Bombay High Court
Rajesh Bachchharaj Singh vs Municipal Corporation Of Greater ... on 2 May, 2023
Bench: N. J. Jamadar
2023:BHC-AS:13250
SWAROOP Digitally
SWAROOP
signed by
SHARAD SHARAD PHADKE
Date: 2023.05.02
PHADKE 18:35:50 +0530
63 ao 334 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.334 OF 2023
WITH
INTERIM APPLICATION NO.4132 OF 2023
Rajesh Bachchharaj Singh ... Appellant
versus
Municipal Corporation of Greater Mumbai & Anr. ... Respondents
Mr. Pratap F. Singh with Mr. Shailesh Pal, Mr. Viraj Singh for Appellant.
Ms. Smita Tondwalkar, for Respondents.
CORAM: N.J.JAMADAR, J.
DATE : 2 MAY 2023
P.C.
1. Heard the learned Counsel for the parties.
2. This appeal is directed against an order dated 15 April 2023 passed by
the Learned Judge, City Civil Court, Greater Mumbai, in draft Notice of Motion in
L.C.Suit (ST) No.4080 of 2023 declining to grant ad-interim relief.
3. Shorn of unnecessary details, the backgrounds fats can be stated as
under :
3.1 The Appellant-Plaintiff claims to be the owner of commercial premises
bearing Shop No.10, Municipal Patra Chawol, Plot No.276A/B, Dharavi, Mumbai,
admeasuring 15 X 8 sq.ft., consisting ground, mezzanine and first floor ( suit
premises). The Plaintiff has acquired the suit premises from Mr. Vinod Chandrakant
Sawant under an Agreement for Sale and other Instruments executed on 9 October
SSP 1/7
63 ao 334 of 2023.doc
2020. Mr. Sawant, in turn, had acquired the suit premises from Mr. Vinayak Shankar
Sawant, the erstwhile holder, under an Instrument executed on 11 January 2020. The
use, occupation and possession of the suit premises by the Plaintiff and his
predecessor in title is evidenced by voluminous documents like ration card, electricity
bill, orders passed by the Deputy Collector (ENC), registration certificate issued
under the Bombay Shops and Establishments Act, 1948 and other regulatory
provisions.
3.2 According to the Plaintiff, the suit premises is also a protected structure
under Section 3Y of the Maharashtra Slum Areas (Improvement, Clearance And
Redevelopment) Act, 1971 and therefore, the Slum Rehabilitation Authority is the
appropriate planning authority.
3.3 The Plaintiff asserts, the Defendant No.1 Corporation on the basis of a
false complaint issued notice under Section 351 of the Mumbai Municipal Corporation
Act, 1888 sans any authority. It was falsely alleged that the Plaintiff has carried out
unauthorized vertical extension to the ground floor structure. Initially, a Speaking
Order was passed without providing an effective opportunity of hearing. Thereupon,
having learnt that the action for demolition was being taken post haste, the Plaintiff
gave a suitable reply along with the supporting documents. However, by a speaking
order dated 20 March 2023, the Designated Officer directed the Plaintiff to remove
the notice structure, without applying his mind to the voluminous record. Hence, the
SSP 2/7
63 ao 334 of 2023.doc
Plaintiff was constrained to institute the suit.
3.4 In the suit, the Plaintiff took out a Notice of Motion for interim reliefs.
By the impugned order dated 15 April 2023, the learned Judge, City Civil Court,
declined to grant ad-interim relief. The learned Judge repelled the challenge to the
authority of Defendant Corporation on holding that under sub-Section (3) of Section
47 of the Act, 1971, Defendant No.1 Corporation was empowered to take action till the
order for demolition of the building was made under the Act, 1971. It was further
observed that the Plaintiff failed to establish that the notice structure was either
authorized or tolerated.
3.5 Being aggrieved, the Plaintiff is in appeal.
4. I have heard Mr. Pratap Singh, learned Counsel for the Appellant and
Mrs. Tondwalkar, learned Counsel for the Respondents at some length. With the
assistance of the learned Counsel for the parties, I have perused the material on
record.
5. Mr. Singh, learned Counsel for the Appellant would urge that the suit
premises is a protected structure. Strong reliance was placed on the order dated 15
April 1994 passed by the Deputy Collector declaring the suit premises as a protected
structure. Attention of the Court was also invited to the survey receipt dated 21 July
2000 issued in favour of the predecessor in title of the Plaintiff. Taking the court
through other documents, evidencing the occupation and possession of the
SSP 3/7
63 ao 334 of 2023.doc
predecessor in title of the Plaintiff in the suit premises, it was urged that the suit
premises deserves protection till the matter is adjudicated. The learned Judge,
according to Mr. Singh, was not justified in non-suiting the Plaintiff at an ad-interim
stage.
