Bombay High Court
Smt. Rekha Pravin Nalavade vs The Municipal Corporation Of Greater ... on 2 April, 2025
2025:BHC-AS:15088
FA-1307 of 2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1307 OF 2018.
1. Rekha Pravin Nalavade ]
Adult Age- 49 Years. Mumbai Inhabitant, ]
carrying on Business in the name and ]
style of M/s. Sneh Enterprises having ]
office at Shop No. HE/HC/61A- ]
TALLE
19KHHE00471/1295271, M.H.B. Colony, ]
SHUBHAM Near Building No. 1, Ram Mandir Road, ]
ASHOKRAO Kher Nagar, Bandra (East), Mumbai - 400 ]
Digitally signed by
TALLE SHUBHAM 051. ] ... Appellant.
ASHOKRAO
Date: 2025.04.02
14:38:31 +0530
Versus
1. The Municipal Commissioner of Greater ]
Mumbai, a Corporation duly ]
incorporated Under the Bombay ]
Corporation Act, 1888 Having its Head ]
Office at Mahapalika Bhavan, Mahapalika
Marg, Fort, Mumbai- 400 001
2. Maharashtra Housing & Area ]
Development Authority Having office at ]
Griha Nirman Bhavan, Kala Nagar, Bandra ]
(East), Mumbai - 400 051 ]
3. Khernagar Shriram C.H.S. Ltd., Through ]
its Hon. Chairman, Shri Jaiprakash ]
Mamchand Bagoria, Khernagar Shriram ]
C. H. S. Ltd. Building No. 1, M.H.B. Colony, ]
Khernagar, Bandra (East), Mumbai - 400 ]
051. ] ...Respondents.
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Mr. Pradeep J. Thorat, Ms. Pratibha Shelke i/b Mr. Shyam Singh for Appellant.
Mr. G. S. Godbole, Senior Advocate a/w Ms. Pallavi Khale for Respondent No.1-
Corporation.
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Mr. Akshay Shinde for Respondent No.2-MHADA.
Mr. A. Y. Sakhare, Senior Advocate i/b Mr. Virendra Neve for Respondent No.3.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: January 17, 2025.
Pronounced on : April 2, 2025.
JUDGMENT :
1. The First Appeal is at the instance of the Original Plaintiff
challenging the Judgment dated 26th September, 2018 passed by the
City Civil Court in Long Cause Suit No. 3233 of 2013 dismissing the suit.
PLEADINGS:
2. L. C. Suit No. 3233 of 2013 challenged the Section 314
notice issued by Mumbai Municipal Corporation Act, 1888 ("the MMC
Act") and the impugned order of the Assistant Municipal
Commissioner passed therein and for permanent injunction. The suit
premises is described as Shop Number HE/HC/61A-
19KHHE00471/1295271, situated at M.H.B. Colony, Near building no. 1,
Ram Mandir Road, Kher Nagar, Bandra (East), Mumbai - 400 051
admeasuring 10ft x 15ft and constructed of brick masonary walls and
A.C. Sheet roof. The case of the Plaintiff was that the Plaintiff's father
was in occupation of the suit premises since 1976 and the structure
was censused at census number HE/HC/61A and hut occupiers card
was issued in his name. The Plaintiff's by general power of attorney
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dated 2nd April, 1993, the Plaintiff's father relinquished his right, title
and interest in suit structure in Plaintiff's favour and she is carrying on
business in name of M/s Sneh Enterprises. By communication dated 8 th
December, 1993 the Plaintiff requested the Tehsildar to transfer the
record of the suit shop in her name. In the year 2000, the premises was
censused in the name of the Plaintiff and census receipt was issued. On
2nd August, 2005, the Plaintiff received notice from MHADA calling
upon her to pay compensation to the Senior Colony Officer which was
paid regularly and receipts were issued by the concerned department.
3. On 30th May, 2012 notice came to be issued under Section
314 of MMC Act alleging that the suit premises is on the road, which
was responded by producing all requisite documents on 11 th June,
2012. Due to threats of demolition in month of March, 2013, Plaintiff
filed L.C Suit No 1090 of 2013 for injunction. The hearing on the
impugned notice took place on 7th June, 2013 before the Assistant
Commissioner H- East Ward and order was passed on 24 th June, 2013
directing the Plaintiff to remove the suit premises which is not
speaking order, hence the suit came to be filed.
4. The Municipal Corporation of Greater Mumbai (MCGM),
Maharashtra Housing and Area Development Authority (MHADA) and
Kher Nagar Shriram CHS Limited were arrayed as Defendants to the
suit. As far as the MCGM is concerned, the written statement was filed
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contending that the Corporation had undertaken the work of road
widening and it was found that the Plaintiff's structure alongwith some
other structures are situated on road and hence notice was issued. As
the Plaintiff submitted documents issued by MHADA, there was
exchange of communication dated 14th October, 2012, 24th December,
2010 and 25th March, 2013 with MHADA as to issuance of photo pass
by MHADA in respect of the suit structure. MHADA by letter dated 20 th
February, 2013 and 11th March, 2013 informed the Corporation that the
structure is not beside the building but is outside compound wall of
the building no. 1 and the structure was on road for which Corporation
can take action. Subsequently hearing was held and by detailed
speaking order dated 12th February, 2013 the Corporation directed the
removal of the structure.
