Bombay High Court

Taslim Kalimuddin Sayed vs The Municipal Corporation For Greater ... on 16 April, 2025

2025:BHC-AS:17274

FA 287-14.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 287 OF 2014

Kalimuddin Mubinuddin Sayed, ]
Aged 50 years, Occ: pan Shop having address ]
at CTS No. 526 of village Vile Parle, ]
Mubin Chawl, Near Dynacraft Machine ]
Company, Next to Swati Diamond Building, ]
Juhu Lane, Andheri (West), Mumbai 400058. ] ...Appellant.
Versus
1) Municipal Corporation for Greater Mumbai, ]
A Statutory authority constituted under ]
the provisions of MMC Act, 1888 having ]
its principal place at BMC Headquarters, ]
Mahanagarpalika Marg, Opp. CST, ]
Mumbai 400 001 ]
AND Ward Office at ]
K/West Ward Office building, ]
2nd Floor, Paliram Path, ]
Opp. BEST Station, Andheri (W), ]
Mumbai 400058. ]
2) The Mumbai Metropolitan Region ]
Development Authority, ]
A statutory authority constituted under the ]
provisions of MMRDA Act, 1974 and ]
having its office at MMRDA, ]
Bandra Kurla Complex, ]
Bandra (East), Mumbai 400 051. ]
3) Anil Gulabdas Shah, ]
Aged : 50 years, ]
Occupation : Business, Indian Inhabitant of ]
Mumbai, having office address at Anna ]
Building, 13th Road, Opp. Lotus Eyes Hospital, ]
Juhu, Bombay 400 049. ] ...Respondents.

WITH
FIRST APPEAL NO. 288 OF 2014

1) Mrs. Nafees Ismail Shaikh, ]
Aged 47 years, Occ: Housewife. ]
]
2) Ismail Maula Amin Shaikh, ]

Patil-SR (ch) 1 of 26
FA 287-14.doc

Aged about 52 years, Occ: Driver Both ]
having address at CTS No. 526 of village ]
Vile Parle, Mubin Chawl, Near Dynacraft ]
Machine Company, ]
Next to Swati Diamond Building, Juhu Lane, ]
Andheri (West), Mumbai 400058. ] ...Appellants.
Versus
1) Municipal Corporation for Greater Mumbai, ]
A Statutory authority constituted under ]
the provisions of MMC Act, 1888 having ]
its principal place at BMC Headquarters, ]
Mahanagarpalika Marg, Opp. CST, ]
Mumbai 400 001 ]
AND Ward Office at ]
K/West Ward Office building, ]
2nd Floor, Paliram Path, ]
Opp. BEST Station, Andheri (W), ]
Mumbai 400058. ]
2) The Mumbai Metropolitan Region ]
Development Authority, ]
A statutory authority constituted under the ]
provisions of MMRDA Act, 1974 and ]
having its office at MMRDA, ]
Bandra Kurla Complex, ]
Bandra (East), Mumbai 400 051. ]
3) Anil Gulabdas Shah, ]
Aged : 50 years, ]
Occupation : Business, Indian Inhabitant of ]
Mumbai, having office address at Anna ]
Building, 13th Road, Opp. Lotus Eyes Hospital, ]
Juhu, Bombay 400 049. ] ...Respondents.

WITH
FIRST APPEAL NO. 289 OF 2014

Salimuddin Mubinuddin Sayed, ]
Aged 53 years, Occ: pan Shop having address ]
at CTS No. 526 of village Vile Parle, ]
Mubin Chawl, Near Dynacraft Machine ]
Company, Next to Swati Diamond Building, ]
Juhu Lane, Andheri (West), Mumbai 400058. ] ...Appellant.
Versus
1) Municipal Corporation for Greater Mumbai, ]

Patil-SR (ch) 2 of 26
FA 287-14.doc

A Statutory authority constituted under ]
the provisions of MMC Act, 1888 having ]
its principal place at BMC Headquarters, ]
Mahanagarpalika Marg, Opp. CST, ]
Mumbai 400 001 ]
AND Ward Office at ]
K/West Ward Office building, ]
2nd Floor, Paliram Path, ]
Opp. BEST Station, Andheri (W), ]
Mumbai 400058. ]
2) The Mumbai Metropolitan Region ]
Development Authority, ]
A statutory authority constituted under the ]
provisions of MMRDA Act, 1974 and ]
having its office at MMRDA, ]
Bandra Kurla Complex, ]
Bandra (East), Mumbai 400 051. ]
3) Anil Gulabdas Shah, ]
Aged : 50 years, ]
Occupation : Business, Indian Inhabitant of ]
Mumbai, having office address at Anna ]
Building, 13th Road, Opp. Lotus Eyes Hospital, ]
Juhu, Bombay 400 049. ] ...Respondents.

