Bombay High Court

Mr. Omkar S/O. Vishvnath Bhaye vs Municipal Corporation Of Greater ... on 30 March, 2023

Bench: N. J. Jamadar

2023:BHC-AS:9600

                                                                           21-AO-444-21.DOC


                                                                           Sayali Upasani


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION


                             APPEAL FROM ORDER NO.444 OF 2021
                                              IN
                             NOTICE OF MOTION NO.2403 OF 2014
                                              IN
                                  L.C. SUIT NO.2466 OF 2014

             Omkar s/o Vishvnath Bhaye                                ...Appellant/
                                                                       Org.Plaintiff
                              Vs.
             Municipal Corporation of Greater                      ...Respondents
             Mumbai, Through Assistant Municipal                                  /Org.
             Commissioner                                                Defendants


             Mr. Ashok M. Saraogi, for Appellant.
             Ms. Smita Tondwalkar, for Respondent-MCGM.

                                           CORAM:- N. J. JAMADAR, J.

RESERVED ON:- 15th M ARCH, 2023 PRONOUNCED ON:- 30th MARCH, 2023 JUDGMENT:-

1) This Appeal is directed against an order dated 18 th

November, 2019, passed in Notice of Motion No.3403 of

2014 in L.C. Suit No. 2466 of 2014, passed by the learned

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Judge, City Civil Court, Greater Bombay, thereby

dismissing the Notice of Motion.

2) Background facts leading to this Appeal can be stated

as under:-

(a) The appellant-plaintiff claims to be the owner of the

premises situated at House No.82, Worli, Koliwada,

Mumbai ("the suit premises"). It consisted of ground plus

two upper floors and it had been in existence since last

more than 100 years. A portion of the said building

collapsed in the year 2001. The plaintiff was advised to

carry out repairs to the rest of the structure, which was

standing. Whilst the plaintiff carried out the said repairs, at

the behest of Mr. H.R. Bhagat, who claimed to be an heir of

one of the tenants in the suit property, the defendant-

Corporation issued a notice dated 28 th August, 2014,

purportedly under Section 354 A of the Mumbai Municipal

Corporation Act, 1888 ("the Act, 1888").

(b) A reply was given to the said notice on 28 th August

2014, itself.

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the plaintiff approached the City Civil Court by filing a suit

for declaration that the notice dated 28 th August, 2014, was

bad in law and the defendant had no right to take any

action of demolition in respect of suit premises and also to

permanently restrain the defendant and its servants and

agents from acting upon the notice dated 28th August, 2014.

(d) In the said suit, the plaintiff took out a Notice of

Motion seeking temporary injunction during the pendency

of the suit.

(e) On 10th September, 2014, the learned Judge, City Civil

Court was persuaded to grant ad-interim relief in favour of

the plaintiff by restraining defendant from taking any action

on the basis of the notice dated 28 th August, 2014, as no

speaking order was passed by the Designated Officer

despite reply to the notice.

(f) Plaintiff asserts without considering the reply, the

governing provisions of law, binding decisions of the courts

and the circulars issued by the defendant, a speaking order

came to be passed on 28th October, 2014, by the

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Designated Officer. The plaintiff was called upon to remove

the unauthorized work, failing which it would be

demolished by the defendant. The said speaking order also

came to be assailed by carrying out amendment in the

Plaint and Notice of Motion.

3) The defendant-Corporation resisted the Notice of

Motion by filing an affidavit-in-reply. It was, inter alia,

contended that the plaintiff had instituted Suit No.2388 of

2009, for a declaration that the defendant has no right to

cause any obstruction in the plaintiff carrying out

repair/renovation/reconstruction in respect of the suit

property and the said suit came to be dismissed by

judgment and order dated 31stOctober, 2013. Subsequently,

a complaint was received that the unauthorized

construction was being erected at the suit property.

Officers of the defendant visited the suit property and

found that the unauthorized construction of B.M. Wall

admeasuring 9' in height was in progress. Thus the notice

under Section 354 A was served on the plaintiff. Post

consideration of the reply, the Designated Officer has

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passed the order on 28th October, 2014, repelling the

objections to the notice. The plaintiff has thus no right to

seek temporary injunction.

4) By the impugned order, the learned Judge, City Civil

Court was persuaded to reject the Notice of Motion holding,

inter alia, that the action of the defendant and the notice

issued under Section 354A of the Act, 1888, were in

conformity with law. Moreover, the Designated Officer had

considered the reply submitted by the plaintiff and passed

a reasoned order. The Court noted the photographs

tendered for the perusal of the court purportedly snapped

on 21st July, 2017 and 16th August, 2014 revealed that the

entire structure had collapsed and foundation of brick

masonry wall was being laid, respectively. It was thus

concluded that the construction was being carried out

sans any permission. Since the construction was not in the

nature of tenantable repairs, the plaintiff was not entitled

to injunction.

5) Being aggrieved, the plaintiff is in Appeal. By an order

dated 22nd November, 2021, noting a statement made on

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behalf of the appellant-plaintiff that the suit structure had

not been demolished, ad-interim relief in terms of the

prayer Clause "a" of Interim Application No.3445 of 2019

came to be granted; which continues till date.

6) I have heard Mr. Ashok Saraogi, the learned Counsel

for the appellant and Ms. Smita Tondwalkar, the learned

Counsel for the respondent-Corporation. I have also

perused the material on record including the Plaint,

impugned notice, speaking order and the impugned order

passed by the learned Judge, City Civil Court.