5. MHADA in its written statement contended that the
Plaintiff by letter dated 6 th August, 2013 has informed MHADA that the
suit structure was tin sheet and around 2007 she has constructed pucca
structure and requested for allotment of alternate accommodation. As
per GR dated 5th October, 2005 the number of huts in slums should be
15 or more for issuing photo pass and in the present case there is only
one hut standing on the footpath and therefore the structure is not
eligible for alternate accommodation. It was contended that by
communication dated 12th July, 2013 the Corporation was informed by
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MHADA that photo pass is issued to the Plaintiff for place near building
no. 1 whereas suit premises is situated completely on road outside
compound wall of building no. 1 and therefore the photo pass annexed
with the plaint is not in respect of the suit structure and the Plaintiff is
not eligible for alternate accommodation.
6. The Defendant No. 3 filed its written statement
contending that while issuance of photopass by MHADA, the location
plan shows that the structure is within the premises of society whereas
the fact is that the suit premises is located outside the society's
premises and on the road. During the inspection carried out in the year
2004 by Defendant No. 2 MHADA, it appears that the alleged structure
premises is touching the building of Defendant No 3. Except building
premises and office premises of society, no other structure exists
within the compound wall of the society's plot of land. On 26 th July,
2005 during water logging photographs were taken which does not
show the suit premises adjacent to the compound gate outside the
compound wall of the building.
EVIDENCE:
7. The Plaintiff filed her affidavit of evidence under Order 18
Rule 4 of CPC and deposed as to the contents of the Plaint. She
produced the hut occupiers card at Exhibit-14, general power of
attorney at Exhibit-15, communication dated 8 th December, 1993 at
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Exhibit-16, protection card at Exhibit-17, notice dated 2 nd August, 2004
at Exhibit-18, compensation payment receipts at Exhibit-19, notice
dated 3rd May, 2012 at Exhibit-20, reply dated 11th June, 2012, at
exhibit-21, Order dated 24th June, 2013 at Exhibit-22 and photocopy of
order dated 12th August, 2013 at Exhibit 25.
8. The Plaintiff was cross-examined by the Advocate for
Corporation where she has admitted that there is public road known as
Ram Mandir road in front of building No. 1 MHB Colony. She has stated
that the suit premises is not on the road but it is being said that it will
come on the road in view of the proposed road widening. She has
deposed that in the power of attorney Exhibit-15 the suit structure is
mistakenly typed as behind building No. 1 of MHB colony.
9. There is no material elicited in cross examination by
Defendant No 2 MHADA.
10. In cross-examination by Defendant No 3 Society, the
Plaintiff has admitted that there is printing mistake and the affidavit of
evidence shows the photo pass number as HEHC61/1A, whereas the
photopass issued to her father bears the number HEHC6/1A. She has
admitted that the protection card number issued to her in the year
2004 is not mentioned in her affidavit of examination-in-chief. She has
further admitted that there is road from the nallah in front of the
compound wall of the building no. 1 up to the compound wall of the
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building on the other side. She has further admitted that the photo
pass was issued to her father for electric shop. She has admitted that
the suit premises is not adjacent to building no. 1 but in front/opposite
of building no. 1 and that the photo pass of the suit shop is issued by
MHADA. She has further admitted that the photo pass number issued
in favour of her father and mentioned in the power of attorney is
different from the photo pass number given in the affidavit of
examination-in-chief. She has admitted that Corporation has not issued
photo pass in favour of her father. She has denied the suggestion that
she constructed pucca structure of the suit shop in the year 2005. In
the cross examination she was confronted with a photograph of
Building no 1 by Defendant No. 3, which was denied by her. She was
also confronted with two photographs filed along with the plaint which
showed the suit structure and the compound of building no. 1 at the
back of the suit structure.
11. On behalf of the Defendant No 1, the Sub Engineer of the
Corporation was examined as DW-1, who deposed as to the contents of
the written statement. He produced copy of the letter dated 22 nd
October, 2012 issued by the Corporation to MHADA at Exhibit-31, copy
of the letter dated 24th December, 2012 issued by Corporation to
MHADA at Exhibit-32, copy of letter dated 18th January, 2013 issued by
MHADA to Corporation at Exhibit-33, copy of letter dated 2 nd February,
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2013 issued by Corporation to MHADA at Exhibit-34, copy of letter
dated 20th February, 2013 issued by MHADA to Corporation at Exhibit
35, copy of letter dated 13th March, 2013 issued by Corporation to
MHADA at Exhibit-36, copy of letter dated 18 th March, 2013 issued by
MHADA to Corporation at Exhibit-37, copy of letter dated 17 th July,
2013 issued by MHADA to Corporation at Exhibit-38 and the copy of
the final order passed by the Corporation dated 12 th August, 2013 at
Exhibit-39.
12. In the cross-examination of DW-1 by MHADA, DW-1 has
stated that the suit structure is on the road and outside Building No 1
and outside its compound wall.
13. In cross examination by Defendant No 3 Society, DW-1 was
confronted with the photographs of Building No 1, which was admitted
by him and came to be marked as Exhibit 40. He has admitted that the
suit structure is standing outside the compound of Building No 1 and is
unauthorised. He has stated that his department has demolished all
unauthorised structures from Ram Mandir Road except the suit
structure. He has admitted that due to the suit structure there is
vehicular problem and vehicles of Building No 1 also face trouble.
