Bombay High Court
Yasin Abdul Gani Mansoori vs Brihanmumbai Municipal Corporation ... on 29 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:34729
fa959-2012+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.959 OF 2012
Ramavtar Yadav )
(since deceased through LRs.) )
Age 48 years, carrying on business in )
the name and style of M/s.Janta Hotel )
Proprietor on plot bearing No.317, )
CTS No.1753, Sion-Trombay Road, )
(Opp.Diamond Garden), )
Chembur, Mumbai 400071 )
1a. Seema Ramavtar Yadav )
Age 56 years, Occu: Household, )
1b. Sujender Ramavtar Yadav )
Age 40 years, Occu: Business, )
1c. Sujata Ramavtar Yadav )
Age 35 years, Occu: Nil )
All carrying on business in the name and )
style of M/s.Janta Hotel, Proprietor on )
plot bearing No.317, CTS No.1753, )
Sion-Trombay Road, (Opp.Diamond Garden), )
Chembur, Mumbai 400071 ) ... Appellant.
Versus
1. Brihanmumbai Municipal Corporation )
having their office at Mahapalika Marg )
Mumbai 400 0001 )
2. The Asst. Municipal Commissioner, )
M/West Ward, Brihanmumbai Municipal )
Corporation, Sharad Acharya Marg, )
Chembur, Mumbai 400 071 ) ... Respondents.
sa_mandawgad 1 of 31
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WITH
FIRST APPEAL NO.960 OF 2012
Yasin Abdul Gani Mansoori, )
Age 50 years, )
carrying on business in the name and style )
of M/s.Diamond Mattresses on plot )
bearing No.317, CTS No.1753, Sion-Trombay Road, )
(Opp.Diamond Garden), )
Chembur, Mumbai 400071 ) ... Appellant.
Versus
1. Brihanmumbai Municipal Corporation )
Having their office at Mahapalika Marg )
Mumbai 400 0001 )
2. The Asst. Municipal Commissioner, )
M/West Ward, Brihanmumbai Municipal )
Corporation, Sharad Acharya Marg, )
Chembur, Mumbai 400 071 ) ... Respondents.
----------
Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare, for the Appellant.
Mr. Pradeep Patil a/w. Ms. Pallavi Khare, Ms. Vidya Vyavhare, for Respondent-
Corporation.
----------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 18, 2024
Pronounced on : August 29, 2024
JUDGMENT :
1. Both the First Appeals came to be admitted by order dated 16 th
January, 2014 passed by this Court. The Appeals are at the instance of
the Plaintiffs who have suffered decree of dismissal of their
respective suits vide judgment dated 29 th March, 2012. First Appeal
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No.959 of 2012 is arising out of Long Cause Suit No.1774 of 2007 and
First Appeal No.960 of 2012 is arising out of Long Cause Suit No.1808
of 2007. Identical issues arise in both the Appeals and only the notice
structures are different though located on the same plot i.e. Survey
No.317 bearing CTS No.1753, Sion-Bombay Road, Opposite Diamond
Garden, Chembur, Mumbai 400071. The shops concerned are Shop
No.5 in First Appeal No.959 of 2012 and Shop No.2 in First Appeal
No.960 of 2012.
2. Common submissions were advanced by the learned Counsel for
respective parties by referring to the facts of First Appeal No.959 of
2012. The Appeals were heard together with the consent of the
learned counsel for the parties and disposed of by this common
judgment. For the sake of convenience the parties are referred to by
their status before the Trial Court.
FACTUAL MATRIX :
FIRST APPEAL NO.959 OF 2012:
3. L.C. Suit No.1774 of 2007 was instituted seeking declaration
that the notice dated 13th February, 2006 issued by the Assistant
Municipal Commissioner of Brihanmumbai Municipal Corporation
(BMC) and order dated 21st March, 2007 are bad in law and illegal and
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for permanent injunction restraining the defendants from executing
the notice and/or from demolishing the suit structure. The suit
premises is described as shop No 5 admeasuring 11 x 27 sqr. feet with
B.M. Walls on three sides, and A.C. sheet roof while in the front there
is a shutter. The notice structure is situated on land belonging to
private trust known as "Hanuman Mandir Trust" and the structure
abuts on Central Avenue Road Corner at the Junction of Sion-Bombay
Road. The structure was constructed by one Kartar Singh, who had let-
out different Galas to different persons and the structure was
assessed by the BMC in the name of erstwhile owner i.e. Diamond
Jubilee Trust. Vide letter dated 2 nd January, 1975, Kartar Singh was
informed by the then Assistant Assessor and Collector, M-Ward that
the first date of assessment of the property was prior to 1 st April,
1962. The Plaintiff came to occupy the premises in the year 1975. On
29th May, 1995, the Plaintiff was issued notice Section 351 of the
Mumbai Municipal Corporation Act, 1949 (for short, "MMC Act") and
in the year 2004, notice under Section 314 of the MMC Act. On 13th
February, 2006, the Plaintiff and 11 others were issued separate
notices under Section 351 of MMC Act alleging unauthorised
construction.