7) At the outset, Mr. Saraogi submitted that ad-interim

protection is in operation since 10 th November, 2014. The

said position, according to Mr. Saraogi, deserves to be

continued till the final adjudication of the suit. Mr. Saraogi

would further urge that even otherwise the action of

defendant is demonstrably in breach of the statutory

provisions and binding precedents.

8) Mr. Saraogi urged with a degree of vehemence that the

notice under Section 354 A dated 28 th August, 2014, is as

vague as it could be. The only indication in the impugned

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notice is that there was unauthorized construction of a

brick masonry wall admeasuring 9' in height at the suit

property without any further particulars. Plaintiff was

simply asked to stop the erection of the said work. The

notice, therefore, suffers from the vice of non application of

mind, submitted Mr. Saraogi. The order passed by the

Designated Authority is equally vague. It was, inter alia,

stated therein that the notice under Section 354 A was

issued in respect of erection of B.M. Wall and not repairs

to the existing structure.

9) Mr. Saraogi further submitted that the confusion is

further confounded by an affidavit-in-reply filed on behalf

of the defendant-respondent in this Appeal. To the

affidavit-in-reply, the defendant has annexed two

photographs (Exhibit-4), which indicate that a ground plus

two storey structure is erected at the suit property.

Purportedly, those photographs have been snapped on 3 rd

March, 2022.

10) It was submitted that there is an essential distinction

between the provisions contained in Section 354 A and

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Section 351 of the Act, 1888, and the respondent-

Corporation can not resort to action by construing those

provisions interchangeably.

11) In opposition to this, Mr. Tondwalkar, would urge

that the old structure had already collapsed as is evident

from the photographs snapped on 21 st July, 2014 and 16th

August, 2014. The photographs snapped on 16th August,

2014, indicate that a B.M. Wall admeasuring 9' in height

was being erected at the suit property. Ms. Tondwalkar

would submit that the photographs annexed to the

affidavit-in-reply (Exhibit-4) indicate the current state of

the structure at the suit property.

12) I have carefully perused the affidavit-in-reply, filed in

this Court. Though the photographs are referred to in

paragraph No. 8 of the affidavit-in-reply, the deponent has

refrained from making a categorical statement that the

building has since been erected during the continuation of

ad-interim protection.

13) If it is a case of erection of a ground plus two storey

building taking advantage on an ad-interim order

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restraining the defendant from taking action, in pursuance

of the notice issued under Section 354A of the Act, 1888,

in respect of a B.M. Wall admeasuring 9' in height only, it

is a matter of grave concern. The entire complexion of the

dispute gets completely altered. It is trite, a party who has

carried out unauthorized construction taking undue

advantage of ad-interim or status-quo order would not be

entitled to claim any equitable relief. However, at this stage

and in this proceedings, the Court is not equipped to deal

with this issue as there is not much clarity on facts.

14) The situation is exacerbated by the fact that the

plaintiff had approached the Court with a case that a

major portion of the building had collapsed and the

plaintiff had merely carried out repairs to the remaining

structure. In paragraph 5 of the plaint, the plaintiff

asserted that as of the date of the suit, the premises

consisted of ground floor and even there was no roof over

the ground floor structure.

15) In contrast, the photographs placed on record by the

respondent-Corporation(Exhibit-4 to the affidavit-in-reply)

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indicate that a ground plus two storey structure stands at

the suit property.

16) Conversely, since the impugned notice was in respect

of unauthorized erection of a brick masonry wall

admeasuring 9' in height only, the respondent-Corporation

would not be now in a position to take action on the

strength of the said notice alone. If unauthorized

construction has been carried out at the suit property, as

is alleged on behalf of the Corporation, appropriate action

under Section 351 of the Act, 1888, would be warranted.

The provisions contained in Section 354 A of the Act, 1888,

can not be legitimately resorted to, to support an action of

demolition of unauthorizedly erected structure, at a distant

point of time; which would be amenable to action of

Section 351 of the Act, 1888.

17) The provisions of Sections 351 and 354 A of the Act,

1888, deal with different situations. In the case of Muni

Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram

Gaikwad and Others1, explaining interplay between

1 (2006) 8 SCC 590

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Sections 351 and 354 A of the Act, 1888, the Supreme

Court enunciated that the provisions of Section 354 A have

nothing to do with the question of demolition.

18) It seems that when the impugned order was passed,

the learned Judge, City Civil Court was not apprised of the

aforesaid developments. It would, therefore, be necessary

to remit the Notice of Motion back to the learned Judge,

City Civil Court with a direction to appoint a Court

Commissioner, preferably an architect, to ascertain as to

whether the building as shown in the photographs

(Exhibit-4 to the affidavit-in-reply) is, in fact, erected at

the suit site and, if yes, the approximate period during

which the said building has been erected.

19) It would also be appropriate to grant liberty to

respondent-Corporation to take appropriate action and/or

file appropriate application before the City Civil Court and

seek remedies, if it turns out that the building has been

erected sans requisite permission of the Planning Authority

and taking undue advantage of the ad-interim order.

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20) Hence, the following order.

-:ORDER:-

(i)       The Appeal stands partly allowed.

(ii)      The impugned order stands quashed and set

aside.

(iii)     Notice of Motion is restored to the file of learned

Judge, City Civil Court.

(iv)      The learned Judge, City Civil Court shall appoint

a Court Commissioner, preferably an architect, to

ascertain as to whether a building (as shown in the

photographs, Exhibit-4, to the affidavit-in-reply filed

by the respondent in this Court) has been erected at

the suit property, and, if yes, the approximate period

during which the said building has been erected.

(v) The plaintiff shall bear the expenses of

commission.

(vi) The learned Judge, City Civil Court shall decide

the Notice of Motion afresh post report of the Court

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Commissioner and after providing an opportunity of