1 This Appeal challenges the Judgement dated 19th December, 2006 passed by the Bombay City Civil Court at Bombay dismissing L.C. Suit No.1717 of 1998 filed by Abdul Wahid Ismail. The present Appellants are the legal heirs of Abdul Wahid Ismail.

2 The property that is the subject matter of the Suit is described in the Plaint as business premises situated at a building originally known as Bhiwandiwala building and now called Sayed Manzil, Chimna Butcher Street, Junction of 98, S. V. P. Road, Bombay 400 003 (herein after referred to as the “suit premises”).

FACTS

3 The facts in the present suit, as presented by the Original Appellant (Plaintiff), are as follows:-

                   (a) On 29th September, 1959, the Plaintiff submitted an Application to the Respondent seeking permission to replace the old sloping roof of the suit premises as it was in a dilapidated condition;

                   (b) On 8th December, 1959, the Executive Engineer, South Zone, of the Respondent, granted NOC for the roof alteration and imposed certain conditions. According to the Appellants, the improvements in the suit premises were thus duly authorised.

                   (c) On 1st March, 1960, four Agreements were executed between the Plaintiff and Abdul Majid Khan Habib Khan, documenting the Plaintiff’s occupation of the suit premises. These Agreements formally record the Plaintiff’s tenancy/ license rights.

                   (d) On 7th November, 1961, an Agreement was executed between the Plaintiff and Abdul Majid Khan Habib Khan, for temporarily giving a shop on a conducting basis for 11 months.

                   (e) On 30th July, 1970, the Assistant Engineer (Building and Factory Department ‘C’ Ward) of the Respondent issued a Notice to the Plaintiff to remove the unauthorized construction of the suit premises within two days. Action was initiated under Section 351 of the Mumbai Municipal Corporation Act, 1888 (“ the MMC Act”) regarding the suit premises.

                   (f) On 1st August, 1970, the Plaintiff submitted a written reply to the Respondent refuting the allegation of unauthorized construction. He submitted that the structure is long standing and authorized and enclosed documents, including the 1959 permission, and requested that no demolition be done without a proper hearing.

                   (g) On 14th August, 1970, the Respondent directed the Plaintiff to produce documentary evidence in support of the structure's legitimacy. In response, the Plaintiff gathered further proof of the structure’s existence.

                   (h) On 29th August, 1970, the Municipal Councillor – Shri T. E. Kachwala issued a certificate confirming that the Plaintiff had been occupying a shop in the Bhinwandiwalla Compound since long. This certificate supported the Plaintiff’s case regarding the structure’s long standing existence.

                   (i) On 31st August, 1970, the Plaintiff submitted a written reply to the Respondent refuting the allegation of unauthorized construction. He asserted that the structure was long standing and authorized. He enclosed prior documents, including the 1959 permission, the Municipal Councillor’s Certificate, old Agreements etc, to prove the structure’s prior existence. He reiterated that the suit premises had existed and had been standing since 1962. He requested that no demolition be done without a proper hearing.

                   (j) On 18th September, 1970, the Respondent asked the Plaintiff to produce original copies of the documents earlier submitted for verification. It is the case of the Plaintiff that he complied by showing original Agreements and letters to the officials of the Respondent.

                   (k) On 5th October, 1970, the MCGM withdrew the action taken against the suit premises by issuing the aforesaid Notice dated 30th July, 1970. The Assistant Engineer of the Respondent, by a letter dated 5th October, 1970, informed the Plaintiff that the demolition action was dropped after finding the structure “existing since long”.

                   (l) On 15th April, 1971, a fresh Agreement was executed between the Plaintiff and Shri Habib Khan Rahim Khan (successor landlord), further confirming the Plaintiff’s tenancy rights in the suit premises.

                   (m) On 8th March, 1976, the Respondent once again issued a Notice under Section 351 of the MMC Act to the Plaintiff alleging unauthorized construction and calling upon him to produce evidence of the structure existing prior to 1962.