4. The Plaintiff submitted reply dated 18th February, 2006
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alongwith documents stating that the structure is in existence for
more than 40 years. Additional reply was submitted on 28 th August,
2006 stating that the Plaintiff was inducted by one Kartar Singh and
the assessment bill handed over by Kartar Singh showed the first date
of assessment prior to 1962. By order dated 15 th November, 2006, the
Corporation held that the structures were unauthorised and were
required to be removed to facilitate the widening of the Sion-Bombay
Road. The order stated that the first date of assessment was 1 st April,
1988 and the structure was not a tolerated structure.
5. The notice under Section 351 and the order dated 15 th
November, 2006 passed by the Corporation came to be challenged by
way of L.C. Suit No.5131 of 2006, wherein the Court directed the
Corporation to give an opportunity of hearing to the Plaintiff and to
consider the documents relied upon by the Plaintiff. Accordingly,
personal hearing was given to the Plaintiff and the 11 others on 3 rd
January, 2007. On 21st March, 2007, the Assistant Municipal
Commissioner passed an order holding that the Plaintiff had failed to
submit authentic documents to prove that the structure was in
existence prior to 1961-1962. Thus, the present Suit was filed by the
Plaintiff.
6. The Corporation filed its written statement contending that
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public project is involved i.e road widening of Junction of V.N. Purav
Marg with Maharshi Dayanand Saraswati Marg. On 6 th January, 2006,
the Junior Engineer had detected unauthorised construction-
structure admeasuring 3.35 mtrs. X 8.30 mtrs. with B.M. Wall ladi coba
slab and A.C. sheet roof. As no documents were produced regarding
the authorization of the structure, show cause notice was issued
under Section 351 dated 13th February, 2006. In the show cause notice,
the rough sketch showed the dimension of the area of the structure
and also mentioned that "Work of Improvement and construction of
V.N. Purav Marg from Suman Nagar junction to Panjarpol junction in
M/West Ward to the sanctioned R.L. of 36.60 mtrs. by removing
encumbered structures/portion of structure affected by the
sanctioned R.L. for Road Development".
7. On 25th August, 2006, the Plaintiff was called upon to produce
the CTS plan prior to 1961-1962 showing notice structure on it and
assessment abstract of notice structure prior to 1961-62 and any
other documents like proof of censused structure, photo pass or
sanction of the Competent Authority for the plans of the structure.
There was no response to the said communication and no documents
were produced by the Plaintiff. Pursuant to the order of the Civil
Court, the Plaintiff and others were heard on 3rd January, 2007 and a
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detailed reasoned order was passed on 21st March, 2007. It was
contended that the Plaintiff has failed to prove the authorisation of
structure with prior permission of the Defendants or that the same is
in existence prior to datum line. It was contended that in the road
widening project the structure is coming on the bottleneck of V.N.
Purav Marg junction of Maharshee Dayanand Saraswati Marg, and has
to be cleared on priority basis. It was further contended that the
assessment bill produced by the Plaintiff for property MW-1037-
38(60) is for the fruit stall and the same is assessed since 1987. The
letter of 2nd January, 1975 is of property No.1037-38 which is not
pertaining to the notice structure. The Plaintiff's structure is situated
on sanctioned road line and hence, public project is affected.
8. The Plaintiff examined himself and produced the following
documents :
"Ex. 9 Certified copy of Ruled Card.
Ex. 10 Certified copy of City Survey Plan.
Ex. 11 Judgment dated 24th November, 1994 in RAE Suit
No.338/1304 of 1982.
Ex. 12 Judgment dated 10th October, 1997 in Appeal
No.95 of 1995.
Ex. 13 Notice dated 29th October, 1987.
Ex. 14 (Colly) Municipal Assessment Bills (5).
Ex. 15 (Colly) Municipal Assessment Extract dated 12th April,
2007.
Ex. 16 Ration Card (old)
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Ex. 17 Ration Card (New).
Ex. 18 Shop & Establishment Certificate.
Ex. 19 (Colly) Show Cause Notices dated 16th February, 1991
and 28th June, 1991.
Ex. 20 N.A. Order dated 11th November, 1991.
Ex. 21 N.A.Tax receipt dated 23rd December, 1991, 28th
December, 1993 and 15th December, 2007.
Ex. 22 Municipal Trade License
Ex. 23 (Colly) Electricity Bill.. (6)
Ex. 24 Telephone Bill.
Ex. 25 Professional tax challans (2)
Ex. 26 Professional tax certificate.
Ex. 27 Notice dated 17th December, 2004 under Section
314 of MMC Act.
