Bombay High Court
The Municiapl Corporation Of Greater ... vs Ramlingam Narayan Padiyach on 22 October, 2024
2024:BHC-AS:42444
WAKLE 905-AO-177-2024.doc
MANOJ
JANARDHAN
Digitally signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WAKLE MANOJ
JANARDHAN
Date: 2024.10.24
15:24:03 +0530
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.177 OF 2024
WITH
INTERIM APPLICATION NO.1968 OF 2024
IN
APPEAL FROM ORDER NO.177 OF 2024
The Municipal Corporation of Greater
Bombay, a Statutory Corporation
incorporated under the provisions of
the Bombay Municipal Corporation Act
having their office at Mahapalika Marg
Mumbai 400001 : Appellant
(Orig. Defendant)
Vs.
Ramlingam Narayan Padiyachi
Age:- 75 years, Occp:- Business,
Founder of Ramlingam Educational
Foundation having its Address:-
Nimomi Baug Raod, Duta Nagar,
Govandi, Mumbai- 400 043. : Respondent
(Orig. Plaintiff)
Mr. Karan Bhosale a/w. Ms. Seena Rawade for the Appellant.
Mr. Prashant Pandey a/w Mr. Dinesh Jadhwani and Mr.Pravin
Kumar Jadhav i/b Mr. Satish Kumbhar for the Respondent.
Mr. Nikhil Kirtane, Mr. Tushar Jadhav, Junior Engineer, S.W.M.
BMC present.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 5th SEPTEMBER, 2024
PRONOUNCED ON : 22nd OCTOBER, 2024
JUDGMENT :
. The aforesaid Appeal impugning an Order dated 19th
December, 2023 passed by the learned Judge of the City Civil
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Court, Greater Bombay, thereby Notice of Motion No.3802/2023,
in L.C. Suit No.2497/2023, is allowed. (Hereinafter the parties are
being referred to by their status in the suit i.e., Appellant as
"Defendant No.1" and Respondent as "Plaintiff".)
2) Heard learned Counsel Mr. Bhosale with Ms. Rawade
for Appellant and learned Counsel Mr. Pandey for Respondent.
Perused the record.
3) Rule. Rule made returnable forthwith and heard finally
with consent of the parties.
4) The case of Plaintiff is that, a 'toilet block' known as
'Sagar Shouchalaya', situated at 55, Durgadevi Mandir, Sant
Tukaram Marg, Iron Market, Chinchbunder Road, Mumbai is
used for public purpose ('the suit premises', for short). The suit
premises is constructed with prior permission and no objection of
Defendant No.1, on a open piece of land that Defendant No.1
sanctioned to the Plaintiff Vide letter bearing No.AH5/1018/03,
dated 22nd June, 1998. Since then, all the relevant documents of
the suit premises are in the name of Plaintiff and he has been
legally occupying the same.
4.1) That, the Plaintiff had issued a letter dated 3rd May,
2023 to the Defendant No.1 as well as the local Police Station and
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thereby requested the said authorities to take legal action against
Renuka Poojari and Suri Poojari for they made an illegal and
unauthorized toilet construction in the water tank and the
drainage line area of the suit premises. The Plaintiff also issued a
legal Notice dated 23rd June, 2023 to the Defendant No.1 and
requested to demolish the said illegal toilet. However, the
Defendant No.1 failed to take any legal action against said Renuka
Poojari and Suri Poojari. Therefore, the Plaintiff filed a Long
Cause Suit No.1721/2023 along with a Notice of Motion.
4.2) It is averred that, in the meanwhile, the Defendant
No.1 issued a Notice dated 22nd June, 2023 to the Plaintiff alleging
that the Plaintiff has made an illegal construction on the terrace of
the suit premises. On 26th June, 2023, the Plaintiff replied the
notice and denied the allegations therein. However, the Defendant
No.1 issued another Notice dated 11 th September, 2023 bearing
No.ACB/A.E./B/2890/SWM, alleging that the Plaintiff has made
an unauthorized construction on the terrace of the suit premises,
thus, the Plaintiff has violated the conditions specified in the work
order 19th September, 1997, therefore, the Plaintiff shall vacate the
suit premises and hand over its possession to the Defendants,
within 24 hours from the receipt of said notice. As a result, the
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Plaintiff filed the said L.C. Suit No.2497 of 2023, contending that
the notice dated 11th September, 2023 is illegal; that the Plaintiff
has not carried out any illegal work, structural addition or
alteration in the suit premises, contrary to the provisions of the
MMC Act; that the Defendants have not followed the due process
of law; and that the notice was the result of some political
influence and hence said notice is not maintainable in law. On this
premise, the Plaintiff prayed for the reliefs that, the Notice dated
11th September, 2023 be quashed and set aside; that pending
hearing and final disposal of the suit, execution and operation of
the Notice dated 11th September, 2023 be stayed; and that, by
grant of permanent injunction, the Defendants be restrained from
vacating the suit premises and taking its possession etc. Yet, the
Defendant No.1 took forcible possession of the suit premises on
13th October 2023. Therefore, the Plaintiff filed the Notice of
Motion No.3802/2023.