14. In cross examination by Plaintiff, DW-1 has stated that he
got photopass verified by MHADA who has replied that the photopass
issued is not of suit premises. He admitted that there is no other
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premises of Plaintiff on Ram Mandir Road. He has admitted that there
is no road widening proposal at present. He has further admitted that
as per the Corporation circulars there are guidelines to provide
alternate accommodation and compensation to the affected structure
occupants. He has further admitted that protected structure should be
upto the date of 1st January, 2000. He has stated that the plot of land
below suit structure is owned by Corporation and has admitted that he
has no document to show that plot of land on which suit structure is
standing is owned by Corporation.
15. The Defendant No 2 MHADA and Defendant No 3 Society
did not lead evidence.
16. The Trial Court framed the issues and answered them as
under:-
Sr. Issues Findings
No.
1 Whether the plaintiff Rekha Pravin Nalavade proves No.
that her suit shop is censused in the year 1976, then in
the year 2000 and thereby protected and tolerated ?
2 Whether plaintiff Rekha Pravin Nalavade proves that No.
notice under section 314 of MMC Act and order passed
by defendant No. 1 MCGM dated 24/6/2013 are
illegal ?
3 Whether suit is maintainable without notice under No.
section 527 of Bombay Municipal Corporation Act ?
4 Whether Defendant No. 3 Khernagar Shriram CHS Ltd. Yes.
proves that suit is false one as the suit premises is
situated completely on road outside compound wall of
its building No. 1 ?
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5 Whether the plaintiff is entitled for the reliefs of No.
declaration and perpetual injunction as sought for ?
17. Issue Nos 1 and 4 were considered together by the Trial
Court. The Trial Court accepted that the Defendant No 1 and 2 failed to
elicit admission from the Plaintiff that the suit shop is on public road of
MCGM and not on MHADA land. The Trial Court accepted that the
Plaintiff's documents prove that the Plaintiff's father had commercial
shop of 150 square feet either behind or adjacent to Building No 1. The
Trial Court ignored the printing mistakes as the document itself was
produced.
18. On the location of suit shop, the Trial Court considered the
case put by DW-3 to PW-1 about existence of road from Nallah in front
of the compound wall of building no 1 up to compound wall of the
building of other side, the non production of electricity bill till 2007,
the photographs shown by DW-3 in cross examination. The Trial Court
considered the evidence of DW-1 regarding the joint inspection by one
Mr. Patke, officer of Corporation and MHADA and found the suit shop
outside compound wall of building no 1 showing that it is completely
on road. The Trial Court considered that MHADA by letter dated 12 th
July, 2013 had informed MCGM that MHADA cannot allot the alternate
accommodation to suit shop as it was on public road owned by MCGM.
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The Trial Court noted the admission of the Plaintiff that the suit shop is
not adjacent to building no 1 but in front of building no 1 and her own
photographs which shows suit structure is on the footpath and has
road frontage, which too shows the possibility that the suit shop may
be on road.
19. The Trial Court came to a finding that though the Plaintiff
is in possession of photopass, census certificate etc of shop
admeasuring 150 square feet adjacent to building no 1 the suit shop is
not on land of MHADA but is on public road.
SUBMISSIONS:
20. Mr. Thorat, learned Counsel appearing for the Appellant
has taken this Court through the documentary evidence produced by
the Appellant and would submit that photo pass, photo identity card
issued by MHADA, power of attorney as well as letter to Tehsildar, the
receipt for payment of compensation shows the existence of the suit
structure prior to 1975 and submits that the structure is protected. He
submits that for removal of suit structure for purpose of road
widening, the bottle neck policy of 2017 of the Corporation will apply
and the Appellant is entitled to alternate accommodation. He submits
that the Corporation has relied upon its correspondence with MHADA
to establish that the suit structure is on road. He submits that the
Corporation had requested MHADA to cancel the photopass issued in
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respect of the notice structure which is an admission that the
photopass is issued in respect of notice structure. He would further
submit that the present suit structure being completely new structure
is a case put forward only by the Defendant No. 3-Society attempted to
be substantiated by relying on some photographs. He submits that as
no evidence was led by DW-3, the photographs could not be proved
and when Defendant No. 3 confronted the Plaintiff with the
photographs, she has denied the same and hence the same were not
marked as exhibit. He submits that the same photographs were shown
to the DW-1 in cross examination and the same were marked as Exhibit-
40. He submits that the provisions of order XIII Rule 1 (1) of CPC do not
cover the documents which are part of the written statement of the
Defendant. By drawing support from the decision in the case of
Laxmikant Sinal Lotlekar vs. Raghuvir Sinai Lotlkear1 he would
further submit that mere marking of documents as exhibit does not
amount to proof of content and the photographs are not proved.
21. He submits that the DW-1 has admitted that there is no
proposal for widening of Ram Mandir road and in the absence of any
proof by the Respondents that the suit structure is not the structure in
respect of which photopass is issued, the suit structure is protected
structure. On aspect of waiver on notice under Section 527 of MMC
1 1984 SCC Online Bom 228
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Act, he draws support from decision of Vasant Ambadas Pandit vs
Bombay Municipal Corporation2.