Ex. 28 Acknowledged copy of the Reply dated 29th
December, 2004.
Ex. 29 Notice dated 13th February, 2006 issued u/s 351
of MMC Act.
Ex. 30 Acknowledged copy of the Reply dated 18th
February, 2006.
Ex. 31 Letter dated 25th August, 2006.
Ex. 32 Acknowledged copy of the Reply dated 28th
August, 2006.
Ex. 33 Order dated 15th November, 2006 passed by
Assistant Municipal Commissioner, M-West Ward.
Ex. 34 Certified copy of Order dated 23 rd November,
2006 in Suit No.5131 of 2006.
Ex. 35 Minutes of hearing dated 1st March, 2007.
Ex. 36 Order dated 21st March, 2007 passed by Assistant
Municipal Commissioner, M-West Ward.
Ex. 37 Acknowledged copy of Notice dated 28th March,
2007 under Section 527 of MMC Act."
9. The Corporation examined its officer and produced the
personal hearing notice, the inspection report under Section 351 of
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MMC Act and the reply dated 20th February, 2006.
FIRST APPEAL NO 960 OF 2012:
10. L.C Suit No 1808 of 2007 pleads identical facts as pleaded in L.C
Suit No.1774 of 2007 The suit premises is described as Shop No.2
admeasuring 8 x 18 sqr.feet with B.M. walls on three sides and A.C
Sheet roof with shutter in front. The pleadings in the written
statement of the Corporation are identical to pleadings in written
statement filed in L.C. Suit No.1774 of 2007.
11. The Plaintiff examined himself and produced the following
documents:
"Ex. 9 Certified copy of Property Registration Card.
Ex. 10 Certified copy of City Survey Plan.
Ex. 11 (Colly) Municipal Assessment Bills (4)
Ex. 12 Municipal Assessment Extract dated 12th April,
2007.
Ex. 13 Assessment Certificate dated 12th April, 2007.
Ex. 14 Ration Card.
Ex. 15 Shop & Establishment Certificate.
Ex. 16 Show Cause Notices dated 28th June, 1991.
Ex. 17 N.A. Order dated 11th November, 1991.
Ex. 18 N.A. Tax receipts (4).
Ex. 19 Municipal Trade License
Ex. 20 Electricity Bill.
Ex. 21 Telephone Bill.
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Ex. 22 (Colly) Professional tax challans (2)
Ex. 23 Birth Certificate of dated 6th August, 1980, 18th
March, 1983, 4th September, 1987, 30th June,
1992 (4)..
Ex. 24 Notice dated 17th December, 2004 under Section
314 of MMC Act.
Ex. 25 Acknowledged copy of the Reply dated 28th
December, 2004.
Ex. 26 Notice dated 13th February, 2006 issued u/s 351
of MMC Act.
Ex. 27 Acknowledged copy of the Reply dated 16th
February, 2006.
Ex. 28 Letter dated 25th August, 2006.
Ex. 29 Acknowledged copy of the Reply dated 28th
August, 2006.
Ex. 30 Order dated 9th November, 2006 passed by
Assistant Municipal Commissioner, M-West Ward.
Ex. 31 Certified copy of Order dated 23 rd November,
2006 in Suit No.5148 of 2006.
Ex. 32 Minutes of hearing dated 1st March, 2007.
Ex. 33 Order dated 21st March, 2007 passed by Assistant
Municipal Commissioner, M-West Ward.
Ex. 34 Acknowledged copy of Notice dated 26th March,
2007 under Section 527 of MMC Act."
12. The Defendant Corporation examined its officer and submitted
the following documents:
"Ex. 44 Reply submitted by party dtd. 16/02/06.
Ex. 45 Personal hearing letter issued to party
dtd.23/12/06.
Ex. 46 Inspection Report u/s 351 of MMC Act Appendix
Ex. 47 Reply submitted by party dtd.28/8/06."
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13. The Trial Court in both the Appeals framed and answered the
following issues:
"ISSUES FINDINGS
1. Whether the Suit is bad for want of Does not exist.
statutory Notice U/s 527 of MMC
Act?
2. Whether the Plaintiff is entitled to Negative
the declaration sought for?
3. Whether the Plaintiff is entitled to Negative
the perpetual injunction sought
for?
4. What Order & Decree? As per final order"
14. The findings of the Trial Court in both the Appeals can be
broadly summarized as under:
(i) The plaintiff has failed to produce any document to
establish that the suit premises was in existence prior to the
datum line i.e. 1st April, 1962. All the documents at Exhibits 9 to
26 does not show the existence of the notice structure prior to
the datum line.
(ii) Provisions of Sections 296 to 299 of the MMC Act
provides for acquisition of land and for alternate
accommodation for implementation of the project of road
widening. However the provisions are applicable in respect of
the authorised structure and not for unauthorised structures.
