Bombay High Court
Mr. Baldev Gupta vs The Municipal Corporation Of ... on 30 October, 2023
Bench: Amit Borkar
2023:BHC-AS:32742
33-wp-4948-2018.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4948 OF 2018
Baldev Gupta ... Petitioner
V/s.
The Municipal Corporation of Greater
Bombay & Ors. ... Respondents
SHABNOOR
AYUB
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2023.10.31
12:13:49 +0530
Mr. Chandraprakash Kewlaprasad Tripathi a/w Ms.
Bhagyashri Gawan, for petitioner.
Mr. A. Y. Sakhare, Senior Advocate a/w. Mr. R. Y.
Sirsikar, for respondents (BMC).
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 30, 2023
P.C.:
1. Challenge in this writ petition is to the order dated 23
October 2015 passed by the Executing Court in Execution
Application No.22 of 2012 in L.C. Suit No.483 of 2008.
2. The petitioner initially filed L.C. Suit No.2110 of 2000
challenging notice under Section 354 (a) of the Mumbai Municipal
Corporation Act, 1888 (for short 'MMC Act'). On 30 August 2004,
the said suit was decreed. The structure which was part of decree
was described in paragraph 4 of the decree which reads as under:
5. Defendants their servants, agents, officers and all
persons claiming through them are hereby restrain
permanently by an order of injunction of this Court
from demolishing their suit premises namely structure
33-wp-4948-2018.doc
admeasuring 13 feet x 70 ft. 9/12/04 up of patra
sheet wall and AC roof on land bearing survey
no.81(part) situated near Lido Cinema, Jaiswalwadi,
Sona Villa, Juhu Road, Santacruz (West) Mumbai - 49
pursuant to notice bearing no.KW/06/AEM/od dated
3.4.2000.
3. The Corporation thereafter issued fresh notice.
4. The petitioner, therefore, filed L.C. Suit No.483 of 2008
which was again decreed by the Trial Court vide judgment and
decree dated 1 September 2009. Clause 3 of the decree reads as
under:
3. The defendants are hereby perpetually restrained
from demolishing and/ or pulling down the suit
premises i.e. enclosed area admeasuring 13' X 70'
made of Patra Sheet wall are A.C. sheet roof on land
bearing Survey No.81 (Part) situated near Lido
Cinema, Jaiswala Wadi, Juhu Road, Sanctacruz (West),
Mumbai, in pursuance of the impugned notice bearing
no.K/W/283/OD/BF dated 13/03/2008.
5. After decree, the respondent Corporation on 23 November
2011 issued notice under Section 354(a) MMC Act. The
description of the structure in the notice is as under:
"Unauthorised construction on nalla land with M.S
frame covered with A.C. sheet roof admeasuring 70
'0"x13 '0" (14 '0"4+)
6. The petitioner, therefore, filed Writ Petition No.2453 of
2011.
33-wp-4948-2018.doc
7. This Court by order dated 28 March 20112 permitted the
petitioner to file Execution Application.
8. In furtherance of said order, the petitioner had filed
Execution Application No.22 of 2012.
9. The Trial Court granted opportunity of hearing to the parties.
Framed issues and dismissed the Execution Application with the
finding that the decree holder has failed to prove that the structure
which was subject matter of earlier suit is the same in relation to
which notice under Section 354(a) of the MMC Act was issued by
the Municipal Corporation.
10. The petitioner has, therefore, filed present writ petition.
11. During pendency of writ petition, the Municipal Corporation
has filed affidavit-in-reply. In the affidavit-in-reply, the Municipal
Corporation has contended that on 23 November 2011 received a
complaint of Santacruz police station regarding on going
unauthorized construction in SNDT nalla portion. The Municipal
Corporation, therefore, on 24 November 2011 demolished the
structure which was subject matter of notice under Section 354(a)
of the MMC Act. According to Corporation, earlier patrasheet
structure which was subject matter of decree has been replaced by
M.S. sheet structure which is entirely new structure.
12. Learned Advocate for the petitioner submitted that the
Executing Court exceeded its power by going beyond the scope of
the decree. According to him, the decree has its stand need to be
executed. According to him, again demolition by the Municipal
Corporation is high handed and the Executing Court ought to have
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allowed the Execution Petition.
