| |
CDJ 2026 BHC 330
|
| Court : High Court of Judicature at Bombay |
| Case No : First Appeal No. 70 of 2012 |
| Judges: THE HONOURABLE MR. JUSTICE JITENDRA JAIN |
| Parties : Mahesh Purshottam Maurya, through the Constituted Attorney Sukharilal Saroj & Others Versus The Municipal Corporation of Greater Bombay, Mumbai & Others |
| Appearing Advocates : For the Appellants: R.R. Sharma, Advocate. For the Respondents: Pallavi Khale i/by Komal Punjabi, Advocates. |
| Date of Judgment : 16-02-2026 |
| Head Note :- |
Mumbai Municipal Corporation Act, 1888 - Section 351 -
Comparative Citation:
2026 BHC-AS 8125,
|
| Judgment :- |
|
1. This appeal is filed by the appellants (original plaintiffs) against the order passed by the City Civil Court, Bombay on 14 November 2011, whereby challenge to notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 (‘MMC Act’) dated 5 February 1999 was rejected. The parties are referred to as per their status in original proceedings.
2. The issue which arises for my consideration is whether the Trial Court was justified in dismissing the suit on the ground that the plaintiffs have failed to prove that the structure for which the notice was issued is legal ?
3. The Trial Court framed various issues and gave a finding against the plaintiffs which are reproduced :-
Issues
| Findings
| 1) Is it proved by the plaintiff that suit structure is legal and authorized ?
| In the negative
| (2) Is it proved by the plaintiff that suit structure is in slum?
| In the negative
| (3) Is it proved by the plaintiff that suit structure is tolerable as per policy of government and corporation?
| In the negative
| (4) Is it proved by the plaintiff that notice issued u/s. 351 of MMC Act in respect of suit structure is illegal and bad-in-law?
| In the negative
| (5) Is it proved by the plaintiff that order of demolition of suit structure is illegal and bad-in-law?
| In the negative
| (6) Whether suit is bad for want of notice u/s. 527 of MMC Act?
| In the negative
| (7) Whether the plaintiffs are entitled for relief of declaration and injunction as sought ?
| In the negative
| (8) What order or decree ?
| Suit is dismissed with costs
|
4. The Trial Court after considering the evidence and the documents relied upon by both the parties has come to a conclusion that the plaintiffs have failed to prove that the suit structure is legal and authorized. The Trial Court has also noted admissions made in the course of the evidence of the witnesses of the plaintiffs. I am not reproducing the paragraphs, but suffice to say that the Trial Court, by a detailed reasoned order after considering all the evidence, has dismissed the suit by observing that plaintiffs’ have failed to produce any evidence in support of the suit structure being legal.
5. The short point which arises for my consideration is whether the plaintiffs have proved by documents that the suit structure is legal and in accordance with the permissions obtained from the Corporation.
6. The notice under Section 351 of the MMC Act dated 5 February 1999 gives the description of unauthorized work and the location of the suit structure which is at S.J.K. Compound, C.T.S. No.156, Mohili Village, Mumbai-72.
7. The first document which has been relied upon by the learned counsel for the appellants is a property tax receipt dated 3 October 1998. The said receipt records name of lessor as ‘Mohd. Yusuf Trust and one of the plaintiffs has been described as a lessee. This document does not give the description of the property which is recorded in the notice under Section 351 except the name ‘Mohili Village.’ There is no C.T.S. number mentioned on this document. Furthermore, the document between lessor- Mohammed Yusuf Trust and the lessee is also not on record. Therefore, it cannot be said that this document pertains to the structure mentioned in the notice.
8. Second document which is relied upon by the learned counsel for the appellants in support of his submission is a receipt issued in favour of the tenants by Mahesh Kumar Maurya Chawl. On this document, the name of the landlord/lessor Mohd.Yusuf Trust is not mentioned. Though it is stated that the person named therein is a tenant of S.J.K. compound, CTS No.156, there is no tenancy agreement shown. Therefore, even on this count, this document cannot be relied upon to prove the legality of the structure. It is only a document evidencing payment of tax by a tenant for the period January 1994 onwards.
9. The third document relied upon by the learned counsel for the appellants is a notification dated 4 March 1978 issued for the village Saki wherein CTS No.156 admeasuring 5000 square meters is notified as ‘slum area.’ The impugned notice pertains to Mohili village whereas the notification deals with village “Saki”. Therefore, even this document cannot come to the assistance of the learned counsel for the appellants.
10. The last document which has been relied upon is a letter dated 12 November 1999 issued by the Corporation to one Mr. Mahesh Kumar P. Maurya in which the name of the lessor is mentioned as Mohd. Yusuf Trust and Mr. Maurya is mentioned as occupier and the lessee is one Mr. Sharma and Mr. Nair. The said document does not specify as to for which property the letter was issued nor has observed above any document of lease from Mohd. Yusuf Trust to the lessee and from lessee to the occupants is annexed and therefore, even this letter cannot be relied upon in support of the legality of the structure.
11. The Trial Court in paragraph 9 has recorded admission of Mr. Saroj- PW1 wherein he has admitted that he is not residing in the suit premises and he does not know exact year of construction of the suit structure. He further admits that the assessment bill is only in respect of land and not the structure. He admits that he has not filed any document to show existence of the suit structure since the year 1969. In paragraph 10, the Trial Court also records that the said witness in his cross-examination has stated that he is not aware about any tenancy agreement or who constructed and when the suit structure was constructed.
12. In paragraph 15, the Trial Court records that the documents submitted like rent receipts does not bear the room number and the rent receipts pertains to the year 1994-95 and not for the period prior to 1964 or 1969. The Trial Court in paragraph 17 also records that the ration card does not bear the address of the suit premises nor does the electricity bill pertains to the suit premises.
13. The Trial Court after considering all the evidences has come to a conclusion that the plaintiffs have not proved the legality of the structure. It is also important to note that M.P. Maurya-plaintiff failed to examine himself and the admissions given by the witness of the plaintiff clearly shows that there is no document to show exact year of construction.
14. The learned counsel for the appellants submitted that the notice does not state which structure is illegal and what is unauthorized and also it does not mention any government policy. In my view, when one reads notice as a whole alongwith the sketch made therein, it is clear that the plaintiffs have been put to notice about the structure for which the notice has been issued and it was for the plaintiffs to prove by documentary evidence that the structure was legal. However, before the Assistant Engineer, no documentary evidence was produced in support of the legality of the structure except making general submissions.
15. The learned counsel for the plaintiffs has not rebutted any factual findings of the Trial Court before me.
16. All the submissions made by the appellants and respondents before me have been considered and the order is dictated in the open Court.
17. In view of above, I do not find any merits in the present appeal and hold that there is no infirmity in the order passed by the City Civil Court which requires me to reverse the said order. Plaintiffs have failed to prove by any evidence that suit structure is legal and requisite permissions have been obtained for its erection/construction.
18. First Appeal is dismissed.
19. The operation of this order is stayed for a period of 8 weeks to enable the plaintiffs to take appropriate action in accordance with law.
|
| |