22. He would further submit that Interim Application has been
filed under Order 41 Rule 27 for bringing on record the receipts for the
compensation paid for the period from 2005 till March-2023 and the
RTI information that the compound wall of the Defendant No. 3 was
constructed in the year 2001 and as said information was received after
the Trial Court order and the same is essential for proper adjudication
of the case permission may be granted to produce the additional
evidence. In support he relies upon the following decisions:
Laxmikant Sinal Lotlekar vs. Raghuvir Sinai Lotlkear (supra)
Vasant Ambadas Pandit vs Bombay Municipal Corporation (supra)
23. Mr. Godbole, learned Senior Advocate appearing for the
Corporation would submit that the fundamental problem is the
absence of challenge to the speaking order dated 12 th August, 2013 as
the suit challenged only Section 314 notice and the order dated 24 th
June, 2013. He would further point out from the filing of the speaking
order dated 12th August, 2013 by Plaintiff makes it clear that she was
served with the order. He would further submit that the provisions of
Section 527 (1) (a) were not complied with and the only exception is
either wavier or malafide action which is not their case.
2 AIR 1981 Bombay 394
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24. On the merits of the matter, he points out the power of
attorney executed by the Plaintiff's father in her favour where the
location of the shop is shown as behind building no. 1 MHB colony and
the admission in cross examination that the suit premises is not
adjacent to building no 1 but in front of building no 1. He would further
point out that in the transfer application to Tehsildar for transfer of
the shop and the photopass, the same mentions as near building No. 1.
He would further point out that the photographs- Exhibit-40 does not
show the structure and therefore in 2007 there was new construction
which is located outside the compound wall of building no. 1. He would
further point out the cross examination of Plaintiff by Defendant No. 3
where she was confronted with the photographs annexed alongwith
the plaint, which shows the suit structure and compound of building
no. 1 at the backside. He submits that in the plaint there is no prayer
for an alternate accommodation and there is no pleading about the
applicability of the bottle neck policy of the Corporation.
25. Mr. Sakhare, learned Senior Advocate appearing for the
Respondent No. 3-Society would submit that under Section 314 of the
MMC Act this structure can be removed irrespective of whether the
same is authorized or unauthorized. He would further submit that the
challenge is confined only to the order of 24 th June, 2013, which are
minutes of meeting, and not to the speaking order of 12 th August,
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2013. He submits that there was no prayer for amendment of the
plaint though the speaking order was to the notice of the Plaintiff. He
submits that as the order was not challenged no relief can be granted
in respect of the said order. He would further submit where there is no
prayer for alternate accommodation.
26. He would further point out that there is difference in the
photopass number as admitted by the Plaintiff in cross-examination.
He would further submit that the Plaintiff has admitted in cross-
examination that the suit premises is not adjacent to building no. 1. He
would further submit that in the cross-examination by Defendant No.
3, specific case was put that the Plaintiff has constructed pucca
structure in the year 2007. He would further point out that she has
admitted that on 27th May, 2005 there was water logging in building no.
1 to the extent of 4 to 5 feet and the photograph were shown which
were not denied but subsequently marked as Exhibit-40 in the cross-
examination of DW-1. He would further submit that in the various
documents produced by Plaintiff, there is discrepancy about the actual
location of the structure and also the photophass number.
27. He submits that MHADA in the correspondence dated 18 th
January, 2013 has communicated that the photopass is in respect of
hut adjacent to building no. 1. He submits that as none of the
documents show the location of the suit structure in front of the
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building no. 1, the construction work is subsequent construction. He
has taken this Court in detail through the findings of the Trial Court
and would submit that the Trial Court has rightly appreciated the
evidence on record to hold that the suit structure is constructed
subsequent to the year 2005 and is not protected.
28. Mr. Shinde, learned Counsel appearing for MHADA would
adopt the submissions of Mr. Godbole, and would submit that the
description of location structure which was subject matter of the
photopass issued by MHADA differs and the evidence on record shows
that it is not within the compound wall of building no. 1 but located
outside the compound wall of building no. 1.
29. In rejoinder, Mr. Thorat, would submit that Exhibit-40 which
are the photographs is the only document on the basis of which Trial
Court came to finding that the structure is subsequent structure and
the same being inadmissible in evidence could not have been relied
upon by the Corporation.
30. The following points would arise for consideration:
(i) Whether the photopass and protection card issued by MHADA in
favour of Plaintiff is in respect of the suit structure?
(ii) Whether the notice issued by the Corporation under Section 314 of
MMC Act and the order dated 12 th August, 2013 is illegal as it orders
demolition of the suit structure which is a protected structure, without
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allotting alternate accommodation as per the policy guidelines of
Corporation?
(iii) Whether in the absence of specific prayer challenging the
Speaking order dated 12th August, 2013, no relief could be granted to
the Plaintiff?
31. Firstly coming to the Interim Application filed under Order
41 Rule 27 of CPC, the provision permits the production of additional
evidence in the Appellate Court where the Trial Court has refused to
admit evidence which ought to have been admitted or the party
seeking to produce additional evidence establishes that
notwithstanding the exercise of due diligence such evidence was not
within his knowledge or could not after exercise of due diligence be
produced by him or where the Appellate Court requires any document
to be produced or any witness to be examined to enable to pronounce
Judgment.
