Bombay High Court
Mr. Mohan Pirrapa Harwalkar vs The Municipal Corporation Of Gr. Mumbai on 7 July, 2025
2025:BHC-AS:27405
1-FA-1165-2016 C.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1165 OF 2016
WITH
CIVIL APPLICATION NO. 4452 OF 2016
Mr. Mohan Pirrapa Harwalkar,
Major, an adult, Indian Inhabitant of Mumbai,
Having Structure bearing No.
MEM/C/95/SN/1646, Situated at Opp. Plot No.
13, Road No.9 Sanjay Nagar Zopadpatti, Near
Municipal School, Baiganwadi, Govandi,
Mumbai - 400 043 ...Appellant/
Applicant
Versus
The Municipal Corporation Of Gr. Mumbai, a
body corporate Duly Constituted under the
SNEHA Provision of B.M.C Act, 1888, Having their head
NITIN office at Mahapalika Bhavan, Mahapalika Marg,
CHAVAN Mumbai 400 001. ...Respondent
Digitally signed
by SNEHA ***
NITIN CHAVAN
Date: 2025.07.08 Mr. B.S. Shukla for the Appellant/Applicant.
10:44:16 +0530
Ms. Vidya Vyavahare a/w Mr. Pradeep Patil i/b Ms. Komal Panjabi for
Respondent/BMC.
***
CORAM : M.M. SATHAYE, J.
DATE : 7th JULY, 2025
JUDGMENT :
1. Heard learned Advocate for the Appellant and
Respondent/Municipal Corporation.
2. This First Appeal is filed challenging the impugned Judgment
and Decree dated 23.04.2015 passed in Long Cause Suit No. 2429 of
2011 by the Judge, City Civil Court, Greater Mumbai, by which the said
suit is dismissed. The suit was filed by the Appellant, seeking
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declaration that notice dated 04.07.2011 and 26.09.2011 issued under
Section 314 of the Mumbai Municipal Corporation Act, 1888 ('the MMC
Act' of 'the said Act' for short) as well as order dated 21.10.2011 passed
by the Assistant Commissioner, M/East Ward is illegal, bad in law and
not binding on the Appellant. The Appellant also sought direction to
provide alternate accommodation in lieu of the suit premises, in case of
demolition.
3. The case of the Appellant, in short, is that he is in occupation
and possession of the structure admeasuring about 10.5 x 8 sq. ft. area
made out of brick masonry in part and patra shed in part with AC sheet
roof situated at Opp. Plot No. 13, Road No.9, Sanjay Nagar Zopadpatti,
near Municipal School, Bainganwadi, Govandi, Mumbai ('suit premises'
for short). It is contended that suit premises is censused structure and
photo pass has been issued by the Municipal Corporation, that the
Appellant is paying compensation. That during census carried out in the
year 2000, the suit premises was censused in the name of the Appellant
vide receipt dated 17.07.2000. That the Appellant is residing in rear
portion of the suit premises with his family members. That the ration
card and election identity card is issued to the Appellant at the address
of the suit premises. That Appellant's name is reflecting in electoral role
of the year starting from 01.01.1995. That Appellant's Bank Passbook
stands at the address of the suit premises, Driving Licence is also issued
at the same address. That birth-certificate of Appellant's daughter and
his father's Death Certificate were also issued at the address of the suit
premises. That Appellant was carrying on business of selling kerosene in
the front portion of the suit premises for which shop and establishment
certificate was issued. That after change of business, the Appellant has
started Kirana Store in the suit premises. That the suit notice was issued
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alleging that suit premises is constructed on pavement/footpath. That
the Appellant replied the suit notice by letter dated 27.09.2011.
Therefore, the suit is filed seeking declaration and alternate
accommodation in case of demolition.
4. The Respondent/Municipal Corporation filed written
statement contending inter alia that suit notice was issued to the
Appellant for keeping candy biscuits for sale on bakda/ khoka/ stand/
cart or extended tarpaulin shed in front of a shop and the Appellant was
directed to remove the said bakda/ khoka/ stand. The final order dated
29.10.2011 is passed after considering the documents produced by the
Appellant. That the Appellant has failed to prove the possession and
existence of the suit structure on or before the datum line i.e.
01.01.1995. Pursuant to the order of demolition, on 03.11.2011, the
suit structure has been demolished. That the Appellant has not proved
eligibility for alternate accommodation. Hence, it was prayed that suit
be dismissed.
5. The Appellant examined himself and filed documentary
evidence. The Respondent examined its Sub-Engineer in Maintenance
Department and produced documentary evidence. The Trial Judge after
hearing the parties and an appreciation of evidence has passed the
impugned Judgment and Decree.
6. Despite appeal being of 2016, it is not yet admitted but
compilation of Trial Court record has been filed on record with service
upon Respondent and parties are ready for final hearing. Since the
appeal is about 9 years' old, it is formally admitted and taken up for
final hearing by consent of parties.