13. Per contra, learned senior Advocate on behalf of Municipal
Corporation submitted that the entirely new structure was being
build by the petitioner by taking benefit of order of injunction in
earlier suit. The structure stands on nalla. Since, it is entirely new
structure being build during process of its construction, the
Municipal Corporation by issuing notice under Section 354 (a) of
the MMC Act as demolition the structure.
14. On perusal of record and after having heard Advocates for
the parties, in my opinion, the first issue which requires
adjudication is regarding power of Executing Court while deciding
objection under Section 47 of CPC. It appears that there is dispute
regarding description of the suit property.
15. It needs to be noted that the power of Executing Court in
execution was a issue before the Apex Court in the case of Pratibha
Singh And Another Versus Shanti Devi Prasad And Another,
reported in (2003) 2 SCC 643. The issue involved before the Apex
Court was in the context of ambiguity in description of the suit
property in suit for specific performance. The Apex Court in the
context of said facts, observed that the Executing Court can resort
can be had to Section 152 or Section 47 of the Code of Civil
Procedure, 1908 depending on the facts and circumstances of each
case which of the two provisions would be more appropriate, just
and convenient to invoke. The executing suit property may be
ascertained by the Executing Court as a question relating to
execution, discharge or satisfaction of decree within the meaning
33-wp-4948-2018.doc
of Section 47 of CPC.
16. According to the petitioner, the structure in question always
consisted of patrasheet. However, according to the Municipal
Corporation, the construction being carried out by the petitioner
was a new construction consisting of M.S. sheet. In the facts of the
present case, the issue arises for consideration is whether the fresh
notice dated 23 November 2011 under Section 354(a) of the MMC
Act was in relation to a new structure consisting of M.S. frame
having same measurement or was in relation to patrasheet
structure which was subject matter of the decree to get over the
decree such notice was issued.
17. The petitioner did not produce any evidence before the
Executing Court when the Executing Court held an inquiry under
Section 47 of CPC.
18. The Executing Court has recorded finding that the height of
the construction on the date of earlier suit was 14 ft.; however,
based on material on record, it appears that the height of the
construction is 20 ft. The material placed on record by Municipal
Corporation indicated that the height of structure as per
panchnama dated 22 November 2011 indicated use of iron frame
and wooden pole and A.C. sheets for construction and the shed is
of about 20ft. height. Curiously, it is not the case of decree holder
that in addition to patra shed structure, he constructed M.S. sheet
structure and therefore, the Municipal Corporation ought to have
demolished M.S. sheet structure only and ought to have not
demolished patrasheet structure which is protected by the decree.
33-wp-4948-2018.doc
19. It was, therefore, necessary for the petitioner to bring on
record material to indicate that the subject matter of notice under
Section 354 (a) of the MMC Act was exactly the same structure
which was subject matter of earlier suit.
20. In the absence of such material and the Municipal
Corporation having produced material in the form of panchnama
of photographs to indicate that the structure which was subject
matter of notice under Section 354(a) of the MMC Act consisted of
M.S. sheet having height of 20 ft., no fault can be found that the
finding recorded by the Executing Court that the Municipal
Corporation has followed due process of law as per Section 354(a)
of the MMC Act.
21. Moreover, this Court by order dated 30 October 2018
appointed, Sheristedar of this Court as the Court Commissioner.
He along with architect from the panel of this Court and
Videographer had visited the site. He submitted a report to this
Court. The conclusions of the said report are as under:
Conclusion:
Based on my observations, Architect's report,
layout plan/ drawing of nalla and Google images it is
concluded that:
- The suit structure is situated on nalla.
- As per D.P. Plan the suit land portion does not seems
to be in existence between the Lido Tower and the
nalla.
- The nature of construction is permanent and seem to
be larger than the structure seen in existence in Google
image of 2009-10, whereas it was not observed till
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2007.
- As observed, the width of the nalla is overall wide,
howe3ver at the place of the suit structure it is
reduced.
22. On perusal of the photographs, maps and material annexed
by the said Court Commissioner along with technical report
produced by the expert, I am satisfied that the structure in relation
to which notice under Section 354 (a) of the MMC Act was issued
was not subject matter of decree and the subject matter of notice
under Section 354(a) of the MMC Act was a new construction;
therefore, in my opinion, the Executing Court has not committed
error of jurisdiction while dismissing the Execution Application.
There is no merit in the writ petition.
23. The writ petition stands disposed of in above terms. No
costs.
24. Ad-interim relief granted earlier to continue for the period of
two weeks from today.
(AMIT BORKAR, J.)
