Bombay High Court
Baba Bhagwan Lokhande vs The Municipal Corporation For Greater ... on 9 April, 2025
2025:BHC-AS:16519
First Appeal No. 316 of 2012 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 316 OF 2012
Shri Baba Bhagwan Lokhande ]
Aged 58 years, Indian Inhabitant of ]
Mumbai and carrying on the business ]
At Shop No. MG 2-1/1, Sai Niwas, ]
Thakkar Bappa Colony, S.G. Barve ]
Marg, Chembur, Mumbai 400 071. ] ...Appellant
Versus
The Municipal Corporation for ]
Greater Bombay (a body corporate ]
Incorporated under the provisions of ]
B.M.C. Act having its head office ]
At Annexe Building, Mahapalika ]
Marg, Mumbai 400 001. ] ...Respondent
------------
Mr. S. K. Dubey for Appellant.
Ms. Pallavi Khale for Respondent-Corporation.
Ms. Priyanka Wavale from AE (B&F) M/W Ward present.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 11th February, 2025.
Pronounced on : 9th April, 2025.
Judgment :
1. The present Appeal is at the instance of the original Plaintiff
challenging the judgment and order dated 11 th January, 2012 passed
by the City Civil Court in L.C. Suit No. 1514 of 2009 dismissing the suit
filed challenging the notice dated 19 th January, 2009 issued by the
Sairaj 1 of 15
First Appeal No. 316 of 2012 (final).doc
Mumbai Municipal Corporation [for short, "the Corporation"] under
Section 351 of the Mumbai Municipal Corporation Act, 1888 [for short,
"MMC Act"] and order dated 6th July, 2009 passed thereon. For sake of
convenience, the parties are referred to by their status before the Trial
Court.
2. The Plaintiff came with a case that he is in occupation of suit
structure bearing Census No. MG-2-1/1, C.T.S. Survey No. 14 (part) of
an area admeasuring about 16'x11', 17'x11' and 7'x11' made of brick
masonry walls and A.C. Sheet roof situated in Sai Niwas, Thakkar Bappa
Colony, S.G. Barve Marg, Chembur, Mumbai - 400 071. It was contended
that the earlier occupier one Lalji Gupta assigned the suit premises in
favor of the plaintiff by executing Declaration dated 26 th August, 1993.
The pitch card has been issued to the suit structure and the Plaintiff is
carrying on business of foot wear and is in possession of shops and
establishment license, electricity bill, sales tax registration, etc. It was
pleaded that there was no change in the area and the Plaintiff had
carried out the work of plastering and white wash as the suit structure
was old. In the year 1985, the Corporation had issued similar notice
under Section 351 of the MMC Act and after necessary documents
were produced before the Corporation, previous notice came to be
dropped. It was contended that the sketch in Section 351 notice is
incorrect and the height of the suit premises is permissible 14 ft. The
Sairaj 2 of 15
First Appeal No. 316 of 2012 (final).doc
suit premises is protected and there is no basis that the notice
structure is of excess area of 448 sq. ft. It was contended that upper
portion is a loft used for storage purpose and not first floor as falsely
alleged and height is within tolerable limit of 14 ft.
3. The suit came to be resisted by the Corporation raising objection
of non issuance of pre-suit statutory notice under Section 527 of MMC
Act. It was further contended that pursuant to the complaints received
by the Corporation on 17th January, 2009, the suit premises was
inspected by the officers of the Corporation who detected
unauthorized construction of shop using B. M. Walls and A.C. Sheet
roof admeasuring 22'6'x10' and height of 10', unauthorized enclosure
of passage on ground floor using laddi cobba Angle roof and brick
masonry wall beside B.M.C. school compound of 24'x4' 10"+ 31'-6"x6'-
2" and of height 5'-9" and unauthorized construction of 1 st floor using
brick masonry wall and A.C. Sheet roof above admeasuring 25'-6"x6'-2"
and height 7'-10" occupied by the plaintiff for commercial premises. As
no permission showing authorization was produced, detailed
Inspection Report dated 17th January, 2009 was prepared pursuant to
which show-cause notice was issued under Section 351 of the MMC Act.
The Plaintiff's reply alongwith the documents were considered and it
was concluded that the construction is unauthorized and is liable to be
demolished.
Sairaj 3 of 15
First Appeal No. 316 of 2012 (final).doc
4. It was contended that for the same unauthorized structure,
notice under Section 354A of MMC Act was issued in the year 2000 as
against which plaintiff had filed Bombay City Civil Court Suit No. 1411
of 2001 and the structure was demolished by the Corporation on 24 th
December, 2001 and the suit was dismissed on 5 th August, 2003. The
plaintiff had produced same documents produced herein at the time of
hearing of Suit No. 1411 of 2001 mentioning size and structure
admeasuring 16'x11', 17'x11' and 7'x11'. The plaintiff is actually in
possession of old structure separately than the notice structure for
which this office had not issued the present notice under Section 351
of MMC Act. The notice was issued for the structure which was
demolished in the past and for unauthorized enclosure of passage
along side of compound wall.