5) The Defendants resisted the Notice of Motion by filing
their reply. The Defendants contended that by a notice dated 14 th
October, 2020, the Plaintiff was informed to produce the papers of
permission etc., regarding the illegal construction. Meanwhile,
further action could not be initiated due to Covid-19 Pandemic.
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That, complaints were received to the site supervisory staff of
SWM Department, 'B' Ward regarding cleanliness and upkeep of
the suit premises. In turn, the site supervisory staff visited there
on many occasions and instructed to improve the cleanliness and
upkeep the suit premises. A meeting was held on 14th June 2023,
in the Chairmanship of Assistant Commissioner, B Ward. The
operators of 'Pay and Use Toilet Blocks', present in the meeting
were instructed to carry out a structural stability audit, improve
cleanliness and cater to all the parameters as per the guidelines of
the "Swacha Bharat Abhiyan" and submit a report in 15 days.
5.1) It is contended that, on 20th June 2023, Assistant
Commissioner, 'B' Ward along with the staff of the Maintenance
and SWM Department inspected the suit premises. It was found
that, the Plaintiff has carried out an unauthorized work on the
terrace of the suit premises, therefore, instructions were given to
the Maintenance and SWM Department to take a joint action and
submit the report. Accordingly, a notice was issued on 22nd June,
2023 to the Chairman/Secretary of the Plaintiff's foundation, as
regards the unauthorized construction and calling upon Plaintiff
to submit the relevant documents to prove the authorization of the
work on the terrace. The Plaintiff, however, failed to submit the
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required documents proving that the construction is authorized,
and thus, he failed to comply that notice within time. Thereafter,
the SWM Department issued a Notice dated 11 th September, 2023.
It is contended that the Plaintiff has violated the conditions
specified in the work order No.AHS/B/2826/IO dated 23 rd
October, 1997. Thereafter, the Plaintiff failed to vacate the suit
premises. Therefore, Defendant No.2 initiated an action for taking
possession of the suit premises with prior approval of the Deputy
Municipal Commissioner, Zone-I. However, to avoid discomfort to
public, SWM Department invited EOI to appoint agency for a
temporary period of 60 days for the operation and maintenance of
the suit premises. In turn, M/s. Harshal Samajik Seva Sanstha was
appointed for the said purpose. The SWM Departments shall
invite EOI by following BMC procedure to appoint a new agency
for carrying out the operation and the maintenance of the suit
premises. The Plaintiff has gained the profits from the suit
premises, however, failed to maintain cleanliness and to keep the
conditions of the work order. Therefore, and the Defendant No.1
being landlord of the land, the action taken by the Defendants is
correct and valid. In the backdrop, the Defendants contended that
the Notice of Motion shall be dismissed with costs.
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6) In view of the rival pleadings and the documents
produced on record by the parties, the trial Court considered the
three points i.e. whether the Plaintiff has made out a prima facie
case; that, whether balance of convenience lies in favour of the
Plaintiff; and that, whether the Plaintiff will suffer irreparable
loss, if interim relief by way of restoration of possession of the suit
premises is not granted, as prayed for. On appraisal of the
contentions in the light of the documents on record, the Learned
Judge of the trial Court answered the aforesaid points in
affirmative and directed as under :-
"The defendants are hereby directed to restore
the possession of suit premises situated at 'Sagar
Shouchalaya', 55, Durgadevi Mandir, Sant Tukaram
Marg, Iron Market, Chinchbunder Road, Mumbai
within a period of 45 days from the date of this Order,
pending the hearing and final decision of the suit.
Further, the defendants are temporarily
restrained from executing and operating the impugned
Notice dt. 11/09/2023 and 5/10/2023 and from taking
possession of the suit premises from the Plaintiff, till
the decision of the suit."
7) I have carefully considered the submissions made by
learned Counsel Mr.Bhosale for Defendant No.1 and Learned
Counsel Mr.Pandey for the Plaintiff and documents highlighted.
