Bombay High Court

Dhanista Builders And Developers ... vs The Municipal Commissioner ... on 3 October, 2023

Bench: N. J. Jamadar

2023:BHC-AS:28941
                                                                         AO245-2023.DOC

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


                                  APPEAL FROM ORDER NO. 245 OF 2023

                       Dhanista Builders and Developers
                       through Proprietor
                       Devdas Bhujang Rao,
                       Aged : 76 years, Occu. Business
                       Having office address at Dhanista
                       Builders Damji & Shamji Developers
                       704, above D-Mart, Kanjur Marg, West,
                       Mumbai - 400 078                                     ...Appellant
                                        Versus
               1       The Municipal Corporation
                       Brihanmumbai Municipal Corporation
                       Annex Building, Mahapalika Marg No.1,
                       Opposite CST Railway Station, Fort,
                       Mumbai - 400 001
               2       The Assistant Commissioner, N Ward,
                       Ghatkopar (East), Mumbai 400 075
               3       The Executive Engineer
                       (Building Proposal), ES, Mumbai
                       Municipal Corporation, N Ward,
                       Ghatkopar (East), Mumbai - 400077
               4       The Health Officer
                       Health Department, N Ward,
                       Ghatkopar (East), Mumbai - 400 077
                                                                       ...Respondents


               Mr. Uday Warunjikar, a/w Kiran Kulkarni and Neha Bachim,
                      i/b Kulkarni & Asso., for the Appellant.
               Mr. Narendra Walawalkar, Senior Advocate, a/w Ms. Smita
                       Tondwalkar, for the MCGM.
               Mr. Rajendra Bhoi, a/w Dr. Gunjan Mandwale, Architect, (N)
                     Ward, present.
               Asst. Engg. S. B. Shinde and SE R. S. Bonde, DP (BMC),
                     present.




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                                                              AO245-2023.DOC

                                        CORAM: N. J. JAMADAR, J.

RESERVED ON: 28th JUNE, 2023 PRONOUNCED ON: 3rd OCTOBER, 2023 JUDGMENT:-

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

2023, passed by the learned Judge, City Civil Court, Greater

Bombay, in Notice of Motion No.726 of 20223 in LC Suit (L)

No.1901 of 2023, whereby the learned Judge was persuaded to

dismiss the Notice of Motion taken out by the plaintiff to

restrain respondent Nos.1 to 4 - defendant Nos.1 to 4 from

constructing a building for Dispensary on a plot of land bearing

CTS No.139 (Pt), 140, 140/1 to 15 situated at Parsi Wadi, Near

Jai Maharashtra Ganesh Maidan, Ghatkopar (West), Mumbai,

("the suit property") till the final disposal of the suit.

2. For the sake of convenience and clarity, the parties are

hereinafter referred to in the capacity in which they are arrayed

before the City Civil Court.

3. The background facts leading to this appeal can be

summarized as under:

(a) The plaintiff is the proprietary firm of Devdas

Bhujang Rao. He deals in the business of construction and real

estate development. Mr. Dhirajlal Mehta and Anil Kumar Mehta

were the holders of the suit property. The plaintiff acquired the

AO245-2023.DOC

suit property under a registered conveyance dated 1 st February,

2011 on 'as is where is basis'. The suit property admeasures

1199 sq. mtrs. or 12,906 sq. ft. comprising fully tenanted

structures standing thereon. Under the deed of conveyance the

plaintiff was entitled to the compensation for the structures

standing thereon in the event of any development in future.

(b) The plaintiff claimed to have been in possession of

the suit property since year 2011. The suit property was

affected by reservation for public ground and Gym. Since the

suit property is totally encroached by tenanted structures,

Brihanmumbai Municipal Corporation ("BMC") constructed WC

structures for the occupants and also a Dispensary on the land

reserved for Gym for the benefit of those occupants. However no

part of the land, the plaintiff asserts, was ever reserved for

Dispensary and it was built for the convenience of the

occupants.

