Meena Khimji Shah vs Municipal Corporation Of Greater ...
2023 Latest Caselaw 2739 Bom

                                      5-AO194-2023AWIA2491-2023.DOC

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


                APPEAL FORM ORDER NO. 194 OF 2023

Meena Khimji Shah                                            ...Appellant
                    Versus
Municipal Corporation of Greater Mumbai   ...Respondent
                           WITH
         INTERIM APPLICATION NO. 2491 OF 2023

Mr. Diwakar Dwivedi, for the Appellant.
Ms. Smita Tondwalkar, for the Respondent/MCGM.
Mr. Anand Ashok Patil, Sub-Engineer, 'D' Ward, present.


                                CORAM:    N. J. JAMADAR, J.

DATED : 21st MARCH, 2023 ORDER:-

1. This appeal is directed against an order passed by the

learned Judge, City Civil Court, Borivali Division, Dindoshi,

Mumbai, in Notice of Motion No.770 of 2023 in LC Suit No.533

of 2023, whereby the application for temporary injunction

restraining the Municipal Corporation of Greater Mumbai

("MCGM"), the respondent - defendant from demolishing the

premises in pursuance of the notice dated 14th January, 2023,

under Section 351 of the Mumbai Municipal Corporation Act,

1888 ("the Act, 1888") and the speaking order dated 10 th

February, 2023 came to be dismissed.

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2. The appellant - plaintiff claimed to have purchased Room

No.3, (earlier Room No.5), R.P. Chawl, Matar Pada, Amboli,

Andheri (W), ("the subject premises") from Mr. Khimji Shah

under an Agreement for Sale dated 3 rd November, 2021. Mr.

Khimji Shah delivered possession of the subject premises and

all the relevant documents in respect of the subject premises.

Those documents include annual rent receipts issued in favour

of Mr. Khimji Shah since prior to 1972, the electricity bills

issued by Bombay Suburban Electric Supply Ltd. in favour of

the then occupant of the subject premises, the Ration Card and

assessment receipts and water consumption bills issued by the

concerned authorities. Documents like the correspondence

received at the subject premises and the birth certificate of the

plaintiff's daughter were also banked upon in support of the

plaintiff's claim. It was further affirmed that the subject

premises was declared a slum under the Maharashtra Slum

Areas (Improvement, Clearance and Redevelopment) Act, 1971.

3. The plaintiff approached the Court with a case that at the

instance of the persons having vested interest, a notice under

Section 351 of the Act, 1988 was issued on behalf of the

respondent alleging unauthorized construction and

development. An appropriate reply was filed to the said notice

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by the plaintiff on 25th January, 2013. Eventually the

designated officer passed a speaking order on 10 th February,

2023 and directed removal of the alleged unauthorized structure

i.e. (1) balcony passage admeasuring 3.50 mtr. X 1.95 mtr. X 2.5

mtr. height by using M. S. Angle, I-sections, B. M. Wall, Ladi

Coba Slab for flooring and AC Sheet for roofing. (2) Otla

admeasuring 2.36 mtr. X 0.66 mtr. X 0.25 mtr. height

obstructing the access in front of the subject premises (notice

structure).

4. The plaintiff asserted that the speaking order was passed

without properly appreciating the plaintiff's case and the

documents tendered in support thereof. The designated officer

passed the speaking order without application of mind. Hence,

the suit for declaration that the notice and the speaking order

are illegal, bad in law and mala fide and to restrain the

defendant from demolishing the notice structure.

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

seeking demolition to restrain the defendant from taking action

on the basis of the said notice and the speaking order.

6. The defendant - respondent resisted the Notice of Motion

by filing an affidavit-in-reply. Notice structure was allegedly

erected sans any permission. It was contended that the

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designated officer had considered the reply to the notice under

Section 351 of the Act, 1988 and the documents filed in support

thereof and passed a speaking order. Thus, no interference was

warranted therein.

7. The learned Judge, City Civil Court, after appraisal of the

rival contentions and the material on record, was persuaded to

return a finding that the petitioner failed to make out a prima

facie case. The material on record prima facie indicated that the

petitioner constructed a balcony in the passage and an otla in

the open space in front of the subject premises. The documents

relied upon by the plaintiff did not pertain to the notice

structure. Nor the plaintiff succeeded in prima facie establishing

that the notice structure was either authorized or tolerated.

Thus, in the absence of prima facie case, the balance of

convenience was in favour of the respondent - defendant.

Likewise, the learned Judge concluded, no irreparable loss

would be caused to the plaintiff.

8. Being aggrieved, the plaintiff is in appeal.

9. I have heard Mr. Dwivedi, the learned Counsel for the

appellant - plaintiff and Ms. Tondwalkar, the learned Counsel

for the respondent - defendant. With the assistance of the

learned Counsel for the parties, I have perused the averments in

5-AO194-2023AWIA2491-2023.DOC

the plaint, affidavit in support of Notice of Motion and affidavit-

in-reply thereto and the documents tendered for the perusal of

the learned Judge, City Civil Court.

10. The learned Counsel for the appellant - plaintiff

endeavoured to draw home the point that the documents which

indicate that the predecessor in title of the plaintiff, who

incidentally happened to be the father of the plaintiff, had been

an occupant of Room No.3 (subject premises) since prior to

1970. There were documents of unimpeachable character like

the electricity bills, water bills, assessment bills, Ration Card

and the public record like the birth certificate of the daughter of

the plaintiff which prima facie, establish the possession of the

plaintiff over the subject structure. In the facts and

circumstances of the case, the learned Judge, City Civil Court,

committed a grave error in refusing to protect the notice

structure without providing an opportunity of adducing the

evidence at the trial, urged the learned Counsel for the

appellant. If the notice structure is demolished, the plaintiff

would suffer an irreparable loss. In contrast, no prejudice

would be caused to the respondent - defendant in case the

notice structure is protected till the conclusion of the trial. Lest,

the plaintiff would suffer an irretrievable prejudice.

