Mr. Pradeep Hariram Oberoi vs The Municipal Corporation Of ...
2023 Latest Caselaw 4920 Bom

2023:BHC-AS:14605

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              APPELLATE SIDE CIVIL JURISDICTION

                                 APPEAL FROM ORDER NO.950 OF 2022
                                              WITH
                               INTERIM APPLICATION NO.18923 OF 2022

             Pradeep Hariram Oberoi                                   ...Appellant
                  vs.
             The Municipal Corporation of Greater Mumbai
             and Another                                              ...Respondents

             Mr. Vishal Kanade a/w. Ms. Jhanvi Joshi, Mr. Nilesh Pandey i/b.
             Equa Juris, for the Appellant.
             Mr. Abhinandan Vagyani i/b. Ms. Kanchan Chindarkar and Mr.
             Prashant More, for Respondent No. 2.
             Mrs. Smita Tondwalkar, for Municipal Corporation.

                                          CORAM :       N. J. JAMADAR, J.
                                      RESERVED ON :     APRIL 3, 2023
                                      PRONOUNCED ON :   JUNE 5, 2023


             JUDGMENT :

1. This appeal is directed against an order dated dated 13 th

September, 2022 passed by the learned Judge City Civil Court,

Mumbai in Notice of Motion No. 618 of 2021 in L.C. Suit No. 1245 of

2021 whereby the Notice of Motion taken out by the appellant

plaintiff to restrain the respondent No. 1/defendant No. 1 Municipal

Corporation from acting upon a notice dated 22 nd October, 2020

under section 351 of the Municipal Corporation Act, 1888 (the Act,

1888) and the speaking order came to be dismissed.

             Vishal Parekar                                                                   ...1





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2. The appeal arises in the backdrop of the following facts:-

a} The plaintiff has been in possession of a gala premises

admeasuring 912 sq.fts. Situated at Survey No. 92, CTS No. 250,

village Bhandup, Tal. Kurla known as Hariram Garage (the suit

property), as a tenant thereof. M/s. Rolex Mdetals Industries,

respondent No. 2 is the landlord. Late M/s. Hariram Oberoi, the

father of the plaintiff was the original tenant of the suit property. It

was demised to late Hariram since prior to 1955. The suit property

comprised of permanent structure with AC sheet roof with area

admeasuring about 2000 sq.ft.

b} The plaintiff asserts a portion of the suit property was

affected in road widening scheme and resultantly the suit property

now admeasur 912 sq.fts. In the wake of the dispute, over the

demised premises, the landlord/ respondent No. 2 had initially

instituted RAE Suit No. 799 of 2005 and subsequently withdrew the

said suit. It is the case of the plaintiff that at the instance of the

landlord, the respondent No.1 Corporation has initiated action qua

the suit property unjustifiably.

c} The plaintiff asserts the suit property is a censused structure.

It has been declared a slum under section 4(1) of the Maharashtra

Slum Areas (Improvement, Clearance and Redevelopment) Act,

1971 (the Slum Act, 1971), vide gazette notification dated 2 nd

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March, 1978. A Census certificate has also been issued by the

competent authority on 18th December, 1980. Survey receipt came

to be issued on 20th July, 2000. The revenue authorities have also

levied non-agricultural tax on the suit property for the alleged

conversion of users of the suit property.

d} It is further averred that the plaintiff had started tenantable

repairs. Thereupon, a notice under section 354A of the Act, 1888

came to be issued on 30th July, 2019. The plaintiff instituted LC Suit

No. 2297 of 2019 assailing the legality and validity of the said

notice. As interim relief was not granted, the plaintiff had preferred

an Appeal From Order (St.) No. 26430 of 2019. By an order dated

27th September, 2019 this Court had allowed the appeal and

restrained the respondent No. 1- Corporation from taking action

pursuant to the said notice. It is the claim of the plaintiff that

instead of, assailing the said order dated 27th September, 2019

before the Supreme Court, the respondent No.1- Corporation issued

notice dated 22nd December, 2020 under section 351 of the Act,

1888. A detail reply was filed on 29 th December, 2020 annexing

thereto all the relevant documents. Without considering the said

reply and the documents, the designated officer passed the

speaking order in a perfunctory manner. Thus, the plaintiff was

constrained to again approach the City Civil Court seeking

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declaration that the impugned notice dated 22nd December, 2020

purportedly issued under section 351 of the Act, 1888 and the

speaking orders dated 10th February, 2021 and 11nd February,

2021 are illegal and bad in law and also to restrain the respondent

No. 1 Corporation from demolishing and/or pulling down the suit

property and acting upon the impugned notice and the speaking

order. In the said suit, the plaintiff took out a Notice of Motion

seeking interim reliefs.