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SUBMISSIONS:
15. Mr. Thorat, learned counsel appearing for the Appellant would
submit that the case of the Defendants is that the assessment bill
produced by the Plaintiff i.e. MW-1037-38 (16) is for fruit stall and the
same is assessed in the year 1987 and that the letter dated 2 nd
January, 1975 is for property which is different from notice structure.
He submits that the assessment bill in respect of the property
i.e.1037-38 was bifurcated and the number allotted to the Appellant's
structure was 16 number. Pointing out to the assessment bill, he
would submit that the same refers to plot No.317 MW-1037/38. He
submits that only the bifurcation took place in the year 1987 and as
per the letter of 2nd January, 1975, the first assessment was prior to
1962. He would submit that the notice dated 13 th February, 2006
issued under Section 351 of the MMC Act, refers to the unauthorised
construction of the structure as also for the reason of removing
encumbered structure for carrying out the work of improvement and
construction of V.N. Purav Marg. He submits that in view thereof, the
bottleneck policy of the MMC Act would be applicable and the
Appellant's structure is required to be protected till an alternate
structure is made available. He would submit that on the said plot
No.317 there were almost 12 shops and the suit filed by the other
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occupants had been decreed, whereas in the present case the only
reason is why the suit was not decreed was the photocopy of the
letter dated 2nd January, 1975 was produced which was inadmissible in
evidence. He would further point out the letter of 2 nd January, 1975
issued by the MMC to one Kartar Singh in respect of Plot No.317
stating that the property is assessed to municipal tax prior to 1 st April,
1962. He submits that the assessment bill which was produced at the
time of the hearing was recent assessment bill subsequent to the
bifurcation in the year 1987, when separate bills came to be issued to
the occupants of the structure standing on plot No.317.
16. Mr. Thorat would further submit that in the plaint there was a
specific pleading that as the land on which the structure was
constructed is required for road widening, the Defendant is required
to follow the proper procedure as contemplated by Sections 297 to
300 of the MMC Act and to provide an alternate accommodation as
per the policy of BMC. He submits that the said provisions do not
speak about authorised or unauthorised structure. He would further
point out to the judgment of the Small Causes Court passed in a suit
instituted by the Plaintiff against the legal heirs of the deceased-
Kartar Singh and would point out that the judgment makes it clear
that the Plaintiff was the tenant in respect of the suit premises i.e.
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Janta Restaurant which is situated on plot No.317 V.N. Purav Marg. He
would further submit that admittedly the Plaintiff has been issued
shop and establishment license by the BMC and under Section 394 of
the MMC Act, the trade license are issued to the authorised
structures. He points out to the cross-examination of the witness for
the Defendants and would submit that the witness has admitted that
the assessment is in the name of the owner of the premises and there
is no report from the Assessment Department to verify the owner of
the suit premises before issuing the notice. He would submit that the
witness has admitted that the Trade License Department asks for no
objection from Building and Factory Department. He submits that the
witness has admitted that as per the location plan, the suit structure is
at the junction of south-west along the red line and that the suit
structure is affected in road widening.
17. Mr. Thorat would further submit that the witness has admitted
that if the bottleneck of the structure is affected there is policy to
provide an alternate accommodation. He would further submit that in
respect of the other structures, i.e. shop Nos.1, 4, 8 and 9, the Civil
Court in different suits have decreed the suit protecting the
structures. He would further submit that on 17 th December, 2004
notice was given under Section 314 of the MMC Act for removing the
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unauthorised extension to the structure, which would not have been
restricted only to unathorised extension if the entire structure was
unauthorised. He would further point out to the BMC policy's dated
25th February, 2004 and 20th March, 2017 laying the guidelines for
removal of bottleneck on roads and points out to the eligibility
criteria enumerated in the policy of 25 th February, 2004. He would
submit that the Plaintiff falls in the category "B" which applies to the
structure protected under the State Government policy existing prior
to 1st January, 1995 and after 1 st April, 1962 for commercial users on
lands. He submits that the documents to be considered for the
purpose of eligibility are the licenses issued by the shop and
establishment, electricity bills, license from the Health Department
etc. for commercial structure existing prior to 1 st January, 1995. He
submits that the policy of 2004 was revised in 2017 by protecting the
structures existing prior to 1st January, 2000 and the documents to be
considered for eligibility were the same. He submits that as and by
way of an alternate argument the Plaintiff's structure being in
existence prior to 1st January, 1995 would be protected under the
BMC policy.