Slum Rehabilitation Authority (SRA) for the development of the

suit property under Slum Rehabilitation Scheme - Regulation

33(10) of Amended DCR 1991. The plaintiff decided to

incorporate Municipal Dispensary in the proposed development.

The Executive Health Officer - defendant No.4 vide

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communication dated 1st September, 2015 conveyed to the

Executive Engineer (SRA), no objection for development of

Dispensary subject to the Dispensary admeasuring at least 350

sq. mtrs. being reconstructed in the developed structure.

(d) While the redevelopment proposal awaited a decision

of SRA, the plaintiff avers, BMC, of whom defendant No.1 is the

Commissioner, defendant No.2; the Assistant Commissioner,

and Defendant No.3; the Executive Engineer, started work of

demolition of the then existing Dispensary over a portion of the

suit property. It transpired that BMC had decided to construct

a three storey structure utilising the entire FSI jeopardising the

SRA Scheme. BMC did not either inform or seek the consent of

the plaintiff about the proposed development. Without seeking

consent or acquiring the suit property, of which proprietary title

vests in the plaintiff, BMC went ahead with the work of

demolition and construction of a three storey structure without

any sanction and authority. Hence, the plaintiff addressed a

letter on 2nd June, 2021 to defendant No.2. Later on, a legal

notice was addressed on 29th August, 2022 calling upon BMC

not to proceed with the proposed development. As the

defendants paid no heed and continued to carry on the

AO245-2023.DOC

development, the plaintiff was constrained to institute the suit

for perpetual injunction.

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

Motion seeking to restrain the defendants from constructing any

building for Dispensary till the disposal of the suit.

(f) The respondent No.1 - Defendant No.1 resisted the

suit by filing an affidavit-in-reply and written statement.

Tenability of the suit was contested for want of notice as

envisaged by Section 527 of the Mumbai Municipal Corporation

Act, 1888 ("the MMC Act"). It was denied that the plaintiff had

right, title and interest in the suit property. BMC contended

that the reconstruction of Dispensary was being carried out on

the very same plot of land where the Dispensary stood. An area

admeasuring 610.33 sq. mtrs. was shown to have been reserved

in the DP-2034. However, as per actual site condition the land

in possession of BMC for the then existing health post and

Dispensary was 240.98 sq. mtrs. and the remaining area was

encroached by the slum dwellers. Dispensary was running on

the said plot since the year 1998. As the building was in

dilapidated condition, it was decided to reconstruct the same by

demolishing the then existing dilapidated Dispensary structure

with the approval of Building Proposal Department.

AO245-2023.DOC

(g) It was further contended on behalf of the defendants

that since the then existing Dispensary has been demolished

and it catered to the health requirements of local populace, it

was necessary to immediately reconstruct the Dispensary lest

the public at large would suffer irreparable loss. In contrast,

the plaintiff would not suffer any irreparable loss if injunction

was refused as the plaintiff had never been in the occupation of

the suit property.

(h) By the impugned order dated 13th March, 2023, the

learned Judge, City Civil Court, was persuaded to dismiss the

Notice of Motion holding inter alia that the plaintiff failed to

establish prima facie title over the suit property and the plaintiff

having instituted the suit for injunction simplicitor without

claiming possession of the suit property, the plaintiff was not

entitled to the relief of temporary injunction. The learned Judge

placed reliance on the decision of the Supreme Court in the

case of Anathula Sudhakar vs. P. Buchi Reddy and ors.1 to rule

against the maintainability of the suit.

(i) Being aggrieved the plaintiff is in appeal.

4. I have heard Mr. Warunjikar, the learned Counsel for the

appellant and Mr. Walawalkar, the learned Senior Advocate for

1 (2008) 4 Supreme Court Cases 594.

AO245-2023.DOC

the BMC/respondent at some length. The learned Counsel took

the Court through the pleadings and the material on record.