3. The respondents/defendants resisted the Notice of Motion.

The substance of the resistance put forth by the respondent-

Corporation was that subject structure was neither tolerated nor

authorized. Permanent structure was erected sans permission of

the planning authority. By the impugned order, the learned Judge,

City Civil Court was persuaded to dismiss the Notice of Motion. The

learned Judge was of the view that it could not be prima facie

established that the suit property is situated in a slum area. In any

event, there was no impediment under the Slum Act, 1971 to

proceed against an unauthorized development. The learned Judge

further recorded that in Appeal From Order (St.) No. 26430 of 2019

this Court had expressly reserved the liberty to the respondent-

Corporation to proceed against the suit property in accordance with

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law if if it was found that the structure was unauthorized and liable

to be demolished and, therefore, the respondent- Corporation was

within its rights in initiating action for unauthorized development.

4. Being aggrieved, the plaintiff is in appeal.

5. I have heard Mr. Vishal Kanade, learned counsel for the

appellant, Mr. Abhinandan Vagyani, learned counsel for respondent

No. 2/ landlord and Mrs. Smita Tondwalkar, learned counsel for the

Municipal Corporation. With the assistance of the learned counsel

for the parties, I have perused the pleadings and the material on

record including the impugned order.

6. To begin with, it is necessary to note the description of the

structure furnished in the impugned notice dated 22 nd December,

2020 purportedly issued under section 351 of the Act, 1888. The

schedule to the notice reads as under:-

"Unauthorized Construction of 4 galas on open plot using sipporex blocks wall and A.C. Sheet roof with M.S. Rolling shutter Adm. Total 10.8 mtr. X 8.1 mtr. X 3.8 mtr at ridge & 3.1 mtr. Ht at eaves as shown in the Sketch at above mentioned address."

7. It would be contextually relevant to note that the respondent

No. 1 Corporation had initially professed to proceed qua the suit

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property under section 354A of Act, 1888, with the allegations that

the plaintiff/appellant had been carrying out unauthorized

construction of shops on open land with Siporex blocks, A.C. Sheet

roof and MS Shutter ad-measuring 12.1 m x 7.0 m x 3.0 m, without

permission of competent authority.

8. In Appeal From Order (St.) No. 26430 of 2019 this Court

recorded a categorical finding that the Court Commissioner's

Report clearly demonstrated that the work had attained completion

by the time the Commissioner visited the premises. Thus, the

finding recorded by the trial Court that there was on going

construction, was not sustainable. This Court, further observed that

if it was the Corporation's case that the suit structure was

unauthorized and liable to be demolished either on the ground that

it did not exist as of the datum line or that it was constructed

without seeking authorization from the planning authority, the

Corporation was free to adopt such steps as may be permissible in

law, but it could not have availed the provisions contained in section

354A of the Act, 1888. Armed with the said liberty, the respondent-

Corporation has apparently initiated the impugned action.

9. Mr. Kanade, the learned counsel for the appellant would urge

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that the impugned notice and the speaking order suffer from the

vice of clear non-application of mind. The fact that the father of the

plaintiff and, after his demise, the plaintiff has been in possession of

the suit property since prior to 1955 is incontrovertible. It is also

indisputable that the premises has been put to commercial use. In

the circumstances, the issue of the impugned notice on the ground

that the plaintiff has erected unauthorized structure on open plot of

land is wholly unsustainable. Mr. Kanade, would urge that the

learned Judge, City Civil Court did not at all advert to the

voluminous material placed on record to show the long standing

possession and enjoyment of the suit property by the plaintiff and

his predecessor in title. The slum declaration, the census certificate

and the notice issued by the revenue authorities for conversion of

land use, were all unjustifiably discarded by the learned Judge.