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11. In contrast, Ms. Tondwalkar would urge that the plaintiff

has misconceived the nature and scope of the notice under

Section 351 of the Act, 1888. What was sought to be removed is

unauthorizedly erected balcony and otla obstructing access and

not Room No.3, the subject premises. All the documents relied

upon by the plaintiff pertain to the subject premises and not the

notice structure. Therefore, according to Ms. Tondwalkar, the

learned Judge, City Civil Court, correctly exercised the

discretion not to grant the temporary injunction.

12. I have given anxious consideration to the rival

submissions canvassed across the bar.

13. First and foremost, the schedule appended to the notice

under Section 351 of the Act, 1888 dated 18 th January, 2023,

containing the description of the allegedly unauthorized

construction/development deserves to be noted. It reads as

under:

"Unauthorized construction of 1) Balcony in passage adm. 3.50 mtr. X 1.95 mtr. X 2.5 mtr. (ht. By using M. S. Angles, I-Sections, B. M. Wall, Ladi Coba Slab for flooring and A. C. Sheet for roofing. 2) Otla adm. 2.36 mtr. X 0.66 mtr. X 0.25 mtr. (ht.) obstructing the access in front of existing structure situated at Room No.03, R. P. Chawl, Mhatarpada, Amboli, Andheri (W) Mumbai 400 058."

14. In the aforesaid context, from the tenor of the plaint, it

becomes abundantly clear that it proceeds on the premise that

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the plaintiff and the predecessor in title of the plaintiff have

been in occupation of Room No.3, the subject premises, since

prior to 1970 and there are documents to evidence the factum of

possession of the plaintiff and the predecessor in title over the

subject premises. All the documents prima facie pertain to the

said Room No.3. In fact, the Agreement for Sale dated 3rd

January, 2021, under which the plaintiff claimed to have

acquired proprietary title over the premises, indicates that an

area admeasuring 200 sq. ft. i.e. Room No.5 Amboli, Matarpada,

Andheri (W) was conveyed. In the Agreement for Sale there is no

reference to the balcony and otla.

15. In the face of the aforesaid material, the designated officer

was justified in observing that all the documents pertain to the

subject premise and not the notice structure. The learned

Judge, City Civil Court, has also considered all those

documents and recorded a finding that prima facie those

documents did not pertain to the allegedly unauthorized

structure in front of the subject premises.

16. Mr. Dwivedi endeavoured to impress upon the Court that

there is overwhelming material to show that the predecessor in

title of the plaintiff had been in possession of the subject

premises. I am afraid, even if the case of the plaintiff is taken at

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par, it is of any assistance for the reason that the subject matter

of the impugned notice is not the subject premises but the

notice structure namely balcony in the passage and otla in front

of the existing structure. Evidently, there is no document to

show that the said development had been carried out with the

permission of the competent authority. Endeavour of the

plaintiff to salvage the position by asserting that there is no

such unauthorized development but only minor repairs does not

merit acceptance.

17. At this juncture, it would be necessary to keep in view the

nature of the jurisdiction exercised by this Court in an appeal

against an order declining to exercise the discretion to grant the

temporary injunction. It is trite that the Appellate Court would

be justified in interfering with the exercise of discretion where

the trial court has acted arbitrarily or perversely in exercise of

its discretion. Such perversity in the exercise of discretion may

arise either in granting temporary injunction when there is no

material or refusing to grant a temporary injunction by

discarding the relevant material. The Court would also be

justified in interfering with the order of the trial court where the

latter has passed the order ignoring settled principles of law.

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18. A useful reference, in this context, can be made to a

judgment of the Supreme Court in the case of Seema Arshad

Zaheer and others vs. Municipal Corporation of Greater

Mumbai and others1. In the said case the Supreme Court

expounded the principles which govern the grant of temporary

injunction in the context of allegations of erection of

unauthorized structure, and also the nature of jurisdiction

exercised by the Appellate Court. The observations in

paragraphs 30 to 32 are instructive and, hence, extracted below:

"30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; ( ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and ( iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.

31. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship.

To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the

1 (2006) 5 SCC 282.

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Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality. We may refer to the following observations of this Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu made in a different context : (SCC p. 529, para 73).

"This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is requires to be exercised has to be in accordance with law and set legal principles."

32. Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is "no material", or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on 'no material' (similar to "no evidence"), we refer not only to cases where there are total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was "no material" to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court."

19. On the aforesaid touchstone, reverting to the facts of the

case, in the absence of any material to show that the notice

structure was either authorized or tolerated, the learned Judge,

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City Civil Court, cannot be said to have committed any error in

declining to exercise the discretion to grant the temporary

injunction. Absence of such material leads to an inescapable

inference that the notice structure is completely unauthorized.

Such a structure does not deserve to be protected, for the only

reason that its demolition, during the pendency of the suit,

would cause hardship to the plaintiff.

20. The conspectus of the aforesaid consideration is that the

learned Judge, City Civil Court, seems to have kept in view the

principles which govern the grant of temporary injunction and

declined to exercise the discretion in favour of the plaintiff. The

conclusion arrived at by the learned Judge, City Civil Court,

being justifiable, does not deserve to be interfered with in

exercise of appellate jurisdiction.

21. Hence, the following order:

:ORDER:

        (i)    Appeal stands dismissed.

        (ii) No order as to costs.

(iii) In view of dismissal of the appeal, Interim Application

No.2491 of 2023 does not survive and stands

disposed.

[N. J. JAMADAR, J.]