18. Per contra, Mr.Patil, learned counsel appearing for the
Respondent-Corporation would submit that the show cause notice
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under Section 351 was issued to the Plaintiff to show the
authorisation of the structure which can be proved by producing the
sanctioned plan and the construction permission and no such
document was filed. He submits that the other ground on which the
structure can be protected is to show the existence of the notice
structure prior to the datum line i.e. 1st April, 1962. He submits that
the communication dated 2nd January, 1975 issued to Kartar Singh is in
respect of the plot No.317 which does not tally with the assessment
extract produced at Exhibit 40 which assessment extract is in respect
of a shed as hotel. He submits that the notice under Section 351 is not
issued to the shed but has been issued to the notice structure which is
the unauthorised construction with B.M. Wall ladi coba slab and A.C.
sheet roof as shown in the sketch annexed to the notice. He submits
that the notice was issued to all the occupants located on the said
plot. He would further point out that in the written statement the
Defendant had specifically pleaded that the Assistant Municipal
Commissioner while passing the impugned order had obtained remark
of the Assessment Department wherein it is stated that the structure
is not assessed to the municipal taxes prior to the datum line of 1961-
62 and that the assessment letter dated 2 nd January, 1975 given to
Kartar Singh does not pertain to the suit structure. He submits that
the assessment bill produced by the Plaintiff is for fruit stall and the
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same is assessed since 1987. He would submit that the requirement is
to show that the same structure is existing prior to 1962 and this
notice structure and the structure referred to in the communication
of 2nd January, 1975 are distinct. He submits that the original owner
had converted the shed into 12 shops which are unauthorised. He
submits that the notice structure which is stated to be about 280
sq.feet is not shown existing prior to the datum line.
19. Mr.Patil would further point out to the judgment of the Small
Causes Court of the year 1994, wherein it is recorded that the
Defendants are the owners of the shed which is Kacchha structures
and the Plaintiff after taking over the same renovated it and started
his hotel in the name of Janta Restaurant. He would further point out
to the affidavit of evidence of the Plaintiff deposing that the
occupants had requested the Defendants to bifurcate the municipal
property tax bill into 12 separate bills for each of the 12 shops and
with effect from 1st April, 1988. He would further submit that the shop
and establishment license under Section 394 is issued by the Medical
and Health Officer and is issued to an authorised structure. He would
further submit that even if it is accepted that it is issued to an
unauthorised structure it is only a license and will not amount to
authorisation. He submits that the assessment does not amount to
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regularisation of the structure. He would further submit that for the
purpose of showing eligibility under the bottleneck policy of the MMC
what has been exhibited is only survey receipt. He submits that only
the structure falling under area declared as slum will be protected
under the bottleneck policy. He submits that the survey is conducted
for the purpose of photo-pass and no census receipt and no photo-
pass has been produced on record. He submits that the survey receipt
does not show that the structure is protected under the slum scheme.
He submits that upon handing over the original survey receipt, the
photo-pass is issued. He submits that plot No.317 is not declared as
slum. He submits that the eligibility criteria under the bottleneck
policy refers to the photo-passes issued by the Competent Authority
and category "B" refers to the structures which are protected. In
support he relies on the following decisions:
(i) Decision of the Apex Court in Seema Arshad Zaheer & Ors.
vs. Municipal Corporation of Greater Mumbai and Ors. in
Special Leave Petition (Civil) No.9479 of 2005 decided on
5th May, 2006.
(ii) Decision of this Court in Tushar Guru Salien vs. State of
Maharashtra and Ors. in Public Interest Litigation No.67 of
2017, decided on 28th August, 2019;
(iii) Decision of this Court in Anil Madhav Gore vs. Bombay
Municipal Corporation of Greater Bombay, [2002 (1) Bom
CR 146].
20. In rejoinder, Mr.Thorat would submit that the four connected
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judgments in respect of the adjoining structures have been held to be
in existence prior to 1st April, 1962. He submits that the provisions of
Section 42 and 43 of the Indian Evidence Act is required to be applied.
He would further submit that the photo-pass is issued for the
residential structures and Clause 4-B of the policy of 2004 considers
the licenses issued by the shop and establishment as an authentic
document. He submits that the license to the hotel has been issued
prior to 1987. He submits that the order dated 15 th November, 2006
impugned in the present proceedings does not say that the structure
is recent origin.
POINTS FOR DETERMINATION:
21. The following points will arise for determination :
(i) Whether the notice dated 13th February, 2006 issued
under Section 351 of the MMC Act and the order dated
15th November, 2006 passed by the Assistant Municipal
Commissioner are illegal, bad in law and therefore
required to be quashed and set aside?
(ii) Whether the Plaintiff establishes that the notice
structure is an authorised or tolerated structure and
thus deserves protection from demolition?
(iii) Whether the notice structure is required to be
protected under the BMC policy guidelines dated 25 th
February, 2004 and 20th March, 2017 for removing of
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bottleneck of Development Plan Road ?