5. Mr. Warunjikar, the learned Counsel for the appellant,

strenuously submitted that in the impugned order the learned

Judge has recorded contradictory findings,. At one stage,

(paragraph 13) while repelling the contention on behalf of the

defendant that the plaintiff has no right, title and interest in the

suit property, the learned Judge has recorded that he found no

substance in the contention that the plaintiff has no title over

the suit property as the plaintiff acquired the same under the

registered conveyance. Whereas in the concluding paragraph

(paragraph 16), the learned Judge recorded a diametrically

opposite finding that the plaintiff has not prima facie

established his title over the suit property. This self-

contradictory approach vitiated the impugned order, urged Mr.

Warunjikar.

6. Mr. Warunjikar would further urge that the learned Judge

misdirected himself in non-suiting the plaintiff on the count of

maintainability of the suit for not seeking possession of the suit

property by relying upon the decision in the case of Anathula

(supra). In fact, the said decision has been further clarified by

the Supreme Court in the case of T. V. Ramkrishna Reddy vs.

AO245-2023.DOC

M. Mallappa and another.2 Moreover, in the case at hand, the

plaintiff was not required to seek possession as the principal

grievance of the plaintiff was construction over the property

owned by him, without his consent or by following due

procedure. Amplifying the submission, Mr. Warunjikar would

urge that if BMC desired to develop the property in question for

the purpose of providing a Health Service Centre, irrespective of

the question as to whether the property is reserved in the

development plan, BMC is enjoined to follow the procedure to

acquire the land. It cannot straightway start construction over

the private land trampelling upon the rights of the owner. This

aspect was not at all considered by the learned Judge and,

therefore, the impugned order requires interference, submitted

Mr. Warunjikar.

7. In opposition to this, Mr. Walawalkar, the learned Senior

Advocate, would submit that the very institution of the suit was

barred by the provisions in Section 527 of the MMC Act. One,

the suit was not instituted within a period of six months from

the date of accrual of the cause of action and, thus, squarely

barred by limitation. Two, the pre-suit mandatory notice was

not addressed to the Municipal Corporation and the notice to

the Municipal Commissioner or any other officer of the

22021 SCC Online SC 674.

AO245-2023.DOC

Municipal Corporation, does not constitute a notice to the

Municipal Corporation. Nor the suit has been instituted against

the Municipal Corporation.

8. Inviting the attention of the Court to the letters dated 2 nd

June, 2021 and 11th June, 2022 and legal notice dated 29th

August, 2022 addressed on behalf of the plaintiff to the officers

of the Municipal Corporation as distinct from the Municipal

Corporation itself, Mr. Walawalkar would urge that on both the

counts, namely, not giving notice to the Corporation and not

filing the suit within six months of the accrual of the cause of

action, the bar under Section 527 of the MMC Act firmly

operates. To bolster up this submission Mr. Walawalkar placed

reliance on a Division Bench judgment of this Court in the case

of Nathubhai Dhulaji A firm and others vs. The Municipal

Corporation, Bombay and ors.3 and another Division Bench

judgment in the case of Satish Shah vs. Municipal Corporation,

Greater Bombay4.

9. Joining the issue with Mr. Warunjikar, it was submitted by

Mr. Walawalkar that the Municipal Corporation having been in

undisturbed possession of the subject property since the year

1998, has perfected title over the suit property by way of adverse

3AIR 1959 Bombay 332.

4AIR 2005 Bombay 442.

AO245-2023.DOC

possession. If the plaintiff intended to regain possession it was

necessary for the plaintiff to institute a suit on title and seek

possession. Therefore, the learned Judge, City Civil Court,

committed no error in dismissing the Notice of Motion.

10. In any event, according to Mr. Walawalkar, since this

Court is sitting in appeal over a discretionary order passed by

the Trial Court under Order 39, the scope of which is extremely

limited, it would be impermissible to delve into facts and

overturn decision of the trial Court for the reason that a

different view is possible. To draw support to this submission,

Mr. Walawalkar placed reliance on a judgment of the Supreme

Court in the case of Wander Limited vs. Antox India Private

Limited5

11. Mr. Warunjikar countered the submissions of Mr.

Walawalkar on the ground that none of the aforesaid

submissions were canvassed before the learned Judge, City Civil

Court. In fact, the written statement is conspicuously silent

about the claim of adverse possession. The respondents -

defendants, therefore, cannot be heard to urge the grounds

which were never pleaded and raised before the City Civil Court.

