Bombay High Court
Preston Francis Rodrigues And Ors vs Municipal Corporation Of Greater ... on 13 July, 2023
Bench: N. J. Jamadar
2023:BHC-AS:19309
45-AO-369-23+.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 369 OF 2023
WITH
INTERIM APPLICATION NO. 4534 OF 2023
IN
APPEAL FROM ORDER NO. 369 OF 2023
Preston Francis Rodrigues and Others ...Appellants/
Org. Plaintiffs
Vs.
The Municipal Corporation of Greater ...Respondent
Mumbai /Org.
Defendants
Mr. Pradeep Thorat i/b Mr. Shailesh Pal, for Appellant.
Ms. Smita Tondwalkar, for MCGM.
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 5th JUNE, 2023
PRONOUNCED ON:- 13th JULY, 2023
JUDGMENT:-
1) This Appeal is directed against an order dated 29th April,
2023, passed by the learned Judge, City Civil Court, Borivali
Division in Notice of Motion No. 271 of 2023 in L.C. Suit No.
204 of 2023, whereby the learned Judge declined to grant
interim relief restraining the respondent-Corporation from
45-AO-369-23+.DOC
acting upon the notice dated 9th July, 2022 issued under
Section 354-A of the Mumbai Municipal Corporation Act, 1888
("the Act, 1888") and the speaking order dated 15th July, 2022.
2) Background facts can be stated in brief as under:-
(a) The appellants-plaintiffs claim to be the owners of House
premises No.156 consisting of ground plus three floors situated
at Vile Parle (West) Mumbai (the suit premises). The suit
premises has been in existence since prior to 1962. As the suit
premises required urgent tenantable repairs, the plaintiffs had
applied for, and pursuant to, the permission granted on 6 th
February, 2021, carried out the repairs.
(b) The plaintiffs assert on the basis of a false complaint of a
disgruntled person the defendant issued a notice purportedly
under Section 354-A of the Act, 1888, on 9th July, 2022, falsely
alleging that the plaintiffs had commenced unauthorised
vertical extension above first floor terrace with RCC beam,
columns and slab adm. 6.7 m X 9 m. at the suit premises. An
appropriate reply was filed on 13th July, 2022, pointing out that
the plaintiffs had carried out tenantable repairs after obtaining
requisite permission. Yet the designated officer by a speaking
order dated 15th July, 2022, passed an order directing the
45-AO-369-23+.DOC
plaintiffs to remove the alleged unauthorised structure. It was
incorrectly recorded that the plaintiff had not given reply to the
notice. Nor produced any authentic documents to prove the
authorisation for the notice structure. The plaintiffs assailed
the legality and validity of the impugned notice and the
speaking order.
(c) The learned Judge, City Civil Court, had initially directed
the parties to maintain status quo. However, it was
subsequently vacated. The plaintiffs came in Appeal from the
said order, being Appeal From Order No. 272 of 2023. By an
order dated 12th April, 2023, this Court directed the City Civil
Court to hear and decide the Notice of Motion for ad-interim
relief and continued the status quo till the City Civil Court
passed an order on the application for ad-interim relief.
(d) By the impugned order dated 29 th April, 2023, the
learned Judge was persuaded to reject the prayer for ad-
interim relief holding, inter alia, that despite notice under
Section 354-A of the Act, 1888, the plaintiffs continued to carry
out the construction. Eventually in pursuance of the speaking
order dated 15th July, 2022, the defendant-Corporation had
demolished the unauthorisedly erected structure on 16 th
45-AO-369-23+.DOC
November, 2022, 30th November, 2022, 5th January, 2023 and
6th January, 2023. Yet, while instituting the suit, the plaintiffs
had suppressed the said fact and, subsequently, took out the
Chamber Summons to carry out the amendment that part of
the allegedly unauthorisedly erected structure came to be
demolished. Since the plaintiffs had not approached the Court
with clean hands, they were not entitled to equitable relief.
3) Being aggrieved the plaintiffs are in Appeal.
4) I have heard Mr. Thorat, the learned Counsel for the
appellant, and Mrs. Smita Tondwalkar, the learned Counsel for
the respondent-Municipal Corporation at some length.
5) Mr. Thorat would urge that the learned Judge, City Civil
Court, ought not to have given much weight to the fact that a
portion of the structure came to be demolished by the
respondent in flagrant violation of the policy of the Municipal
Corporation in the matter of following due process of law before
initiating action for demolition. Respondent-Corporation was
duty bound to follow the policy directions contained in the
circular dated 11th August, 2000, which came to be issued
pursuant to the orders passed by this Court. Respondent -
45-AO-369-23+.DOC
Corporation thus could not have been allowed to take benefit of
its own wrong.