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8) Learned Counsel Mr. Bhosale for Appellant submits
that, earlier, the Plaintiff had submitted the Structure Audit
Report of November, 2018. At the time of said report the terrace
was open and in good condition. However, when the Plaintiff
submitted the construction plan of the suit premises, he showed a
provision of a servant room on the terrace. This was in violation of
the conditions of the land allotment and the license to use the
same vide letter dated 24th October, 1997. Then, the Plaintiff made
the unauthorised construction mentioned in the subject notices
dated 22nd June and 11th September, 2023. Since, the Plaintiff
failed to comply the notice dated 22nd June, it was followed by the
short notice dated 11th September. Thus, the suit premises were
lawfully taken in possession by the Defendants. On instructions
from the Assistant Engineer (Solid Base Management), the
learned Counsel submits that after taking possession of the suit
premises, the subject unauthorised structure was demolished by
the Defendants. He submits that, on issuance of the notice dated
22nd June, 2023 and on account of its non-compliance within the
stipulated 2 days period, the license contract between the Plaintiff
and the Defendant No.1 had come to and end. On cancellation of
the license, the possession of the Plaintiff over the suit premises
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was illegal, therefore, there was nothing wrong on the part of the
Defendants to take the possession of the suit premises acting on
the notice dated 11th September. In fact, on failure of the Plaintiff
to comply the notice dated 22nd June the Plaintiff had no
semblance of any right to continue in the suit premises. Therefore,
neither the Plaintiff can retain his possession or ask for its
protection nor he can seek its restoration. As such, the Defendants
were entitled to get back the possession of the suit premises. This
legal aspect has been not considered by the trial Court while
passing the impugned Order. Hence, the impugned Order is illegal
and liable to be set aside. To support his submissions, learned
Counsel Mr. Bhosale has relied on following decisions :-
1. General Merchant Association & Ors. vs. The Corporation of
Chennai1 wherein it is held that "... the position of a license after
termination becomes unlawful and the licensee is not entitled to
any injunction restraining the licensor from evicting him as unlike
a tenant a licensee does not have judicial possession and the
possession always remains with the licensor and what was granted
is a privilege in terms of the license, which is the absence of such a
grant becomes unlawful."
1 1998 SCC Online Mad.848
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2. Samarpan Varishtha Jan Parisar & Ors. Vs. Rajendra Prasad
Agarwal & Ors.2 In this case, in paragraphs 12 and 13 it is held as
under :-
"12. Law recognizes three types of possession. One as
that of an owner, including co-owners; second as a
tenant, when a right is created in the property; and
thirdly permissive possession, the possession which
otherwise would be illegal or that of as a trespasser. In
the present appeal, we are concerned with the
possession falling in third category. This Court in a
judgment reported as Associated Hotels of India v. R.
N. Kappor has held that in case of a licensee, the legal
possession continues with the owner as in terms of
Section 52 of the Indian Easements Act, 1882, grant of
a mere right to do upon the property of another,
something which would in the absence of such right be
unlawful. Thus, this is the essential characteristic
which distinguishes a license from a lease.
13. In Sohan Lal Naraindas v. Laxmidas Raghunath
Gadit, it has been held that a lease creates an interest in
the property whereas a license creates no estate or
interest in the immovable property of the grantor. It
was held as under:
'8. A licence confers a right to do or continue to do
something in or upon immovable property of
grantor which but for the grant of the right may be
2 AIR 2022 SC 2209
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unlawful, but it creates no estate or interest in the
immovable property of the grantor. A lease on the
other hand creates an interest in the property
demised'."
9) Learned Advocate Mr.Pandey for the Respondent
submits that, whatever process of documentation was undertaken
by the Defendants before taking possession of the suit premises, it
was without recording panchnama, map and dimensions etc. of
the alleged illegal construction. The subject notices were issued
without mentioning the statutory provisions which prescribe the
procedure and permit taking possession of the suit premises.
Therefore, entire action of taking possession of the suit premises
by the Defendants was illegal and it finally constrained the trial
Court to pass the interim mandatory injunction Order. He submits
that the impugned Order is based on factual matrix of the case,
well reasoned and it is in accordance with law. As such, there is no
substance in the Appeal.
10) It is admitted fact that in the year 1998, the Plaintiff
was allotted the piece of land. Thereafter the Plaintiff constructed
the suit premises-toilet block thereon with prior permission and
approval of the Defendant No.1. Thus, the suit premises has been
existing since long. The allotment of the piece of land was subject
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to the Plaintiff abide by all the terms and conditions of Defendant
No.1 as in force from time to time and, that in case of complaint
received in the future about bad maintenance of the suit premises/
PSC (public sanitary convenience), the Defendant No.1 reserves
the right to revoke the permission at any stage and at any time.
11) The first reason for taking possession of the suit
premises by the Defendants is that there were complaints of
improper cleanliness an upkeep of the suit premises and the
unauthorised construction.