Thus the impugned order deserves to be interfered with, submitted

Mr. Kanade.

10. Mrs. Tondwalkar, the learned counsel for respondent No.1-

Corporation would submit that the appellant has not placed on

record any material to show that the development at the suit

property was carried out with necessary permission of the planning

authority. The endevour of the appellant to show the infirmities in

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the impugned notice and the speaking order is of no significance. It

incumbent upon the party who assails the notice under section 351

of the Act to show that either the structure is authorized or

tolerated. The appellant has miserably failed to make out a prima

facie case on this count. Therefore, pointing out infirmities in the

notice and the speaking order would not advance the cause of the

appellant.

11. To bolster up aforesaid submission Mrs. Tondwalkar placed

reliance on the observations of the Division Bench in the case of

Tushar Guru Salien vs. State of Maharashtra and Others 1. The

Division Bench observed, inter alia, as under:-

5. Concerning a property, a suit to enforce or protect an interest in the property which is governed by a Municipal Statute, the interest protected has to be with respect to a plea that prim-facie, the structure which is being targeted is an authorized structure. Meaning thereby, the plaint must make an averment of the sanction obtained from the Corporation and must make an averment that the structure targeted is prima-facie governed by the sanction. Merely pointing out deficiencies in the notice or the authority of the person issuing the notice is neither here nor there. Thus, the sine qua non of such kinds of suits is a positive assertion made with reference to the sanctioned building plans.

12. Mr. Vagyani, the learned counsel for the respondent No. 2

supported the impugned order. It was submitted that the tenancy

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and the possession over the suit property are not in dispute. An

open land was the subject matter of demise. The appellant/plaintiff

has started to erect permanent structure and, therefore, the

landlord was constrained to approach the Court of Small Causes

and seek relief. Attention of the Court was invited to an order dated

30th January, 2020 passed by the Court of Small Causes, Mumbai on

an application for temporary injunction in T.E. Suit No. 61 of 2017

whereby the defendants therein were restrained from carrying out

any construction of permanent nature at the suit premises i.e. open

plot of land admeasuring about 225.50 sq.mtr. and covered under

C.T.S. No. 250/5, situated in Rolex Metal Industries Compound at

LBS Marg, Bhandup (w), Tal. Kurla, Mumbai. Mr. Vagyani also

invited attention of the Court to the observations in the speaking

order wherein the notice structure was shown as open and marked

as per the drawing 36 of the 'S' ward. Mr. Vagyani would thus urge

that it is the development sans permission which is a legitimate

subject matter of the impugned notice and the proposed action of

demolition.

13. I have given anxious consideration to the rival submissions.

14. Evidently, the impugned notice proceeds on the premise that

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the notice structure was sought to be erected on the open piece of

land. It is the case of respondent No. 2 landlord that an open piece

of land was the subject matter of demise. Whether this contention

prima facie appears nearer to the truth ?

15. First and foremost, the long standing possession of the

plaintiff and his predecessor in title is rather indubitable. There are

rent receipts for the period as back as May, 1955 and June, 1955.

The possession of the plaintiff and the predecessor in title of the

plaintiff is relatable to a period prior to the dautam line for a

commercial structure.

16. The affidavit in reply on behalf of defendant No.2/ landlord

throws light on the nature of the demised property and also the

user thereof. In paragraph 4 of the affidavit in reply it was

contended that the suit property was let out to Mr. Hariram Oberoi,

the late father of the plaintiff, prior to 40 years for the purpose of

carrying the business of garage and vehicle parking place. Prima

facie it is difficult to readily agree with the contention on behalf of

the defendants that the character of the demised property

remained an open land for almost 70 years. The aforesaid

contention of defendant No. 2 in the affidavit in reply lends

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credence to the claim of the plaintiff that the suit property has been

used as a garage and for commercial purpose.

17. I find substance in the submission of Mr. Kanade that the

learned Judge, City Civil Court did not properly advert to the

documents which were tendered in respect of the plaintiff's claim.