6) Secondly, Mr. Thorat would submit that once the
structure was complete, an action under Section 354-A of the
Act, 1888 was legally impermissible. In that eventuality, the
only course available to the respondent - Corporation was to
initiate action under Section 351 of the Act, 1888. It was
submitted that the designated officer proceeded as if the action
was under Section 351 of the Act, 1888 and recorded that the
construction carried out by the plaintiffs was totally
unauthorised. That was not the remit of the enquiry by the
designated officer, submitted Mr. Thorat.
7) Ms. Tondwalkar, on the other hand, stoutly supported the
impugned order. Taking the Court through the documents on
record which indicate that, post speaking order, the then on-
going construction was demolished by the respondent, Ms.
Tondwalkar would urge that a party who has not approached
the Court with clean hands, does not deserve any equitable
relief.
8) The provisions contained in Section 351 and 354-A of the
Act, 1888, operate in different spheres. Section 351 empowers
45-AO-369-23+.DOC
the Commissioner to remove, alter or pull down the building or
work which has been carried out contrary to the provisions of
the Act, 1888, if the person responsible for the same fails to
show a sufficient cause or remove the structure despite notice.
Section 354-A, on the other hand, empowers the Commissioner
to issue stop work notice, in respect of any erection of building
or work which has been unlawfully commenced or is being
unlawfully carried out. Plainly Section 354-A operates at a
stage where the unauthorised construction or work is
underway and can be classified as an ongoing work. This
distinction between Section 354-A and 351 of the Act, 1888 was
elucidated by the Supreme Court in the case of Muni Suvrat-
Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad and
Others1. It was, inter alia, observed that the provisions of
Section 354-A deal with the stop work notice whereas the
provisions of Section 351 deal with the show cause notice for
demolition of unauthorised structure. The provisions of Section
354-A have nothing to do with the question of demolition.
9) Mr. Thorat placed reliance on a decision in the case of
Goverdhan Ramnaresh Singh Vs. The Municipal Corporation of
Greater Mumbai in Appeal From Order No. 257 of 1999, dated
1 (2006) 8 SCC 590
45-AO-369-23+.DOC
15th April, 1999, wherein it was observed that if a person has
raised any unauthorised construction before notice under
Section 354-A (1) was issued, the remedy to the Corporation is
under Section 351 of the Act, 1888 and not under Section
354-A.
10) There can be no duality of opinion on this point. However,
the aforesaid position in law, in the facts of the case, does not
assist the cause of the submission on behalf of the appellants.
The learned Judge, City Civil Court, has recorded a prima facie
view that before the institution of the suit itself, the
respondent-Corporation had taken action pursuant to the
speaking order dated 15th July, 2022. The learned Judge found
that the action of demolition of the then on going unauthorised
structure, on 16th November, 2022, 30th November, 2022, 5th
January, 2023 and 16th January, 2023 was evidenced by
documents including the photographs. The learned Judge
categorically observed that despite the demolition process
having been carried out, the plaintiffs suppressed the said fact
and approached the Court for the interim relief. The
subsequent amendment carried out by the plaintiffs in the
45-AO-369-23+.DOC
plaint, adverting to the said demolition, was arrayed against
the plaintiffs as the conduct lacking in bona fide.
11) The aforesaid approach of the learned Judge, City Civil
Court, can not be said to be unjustifiable. The plaintiffs can not
be permitted to urge at an ad-interim stage that the action of
demolition was in violation of the policy directives as the
plaintiffs did not approach the Court with a case that notice
structure or part thereof was demolished. On the contrary, the
plaintiffs, ex facie, did not disclose the said fact and sought
relief on the premise that notice structure stood intact. The
issue of non-compliance with the policy framed by the
Corporation to follow due process, before taking action of
demolition, cannot be considered in the abstract. It would be
open for the plaintiffs to seek appropriate reliefs, if they choose
to, by carrying out necessary amendment in the plaint.
12) Had the plaintiff approached the Court with a case that
the action of demolition was carried out a day prior to the
institution of the suit, issue of restoring the status quo ante
the date of the suit could have been considered. On the
contrary, there was material to indicate that the action was
taken as back as in the month of November, 2022.
45-AO-369-23+.DOC
13) In this view of the matter, since the very structure, which
the plaintiffs sought to protect, had been demolished, the
learned Judge, City Civil Court, was justified in arriving at the
conclusion that no prima facie case was made out. Nor the
balance of convenience tilted in favour of the plaintiffs. In the
circumstances of the case, the point of irreparable loss was
also rightly answered against the plaintiffs.
14) Resultantly, the Appeal fails. Hence, the following order.
ORDER
i) The Appeal stand dismissed.
ii) In view of dismissal of the Appeal, the Interim
Application also stands disposed.
iii) No costs.
[N. J. JAMADAR, J.]