12) However, it is significant to note that the meeting
under the Chairmanship of Assistant Commissioner, B Ward with
the operators of 'Pay and Use Toilet Blocks' was held on 14th June
2023 i.e. just 8 days before the notice dated 22 nd June 2023, and
in that meeting only, the operators present were instructed to
carry out structural stability audit, improve cleanliness and cater
to all the parameters as per the guidelines of the " Swacha Bharat
Abhiyan" and to submit the report within 15 days. However, it is
not the case of the Defendants that after that meeting, during the
said 8 days period there were written complaints against the
Plaintiff raising the issue of cleanliness and upkeep of the suit
premises. There is no mention in the reply of the Defendants
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before the trial Court, of having received such complaints from
any specific person and on a specific date, prior to 14 th June, 2023
and till 22nd June, 2023. There are no details as to exactly on
which date the concerned supervisory staff of the SWM
department visited the suit premises for inspection there to verify
the veracity of the said complaints. Even no details are stated in
the said reply as to how the Plaintiff failed keep the suit premises
clean and well maintained.
13) Admittedly, the Plaintiff was constantly earning from
the suit premises. Therefore, it is highly improbable that the
Plaintiff would give a scope for the complaints about cleanliness
and upkeep during that 8-day period, at the cost of loosening the
suit premises. As such, prima facie there is no substance in the
contention of Defendants that there were complaints of
cleanliness and upkeep of the suit premises.
14) The notices dated 22nd June, 2023 and 11th September,
2023 alleges that the Plaintiff has made an unauthorized
construction over the terrace of the suit premises. However, the
said notices do not claim that any panchnama and map of the
alleged unauthorised construction were recorded. Even the said
notice does not state the exact size of the illegal construction.
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Thus, in short the said notices are as vague as possible. There is no
explanation as to how and when the debris disposed of, post
demolition. Therefore, prima facie the notices are insufficient to
accept that the Plaintiff had made the alleged unauthorised
construction.
15) No doubt the letters of the years 1997 and 1998 clearly
state that, if the Plaintiffs commits breach of the terms and
conditions of the Defendant No.1, the latter will be entitled to take
possession of the suit premises. However, it is not sufficiently
clear from the contentions of the Defendants as to how the legal
procedure was precisely followed before they obtained the
possession of the suit premises.
16) In the above context the observation of the trial Court
in the impugned Order are significant. That, by a complaint dated
3rd May, 2023 the Plaintiff had raised the issue of unauthorised
construction on the roof of adjacent Durgadevi Temple which
construction interfered in the water tank and drainage line area of
the suit premises. It was followed by a notice dated 25 th May,
2023, under Section 314 of the MMC Act, issued to the owner of
Durgadevi Temple. Then, by Order dated 12 th June 2023, action
was initiated for demolition of the unauthorised construction,
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near the suit premises. It is noted that initially this suit was filed
along with the Notice of Motion No.3538/2023 to restrain the
Defendants from acting on the notice dated 11 th September 2023.
This Notice of Motion was taken out on 26 th September 2023, with
prior service of copy of Plaint and Notice of Motion to the
Defendants on 15th September, 2023. The notice about ad-interim
hearing was served upon the Defendants on 18 th September 2023,
informing that the matter is kept for hearing on 26 th September,
2023. Thereafter, the Notice of Motion No.3802/2023 was taken
out on 18th October, 2023. However, the Defendants took the
possession of the suit premises on 13th October, 2023. Therefore,
the trial Court noted that even though it was apparent that the
matter is sub-judice, the Defendants have obtained forcible
possession of the suit premises by virtue of the notice dated 11 th
September, 2023. No doubt, the alleged notice dated 14 th October
2020 was issued to the Plaintiff towards alleged ongoing illegal
construction at the suit premises. However, there is no justifiable
explanation for failing to act upon that notice in a reasonable time.
17) The notices issued to the Plaintiff were not preceded
by notices under Section 351 or 354A of the MMC Act. There is no
material on record showing that before taking possession of the
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suit premises, 'hearing opportunity' was given to the Plaintiff by
the Defendants, meaning, the 'principle of natural justice' was not
followed. Therefore, the trial Court is absolutely correct in holding
that the entire act of the Defendants is high handed and there was
no regard for the Court of justice before taking possession of the
suit premises. As such, there was a fit case to allow the Notice of
Motion by the impugned Order to grant the interim relief in the
mandatory form.
18) In view thereof, there is no substance in the aforesaid
Appeal and it is liable to be dismissed. Hence, following Order :-
18.1) Appeal from Order is dismissed. Rule is discharged.
18.2) As a result the Interim Application No.1968 of 2024
does not survive and its stands disposed of, accordingly.
(SHYAM C. CHANDAK, J.)
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