6. In contrast, Mrs. Tondwalkar, learned Counsel for the Respondents,
would urge that the documents pressed into service on behalf of the Appellant-
Plaintiff do not indicate that the notice structure is either authorized or tolerated.
Laying emphasis on the nature of the unauthorized development, namely, the
unauthorized extension to the ground floor structure, Mrs. Tondwalkar would urge
that the said development, being wholly unauthorized and illegal, deserves no
protection.
7. The nature of alleged unauthorized development assumes significance.
The legality and validity of an action under Section 351 of the Act, 1888 is required to
be tested in the light of the nature of the alleged unauthorized development. In the
case at hand, there is not much controversy over the fact that there has been vertical
extension at the suit premises. The controversy between the parties essentially
revolves around the question as to whether the said vertical extension is either
tolerated or otherwise protected by the provisions contained in the Act, 1971.
8. It is the positive case of the Plaintiff that the suit premises, consisting of
ground, mezzanine and first floor, has been in existence since prior to 1980. The
SSP 4/7
63 ao 334 of 2023.doc
Plaintiff claimed to have purchased the said property under an Agreement for Sale
dated 9 October 2020, purportedly in the same state as it exists today. The learned
Judge was, however, of the view that the documents on record bear out the existence
of a single storied structure admeasuring 15 x 8 sq.ft. and do not refer to the vertical
extension thereof.
9. The aforesaid finding, albeit, prima facie, appears to be justifiable. In
the order dated 15 April 1994, on which strong reliance was placed by Mr. Singh, the
description of the protected structure has been shown as a residential structure
admeasuring 15 x 8 sq.ft. It does not refer to mezzanine or 1 st floor. It is imperative to
note that even the Agreement for Sale under which the Plaintiff claimed to have
acquired the suit premises from Mr Vinod Sawant, describes the property as Room
No.10, 276B. The existence of a mezzanine and 1 st floor is conspicuous by its absence
in the said agreement. Likewise, the Instrument executed by Mr. Vinayak Sawant in
favour of Vinod Sawant, the predecessor in title of the Plaintiff, also contains an
identical description. Thus, prima facie, the Plaintiff failed to establish that the suit
premises comprises mezzanine and 1st floor as well since prior to 1980.
10. The learned Judge, in my view, was well within his rights in repelling the
challenge to the authority of the Defendants to initiate action based on the provisions
contained in Section 47 of the Act, 1971. First and foremost, it is pertinent to note
that the Plaintiff did not bank upon any photopass issued under Section 3Y of the
SSP 5/7
63 ao 334 of 2023.doc
Act, 1971. Even if the case of the Plaintiff is construed rather generously, the claim for
protection of the structure under the provisions of the Act, 1971, at best, would extend
to the single storied structure, which is described in the order dated 15 April 1994.
Such protection would not insulate the Plaintiff from action for unauthorized
development beyond the area covered by the photopass. Protection under the Act,
1971, even when it is unquestionably available, cannot be used as a sheild for
unauthorized development.
11. A useful reference in this context can be made to the judgment of the
Division Bench of this Court in High Court on its own Motion (In the matter of
Jilani Building at Bhiwandi V/s. Bhiwandi Nizampur Municipal Corporation and
Ors.1 wherein it was held that 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. It was further held in clear and explicit terms that the MCGM
has all the power and authority to take action against any structure beyond photopass
structure found to be unauthorized which is situated in slum.
12. In the aforesaid view of the matter, the learned Judge, City Civil Court
was justified in arriving at a conclusion that the notice structure was neither
SSP 6/7
63 ao 334 of 2023.doc
authorized nor tolerated. In the totality of the circumstances, it does not appear that
the learned Judge, City Civil Court committed any error in declining to exercise
discretion to grant ad-interim relief. Resultantly, no interference is warranted in
exercise of appellate jurisdiction which is circumscribed.
13. Hence, the following order :
ORDER
(i) The Appeal stands dismissed.
(ii) In view of the dismissal of the Appeal, the Interim Application
does not survive and the same also stands dismissed.
( N.J.JAMADAR, J. )
SSP 7/7