WITH
FIRST APPEAL NO. 290 OF 2014

Taslim Kalimuddin Sayed, ]
Aged 44 years, Occ: Nil having address ]
at CTS No. 526 of village Vile Parle, ]
Mubin Chawl, Near Dynacraft Machine ]
Company, Next to Swati Diamond Building, ]
Juhu Lane, Andheri (West), Mumbai 400058. ] ...Appellant.
Versus
1) Municipal Corporation for Greater Mumbai, ]
A Statutory authority constituted under ]
the provisions of MMC Act, 1888 having ]
its principal place at BMC Headquarters, ]
Mahanagarpalika Marg, Opp. CST, ]
Mumbai 400 001 ]
AND Ward Office at ]
K/West Ward Office building, ]
2nd Floor, Paliram Path, ]
Opp. BEST Station, Andheri (W), ]

Patil-SR (ch) 3 of 26
FA 287-14.doc

Mumbai 400058. ]
2) The Mumbai Metropolitan Region ]
Development Authority, ]
A statutory authority constituted under the ]
provisions of MMRDA Act, 1974 and ]
having its office at MMRDA, ]
Bandra Kurla Complex, ]
Bandra (East), Mumbai 400 051. ]
3) Anil Gulabdas Shah, ]
Aged : 50 years, ]
Occupation : Business, Indian Inhabitant of ]
Mumbai, having office address at Anna ]
Building, 13th Road, Opp. Lotus Eyes Hospital, ]
Juhu, Bombay 400 049. ] ...Respondents.

------------
Mr. Aseem Naphade, Ms. Ayman Khan and Mr. Omar Khaiyam Shaikh for the
Appellants.
Ms. Pallavi Khale for the Respondent-Corporation.
Ms. Sampada Patil i/b Mr. Kuldeep S. Patil for the Respondent - MMRDA.
Mr. Anil G. Shah, Respondent No. 3 in-person.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : February 10, 2025
Pronounced on : April 16, 2025.

Judgment :

1. This group of four Appeals arise out of suits filed by the

Appellants challenging the notices issued by the Municipal Corporation

for Greater Mumbai [in short "Corporation"] under Section 351 of the

Mumbai Municipal Corporation Act, 1888 [for short "MMC Act"]. The

notice structures are identically located and these four Appeals upon

request were treated as one group having similar facts and common

submissions were advanced.

Patil-SR (ch) 4 of 26
FA 287-14.doc

2. For factual matrix, by consent, the papers and proceedings of

First Appeal No. 287 of 2014 were referred to during the hearing and

the same was treated as lead matter. For sake of convenience, parties

are referred to by their status before the Trial Court.

PLEADINGS:

3. First Appeal No 287 of 2014 arises out of Suit No.438 of 2010

filed by the Plaintiff-Appellant herein, contending that he is residing

and running a Panshop at CTS No.526 of village Vile Parle, Mubin

Chawl, Near Dynacraft Machine Company next to Swati Diamond

Building, Juhu Lane, Andheri (West), Mumbai 400058. In the year 1978,

CTS No.526 was divided into CTS No.526A and CTS No.526B, out of

which CTS No.526B admeasuring about 401 square meters was

acquired by the Special Land Acquisition Officer and handed over to

the Corporation vide letter dated 28th November 1978 for road

widening project. His structure is situated on CTS No.526B on land

belonging to the Corporation and therefore deemed to be a slum. The

Plaintiff is in possession of photopass issued to his father in the year

1975-1976 for the notice structure which is protected.

4. Fresh survey was carried out in the year 2000 and the

Corporation on 23rd June, 2000 called upon the Plaintiff to submit all

documents to consider the Plaintiff's eligibility for alternate

accommodation, which documents were submitted on 10 th July, 2000.