32. In the present case, the Application seeks to bring on
record the receipts for the compensation paid by the Plaintiff to the
Corporation for the period from 2005 till March-2023 and the
information received under RTI that the compound of the building of
the Respondent No. 3 was constructed in the year 2001. The
Application pleads that it is while discussing the matter with her
advocate that the Applicant become aware that though the receipts of
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compensation were issued by the Corporation were handed over to the
Trial Court advocate and inadvertently he did not produce it before the
Trial Court. The pleadings in the Application would take the Application
outside the ambit of the provisions of Order 41 Rule 27 as clause(aa) of
Sub Rule-1 of Rule 27 of Order 41 permits the production of additional
evidence where such evidence is not within the knowledge of party or
could not after exercise of due diligence be produced by him at the
time of passing of the decree. The pleading in the Application itself is
that the receipts were handed over to the Trial Court Advocate and
therefore it is not case that the evidence was not within the knowledge
of the Plaintiff. The production of additional evidence can be
permitted only upon satisfaction of the ingredients of Order 41 Rule
27 of CPC, which is not so in the present case. As such I am not inclined
to permit the production of additional evidence and the Interim
Application stands dismissed.
AS TO POINT NO (i) and (ii):
33. The suit structure is entitled to be protected, if it is
established that the photopass/pitch holder's card issued by MHADA is
in respect of the suit structure.
34. There is no dispute that the oral and documentary
evidence produced by the Plaintiff establishes that the Plaintiff's
father had been issued photopass in respect of a structure
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admeasuring 150 square feet which was censused in the year 1976.
There is also no dispute that in the year 2000, the structure was
censused in favour of the Plaintiff and in the year 2004, MHADA had
issued protection card in favour of Plaintiff. The crux of the dispute is
about the location of the suit structure and whether these documents
pertain to the notice structure.
35. In cross examination of PW-1 by Corporation and MHADA,
they have not been able to elicit any admission that the suit structure
and the censused structure are different, which is also the finding of
the Trial Court. In cross examination by Defendant No 3, the location of
the suit structure was established to be in front of Building No 1 and by
relying heavily on the description given in the documents pertaining to
the censused structure, it is contended by the Defendants that the suit
structure and censused structure are different and the suit structure is
located on the road.
36. The documents which are produced by Plaintiff when
perused discloses that the pitch card, protection card and the
communication by MHADA do not describe the censused structure by
its precise location and is mentioned as "Near Building No 1", which can
be construed as located either on the side of side of building no 1, or in
front of building no 1. The reference to the location of the structure is
general reference and cannot be magnified to mean that the admission
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of PW-1 about the suit structure being located in front of building no 1
proves that the notice structure and censused structure are different.
Pertinently, the documents do not mention as the protected structure
being located inside the compound wall of building no 1, however, the
same establishes that the protected structure is located on land owned
by MHADA.
37. The Trial Court has relied upon the admission by PW-1 that
the photographs produced by her shows that the suit structure is in the
front and the compound of building no 1 is at its backside. It has
further relied upon the joint inspection report of Corporation and
MHADA official that the suit structure is outside compound wall of the
building and is completely on the road. Based on the location of the
suit structure, the Trial Court has concluded that as the suit structure is
outside the compound wall of Building No 3, it is located on road,
which finding could not have been arrived at without being supported
by cogent evidence as regards the ownership of the land beneath the
suit structure.
38. To support their notice and order, the Corporation's
witness DW-1 has relied upon the correspondence between the
Corporation and MHADA, which has been accepted by the Trial Court
on the ground that public authorities have no reason to make
improper record against the Plaintiff. That by itself cannot be a
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sufficient to uphold the order of demolition, when the scrutiny of
correspondence between the Corporation and MHADA presents a
different picture. The Corporation sought verification from MHADA
about the photopass produced by Plaintiff. The first letter was
addressed by Corporation on 22nd October, 2012 asking MHADA if the
photopass is in respect of shop situated on road. There was no
response by MHADA. The second communication was addressed on
26th December, 2012 by the Corporation informing MHADA that the
work of road widening and concretising of Ram Mandir Road is
proposed which is affected by the Plaintiff's shop. Corporation has
stated that the shop Sneh Enterprise is situated on road and major
portion of the shop is affected by road widening and therefore
photopass be cancelled.
39. The contention of Corporation in the first instance by
communication dated 26th December, 2012 was that major portion of
the shop was affected by road widening and not that the entire shop
was located on the public road. The request for cancellation of
photopass strengthens the case that the photopass was issued for the
suit structure. MHADA responded for the first time on 18 th January,
2013 accepting that the photopass has been issued to Plaintiff in
respect of hut next to Building No 1. The Corporation renewed its
request by communication dated 2 nd February, 2013 that major portion
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is affected by road widening and to cancel the photopass. The
communications by Corporation does not question the authority of
MHADA to issue photopass in respect of structure located on public
road. Both the authorities accepted that the suit structure is the same
structure in repsect of which photopass has been issued by MHADA.
MHADA by its communication dated 20 th February, 2013 maintains that
photopass has been issued in respect of hut admeasuring 150 square
feet and action can be taken in respect of the portion which is on road.