                   (n) On 18th March, 1976, the Plaintiff submitted a reply to the said Notice dated 8th March, 1976. The Plaintiff referred to a similar Notice issued in 1970 and then withdrawn. Thereafter, the Notice dated 8th March 1976 was not pursued by the Respondent.

                   (o) On 2nd January, 1986, a Senior Inspector (Licenses), ‘C’ ward, issued a license to run a tailoring shop in the suit premises. It is the case of the Appellants that, by 1986, the Municipal Authority acknowledged the suit premises for lawful trade, allowing the Plaintiff to conduct business there.

                   (p) On 21st October, 1995, the Deputy Municipal Commissioner, Zone – I of the Respondent issued a Notice dated 21st October, 1995 under Section 351 of the MMC Act to the Plaintiff. The said Notice was served on the Plaintiff on 24th October, 1995. The said Notice alleged that the suit premises were unauthorized and called upon the Plaintiff to show cause or produce proof of the suit premises existing prior to 1962 to avoid demolition. The said Notice states that the Plaintiff has executed at 98, SVP Road/ 181, Chimna Butcher Street, Mumbai-40003 unauthorised work. The Schedule to the said Notice describes the unauthorised construction as “structure admn. 30’-00’’ x 11’-6’’ & height 15’-6’’ with Brick masonary side wall and precast hallow block roof with wooden mezzanine fl. in between” (hereinafter referred to as “the suit structure”).

                   (q) On 26th October, 1995, the Plaintiff filed a reply dated 21st October, 1995 to the said Notice.

                   (r) On 3rd January, 1996, the Deputy Commissioner, Zone- I, by his letter 3rd January, 1996, referred to the reply dated 26th October, 1995 of the Plaintiff and held that the Plaintiff had failed to produce any authentic document to prove authorization of the structure mentioned in the said Notice dated 21st October, 1995. He directed the Plaintiff to remove the unauthorized work forthwith.

                   (s) On 30th June, 1997, the Plaintiff filed a suit in this Court, being Suit No. 688 of 1996, to challenge the said Order dated 3rd January, 1996. A Learned Single Judge of this Court granted an ad-interim injunction restraining the Respondent from demolishing the suit structure. Thereafter, by an Order dated 30th June, 1997, another Learned Single Judge of this Court was pleased to direct the Deputy Municipal Commissioner to hear the Plaintiff and pass a speaking order.

                   (t) On 17th January, 1998, the Deputy Municipal Commissioner, Zone I, held a personal hearing in respect of the said Notice dated 21st October 1995.

                   (u) By an Order dated 12th February, 1998, the Deputy Municipal Commissioner rejected the Plaintiff’s explanation and declared that the suit structure was unauthorized and directed that the same be removed.

                   (v) On 19th February, 1998, the Plaintiff received the Deputy Municipal Commissioner’s Order dated 12th February, 1998. The Order being against him, the Plaintiff faced the risk of demolition once again.

                   (w) On 27th February, 1998, the Plaintiff, through his Advocate, issued a letter to the Deputy Municipal Commissioner, requesting him to withdraw the said Order as the same was not as per the directions of this Court.

4 It is the case of the Plaintiff that on 3rd March, 1998, he issued a statutory Notice to the Respondent under Section 527 of the MMC Act. However, the said Notice has not been produced in the proceedings.

5 On 4th April, 1998, the Plaintiff filed L.C. Suit No.1717 of 1998 in the Bombay City Civil Court, challenging the Respondent’s Notice dated 21st October, 1995 and the Deputy Municipal Commissioner’s Order dated 12th February. 1998. The suit sought a declaration and permanent injunction to protect the suit structure and an ad-interim injunction was granted in favour of the Plaintiff.

6 On 7th June, 2003, an interim injunction was granted in favour of the Plaintiff, restraining the Respondent from demolishing or altering the suit structure, pending the suit.