Patil-SR (ch) 5 of 26
FA 287-14.doc

As per the survey carried out by Corporation, the list of PAPs was

prepared in which Plaintiff is at Sr. No.17. After the road widening

project was handed over to Mumbai Metropolitan Region Development

Authority [for short "MMRDA"] in the year 2005, MMRDA issued

notice dated 25th October, 2005 under Section 3Z-2 of the Maharashtra

Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 [for

short "Slum Act"], dated 25th October 2005 calling upon the Plaintiff to

submit documents regarding existence of his structure prior to 1 st

January 2000. As per Annexure II issued on 10th January, 2007, the

Plaintiff was held eligible for rehabilitation. The Plaintiff voluntarily

demolished portion of his structure and handed over the affected

portion to MMRDA against which Kurar Pattern certificate was issued

by MMRDA dated 15th January, 2009.

5. The impugned notice under Section 351 of MMC came in wake of

the undertaking given by the Corporation to the High Court in Writ

Petition No 215 of 2009 filed by Defendant No 3 and recorded in order

dated 24th March,2009. The challenge to the order 24 th March, 2009 by

the Plaintiff failed till Hon'ble Apex Court. In Writ Petition No 215 of

2009, Corporation had filed an Affidavit dated 19 th March, 2009

admitting that MMRDA has not constructed the road upto its final road

line and MMRDA will have to remove the Plaintiff's structure as they

are the planning authority and that notice under Section 3Z-2 of Slum

Patil-SR (ch) 6 of 26
FA 287-14.doc

Act was issued by MMRDA. The Corporation's internal noting dated

16th March, 2009 mentions that the structures come in the carriageway

of road widened by MMRDA and that for removal of structure, plot is

required to be demarcated along with MMRDA as they are planning

authority. The jurisdiction of Corporation to issue notice was also

raised in view of Section 40 of MRTP Act read with Section 17 of

MMRDA Act, 1974.

6. The written statement of Corporation pleaded that upon

complaint by Defendant No.3, the officials tried to trace out the site

but the same was not traceable. The Defendant No.3 directly

approached High Court by filing Writ Petition No. 215 of 20019 in

which direction was issued by the High Court to the Defendant-

Corporation to take necessary action for removal of unauthorised

structures constructed on Defendant No.3's land within a period of 9

weeks. Pursuant thereto, during joint site inspection with Defendant

No.3, it was observed that 21 occupants had constructed permanent

structures, out of which 3 structures were ground plus one structure

and rest ground floor permanent structure being used for residential

purpose. Accordingly, inspection report was prepared and notice came

to be issued under Section 351 of MMC Act which culminated in the

impugned order of demolition dated 15th February 2010.

7. It was contended that notice structure is situated on private land

Patil-SR (ch) 7 of 26
FA 287-14.doc

and is not affected in road widening being beyond the road line and

falls within the purview of Corporation and not MMRDA. The notice

structure is different from the structure to which MMRDA had issued

notice dated 25th October 2005.

8. Though MMRDA was joined as party Defendant No.2 to the suit

proceedings, no Written Statement was filed.

9. The Defendant No.3 filed his Written Statement contending that

the Plaintiff is an encroacher upon his land i.e. CTS No. 526A and Writ

Petition No.215 of 2009 was filed by Defendant No 3 and interim relief

was granted directing the Corporation to initiate proceedings to

remove the encroachers. The Corporation had acquired part of plot of

land bearing Survey No.207 Hissa No. 3A corresponding to CTS No.526,

and land bearing Survey No.70 Hissa No.2A corresponding to CTS

No.256 and several other plots for the purpose of construction of 120

feet DP road, which was handed over to MMRDA who commenced

construction of entire stretch of road prior to 4 years or thereabout.

There were several encroachers on portion of acquired land, and the

eligible occupants were provided alternate accommodation. On

construction of 120 feet DP road, the Plaintiff and others encroached

upon remaining portion of the property of Defendant No.3 bearing CTS

No.526 and put up illegal structures. The documents relied upon by

Plaintiff are fake documents.

Patil-SR (ch) 8 of 26
FA 287-14.doc

EVIDENCE:

10. The Plaintiff examined himself and deposed as to the contents

of plaint and produced documentary evidence to show the division of

property into CTS No.526A and 526B, photo pass to show the structure

being protected, documents such as ration card, bank pass book etc to

show proof of residence, letters issued by MMRDA and Corporation

and Court orders.

11. In cross-examination by Defendant No.1, PW-1 has admitted that

there exists a road in front of the suit structure and the distance

between road and suit structure is about 10 to 12 feet. In the cross-

examination by Defendant No.3 in L.C Suit No.437 of 2010, the

suggestion given was that in Suit No.2212 of 2008, PW-1 had

mentioned that he is residing in CTS No.526A. PW-1 has admitted that

present suit is relating to CTS No.526 only. He has further admitted

that in Annexure-II issued by Deputy Collector dated 10 th January 2007

his father has been held ineligible for alternate accommodation. He

has deposed that his structure is situated on CTS No.526B and

Corporation is the owner of CTS No.526B. He has deposed that

electricity connection to the suit property is from the year 1985 and

water connection is since the year 1990.