40. Thereafter joint inspection is stated to have been held by
officials of MHADA and Corporation which found that the entire shop is
outside the compound wall and located on the road, which is recorded
in the letter dated 18th March, 2013. No notice of such joint inspection
was given to the Plaintiff and she was not present during the
inspection. The joint inspection report was not produced on record and
the concerned officers were not examined. The joint inspection only
finds mention in the communication of MHADA which has been
accepted by the Trial Court. The internal correspondence between the
Corporation and MHADA cannot be accepted as proof of fact that the
suit structure is located on public road. After the joint meeting was
held on 7th June, 2013 of which minutes were recorded on 24 th June,
2013 in which MHADA was called upon to allot alternate
accommodation that on 12th July, 2013, MHADA completely disowned
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the premises as located on MHADA land.
41. It is nobody's case that the censused structure was located
within the compound wall of Building No 1. If the censused structure is
not shown to be located inside the compound wall of building no 1, no
inference can be drawn that the suit structure which is located outside
the compound of building no 1 is not the censused structure. The oral
and documentary evidence adduced by Plaintiff would establish that in
2004 the Plaintiff was in occupation of a structure for which protection
card was issued by MHADA. Once it is accepted that the Plaintiff was
issued photopass in respect of a structure near Building No 1 and there
is no other premises of Plaintiff on Ram Mandir Road, in the absence of
cogent evidence to establish that the protected structure was shifted
or demolished and new structure has been constructed by the Plaintiff
at a different location, the Plaintiff's case is to be held as proved on
pre-ponderance of probabilities.
42. The discrepancies in the various documents as regards the
structure number on which much emphasis is laid is immaterial as the
official records itself makes a mistake in the pitch card numbers.
43. As no evidence was led either by MHADA or Defendant No
3 Society, their case cannot be considered. It is not the Corporation's
case that after the year 2004, the protected structure was shifted from
MHADA land and completely new structure has been constructed by
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the Plaintiff on the public road. This is the case which is set up by
Defendant No 3 Society. However, Defendant No 3 did not lead
evidence and sought to prove its case by cross examination of the
Plaintiff and the Co-Defendants. the case of the Defendant No. 3 set
out in the written statement could not have been put to the Plaintiff in
the cross-examination. In cross examination, the Defendant No 3 had
attempted to put its case to the Plaintiff that the Plaintiff had
constructed "pucca" structure of the suit shop in the year 2007, which
it could not have done. From the cross-examination of the Plaintiff as
regards her own case, the cross-examination would only show that
there is discrepancy in the structure number in the various documents
produced by Plaintiff, which has been sufficiently explained by the
Plaintiff and in any event immaterial.
44. The Plaintiff was confronted with photographs to show
that during water logging in the year 2005, the suit structure is not
seen outside the compound wall, which were denied by Plaintiff.
During the cross examination of DW-1, he was confronted with the
same photographs by Defendant No 3, which were admitted by DW-1
and the entire case of Defendant No 3 was admitted by DW-1. The
Defendant No. 3 has adopted a unique course of confronting the co-
defendant's witness with the photographs and getting them marked
as exhibit. The provisions of Evidence Act do not permit cross
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examination of co-defendant if the interest is not adverse. Section 137
of Evidence Act specifically provides that the examination of a witness
by the adverse party is cross examination. Section 138 of Evidence Act
refers to cross examination if the adverse party so desires after the
witness is first examined in chief. These provisions made it abundantly
clear that a party has a right of cross examining his adversary. The
pleadings indicate that there is no conflict of interest between the
Defendants interse. On the contrary, the Defendants have common
interest of removing the suit structure. The Defendants qua each
other cannot be termed as adverse parties and would not have the
right to cross examine the co-defendant. Being impermissible in law,
the cross examination of the DW-1 by co-defendants is required to be
discarded. As such even the photographs cannot be read in evidence.
45. There is yet another reason why the photographs could not
have been admitted in evidence. The Defendant No 3 not having led
any evidence, the photographs could not have been proved through
the cross-examination of the witness for the co-defendant. In the case
of Geeta Marine Service Pvt Ltd., Vs. State of Maharashtra 3 Co-
ordinate bench of this Court has held that merely because document
referred to cross-examination is marked as Exhibit the same does not
dispense with the proof of documents in accordance with the law of
3 2008 SCC Online Bom. 924.
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evidence. It had observed that the marking document as Exhibit by
such process is based on consistent practice followed in the Court of
law and does not dispense with the requirement of proof of the
execution, contents and genuineness of the documents in accordance
with law of evidence unless the witness concerned admits the
execution and genuineness of the document. No reliance could have
been placed on the said photographs to lend credence to the case of
the Defendant No. 3 that the suit structure was constructed in the year
2007.
46. Mr. Thorat, is also right in pointing out the provisions of
Order XIII rule 1 (1)of CPC and Order VIII Rule 1A of CPC which reads
thus:
ORDER XIII
Production, Impounding and Return of Documents
1. Original documents to be produced at or before the
settlement of issues.--(1) The parties or their pleader
shall produce on or before the settlement of issues, all
the documentary evidence in original where the copies
thereof have been filed along with plaint or written
statement.
ORDER VIII
1A. Duty of defendant to produce documents upon
which relief is claimed or relied upon by him.