51990 Supp1 SCC 727.

AO245-2023.DOC

12. I have carefully considered the submissions canvassed

across the bar. Undoubtedly, the scope of appeal against an

order granting or refusing to grant injunction is limited. The

appellate court is required to evaluate whether the trial Court

has kept the principles which govern the grant of injunction in

view and exercised the discretion in a justifiable manner. Even

if the appellate court considers that a different view of the

matter could have been taken, that does not furnish a justifiable

ground to interfere with the exercise of discretion. Surely,

the appellate court can and is duty bound to interfere where the

trial Court has taken a view which no reasonable person could

have taken and thus the decision can be said to be perverse.

13. In the case of Wander Ltd. (supra) the Supreme Court

enunciated that in an appeal against order passed in exercise of

discretion, the appellate court will not interfere with the exercise

of discretion of the court of first instance and substitute its own

discretion except where the discretion has been shown to have

been exercised arbitrarily, or capriciously or perversely or

where the court had ignored the settled principles of law

regulating grant or refusal of the interlocutory injunctions. An

appeal against exercise of discretion is said to be an appeal on

principle. The appellate court will not reassess the material and

AO245-2023.DOC

seek to reach a conclusion different from the one reached by the

court below if the one reached by the court was reasonably

possible on the material. The appellate court would normally

not be justified in interfering with the exercise of discretion

under appeal solely on the ground that if it had considered the

matter at the trial stage it would have come to a contrary

conclusion. If the discretion has been exercised by the trial

court reasonably and in a judicial manner, the fact that the

appellate court would have taken a different view may not justify

interference with the trial court's exercise of discretion.

14. On the aforesaid touchstone, reverting to facts of the case,

I deem it appropriate to first consider the reasons which

weighed with the learned Judge, City Civil Court, to decline to

exercise the discretion in favour of the plaintiff. The learned

Judge noted that the plaintiff had acquired the suit property

under a registered conveyance. And that there was no

substance in the contention on behalf of the defendants that the

plaintiff had no right, title and interest in the suit property. Yet,

at a later stage, the learned Judge recorded that the plaintiff

failed to establish prima facie title.

15. I find substance in the submission of Mr. Warunjikar that

the learned Judge, City Civil Court, has recorded apparently

AO245-2023.DOC

irreconcilable findings on the aspect of prima faice title over the

suit property. Secondly, the learned Judge, City Civil Court,

seems to have misconstrued the nature of the plaintiff's claim

and proceeded to non-suit the plaintiff for not seeking the relief

of possession.

16. It is true in the case of Anathula Sudhakar (supra) the

Supreme Court had expounded the situations in which a person

can sue for injunction simpliciter without seeking declaration of

title and/or possession and had, inter alia, enunciated that

where the plaintiff's title is not in dispute or under a cloud, but

he is out of possession, he has to sue for possession with a

consequential injunction. Where there is merely an interference

with the plaintiff's lawful possession or threat of dispossession,

it is sufficient to sue for an injunction simpliciter. However, the

aforesaid proposition hardly governs the facts of the case at

hand. Reasons are not far to seek.

17. First, the parties are not at issue over the fact that the

suit property had been in possession of BMC. In fact, BMC had

constructed a Dispensary over the suit property. Second, the

plaintiff did not dispute the factum of possession or object to

the act of running Dispensary at the suit property but took

umbrage at the demolition of the then existing structure and

AO245-2023.DOC

proposed erection of a three storey structure by allegedly

consuming the FSI of the adjoining land jeopardising the

proposed SRA scheme. Three, the plaintiff was not required to

seek possession of the suit property as the plaintiff had

approached the Court with a case that he intended to develop

the suit property and provide for a Dispensary in the proposed

development. Four, it was not one of the run of the mill cases of

seeking injunction to restrain the adversary from causing

interference with possession.