AS TO POINT NOS. (i) AND (ii):
22. Point Nos.(i) and (ii) are interlinked for the reason that if the
answer to Point No.(ii) is answered in the affirmative, Point No.(i) will
have to be answered in favour of the Plaintiff. The case of the Plaintiff
is that the notice structure is a tolerated structure as it is in existence
prior to datum line of 1st April, 1962. The documentary evidence
produced by the Plaintiff to show the existence of the notice
structure prior to 1st April, 1962 are the City Survey Plan showing the
suit premises in black ink prior to 1960, photo copy of letter dated 2 nd
January, 1975 addressed by the Assistant Assessor and Collector
stating that the date of first assessment is prior to 1 st April, 1962 and
the judgment of Small Causes Court of 24th November, 1994 to show
the nexus between Kartar Singh and the Plaintiff. Apart from these
documents, there were various other documents produced to show
that the notice structure is not of recent origin. However, in order for
the structure to be construed as tolerated structure, the existence of
structure prior to datum line is required to be established and
therefore the other documents are not required to be considered.
23. Admittedly the communication dated 2nd January, 1975 being a
photocopy and no foundation for leading secondary evidence having
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been laid was not admitted in evidence. The document therefore
cannot be read in evidence. In the notice issued under Section 351 of
MMC Act, the notice structure is described as an unauthorised
construction of a structure with brick masonry wall, ladi coba ladi, A.C.
sheets roof etc and admeasuring 3.35 x 8.30 meters i.e. about 300
sq.feet of B.M. Wall ladi coba slab and A.C. sheet roof. The burden was
upon the Plaintiff to establish that the notice structure was in
existence prior to 1st April, 1962 and it is not sufficient to show that
there was some structure which was in existence prior to the datum
line.
24. For the purpose of determining the existence of the notice
structure prior to 1st April, 1962, what will have to be ascertained is
whether the structure which is stated to be existing prior to the year
1962 is in conformity with the notice structure in existence at the time
of issuance of notice under Section 351 of MMC Act. It is the
contention of the Corporation that what was in existence prior to
1962 was a shed as hotel whereas the notice has been issued to an
unauthorised construction of about 280 sq.feet of B.M. Wall ladi coba
slab and A.C. sheet roof.
25. The Plaintiff has deposed that he is in exclusive possession of
Shop No.5 admeasuring 11 X 27 feet made with B.M. Walls and Rolling
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Shutter with A.C. Sheet Roof located on Survey No.317. He has
deposed that one Kartar Singh had constructed 12 shops on the said
plot of land and let out the shops on monthly rents to tenants
including the Plaintiff in the year 1975. He has further deposed that
the 12 shops were assessed to Municipal Property Taxes under No M-
1037-38 prior to 1st April, 1962 which is evidenced from the letter
dated 2nd January, 1975 addressed to Kartar Singh.
26. To show the nexus between Kartar Singh and the present
Plaintiff, the judgment of the Small Causes Court has been produced
on record which is marked as Exhibit 11. The Small Causes Suit was
filed by the Plaintiff for declaration that he is a tenant of Kartar Singh
in respect of a Shed admeasuring 20 X 12 feet and a store room
admeasuring 9 x 9 feet at plot No.317. The declaratory suit has been
filed in the year 1982 and the averment in the plaint therein describes
the suit structure as shed admeasuring 20 X 12 feet and store room
admeasuring 9 X 9 feet. The judgment further records the plaintiff's
case that the defendants are the owners of the shed which is a kaccha
structure and the Plaintiff after taking over the said room renovated it
and started his hotel in the name of Janta Restaurant in the premises
since 10th October, 1977 as tenant of the Kartar Singh.
27. The judgment of the Small Causes Court in fact, assists the case
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of the Corporation that what was in existence prior to 1962 and in
respect of which the assessment bills were raised prior to 1962 was a
shed admeasuring 20 x 12 feet and store room admeasuring 9 x 9
feet. The description of the suit premises in the Small Causes Court is
distinct and separate from the notice structure described as a
structure with B.M. Wall ladi coba slab and A.C. sheet roof
admeasuring 3.35 X 8.30 meters. The nature of construction and the
dimensions of the structure which came in occupation of the Plaintiff
as tenant of Kartar Singh was different from the notice structure. The
Plaintiff in the plaint before the Small Causes Court has pleaded that
the Plaintiff after taking over the said room had renovated it and
started his hotel in name of Janta Hotel. Admittedly for which no
permission was obtained from the Corporation. The pleadings in the
suit before the Small Causes Court are fatal to the case of the
Plaintiff. Unless the Plaintiff produces some material to show an
authorisation by the Municipal Corporation for change in the
structure, the notice structures amounts to an unauthorized structure.
The bifurcation of the bills in the year 1987 does not take the case of
the Plaintiff any further as what was required to be established was
the existence of the notice structure prior to 1 st April, 1962 and the
evidence establishes that the nature of the construction was changed
by the Plaintiff after coming in occupation in the year 1975. Further
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the assessment bills of the year 1987 after bifurcation is in respect of
shed as hotel.