(1) Where the defendant bases his defence upon a
document or relies upon any document in his
possession or power, in support of his defence or claim
for set-off or counter-claim, he shall enter such
document in a list, and shall produce it in Court when
the written statement is presented by him and shall, at
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the same time, deliver the document and a copy
thereof, to be filed with the written statement.
(2) Where any such document is not in the possession
or power of the defendant, he shall, wherever possible,
state in whose possession or power it is.
(3) A document which ought to be produced in Court
by the defendant under this rule, but, is not so
produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the
suit.
(4) Nothing in this rule shall apply to documents--
(a) produced for the cross-examination of the
plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his
memory."
47. Reading of the aforesaid provisions would indicate that the
parties are required to produce on or before settlement of issues all
documentary evidence except the documents which are produced for
the cross-examination of witness of the other party. The said issue was
considered by decision of Laxmikant Sinal Lotlekar vs Raghuvir Sinai
Lotlkear (supra) that the only documents which can be produced in
cross-examination are those which are outside the case of each of the
parties and those meant to refresh witness memory. It has further held
that the amendment of 1976 introducing Sub Clause 2 of Rule 2 of
Order 13 is to remove the mischief that documents covered by Rule 2
should not find their way in the evidence by way of cross-examination
circumventing the provisions of law. The Trial Court has supported its
findings based on the photographs, which could not be read in
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evidence.
48. As the notice was issued under Section 314 of MMC Act,
the requirement was that the notice structure should be constructed
unauthorisedly on public land. The Corporation has not produced any
ownership document in respect of land underneath the suit structure.
The Defendants have presumed that the suit structure is on the road as
it is located outside the compound wall of Building No 1 without
verifying the extent of MHADA's land. MHADA who was party to the
proceeding was in possession of best evidence to show the extent of
MHADA's land and to establish the boundaries of MHADA land to
establish that the suit structure is not located on their land. As MHADA
did not step into the witness box, an adverse inference is required to
be drawn. The Trial Court puts the burden on the Plaintiff to examine
MHADA to prove its case. The Plaintiff has produced the photopass,
protection card etc issued by MHADA which were admitted in evidence
and there was no necessity for the Plaintiff to examine MHADA.
MHADA being the land owning authority was in possession of best
evidence of ownership but has failed to produce the same. The case of
the Corporation is based on the site position to hold that the suit
structure is on road. The Trial Court has held that the suit shop is not
on the land of MHADA but it is on public road owned by MCGM without
any documentary evidence on ownership of land underneath the suit
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structure and by relying upon the internal correspondence of MHADA
and Corporation and the joint inspection report which is not produced
on record.
49. The Plaintiff has produced the photopass and protection
card issued in respect of a structure having the same area as the suit
structure. The documents issued by MHADA neither gives precise
location of censused structure nor mentions that the protected
structure is located inside the compound of Building No 1. In the year
2004, the protection card has been issued by MHADA which shows that
the protected structure was in existence till the year 2004 on MHADA
land. The extent of MHADA land has not been established by leading
cogent evidence to demonstrate that the suit structure is not on
MHADA land but on the public road.
50. The Trial Court failed to consider the Plaintiff's case based
on oral and documentary evidence that the suit structure was issued
protection card in the year 2004 by MHADA and has taken into
consideration the case put up by the Defendant No 3 in the cross
examination by Defendant No 3 and the photographs exhibited
through DW-1 to arrive at a finding that the suit structure may be on
public road of MCGM. The Trial Court in the absence of any evidence
led by Defendant No 3 has answered Issue No 3 which cast the burden
on Defendant No 3 to prove that the suit premises is situated
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completely on road outside compound wall of Building No 1 in the
affirmative, which is unsustainable.
51. The Trial Court failed to appreciate that after the notice
under Section 314 of MMC Act was issued on 30 th May, 2012, meeting
was held on 7th June, 2013 and the minutes were recorded on 24 th
June, 2013 -Exhibit 22. In the said meeting, the officials of MHADA,
Corporation and the representative of Plaintiff and Defendant No 3
were present. The minutes of the meeting record that the officials of
MHADA have stated that since the year 2006, the procedure of issuing
new photopass has been stopped and for giving alternate
accommodation to old photophass holders, the permission from
competent officer has to be obtained. The minutes record that in event
the photopass issued to Sneh Enterprise in the year 2004 was legal,
MHADA should allot alternative accommodation. The representative of
Plaintiff agreed to shift the protected structure in event alternate
accommodation is provided. The representative of Society urged the
officials to take expeditious decision. The minutes of the meeting
would demonstrate that till June, 2013, it was not the stand of
MHADA that the photopass has not been issued to the suit structure
and that it is located on public road. It also does not record the stand
of Defendant No 3 that the suit structure is constructed after the year
2005.
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52. If the oral and documentary evidence on record is
cumulatively appreciated, the Plaintiff has established that the suit
structure and the censused structure are the same on the touchstone
of pre-ponderance of probabilities.
53. The case of Corporation is of road widening and if the
structure is protected, whether situated inside or outside the
compound wall of Building No 1, the same cannot be demolished
without providing for alternate accommodation as per the prevailing
policy of Corporation. As the notice under Section 314 of MMC Act has
been issued without providing for alternate accommodation, the
notice under Section 314 is illegal, bad in law and liable to be quashed
and set aside.
