development carried out by
the plaintiff post the demolition of the structures in the year 2014,
the submissions on behalf of the parties deserve to be considered.
22. An endevour was made on behalf of the plaintiff to draw
home the point that the impugned notice dated 10 th February, 2023
does not relate to the structures which were demolished in the year
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2014 and, therefore, the allegations that the plaintiff has re-erected
the structures which were demolished in the year 2014 is devoid of
substance.
23. This submission looses sight of the fact that the plaintiff's case
entirely rests on the census certificates which were issued in favour
of the predecessors in title of the plaintiff. The structures in respect
of which census certificates were issued, as noted above, do not bear
any resemblance to the structures which were demolished in the
year 2014 and the structures in respect of which notice has been
issued on 10th February, 2023. In the absence of material to
demonstrate that the plaintiff has continued to occupy the
structures, in respect of which the census certificates have been
granted in favour of the predecessor in title of the plaintiff, in the
same condition in which they were acquired, the census certificates,
even if taken at par, do not advance the cause of the plaintiff. Once
the identity of the censused structures is lost, the plaintiff can
resist the action under section 351 of the Act only if he succeeds in
establishing that either the structures are authorized or tolerated.
24. The plaintiff does not claim to have obtained any permission
for development. The edifice of the case of the structures being
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tolerated rests on the census certificates. On the own showing of the
plaintiff, the structures were censused in the year 1976. Prima
facie no material could be placed on record to demonstrate that the
suit structures were in existence prior to the datum line. Moreover,
the census certificates, even if construed rather generously, do not
relate to the unauthorized structures referred to in the notice dated
10th February, 2023.
25. Evidently, no photo pass has been issued in favour of either
the predecessors in title of the plaintiff or the plaintiff. Even where
a photo-pass has been issued under section 3Y of the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act,
1971 & Slum Rules (the Act, 1971) it does not grant absolute
immunity from action for unauthorized development. 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.
26. The Division Bench In the matter of Jilani Building at
Bhiwandi (supra), after an elaborate considerations of all the
relevant provisions and the specific contentions of the parties that
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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.
70. As discussed above, there are provisions under
the MMC Act as also under the MRTP Act and the
MLRC which confer several powers on the authorities
to take action against illegal constructions. We may,
however, clarify that a protection which has been
conferred by Section 3Z of the Slums Act, to the
protected occupiers, cannot be confused or
interpreted to mean that the protected occupier
enjoys and is granted a complete immunity from
putting up unauthorized construction or structure
and/or can make illegal additions or alterations. The
protection which is granted is to a basic slum
structure as may be recognized in the photo-pass. If
mere issuance of a photo-pass is interpreted to be a
blanket and an unfettered permission to put up any
illegal construction, additions or alterations, it would
lead to an abuse of the provisions of Section 3Z read
with Section 3X-(a)(b)(c). Such can never be the
intention of the legislature that the municipal
authorities cannot take any action against the
unauthorized structures merely because a photo-pass
is issued.
.... ......
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
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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
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.
(emphasis supplied)
27. In view of the aforesaid pronouncement, the plaintiff's
endevour to salvage the position by banking upon the census
certificates does not merit countenance.
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28. What exacerbates the situation is the nature of the
unauthorized development described in the notice dated 10 th
February, 2023. Unauthorised development of huge magnitude has
been carried out for commercial exploitation. The erection of
structures is in flagrant violation of the development control
regulations and constitutes brazen illegality. The fact that the
unauthorized structures were demolished in the year 2014 further
accentuates the situation and bears upon the exercise of discretion.
29. The submission based on the alleged motivated action, in the
facts of the case, does not deserve any countenance. Complaints
about the unauthorized re-erection of demolished structures cannot
be jettisoned away by attributing motives. In the case at hand, there
is prima facie substance in the contention on behalf of the
defendant that despite demolition of structures in the year 2014,
the plaintiff again erected unauthorized structures.
30. In conclusion, the complete dis-connect between the prayers
in the Notices of Motion, which were filed apparently to protect the
censused structure, with an objective to derive benefit of the census
certificates, and 16 unauthorized notice structures renders the case
of the plaintiff wholly unsustainable. Thus, the learned Judge, City
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Civil Court committed no error in declining to exercise the
discretion in favour of the plaintiff. Resultantly, no case is made out
to interfere in the exercise of discretion by the trial Court, in
exercise of limited appellate jurisdiction.
Thus, the following order.
ORDER
1} The appeals stand dismissed.
2} In view of the dismissal of the appeals, the Interim Applications
also stand dismissed.
(N. J. JAMADAR, J.)
31. At this stage Mr. Thorat, the learned counsel for the appellant
prayed for continuation of interim protection.
32. For the reasons recorded in the judgment, the prayer for
continuation of protection does not merit acceptance and hence oral
application stands rejected.
(N. J. JAMADAR, J.)
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