5. The parties led their respective evidence. The Plaintiff examined
himself as P.W.-1 and deposed as to the contents of the plaint. He
produced the Affidavit-cum-Declaration dated 26th August, 1993 of the
previous occupier (Exhibit-10), the General Power of Attorney issued by
the previous occupier in the plaintiff's favor (Exhibit-11), Pitch holder's
card in the name of previous occupier (Exhibit-12), Shops and
Establishment license (Exhibit-13), receipts of payment of fees for
Shops and Establishment license (Exhibit-14 collectively), Electricity
Bills (Exhibit-15 collectively), Income Tax Clearance Certificate (Exhibit-
Sairaj 4 of 15
First Appeal No. 316 of 2012 (final).doc
16), receipt issued by Survey Authorities (Exhibit-17 collectively), Reply
dated 27th January, 2009 sent by Plaintiff to Section 351 Notice
(Exhibit-18).
6. In cross-examination, PW-1 has admitted that Suit No. 1411 of
2001 was filed by him in respect of notice issued under Section 354A
of the MMC Act and in the said suit, he had relied upon the same
documents produced by him in the present suit. He has admitted that
the suit premises are used for commercial purpose and one of the
structures is admeasuring 22 ½'x10' and height is 10' with B.M. Wall
and A.C. Sheet. He has further admitted that it is used as shop. He had
admitted that there is L-structure adjacent to B.M.C. Hindi School
compound and size of the structure is 24'x6' 2" on one side and on the
other side is 31'6"x4'10". He has admitted that the height of the first
floor is about 7 ft. He has admitted that he is not having photo pass
and no identity card being slum dweller. He has admitted that in the
year 1986, the Tehsildar had issued him notice about the extended
construction. He has denied the allegation that he was in possession of
one structure and later constructed adjacent structure and taken
undue advantage.
7. The Plaintiff examined one Sunil Vishnu Tambe as P.W.-2 who
deposed that he is neighbour of the plaintiff and that the suit premises
is very old and occupied by the plaintiff. He has further deposed that
Sairaj 5 of 15
First Appeal No. 316 of 2012 (final).doc
the suit premises is situated in slum area and the premises is in the
same condition and no alterations or additions are carried out by the
plaintiff. In the cross-examination, he has admitted that he is not aware
of the facts stated in his Affidavit.
8. On behalf of Defendant, Junior Engineer was examined who
deposed as to the contents of the Written Statement. He has produced
complaint dated 17th March, 2009 (Exhibit-24), complaint dated 19 th
July, 2008 made by Jeshtha Nagarik Kriti Samajik Sanstha (Exhibit-25),
complaint dated 24th April, 2008 and 24th March, 2008 made by
Principal, Thakkar Bappa Colony Municipal Hindi School, letter dated
18th April, 2009 issued by the Assistant Engineer (Exhibit-26),
Inspection Report dated 17th January, 2009 (Exhibit-27), photocopy of
notice dated 23rd October, 2000 issued under Section 354A of the MMC
Act (Exhibit-28).
9. In cross-examination, he had admitted that the Thakkar Bappa
Colony is slum area. He had admitted that the notice structure is
existing beyond the compound wall of the school. He had admitted
that Column No. 10 of the Inspection Report suggests that notice
under Section 354A is not issued and served and he cannot assign any
reason as to why the previous notice issued under Section 354A is not
mentioned in the Inspection Report. He has denied the suggestion that
the area admeasuring 448 sq. feet. is unauthorized only.
Sairaj 6 of 15
First Appeal No. 316 of 2012 (final).doc
10. The Trial Court framed the necessary issues as regards the
authorization of the suit premises and validity of the notice dated 19 th
January, 2009 and order dated 6th July, 2009 and answered the same in
'negative' and the maintainability issue was answered in favour of
Plaintiff.
11. The Trial Court noted the specifications of notice structure and
held that oral and documentary evidence adduced by the plaintiff
does not suggest that the entire area is authorized and censused and
therefore, the finding of the Corporation regarding that area
admeasuring 448 sq. ft. is unauthorized is correct. The Trial Court
upheld the authority of Corporation to pass order for demolition and
dismissed the suit.