54. As far as the maintainability of the suit in absence of notice
under Section 527 of MMC Act is concerned, the Trial Court has held
that the suit does not make reference to the order dated 12 th August,
2013 and shows cause of action on 24th June, 2013 which shows that
there was no urgency to file the suit as the suit has been filed in
November, 2013. The said finding overlooks the fact that the notice
dated 12th August, 2013 was annexed to the plaint and absence of
reference to the same in the pleading is a case of improper drafting.
The pleading in the plaint is that there is urgency in the matter and due
to threats given by the Defendants, the plaintiff could not serve the
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notice under Section 527 of MMC Act. The suit was filed inter alia
seeking injunction restraining the officers of the Defendants from
demolition of the structure. The order of demolition was passed on
12th August, 2013 and there is specific pleading about the threats given
by the Defendant. In the case of Motillal Mahadev Sharma v. MCGM4 it
has been held that when immediate relief is sought from the court in
the form of injunction, it is not necessary to issue the statutory notice
under section 527 of the MMC Act. Considering that prohibitory
injunction against demolition was sought, the issuance of notice could
have accelerated the execution of the impugned order with the result
that the proposed suit itself would have been rendered infructuous.
Hence, in view of the threats of demolition, it was not necessary to
issue notice under Section 527 of MMC Act.
55. Point No (i) and (ii) are accordingly answered in favour of
the Plaintiff.
AS TO POINT NO (iii):
56. Coming now to the submission that as no relief was sought
in respect of the speaking order dated 12 th August, 2013, the suit
cannot be decreed only in respect of notice. Perusal of the original
record and proceedings by this Court, disclose that during the
evidence of PW-1, an application came to be filed by Plaintiff on 30 th
4 2005 SCC Online Bom 401.
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July, 2008 seeking production of the order dated 12 th August, 2013 on
the ground that though the suit had challenged the said order,
however, due to oversight the order copy was not annexed to the list of
documents. There was no objection raised by the Defendants and the
Trial Court ordered the production. During oral evidence, PW-1
produced the order dated 12th February, 2013 which came to be
marked as Exhibit 25. The written statement produced by the
Corporation makes a reference to the speaking order dated 12 th
August, 2013. The parties were thus aware of the case they had to
meet and accordingly led evidence.
57. The power of the Court to mould the relief has been
upheld by the Hon'ble Apex Court in U.P. State Brassware Corpn. Ltd
vs Uday Narain Pandey5 as under:
" 37. It is one thing to say that the court interprets as
provision of statute and lays down a law, but it is
another thing to say that the courts although exercise
plenary jurisdiction will have no discretionary power at
all in the matter of moulding the relief or otherwise
give any such reliefs, as the parties may be found to be
entitled to in equity and justice. If that be so, the
court's function as court of justice will be totally
impaired. Discretionary jurisdiction in a court need not
always be conferred by a statute.
38. Order 7 Rule 7 of the Code of Civil Procedure
confers power upon the court to mould relief in a given
situation....."
5 (2006) 1 SCC 479
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58. This Hon'ble Court in Bhagirath vs Ramprasad6 has held
as under:
"24. The Court has power to mould relief which can
be granted on the basis of pleadings and evidence
before it. Section 151 of Code of Civil Procedure lays
down the power of Court to make such orders as may
be necessary to meet the ends of justice. This also
includes power to give appropriate relief in order to
avoid multiplicity of litigants. After hearing both sides
and considering the totality of facts and circumstances
of the case and law referred to above, in my opinion,
relief of partition and possession can be granted. It
may be noted that the parties have been litigating for
considerably long period. Relief of partition and
separate possession can be given on the basis of
pleadings and evidence before the Court. That would
also avoid multiplicity of litigations...."
59. In the instant case, Prayer clause (a) of the plaint reads as
under:
(a) It be declared that the impugned notice issued
under Section 314 of MMC Act and the impugned order
of the Asstt. Commissioner passed therein are illegal,
bad in law, malafide, inoperative, and not binding upon
the plaintiff and further same be declared null and
void.
60. The prayer makes a specific reference to the order of the
Assistant Commissioner passed on notice issued under Section 314 of
MMC. The original record and proceedings which contained complete
copy of the Plaint, which was not part of the private paper book,
6 (2010) 6 Mah LJ 169
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discloses that the order dated 12th August, 2013 is annexed to plaint at
Page 32 and is part of Exhibit "I" and the speaking order was produced
on 12th August, 2013. Even if the plaint and the prayer clause does not
make a specific mention of the speaking order dated 12 th August, 2013,
by exercising powers under Order VII Rule 7 of CPC, relief can be
granted in respect of the order dated 12 th August, 2013. Point No (iii) is
accordingly answered in favour of the Plaintiff.
61. Resultantly, the following order is passed.
::ORDER::
(a) First Appeal stands allowed.
(b) The impugned Judgment and order dated 26th September,
2018 is hereby quashed and set aside.
(c) L.C Suit No 3233 of 2013 is decreed in terms of prayer
clause (a) and (b).
(d) Decree to be drawn up accordingly.
62. In view of the disposal of First Appeal, nothing survives for
consideration in the pending Civil/Interim Applications and the same
stand disposed of.
[Sharmila U. Deshmukh, J.]
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