18. In a situation of this nature, where the essential challenge

was to demolition of existing structure and reconstruction of a

larger structure by allegedly consuming more FSI, there was no

scope for application of the principle in the case of Anathula

Sudhakar (supra). The learned Judge, City Civil Court, thus

clearly misdirected himself in holding that the suit for

injunction without seeking consequential relief was not

maintainable.

19. Before adverting to deal with the entitlement to temporary

injunction, I deem it appropriate to note the nature of the jural

relationship which emerges. In the deed of conveyance dated 1 st

February, 2011 it is recorded in clear and explicit terms that the

entire suit property was fully tenanted. BMC had constructed

AO245-2023.DOC

WC structures for the tenants. BMC had also constructed a

Dispensary for the benefit of tenants on the land reserved for

Gym. There is material to show that the said Dispensary was in

existence since the year 1998. Two factors assume significance.

One, the building housing the Dispensary was constructed by

BMC. Two, the plaintiff acquired the suit property on 'as is

where is basis' being fully congnizant of the encumbered nature

of the suit property, including the existence of the Dispensary

thereon.

20. Though Mr. Walawalkar made an endeavour to urge that

the longstanding possession of the BMC over the suit property

justifies a claim for acquisition of title by prescription, yet, there

is no support to such claim in the pleadings. Prima facie, the

endeavour on the part of the defendants to contest the title of

the plaintiff over the suit property firstly by denying the title and

at the same breath by putting-forth the claim of acquisition of

title by adverse possession, does not merit countenance as the

inconsistent stands work out retribution of the alternate

defence. Prima facie, the plaintiff succeeds in establishing title

over the suit property.

21. On the aspect of the exact jural relationship between the

parties, however, there is not much clarity, at this stage. The

AO245-2023.DOC

plaint does not disclose the circumstances in which BMC came

to be inducted in the suit property by the predecessor in title of

the plaintiff. Nor there is any instrument under which BMC

was permitted to construct the Dispensary at the suit property.

However, the fact remains that BMC had constructed the

Dispensary and it existed since 1998.

22. Dual ownership is not uncommon. Ownership in the

superstructure may vest in one party while the ownership of the

land beneath vests in another. If it is not a case of dual

ownership, the fact that BMC was permitted to construct a

building and had been in possession and occupation of the

subject property since long, justifies an inference of a perpetual

lease. Letting out land for building purpose without a fixed

period leads to a presumption that the demise was intended to

create a permanent tenancy. Undoubtedly, the presumption can

be dispelled by showing circumstances and material to the

contrary.

23. A Division Bench of this Court in the case of Bavasaheb

Walad Mansursaheb Korti vs. West Patent Press Co., Ltd. 6 held

that the nature of the tenancy created by any document must

neverthless be determined by construing the document as a

6 AIR 1954 Bom 257.

AO245-2023.DOC

whole. If the tenancy is for a building purpose, prima facie, it

may be arguable that it is intended for the life-time of the lessee

or may in certain cases be even a permanent lease. Prima facie

such a lease is not intended to be, tenancy at will. But whether

it is a tenancy for life or a permanent tenancy must ultimately

depend upon the terms of the contract itself. The aforesaid

decision was approved by the Supreme Court in the case of

Sivyogeshara Cotton Press, Devangere and ors. vs. M.

Panchaksharappa and another7.

24. Mr. Warunjikar would urge that even if the Municipal

Corporation had constructed the building housing the

Dispensary yet, when the said building was demolished and

sought to be reconstructed, it was necessary to obtain the

consent of the landlord or acquire the land. I find it difficult to

accede to this submission unreservedly.

25. If BMC was allowed to construct the building, at the

subject property, in exercise of its rights as a lessee or

otherwise, the fact that subsequently the building was required

to be demolished as it became dilapidated, does not necessarily

impinge upon the right of the BMC to reconstruct the building.

As noted above, the material on record does not equip the Court

7 AIR 1962 Supreme Court 413.

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to arrive at the exact jural relationship between the predecessor

in title of the plaintiff and BMC. In this view of the matter, the

purpose for which the subject property was put to use assumes

salience. This factor must weigh in determining at an interim

stage the entitlement of BMC to reconstruct the building.