For instance, in the impugned order while noting that the plaintiff

has placed reliance on the Government gazette dated 2 nd March,

1978, in which CTS No. 250, whereat the suit property is situated,

was declared as the slum area, yet the said document was discarded

by ascribing a reason that those documents were not sufficient to

conclude that the notice structure was situated in the slum area. It

is imperative to note that the plaintiff had also banked upon a

census certificate purported to have been issued by the Controller

of Slums dated 18th December, 1980 that the suit property was

recorded as censused structure bearing No. TXC 14/5 admeasuring

50 x 40 = 2000 sq.fts.

18. Mr. Vagyani attempted to controvert the aforesaid certificate

by relying upon a certificate dated 4th November, 2019 wherein it

was mentioned that the properties situated at CTS Nos. 250, 251

and 252 of Mouje Bhandup, Tal. Kurla were not declared as the

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slum under the Act, 1971.

19. I am afraid the aforesaid communication is of assistance at

this stage. The learned Judge, City Civil Court was required to

appraise the plaintiff's claim prima facie. The plaintiff had brought

material on record to show that he and his predecessor in title have

been in possession of the suit property since prior to 1955. The

learned Judge noted that the CTS number over which the property

was situated was declared as slum in the Government notification.

In addition, a census certificate was issued by the Collector of

Slums. Moreover, on 12th February, 1999 a notice was issued to the

plaintiff for conversion of the user of the suit property from

agriculture to commercial. In the face of these documents, the

learned Judge could not have non-suited the plaintiff, at an interim

stage. The long standing possession coupled with purpose of demise

warranted an opportunity to the plaintiff to establish at the trial

that the work being carried out on the suit premises was of

tenantable repairs and did not necessitate permission from the

planning authority.

20. Undoubtedly, the Court of Small Causes by an order dated 30 th

January, 2020 restrained the defendants therein, including the

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plaintiff herein, from carrying out further construction of

permanent nature. That, however, does not imply that the action of

the respondent-Corporation is legal and valid. It is imperative to

note that the respondent No. 1 Corporation proceeds on the premise

that the plaintiff was erecting a structure on an open plot of land.

This foundational premise, in my considered view, is belied by the

documents and material on record.

21. In the totality of the circumstances, I am of the considered

view that the learned Judge, City Civil Court did not adequately

consider the material which bears upon the determination of the

legality and validity of the notice. Failure to consider the relevant

material resulted in an erroneous view on the existence of a prima

facie case. The long standing possession and user of the demised

premises for the commercial purpose tilts the balance of

convenience in favour of the plaintiff. Absence of permission from

the planning authority, in a situation of the present nature, where

the nature of the development is contentious, cannot be

determinative. In the event the structure which stands on the suit

property is demolished, the plaintiff would suffer an irreparable

loss.

Vishal Parekar                                                                          ...13





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22. The conspectus of the aforesaid consideration is that the

exercise of discretion by the learned Judge, City Civil Court

deserves to be corrected, in appeal. Hence, the appeal deserves to

be allowed. It is, however, clarified that this order cannot be

construed as an authority to carry out further development or

violate the injunction granted by the Court of Small Causes in T.E.

Suit No. 61 of 2017 by order dated 30th January, 2013.

Hence, the following order.

ORDER

1] The appeal stands allowed.

2] The impugned order passed by the learned Judge, City Civil

Court in Notice of Motion No. 681 of 2021 stands quashed and set

aside.

3] The Notice of Motion stands allowed.

4] The respondent/defendant No. 1 Corporation is restrained from

acting upon the impugned notice dated 22 nd December, 2020 under

section 351 of the Act, 1888 and the speaking orders dated 10 th

February, 2021 and 11th February, 2021 till the disposal of the suit.

5] It is hereby clarified that this order cannot be construed as an

authority to carry out further development in the suit property or

violate the order passed by the Court of Small Causes in T.E. Suit

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No. 61 of 2017, dated 30th January, 2020.

6] Hearing of the suit stands expedited.

7] No order as to costs.

8] In view of the disposal of the appeal, the interim application also

stands disposed.

                                           (N. J. JAMADAR, J.)




Vishal Parekar                                                                 ...15