12. On behalf of the Corporation, Junior Engineer of Corporation

was examined who deposed as to the contents of Written Statement.

Patil-SR (ch) 9 of 26
FA 287-14.doc

He has produced the inspection report dated 8 th May 2009, notice

given under Section 351 of MMC Act and the order dated 28 th January,

2010 passed thereon.

13. In cross-examination by Plaintiff, DW-1 deposed that after filing

Writ Petition No.215 of 2009, joint inspection was carried out by

Corporation and Defendant No.3 on 8 th May 2009 and unauthorised

structures were found on CTS No.526. He has admitted that he did

verify whether the structures were affected by road widening project

of MMRDA. He has further deposed that the location plan shown in

the notice under Section 351 of MMC Act is not as per scale and the

regular line is shown above the letters 36 meter wide DP road. He has

deposed that he is unaware whether 36 meter DP road is completely

constructed as on today. He has deposed that the Corporation did not

verify from MMRDA whether the structure is same in respect of which

Section 3Z-2 notice was issued and whether the Plaintiffs were

rehabilitated. He has further admitted that he has not verified from

Deputy Collector whether Annexure-II shows the name of Plaintiff. He

has further admitted that he did not verify from the assessment

department whether the assessment bills are pertaining to the notice

structure nor made any inquiries as regards the electricity connection

or the water supply given to the said structure.

14. DW-1 has admitted that the property card indicates that CTS

Patil-SR (ch) 10 of 26
FA 287-14.doc

No.526B belongs to Corporation. He has admitted that in the affidavit-

in-reply filed by Corporation in Writ Petition No. 215 of 2009, the

Corporation has stated that the boundaries of area are required to be

demarcated and the said area has not been demarcated by them. He is

unaware as to whether the Corporation has prepared list of persons

affected by the road widening project and whether the names of

Plaintiffs are appearing in that list.

15. The Defendant No.3 examined himself and deposed as to the

contents of his Written Statement. In cross-examination by Plaintiff, he

has admitted that he has not produced any notice served upon him in

respect of acquisition of CTS No.526 and that he has not produced the

possession receipt mentioned in Exhibit- 68. He has admitted that he

does not have any document to show the completion of road in the

year 2009-10. He has admitted that he did not verify the place where

Plaintiff's structure originally existed and he is claiming encroachment

on the part of Plaintiff on his plot of land on the basis of his physical

verification. He has admitted that he didn't get measured his plot of

land through the City Survey Officer for verification of encroachment

at the hands of Plaintiff.

16. The Defendant No.3 examined Junior Clerk attached to the Sub-

Registrar Administrative Office, Old Custom House to prove ownership,

the City Survey Officer to produce the property card of CTS No. 526A

Patil-SR (ch) 11 of 26
FA 287-14.doc

and CTS No.526B, the Tahsildar to produce the Mutation Entry

No.10553, the Sub-Engineer to produce the computerised copy of

sheet showing the current DP reservation status of CTS No.526A and

CTS No.526B, the Naib Tahsildar to produce the electoral roll of the

year 2009.

17. The Trial Court Court framed and answered the necessary issues

as under:

Issues
1] Whether Plaintiff proves that impugned notice dated In the negative.
29.5.2009 issued under Section 351 of MMC Act and
the order dated 15.2.2010 passed by MCGM is illegal,
bad in law and not binding upon the Plaintiff ?

2] Whether Plaintiff proves that the impugned notice In the negative.
dated 29.5.2009 and the order dated 15.10.2010
passed by the authority of MCGM is without
jurisdiction ?

3] Whether plaintiff proves that he is entitled to the In the negative.
relief of declaration and perpetual injunction as
sought ?
4] Whether plaintiff proves that it is the MMRDA having In the negative.
jurisdiction to initiate any action respect of the suit
structure ?

5] Do the defendant No.3 proves that the plaintiff has In the
encroached upon the property bearing plot CTS No. affirmative.
526 corresponding to Survey No. 207, Hissa No.3A
owned by the defendant no.3 by erecting illegal and
unauthorised structure ?

6] Whether the suit in absence of statutory notice as In the
required to be given under Section 527 of BMC Act is affirmative.
maintainable ?