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SUBMISSIONS
7. Learned Advocate for the Appellant relied upon documents of
a photopass, ration card, letter dated 26.09.2011, Voter list of the year
1995, driving Licence as well as birth certificate of daughter and death
certificate of father. An inspection certificate from local Weight and
Measurement Department for the purpose of sale of kerosene, is relied
upon. It is contended that the documentary evidence produced on
record was sufficient to hold that the suit structure was in existence
since prior to datum line as being censused structure.
8. Learned Advocate for the Respondent/ Municipal Corporation
relying upon Section 314 and 312 of the MMC Act contended that the
suit notice was in respect of the bakda/ khoka/ stand/ cart and it was
not in respect of any shop. It is contended that all the documents
produced by the Appellant do not indicate the existence of the suit
structure prior to datum line. It is contended that the suit structure is
already demolished for which the sufficient evidence is produced on
record. Relying on the cross examination of Plaintiff's witness, it is
further submitted that when the suit structure itself was unauthorized,
there is no question of grant of any alternate accommodation. The
present day's photograph is placed on record pointing out that there is
no suit structure in existence.
9. Learned Advocate for the Appellant in rejoinder submitted
that the authority had no power to issue suit notice and since the
Appellant is residing at the back side of the shop, the order of alternate
accommodation is necessary to be passed. Relying on the cross-
examination of witness of the Municipal Corporation, it is contended
that panchnama of demolition as well as request letter for police help
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from the concerned police station is not produced on record.
10. Considering the aforesaid submissions following POINTS arise
for my consideration.
Points Findings
i) Whether the Appellant proves that the impugned No
notice and impugned order is illegal and bad-in-law?
ii) Whether the Appellant proves that he is entitled to No
alternate accommodation as claimed?
11. I have considered the rival submissions and perused the record
with the assistance of the learned Advocate for the parties.
12. At the outset, it is necessary to note that the impugned notice
is issued under Section 314 of the MMC Act, which contemplates that it
is in respect of the structure on street, channel, drain, well or tank in
contravention of the Act. The Appellant in his cross-examination has
clearly admitted as follows:
"There was one STD booth infront of my shop and BMC school
is situated behind my shop. My shop was situated out side the
compound wall of BMC school. There was a Road infront of
my shop. It is true that there is a nala/gutter/drain outside the
compound wall of BMC school and my structure was on the
said drain."
[emphasis supplied]
13. Considering this fatal admission, it is clear that suit structure
was on the footpath/drain. The photopass produced by the Appellant is
undated. The Voter identity card is issued after datum line of
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01.01.1995. The Voter list produced showing the name of Appellant and
his family members indicates zopadi Nos. 58 and 59, however, numbers
are not reflecting the description of the suit premises. It is only
reproduction of number stated on undated photo-pass. The Bank
passbook produced, shows date of account opening as May 2009, which
is way after datum line. The Driving Licence is also of May 2009. The
birth certificate of the Appellant's daughter and death certificate of his
father simply indicate name of zopadpatti and does not indicate any
specific number of unit etc. The shop and establishment licence is dated
January 2011. The electricity and telephone bills are also of January
2006 and March 2003. The electricity supply letter of January 1994
does not indicate any specific unit or structure. The suit notice is
clearly issued under Section 314 of the MMC Act only for bakda/
khoka/ stand/ cart or extended tarpauline shed in front of shop for
candy biscuit sale. The letter dated 26.09.2011 issued by concerned
Officer of the Respondent/ Municipal Corporation, only indicates that
no documents were found to hold Appellant eligible as per Government
Resolution dated 11.07.2001 and therefore, the Appellant was called
upon to produce documents. The inspection certificates about kerosene
shop produced on record are of 2002, 2003, 2004, 2005. One
inspection certificate of January 1994 produced on record does not
indicate any specific unit or number of the structure.
14. Perusal of the impugned judgment indicates that the
Respondent's witness produced Police Protection memo at Exh. 33,
Demolition Order at Exh.34 and Demolition Report at Exh.35. The
demolition photographs are produced at Exh. 37 and the report of the
Colony Officer is produced at Exh.38. Nothing is brought on record to
indicate that exhibited documents listed in the impugned judgment
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were illegally exhibited. Mere admission that demolition panchnama is
not produced and request letter to concerned police station for police
help is also not produced, cannot be fatal to the factual aspect of suit
structure being already demolished way back in November 2011. In
any case, in this respect, learned Advocate for the Appellant has
accepted that suit structure is already demolished.
15. In view of the aforesaid factual aspect on record, in my view
there is no material to prove existence of the suit structure prior to
datum line being 01.01.1995. Therefore, it cannot be held that the suit
structure was protected. Therefore there can not be any entitlement of
alternate accommodation as prayed. Since the Appellant has admitted
that suit structure was on drain, no illegality can be found with the suit
notice issued under Section 314 of the MMC Act. Hence, the points are
answered accordingly.
16. In the aforesaid facts and circumstances, no case for
interference is made out. The Appeal is accordingly dismissed.
17. The above civil application is for producing additional
evidence on record, which is not specifically pressed. In view of the
dismissal of the First Appeal, the Civil Application is also dismissed.
18. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