12. Mr. Dubey, learned counsel appearing for Appellant has taken
this Court through the documents produced and would submit that the
pitch holder's card shows that the protected structure is admeasuring
448 sq. feet. He would further point out the previous notice issued on
15th May, 1985 under Section 351 of the MMC Act and would submit
that the said proceedings were dropped and therefore subsequent
notice could not be issued in respect of the same construction. He
would further submit that the impugned order dated 6 th July, 2009
accepts that the portion of the structure admeasuring 432 sq. ft. out of
total 880 sq. ft. is authorized and there is no determination as to which
Sairaj 7 of 15
First Appeal No. 316 of 2012 (final).doc
portion is authorized and which portion is unauthorized.
13. Per contra, Ms. Khale, learned counsel appearing for Respondent-
Corporation would submit that in the census of the year 2000, fresh
photo passes were issued and Government Resolution of 11 th July,
2001 provides that upon issuance of fresh photo pass, the earlier photo
pass stands canceled and plaintiff had failed to produce the fresh
photo pass. She would submit that the notice was issued in respect of
the structure which came to be constructed unauthorizedly after the
earlier structure was demolished. She would point out the notice
issued under Section 354A. She would submit that the notice is issued
not only for unauthorized construction, but also for enclosure of
passage and construction of first floor. She points out that it is a
specific pleading of the Corporation that as earlier notice was issued
for unauthorized construction, the suit was filed and suit was also
dismissed. She points out the evidence of Junior Engineer that he had
specifically deposed that the plaintiff is in actual possession of old
structure separately other than the notice structure and notice was
issued under Section 351 to unauthorized structure which was
demolished in the past and for unauthorized enclosure of passage and
unauthorized construction of first floor. In support, she would rely
upon the decision in the case of Tushar Guru Salien vs. State of
Sairaj 8 of 15
First Appeal No. 316 of 2012 (final).doc
Maharashtra1 where the Division bench of this Court had held that the
plaint shall make an averment of the sanction obtained from the
Corporation and must make an averment that the structure targeted is
prima facie governed by the sanction. She submits that the Division
Bench had held that merely pointing out deficiency in notice or the
authority of the person issuing the notice is not acceptable. She
submits that in the present case, no authorization has been shown and
neither it is shown that the structure was in existence prior to 1962 and
therefore, the order has been rightly passed.
14. The following points would arise for consideration:
(i) Whether the photo pass issued in the name of erstwhile occupier
Lalji Gupta pertains to structure which is the subject-matter of the
notice issued under Section 351 of the MMC Act?
(ii) Whether the notice structure is the same as the censused structure
and is thereby protected?
(iii) Whether the impugned notice and order in respect of the notice
structure has been rightly passed?
AS TO POINT NOS. (i) TO (iii) :
15. The Plaintiff has come with a case that by virtue of the Affidavit-
cum-Declaration dated 26th August, 1993 executed by the original pitch
card holder, he has been put in possession of the suit premises.
1 Public Interest Litigation No. 67 of 2017, dtd. 28th August, 2019.
Sairaj 9 of 15
First Appeal No. 316 of 2012 (final).doc
Pertinently, the plaint describes the suit premises as premises bearing
Census No. M.G.-2-1/1 C.T.S. Survey No. 14 (part) area admeasuring
about 16'x11', 17'x11' and 7'x11' made of B.M. walls and A.C. Sheet
roof. The dimensions of the suit premises shows that the structure in
respect of which the pitch card has been issued and was transferred by
the erstwhile occupier was a structure admeasuring about 432 square
feet.
16. The documentary evidence produced by the Plaintiff which
would be relevance is the Pitch holder's card issued to the erstwhile
owner. The shops and establishment licenses, electricity bills etc does
not reflect the dimensions of the structure and only shows possession
of a shop carrying on business. Perusal of the Pitch holder's card would
disclose that the pitch card is issued in respect of structure bearing
same specifications as of the suit premises. It is thus established that
the protected structure is structure admeasuring 448 sq. feet.
17. Section 351 notice issued by the Corporation is in respect of
unauthorized construction of shop using B.M. walls and A.C. sheet
above roof admeasuring 22'-6"x10' and height @ 10', the unauthorized
enclosure of passage on ground floor using laddi Cobba Angle and B.
M. walls beside B.M.C. school compound admeasuring 24'x6'.2" +
31'.6"x4'-10" and height 5'.9" and unauthorized construction of first
floor using B.M. Walls and A/C sheet above roof. The plaint does not
Sairaj 10 of 15
First Appeal No. 316 of 2012 (final).doc
describe the notice structure as suit structure but the pitch card
structure as suit structure. The issue was in respect of notice structure
for which Section 351 notice was issued. When the dimensions of the
hut in the Pitch holder's card is placed in juxtaposition with the
dimensions of the structure for which notice is issued under Section
351, it is clear that notice under Section 351 is issued in respect of a
completely different area and which is in excess of area of 448 sq. feet
protected by the Pitch holder's card.