Patil-SR (ch) 12 of 26
FA 287-14.doc

18. The Trial Court upon consideration of respective case of the

parties noted that the dispute is about the location of suit premises.

The Trial Court noted the prima facie finding of the High Court that

notice structure is on private land of Defendant No.3. The burden was

upon the Plaintiff to show that his structure is on CTS No.526B and

there is no survey by Plaintiff, Corporation or MMRDA. On the issue of

encroachment upon the Defendant No3's land, the Trial Court held that

as the Plaintiff has failed to establish that the suit premises is located

on CTS No. 526B, then the conclusion is that it is situated on CTS No.

526A and dismissed the suit.

Submissions:

19. Mr. Naphade, Learned counsel appearing for the Appellant

submits that the admitted position is that CTS No.526 was divided into

CTS No.526A and CTS No.526B in the year 1978 and CTS No 526B was

acquired for purpose of road widening. He submits that as the acquired

land was handed over to MMRDA as planning authority for carrying

out road widening work and the suit structure is on CTS No.526B, only

MMRDA has the authority to issue demolition notice and that too only

after allotting permanent alternate accommodation. He submits that

the Affidavit dated 19th March, 2009 filed by the Corporation in Writ

Petition No. 215 of 2009 substantiates the contention. He has taken

Patil-SR (ch) 13 of 26
FA 287-14.doc

this Court through the documentary evidence produced by Plaintiff

and submits that the affidavit of Corporation when read with the

documents issued by MMRDA and produced before the Trial Court

makes it clear that the structure is a protected structure. Drawing

attention of this Court to the findings of the Trial Court he would

submit that the Trial Court was influenced by the interim order dated

24th March, 2009 passed by High Court in Writ Petition No.215 of 2009

which was prima facie finding. He submits that the Trial Court had

adopted a wrong approach while considering the evidence and once

MMRDA has held the structure to be eligible, Corporation cannot take

action under Section 351 of MMC Act in view of Section 17 of the

MMRDA Act 1974 and as the Plaintiff is found eligible for permanent

alternate accommodation by MMRDA, no fresh action could have been

initiated by Corporation. In support he relies upon following decisions :

Nagindas Ramdas v. Dalpatram Ichharam1 ;
Munshi Ram v. Balkar Singh2 ;
Vilas Dinkar Bhat v. State of Maharashtra3 ;
Amresh Tiwari v. Lalta Prasad Dubey4 ; and
Bilal Ismail Bhayat v. MMRDA5 .

1 (1974) 1 SCC 242.
2 2016 SCC OnLine P&H 11166.
3 (2018) 9 SCC 89.
4 (2000) 4 SCC 440.
5 2008 (2) Bom. CR 250.

Patil-SR (ch) 14 of 26
FA 287-14.doc

20. Per Contra Mr. Shah- Original Defendant No.3, who appears in

person, would take this Court through the pleadings in the plaint and

would submit that there is no concept of deemed slum in law. He

submits that the photo-pass produced by the Plaintiff is in respect of

Survey No.207 which was never declared as slum. He would further

submit that the photo-pass refers to the employer of Plaintiff's father

as Dynacraft Company which is about 300 meters away from the suit

structure. He submits that the City Survey Plan of CTS No.526A and

526B does not show any structures and therefore the photo pass

produced are all fabricated and forged documents. He would further

submit that in order to show eligibility, the Plaintiff has relied upon the

PAP list which has been prepared by an NGO situated at a distance of

about 22 kilometres away from the suit site. He would further submit

that in order to show possession, electricity bills and bank passbook

were produced, which show Plaintiff's address as "C/o Dynacraft

Machine Company" which is about 300 meters away from the suit

premises. He submits that there is no prayer seeking alternate

accommodation from MMRDA and after obtaining injunction order, the

Plaintiff has converted the structures into shops. He would further

submit that the notice dated 11 th May 2006 issued by MMRDA shows

area of the structure as 106 square feet whereas the specification of

the unauthorised structure as given in the notice under Section 351 of

Patil-SR (ch) 15 of 26
FA 287-14.doc

MMC Act are different and the height is also different. He submits

that Plaintiff has failed to examine any officer of MMRDA to prove its

case and, therefore, the speaking order of Corporation has been rightly

passed. He would further submit that noting of 16 th March 2009 relied

upon by the Plaintiff is an internal correspondence and does not have

any evidentiary value. He submits that the Trial Court has come to a

specific finding that as the Plaintiffs have failed to prove that their

structure is situated on CTS No.526B, the same has to be held to be

situated on CTS No.526A, which is the land of Defendant No.3. Mr.