7 The Respondent filed a Written Statement in 2003. The Plaintiff filed an Affidavit-in-lieu of Examination-in-Chief dated 23rd June, 2006. The Plaintiff produced certain documents which were marked in evidence. The Plaintiff was cross-examined by the Respondent on 7th November, 2016. The Respondent did not lead any oral evidence.

8 By a Judgement dated 19th December, 2006, the Bombay City Civil Court dismissed the Plaintiff’s suit with costs. The Court held that the Plaintiff had not given a Notice under Section 527 of the MMC Act and, therefore, the suit was not maintainable. Further, it was also held that the Plaintiff failed to prove that the structure was an authorized structure. In 2007, the Plaintiff filed the present Appeal in this Court challenging the said Order dated 19th December, 2006.

9 On 11th June, 2007, this Court admitted the First Appeal and granted stay of the Trial Court’s decree pending the Appeal.

10 On 26th October, 2023, the Plaintiff passed away. The Plaintiff died intestate.

11 Thereafter, the Appeal was amended to bring the legal heirs of the Plaintiff/ Appellant on record, i.e. the Appellants in the present Appeal.

POINTS FOR DETERMINATION

12 On a perusal of the impugned Judgement dated 19th December, 2006, the following points for determination arise before this Court:-

                   (a) Whether the Trial Court was correct in holding that the suit is not maintainable for want of Notice under Section 527 of the MMC Act?

                   (b) Whether the Trial Court was correct in holding that the Notice dated 21st October, 1995 issued under Section 351 of the MMC Act, and the Order dated 12th December, 1998 are correct and legal?

ARGUMENTS OF THE PARTIES

13 It is not in dispute that the Plaintiff or the Appellants have not produced the alleged Notice dated 3rd March, 1998 given by them under Section 527 of the MMC Act. The learned Counsel for the Appellants referred to paragraph 28 of the Plaint and submitted that, although the Notice dated 3rd March, 1998 had not been produced, the same had been referred to in paragraph 28 of the Plaint. The learned Counsel appearing for the Appellant submitted that there is no specific denial to paragraph 28 of the Plaint. He submitted that, in these circumstances, the Respondent has admitted the Notice dated 3rd March, 1998. He also submitted that the Respondent had also waived Notice under Section 527 of the MMC Act.

14 The learned Counsel appearing on behalf of the Appellants referred to the Judgement of this Court in Vasant Ambadas Pandit v/s. Bombay Municipal Corporation and Others 1981 SCC Online Bom 75 and submitted that the said Judgement holds that a Notice under Section 527 of the MMC Act can be waived.

15 Further, the learned Counsel appearing on behalf of the Appellants also referred to Order VIII, Rules 3 and 5 of the Code of Civil Procedure, 1908 (“the CPC”) and submitted that there has to be a specific denial of the fact. In support of his submission, he referred to the Judgement of the Hon’ble Supreme Court in the case of Thangam v/s. Navamani Ammal (2024) 4 SCC 247.

16 The learned Counsel appearing for the Appellants submitted that the Respondent had not specifically denied the issuance of the Notice under Section 527 of the MMC Act by the Plaintiff and, therefore, have admitted the same. He submitted that this issue was not considered by the Trial Court, and on this ground itself, the Judgement dated 19th December, 2006 needs to be set aside.

17 Further, the learned Counsel appearing for the Appellants submitted that, if the Trial Court came to the conclusion that a Notice under Section 527 of the MMC Act was not issued, then the Court should not have decided the case on merits. In support of his submission, he relied upon the Judgement of the Hon’ble Supreme Court in Kiran Singh & Others v/s. Chaman Paswan & Others, (1954) 1 SCC 710.