26. Mr. Warunjikar would urge that the Minutes of Meeting in

which the decision to construct a multi-storey structure was

taken indicates that at the instance of local Municipal

Councillor, the BMC agreed to erect the structure in utter

disregard to the fact that the plaintiff was the owner of the suit

property. I have perused the said Minutes of Meeting (page

242). It, inter alia, records that the development of the suit

property in the Slum Rehabilitation Scheme was a time

consuming affair and, therefore, it was considered appropriate

to construct the three storey building having 350 sq. ft. area on

each floor, with a provision for another building on the reserved

plot. Indeed, the said Minutes of the Meeting also record the

presence of the local Municipal Councillor.

27. In the circumstances of the case and uncontroverted

position that BMC had constructed WC structures and

Dispensary to provide facilities to the occupants of the area, in

my view, it would be hazardous to attribute mala fide. On the

AO245-2023.DOC

contrary, the Minutes of Meeting record the necessity of making

the provision for health services.

28. The only issue which merits consideration is the extent of

the development. If the BMC proposes to construct a building of

dimensions equivalent to the then existing Dispensary building,

prima facie, it would not impair the rights of the plaintiff. The

said exercise of reconstruction of the building with equivalent

dimensions would be in conformity with the authority under

which the BMC had erected the said structure. Development in

excess of the dimensions of the old structure would bring in the

element of proprietary title of BMC to the land beneath. The

submission of Mr. Walawalkar that BMC has perfected title to

the land is a matter for pleading, proof and adjudication. As

noted above, the exact nature of the jural relationship between

the plaintiff and BMC as regards the occupation of the subject

land and the erection of structure thereon is in the corridor of

uncertainty and requires adjudication post recording of

evidence. In such circumstances, if the BMC consumes the

entire FSI admissible qua the land on which the original

building stood or the FSI in relation to the adjacent land, as

alleged by the plaintiff, it would surely affect the development

potential of the rest of the suit property.

AO245-2023.DOC

29. It would, therefore, be appropriate to restrain the

Municipal Corporation from constructing a building in excess of

the dimensions of the original building housing the Dispensary.

BMC would, thus, be entitled to reconstruct the building

equivalent to the area and dimensions which the original

building had, on the suit property. This course would protect

the rights of the plaintiff. It would also cater to the requirement

of the public at large for whose benefit the Dispensary is to be

constructed. Simultaneously, it would ensure that the equities

between the plaintiff and the BMC are balanced. This order

would not, however, preclude BMC from resorting to the

measures which it is empowered to take under the MMC Act,

1888 to acquire or carry out further development at the suit

property in accordance with law.

30. On the aspect of the bar under 527 of the MMC Act to the

institution of the suit, there can be no quarrel with the

proposition of law in the case of Nathubhai Dhulaji (supra).

However, in the peculiar facts of the case the question as to

whether the bar contained in sub-section (1) of Section 527

would operate with equal force especially when the genesis of

the dispute is in the nature of the jurial relationship between

the plaintiff as the holder of the property and the Municipal

AO245-2023.DOC

Corporation as an occupant thereof, may warrant adjudication

at the trial. I am, therefore, not inclined to accede to this

challenge at this stage. It would be in the fitness of the things

that the questions of validity of the notice and bar of limitation

are determined at the final decision of the suit. I am, therefore,

impelled to partly allow the appeal.

31. Hence, the following order.

:ORDER:

(i)      Appeal stands partly allowed.

(ii)     The impugned order stands quashed and set aside.

(iii)    The respondents - defendants are restrained from

constructing a building at the suit property beyond the

area and dimensions of the building which housed the

Dispensary, before its demolition

(iv) It is clarified that the respondents - defendants are at

liberty to construct a building having dimensions

equivalent to the original building which stood at the suit

property.

(v) Needless to clarify that the Municipal Corporation shall

not claim any equities for the said development.

(vi) Interim order dated 7th June, 2023 stands vacated.

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(vii) In the circumstances of the case there shall be no order