Shah relies upon following decisions :

Committee of Management Anjuman Intezamia
Masajid, Varanasi v. Rakhi Singh6 ;
Khimji Virji Karia v. Municipal Corpn. of Gr.
Bombay7 ;
Kasam Ali Momin v. Municipal Corpn. of Greater
Bombay8 ;
Sindhu Edu. Society v. Municipal Corporation of City
of Ulasnagar9 ; and
Anil Gulabdas Shah v. State of Maharashtra10.

21. Ms. Khale, Learned counsel appearing for the respondent

Corporation would point out the dimensions of notice structure and

6 2023 SCC OnLine SC 880.
7 2011 (4) Mh.L.J. 362.
8 (2008) 1 SCC 597.
9 2001 (1) Mh. L.J. 894.
10 2011 (1) Mh.L.J. 797.

Patil-SR (ch) 16 of 26
FA 287-14.doc

would submit that upon site visit on 8 th May 2009, the unauthorised

construction was observed for which notice under Section 351 was

issued and after receipt of reply, a detailed speaking order has been

passed on 15th February 2010. She submits that the notices are not

issued to the structures affected in road widening project but to the

structures beyond the road line and as the structures are falling on the

private land, it is within the purview of Corporation and not MMRDA.

She submits that the notices of MMRDA are in respect of structures

different from the structures which are subject matter of notice under

Section 351 of MMC Act issued as per the directions of High Court and

are situated on private land bearing CTS No. 526.

22. She submits that in Writ Petition No.215 of 2009, MMRDA had

made a statement on 17th March 2009 that MMRDA has removed

encroachment in respect of the area required for widening of road and

has also taken steps to rehabilitate eligible occupants and the

grievance of Defendant No. 3 is in respect of ineligible persons who

have now encroached on other parts of the property. She would

further submit that the photo pass issued in the year 1975-76 were

cancelled by the State Government by GR dated 11 th July 2001 and new

photo passes were allotted and in the said GR, it is mentioned that hut

admeasuring 500 sq ft and above will get only up to 500 sq ft and

remaining structures will be demolished whenever it is required and

Patil-SR (ch) 17 of 26
FA 287-14.doc

thus no reliance can be placed on the old photo passes. She submits

that the burden was upon the Plaintiff to carry out the survey to show

that the suit premises is on CTS No.526B, however, no survey has been

carried out by any of the parties and neither the Plaintiff has examined

the officer of MMRDA and therefore the Corporation has rightly

passed the speaking order. In support of her case she relies upon

following judgments :

Seema Arshad Zaheer v. MCGM11
Tushar Guru Salien v. State of Maharashtra 12

23. In rejoinder, Mr. Naphade, would submit that the fact that

MMRDA has found the Plaintiff eligible takes his case out of the

judgment of this Court in the case of Bhiwandi Nizampur Municipal

Corporation. He would further submit that the pleading in plaint is

about residential and commercial structure. He would submit that

apart from PAP list prepared by NGO, Annexure-II has also been

prepared by MMRDA holding the Plaintiff eligible for residential

structure.

24. I have considered the submissions and perused the record

carefully.

25. The determining factor for adjudication of the validity of Section

11 (2006) 5 SCC 282.
12 PIL 67 of 2017 decided on 28-8-2019.

Patil-SR (ch) 18 of 26
FA 287-14.doc

351 notice is the location of the suit premises, i.e. whether the notice

structure is located on CTS No.526A or 526B. Admittedly, Defendant

No.3 is the owner of CTS No.526A which is private land and CTS

No.526B is acquired land which was handed over to MMRDA for the

purpose of road widening. There is no specific issue framed as regards

the location of suit structure which is the focal point of dispute. The

core issue was noticed by the Trial Court and the Trial Court formulated

the proposition in paragraph 18 of the judgment as under :

"The main dispute in the present matter is that whether

the suit premises is in existence on CTS No 526B or CTS

No 526A".

26. Although from the pleadings and evidence on record, it is amply

demonstrated that all parties were aware of the main point of dispute

i.e. the exact location of notice structure, there is no definitive

evidence produced on record by either of the parties. The peripheral

documents produced by the parties were insufficient to conclude the

issue of location. Although the Trial Court identified the core issue of

dispute, it dismissed the suit by holding that Plaintiff had failed to

discharge the burden of proving that the notice structure is on CTS No.