28. In L.C Suit No.1808 of 2007, the Plaintiff has not produced any
documentary evidence establishing the existence of the notice
structure prior to the year 1962. The only document of 2 nd January,
1975 being photocopy was not admitted in evidence. In the Trade
license, the area of the shop is shown as 14 x 70 square meters. In the
cross examination, the Plaintiff has admitted that he has made
unauthorised construction of the area 2 meters x 70 meters. The
Plaintiff has failed to establish that the notice structure was in
existence prior to 1st April, 1962.
29. Coming to the cross-examination of the witness for the
Corporation, the witness has admitted that trade license department
asks for no objection from Building and Factory building. He has
further admitted that no notice under Section 299 of MMC Act was
issued to the Plaintiff. He has further admitted that there is policy to
provide alternate accommodation if the bottleneck of the structure is
affected.
30. The trade license under Section 394 is issued by the Health
Department of Corporation. The said license which is at Exhibit 22 is
stamped with the condition that the license is issued without
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prejudice to the right of the Corporation to initiate any appropriate
action against the premises and does not show the authorisation of
the subject premises/structure. The license is therefore issued with
the condition that the license will not be construed as authorisation of
the structure. Therefore no reliance can be placed on the trade license
to prove authorisation of the structure.
31. In response to the notice issued under Section 351 on 18 th
February, 2006, the documents which have been produced, by the
Plaintiffs are the assessment bill, N.A. payment receipt, shops and
establishment license, ration card, election identity card, professional
tax payment receipt, correspondence with the office of MMC,
electricity bill, gas bill and in case of L.C Suit No.1774 of 2007 the
court proceedings.
32. Admittedly the only document prior to 1962 which was
considered by the Assistant Municipal Commissioner is the document
of 2nd January, 1975 and the said document has been rejected by the
Assistant Commissioner for the reason that the property number
stated in the document is different from the notice property.
33. The document of 1975 refers to only plot No.317 as shed, and
the judgment of the Small Causes Court in case of L.C Suit No.1774 of
2007 makes it clear that there was a subsequent renovation of a
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Kaccha shed and an adjacent store room into the present notice
structure. In both the suits, there is no material which is produced on
record to demonstrate that the notice structure is a tolerated
structure being in existence prior to 1 st April, 1962. The trial Court,
while dismissing the suit has rightly considered that there is no
document produced to show that the suit premises were existing
prior to datum line. The documentary evidence produced on record by
the Plaintiffs are all documents subsequent to the year 1962 and
cannot assist the Plaintiff's case of the structure being in existence
prior to the datum line of 1st April, 1962. The Learned Counsel for
Appellant in First Appeal No 960 of 2012 has not referred to the facts
or the evidence adduced in L.C. Suit No.1808 of 2007 and has referred
to only the proceedings of L.C Suit No.1774 of 2007. As far as L.C Suit
NO 1808 of 2007 is concerned, there is nothing pointed out from the
evidence to show the existence of the suit structure prior to 1 st April,
1962.
34. In light of the discussion above, the answer to Point No.(ii) is in
the negative. As the notice structures are neither proved to be
authorised nor proved to be in existence prior to the datum line of 1 st
April, 1962, the impugned notices dated 13 th February, 2006 and the
impugned orders dated 15th November, 2006 passed in respect of
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Shop No. 2 and Shop No. 5 are not illegal or bad in law and therefore
Point No.(i) is answered against the Plaintiff.
AS TO POINT NO.(iii):
35. The notice under Section 351 of MMC Act refers to the work of
improvement and construction of V.N. Purav Marg to the sanctioned
Road Line of 36.60 meters by removing encumbered structure
affected by sanctioned Road Line for Road Development. The Road
Line is sanctioned in the year 1991. The provisions as regards the
preservation of regular line of public streets is contained in Sections
297 to 301 of the MMC Act. Section 297 empowers the Commissioner
to prescribe the regular line of street. In the present case the regular
line has already been sanctioned in the year 1991. When the regular
line of the street is prescribed, the provisions of Section 298 indicate
that any part of building abutting on a public street which is within
regular line of the street is left unaffected and where it is proposed to
rebuild or reconstruct the building, the prohibition under Section
297(3) comes into play. Section 299 of MMC Act confers upon the
Municipal Commissioner the power to acquire a land lying within the
regular line of the street, whether such land is open or enclosed,
provided there is no building standing thereon. The power to take
possession under this sub-section also extends to taking possession of
a platform, verandah, step or any other structure abutting on a public
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street, or a portion thereof if such platform, etc. or the portion
thereof is within the regular line of such street. Section 300 of the
MMC Act deals with setting forward of buildings to the regular line of
the street when such building which abuts on a public street is in the
rear of the regular line of the street, is proposed to rebuild or
alteration or repairs of the nature mentioned in Clause (b) of Section
300(1) is proposed to be carried out.