18. The Affidavit-cum-Declaration dated 26th August, 1993 executed
by the erstwhile owner, refers to the censused structure which is not
the notice structure. Therefore, the structure which was in existence in
the year 1995 was a structure admeasuring of 448 sq. feet with the
dimensions as specified in the Pitch holder's card. Apart from the
Affidavit-cum-Declaration and the Pitch holder's card which refer to
the dimensions of the suit premises, there is no other document which
is produced on record by the plaintiff to show that the unauthorized
construction in respect of which the notice was issued under Section
351 is the same structure which is protected. It is only the censused
structure which is protected and not the additions, alterations or
unauthorised construction even if carried out in slum areas. In Suo
Motu PIL No. 1 of 2020, the High Court has upheld the authority of the
Coproation to take action in respect of unauthorised construction in
Sairaj 11 of 15
First Appeal No. 316 of 2012 (final).doc
slum area.
19. In cross-examination, P.W.-1 had admitted that the Corporation
had issued Section 354A notice under MMC Act and the suit filed in the
year 2001 was in respect of the said notice in which the same
documents were produced which are produced now. Perusal of the
notice issued under Section 354A would indicate that the unauthorized
structure was construction which was encroached on the open land by
the construction of B. M. walls admeasuring 27'x16'. PW-1 also
admitted that one of the structure is admeasuring area 22½' x 10' and
the height is 10' with B. M. Wall and A.C. sheet. This admission of P.W.-1
is fatal to the case of the plaintiff as dimensions of the censused does
not include a structure admeasuring area 22½' x 10' and the height is
10'. He further admitted that there is "L" shape structure adjacent to
B.M.C. Hindi School compound and that size of the structure at one
side is 24'x6'2" and on another side is 31'6"x4'10". This is exactly the
description of the passage area alleged to have been encroached by
the plaintiff as per notice issued under Section 351 and the admission
shows the existence of such structure adjacent to BMC Hindi School
Compound.
20. As far as the unauthorized construction of first floor is
concerned, P.W.-1 had denied that the structure is divided in the first
floor and ground floor but has volunteered that it is mezzanine floor
Sairaj 12 of 15
First Appeal No. 316 of 2012 (final).doc
and has admitted that the height of mezzanine floor is about 7 feet
which also matches the description in Section 351 notice. The
admissions shows that the notice structure is in possession of Plaintiff
which is not the censused structure. He has further admitted that the
Tahsildar had given him notice in the year 1986 about the extended
construction which indicates that the original structure was sought to
be extended.
21. D.W.-1 had deposed that for same unauthorised construction
notice under Section 354A was issued and the structure was
demolished which evidence has remained uncontroverted. Pertinently
in the cross-examination of D.W.-1, the case put up by the Plaintiff's
Advocate is that the area admeasuring 448 sq. feet is unauthorized
only. The said suggestion clinches the issue as it concedes that an area
admeasuring 448 sq. feet is unauthorized.
22. The impugned order dated 6th July, 2009, discloses that all
documents produced by the Plaintiff were duly considered and it was
noted that the datum line for slum area is 1 st January, 1995 and as per
the documents produced by the plaintiff, the portion of structure
admeasuring 432 sq. feet out of total 880 sq. feet. which is in the
plaintiff's possession is only authorized. The order directs the notice
structure in excess of authorized structure to be demolished. The
Assistant Commissioner had rightly considered the photo pass which
Sairaj 13 of 15
First Appeal No. 316 of 2012 (final).doc
protected the censused structure and that the balance structure is
unauthorized and is required to be demolished. In the Inspection
Report prepared by the Junior Engineer for purpose of taking action
under Section 351 of the MMC Act, it is noted that the unauthorized
construction is an independent structure and therefore, the same can
be demolished. The notice refers to the construction of shop and the
unauthorized enclosure of passage on ground floor and unauthorized
construction of first floor. The order has been passed only in respect of
unauthorized construction and not in respect of the structure which
was in existence prior to 1995 and admeasured about 432 sq. feet.
23. Upon cumulative appreciation of the oral and documentary
evidence which has been produced on record by the plaintiff, the
plaintiff has failed to prove that the notice structure was in existence
prior to the datum line in respect of slum area, i.e. 1 st January, 1995
and thus, the order has been rightly passed. The Trial Court has rightly
noted that the evidence adduced by the plaintiff does not establish
that the entire area of structure is censused or authorized and thereby,
had rightly upheld the order of demolition.
24. In light of above, Point Nos. (i) to (iii) are answered against the
Appellant.
25. Resultantly, First Appeal fails and stands dismissed.
26. In view of dismissal of First Appeal, nothing survives for
Sairaj 14 of 15
First Appeal No. 316 of 2012 (final).doc
consideration in pending Interim/Civil Applications, if any, and the
same stand disposed of.
[Sharmila U. Deshmukh, J.]
Sairaj 15 of 15