526B.

27. The suit essentially challenged the notice issued by Corporation

Patil-SR (ch) 19 of 26
FA 287-14.doc

under Section 351 of MMC Act. If we consider the stand adopted by

the Corporation, the complaint of Defendant No 3 was not acted upon

as the officials of Corporation could not trace the site as per address in

the complaint. In Writ Petition No.215 of 2009, Paragraph 4 of reply

affidavit of Corporation dated 19th March, 2009 pleads on oath that on

14th March 2009, the officers of K/West Ward along with the

representative of Petitioner-one Lakshman Upadhyay jointly inspected

the site. At the time of inspection by the officers, they identified 14

residential permanent structures situated in the carriage-way portion

of the road widened by MMRDA, i.e., in the compound of Swati

Diamond Building and CC Road. In paragraph 5, the deponent has

stated that during site visit, the officers observed that MMRDA has not

constructed road to its final road line and the structure is to be

removed by MMRDA while constructing the road. It is further stated

that as regards removal of structures on Petitioner's plot, it is

necessary to demarcate the plot along with the officers of MMRDA as

MMRDA is the planning authority for developing and constructing the

120 feet DP road and as MMRDA had earlier issued notice under

Section 3Z-2 of the Slum Act to the occupants of structures on the said

land for widening of road, it is necessary for MMRDA authorities to

verify and place before the Court the action taken while constructing

the road.

Patil-SR (ch) 20 of 26
FA 287-14.doc

28. It is clear from the affidavit of Corporation that upon inspection

the Corporation found that the structures are situated in the carriage

way portion of road widened by MMRDA which has not been widened

till the final road line. The Corporation in the said affidavit has failed to

identify the unauthorised structure as being located on CTS No.526A

and has, on the contrary, stated on oath that it is necessary to

demarcate the plot along with the officers of MMRDA.

29. The affidavit has been filed on 19th March 2009 based on a noting

of 16th March 2009 by the Assistant Engineer and the noting indicates

that it is not possible to initiate action against the alleged structures at

this stage. The Corporation had made its stand clear that it is

necessary to demarcate the plot along with the officers of MMRDA and

the Corporation was also of the view that it is not possible to initiate

any action. In the same Writ Petition, the order of 24 th March 2009

records the submissions of MMRDA that they have already taken

necessary action to remove the unauthorised structures in order to

execute the work of road widening. Pertinently, the notice under

Section 351 of MMC Act issued by Corporation does not mention the

location of structure as either CTS No.526A or CTS No.526B and merely

refers to it as CTS No.526. As it was within the knowledge of

Corporation that CTS No.526 has been divided into CTS No.526A and

CTS No.526B, it was necessary to verify whether the notice structure is

Patil-SR (ch) 21 of 26
FA 287-14.doc

located on CTS No.526A or CTS No.526B which was the position as

stated in the affidavit of 19th March 2009.

30. The speaking order passed by Corporation on 15 th of February

2010, is at variance with its earlier stand and the Corporation holds

that notice is issued to the structure which is not affected in the road

widening project as it is beyond the road line and is on the private land

and therefore falls within the purview of Corporation-MCGM. There is

no explanation on record for the basis on which Corporation concluded

that the notice stucture was situated on CTS No. 526A. Considering

the varying stands adopted by the Corporation, it was all the more

necessary for authentic evidence to be brought on record as regards

the location of suit structure. Considering the peculiar position, it was

necessary to ascertain the boundary demarcation of CTS No.526 A and

CTS No.526B.

31. The suit though relating to the validity of notice under Section

351 of MMC Act, had the essential elements of boundary dispute and

encroachment, which necessitated appointment of Court

Commissioner. Although the burden was upon the Plaintiff to prove its

case, considering the nature of suit, the dispute could have been

resolved simply by exercising powers under Order 26 Rule 9 of CPC. As

there was no evidence on record which could assist in effective

adjudication of the dispute, the Trial Court had ample power under the

Patil-SR (ch) 22 of 26
FA 287-14.doc

provisions of Order 26 Rule 9 of CPC to appoint the concerned City

Survey Officer as Court Commissioner for the purpose of ascertaining

the exact location of notice structure. There is no dispute to the

position that land bearing CTS No.526 admeasuring 757.2 square

meters has been sub-divided, post acquisition, into CTS No.526B

admeasuring 401 square meters and CTS No.526A admeasuring 326.2

square meters. While assigning Pot-Hissa numbers to CTS No.526, the

Survey Officer must have measured both the portions of land by fixing

boundaries of CTS Nos.526A and 526B. In that view of the matter, the

City Survey Officer can easily ascertain whether the notice structure

stands on CTS No.526 A or CTS No.526B. Even if the boundaries of CTS

No.526A and 526B have actually not being demarcated at site, the City

Survey Officer can still conduct the necessary exercise and ascertain

the exact location of the notice structure.