36. The acquisition under Sections 298 and 299 can be only in
respect of land falling within the regular line of the street and it can
only be in respect of land which is not occupied by a building or which
is occupied only by a compound wall or a platform, verandah, step or
some other structure which is external to the building. Therefore,
there is no merit in submissions of Mr.Thorat that the Corporation is
required to follow the procedure prescribed under Section 298 and
299 of the MMC Act and acquire the land.
37. For the purpose of removal of bottlenecks/missing links of DP
Road, TP Roads and RL, the Corporation had framed policy dated 25 th
February 2004, which was revised by the policy dated 20 th March,
2017. In the present case the policy of 25 th February, 2004 will have to
be considered as the suits are of the year 2007 and decided in the year
2012. The preamble to the policy shows that the circular has
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been issued to adopt a pragmatic approach to facilitate the removal
of bottlenecks with greater momentum and in systematic manner in
years to come. The eligibility criteria is contained in Clause 4 divided in
Category "A" and Category "B". Category "A" protects unauthorised
tolerated structures existing prior to 1 st April, 1962. In the present
case as already discussed above, the notice structure is not shown to
be in existence prior to 1st April, 1962. Category "B" applies to:
"Structures protected under the State Government Policy
existing prior to 1st January, 1995 includes structure/structures
after 17th April, 1964 of residential user and after 1st April, 1962
of commercial users on the lands private/state govt/central
govt and this category also includes censused structures on 1st
January, 1976 with photo-pass or without photo-pass and also
from 1st January, 1976 to 1st January,1995".
38. Category "B" will therefore apply to the structures existing
prior to 1st January, 1995 which are protected under the State
Government Policy and includes censused structures on 1 st January,
1976 and from 1st January, 1976 to 1st January, 1995. The Plaintiff has
produced the survey receipt of 17 th July, 2000 at Exhibit 109 is of 17 th
July, 2000. The notice under Section 351 has been issued on 13 th
February, 2006. The suit has been filed in the year 2007 and therefore
the revised policy of 20th March, 2017 will not apply to the structure of
the Appellant. Considering the policy of 25 th February, 2004, it is only
if the structure existing prior to 1st January, 1995 which is protected
under the State Government policy and censused structures from 1 st
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January, 1976 to 1st January, 1995 which are eligible for protection
under the policy of 2004. In the present case only the survey has been
carried out in the year 2000. The notice structure is shown to be in
existence prior to 1st January, 1995 but is not shown to be part of
declared slum to avail the protection of the State Government policy.
The survey receipt of the year 2000 discloses that the structure was
not censused structure on 1st January, 1976 or from 1 st January, 1976
to 1st January, 1995.
39. The submission of the learned counsel for the Corporation that
there was only a survey which was carried up for the purpose of
issuance of the photo-pass and no photo-pass has been issued
deserves acceptance. The policy protects only the censused structures
in slum area and the production of survey receipt of the year 2000
does not establish that the notice structure is a censused structure on
1st January, 1976 or from 1st January, 1976 to 1st January, 1995 to
meet the eligibility criteria. The structure is thus not eligible for
protection under the Bottleneck policy dated 25 th February, 2004.
Accordingly, the Point No.(iii) is answered against the Plaintiff.
40. As far as the reliance placed on the judgments in respect of the
adjacent structure is concerned the same are rendered subsequent to
the judgment rendered in the present case. Secondly, there is no
application filed under Order 41 Rule 27 of the Code of Civil
Procedure, 1908 to produce the said judgments to consider the
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applicability of Sections 42 and 43 of the Indian Evidence Act, 1872. In
the present case, the structure which was occupied by the Plaintiff
was as per the Small Causes Court's Judgment a kaccha structure and
the notice structure is constructed of BM walls, ladi coba ladi and
roller shutter for which there was no authorisation. The facts of the
judgments rendered in respect of adjacent structure may be different
and merely because in case of the adjacent structures, the same were
protected will not extend the protection of the Plaintiff's structure.
41. In light of findings rendered above, both the First Appeals stand
dismissed. The judgment and decree dated 29 th March, 2012 in Long
Cause Suit No.1774 of 2007 and judgment and decree dated 29 th
March, 2012 passed in Long Cause Suit No.1808 of 2007 passed by the
Bombay City Civil Court at Bombay, are confirmed.
[Sharmila U. Deshmukh, J.]
42. At this stage, request is made by the learned counsel for the
Appellant for continuation of the interim relief for a period of eight
weeks. The interim protection which was granted to the Appellant is
continued for a period of eight weeks from the date of uploading of
the present judgment on the official website of this Court.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 29/08/2024 19:07:27