32. Though being vested with the power to appoint Court

Commissioner which was necessary for proper determination of the

core issue, the Trial Court has not exercised the said power. In my view,

without the said exercise being conducted, the validity of notice issued

under Section 351 of MMC Act cannot be effectively adjudicated. The

finding of Trial Court that as Plaintiff has not proved that his structure

is standing on CTS No. 526B, it must be located on CTS No. 526A does

not answer the documentary evidence produced on record by Plaintiff.

Patil-SR (ch) 23 of 26
FA 287-14.doc

There is no definite evidence produced to conclude that the notice

structure is different from the structure to which MMRDA had issued

notice. The exact location of notice structure is the answer to the

dispute.

33. Considering that though voluminous evidence was led by both

parties, there is no evidence which would conclude the correct

proposition framed by the Trial Court in paragraph 18 of the judgment,

it is necessary that the matter be remanded for answering the issue of

location of the notice structure by securing the evidence in that

respect through the appointment of Court Commissioner.

34. The Appellate Court is vested with the power of remand under

the provisions or Order 41 Rule 25 of CPC which reads as under:

"25 . Where Appellate Court may frame issues and refer
them for trial to Court whose decree appealed from-- Where
the Court from whose decree the appeal is preferred has
omitted to frame or try any issue, or to determine any question
of fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits the Appellate Court
may, if necessary, frame issues, and refer the same for trial to
the Court from whose decree the appeal is preferred, and in
such case shall direct such Court to take the additional evidence
required;

and such Court shall proceed to try such issues, and shall return
the evidence to the Appellate Court together with its findings
thereon and the reasons therefor within such time as may be
fixed by the Appellate Court or extended by it from time to
time."

35. In my view, it is essential to the right decision on the suit upon

merits to frame the specific issue of location of suit structure. For

Patil-SR (ch) 24 of 26
FA 287-14.doc

answering the said issue, it would be necessary to direct the Trial Court

to take additional evidence of the concerned officer from City Survey

Office as Court Commissioner. Accordingly, the following additional

issue is framed under Order 41 Rule 25 of the CPC:

(1) Whether the suit premises is located on private land of
Defendant No. 3, i.e., CTS No.526A or on the acquired land, i.e., CTS
No.526B ?

38. The Trial Court shall proceed to try the above additional issue by

appointing the concerned officer from the City Survey Office as Court

Commissioner with direction to ascertain the exact location of the

notice structure, i.e., whether on CTS No.526A or CTS No.526B. The

report of Court Commissioner be subject to the cross-examination of

the parties, if so desired. After recording such additional evidence,

Trial Court shall answer the specific issue framed and shall return the

evidence to this Court together with its findings thereon and reasons

therefor. The exercise to be completed within a period three months

from date of uploading of the order on the official website.

39. Hence, the following order is passed:

: ORDER :

(a) The Trial Court to frame the specific issue of "Whether the

suit premises is located on private land of Defendant No. 3, i.e.,

Patil-SR (ch) 25 of 26 FA 287-14.doc

CTS No.526A or on acquired land that is CTS No.526B" .

(b) The Trial Court to appoint the concerned Officer from the

City Survey Office as Court Commissioner under Order 26 Rule 9

of CPC with direction to ascertain the exact location of the notice

structure in all the four Appeals and to submit the report before

the Trial Court within a period of one month of his appointment.

cross examine the Court Commissioner on his report, if desired.

(d) The Trial Court to consider the additional evidence and

render its findings on the additional issue framed and remanded

with detailed reasoning and return the same to this Court.

(e) The entire exercise to be carried out within a period of

three months from date of uploading of this order on the official

website.

(f) The parties to appear before the Trial Court which has the

relevant assignment on 28th April, 2025 and apply for further

directions as per the observations in the present order.

(g) The parties to maintain status quo on site qua the notice

structures till further orders of this Court.




                                                                             [Sharmila U. Deshmukh, J.]




                              Patil-SR (ch)                       26 of 26
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 16/04/2025 20:07:13