18 As far as the matter of identification of the suit structure is concerned, the learned Counsel appearing for the Appellants submitted that the correct description of the suit premises was given in paragraph 1 of the Plaint. He submitted that the impugned Notice issued under Section 351 of the MMC Act, dated 21st October, 1995, shows that the dimensions of the suit structure were known to the Respondent. Further, the learned Counsel for the Appellants referred to the Judgement of the Hon’ble Supreme Court in Pratibha Singh v/s. Shanti Devi Prasad (2003) 2 SCC 330, in support of the proposition that an omission to describe the property properly can be cured.

19 Further, the learned Counsel appearing for the Appellants referred to the Order dated 12th February, 1998 of the Deputy Municipal Commissioner. He submitted that the survey sheet of 1942 set out in the said Order was not supplied to the Plaintiff nor produced before the Trial Court.

20 Further, the learned Counsel appearing for the Appellants submitted that the documents of 1959 and 1960 produced by the Plaintiff were not considered by the Deputy Municipal Commissioner.

21 The learned Counsel appearing for the Appellants submitted that the Municipal Commissioner should have considered the fact that actions were taken earlier for demolition of the suit premises but were dropped. In support of his submission, the learned Counsel for the Appellants relied upon the Judgement of the Abdul Razzaq Sunesra v/s. Municipal Commissioner of Greater Mumbai & Others 2014 (1) Mh. L. J. 275.

22 Further, the learned Counsel for the Appellants took the Court through the impugned Judgement and submitted that it was important to note that, before the Trial Court, the Respondent had not filed any documents nor led any evidence. He submitted that the statements in the Written Statement were taken as proof without providing any proof.

23 Further, the learned Counsel for the Appellants also submitted that the Deputy Municipal Commissioner, while passing the Order dated 12th February, 1998, had not verified the documents of the Respondent. He submitted that no objective satisfaction had been arrived at by the Deputy Municipal Commissioner in his Order. He submitted that this aspect had also not been considered by the learned Trial Court. In support of his submission, he relied upon the Judgement of this Court in Vadila Maganlal Trevadia v/s. Bombay Municipal Commissioner, (2021) 1 Mh. L.J. 157.

24 The learned Counsel for the Appellants also submitted that, in the present case, the Respondent had given permission to the Plaintiff to repair the suit premises, and, therefore, on the basis of the principles of promissory estoppel and legitimate expectation, no actions can be taken against the suit premises. In support of his propositions, he relied upon the Judgement of this Court in Gufran Suleman Qureshi v/s. Municipal Corporation of Greater Bombay (in Writ Petition No. 456 of 2024).

25 In the present Appeal, the land owner of the suit premises, namely – Siraj Kurbanhussain Pardawalla, had filed an Intervention Application, bearing Intervention Application (St.) No. 15288 of 2025. By an Order dated 6th August, 2025 of this Court, it was directed that the Intervention Application would be heard along with the Appeal.

26 The learned Counsel appearing on behalf of the Intervenor referred to paragraph 2 of the Plaint and stated that, in the said paragraph 2, the Plaintiff had claimed tenancy rights in respect of the suit premises. On the other hand, in the Agreement annexed as Exh. AA, the Plaintiff had claimed that he was the owner of the suit premises.

27 Further, the learned Counsel appearing for the Intervenor took me through the impugned Judgement and submitted that all documents relied upon by the Plaintiff have been dealt with properly by the Trial Court.

28 The learned Counsel appearing for the Intervenor referred to the Bombay Amendment Act to Order VII Rule 3 of the CPC and submitted that the same clearly provides that, where the subject matter of the suit is immovable property, the Plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundary or numbers in a record of settlement or survey, the Plaint shall specify such boundaries or numbers.

29 The learned Counsel for the Intervenor submitted that the Plaintiff had not identified the property as required under the provisions of Order VII Rule 3 of the CPC.

30 In support of his submissions, the learned Counsel for the Intervenor referred to the Judgement of the Hon’ble Supreme Court in Rajendra Kumar Barjatya & Another v/s. U. P. Avas Evam Vikas Parishad & Others 2024 SCC Online SC 3767.

31 The learned Counsel for the Intervenor also relied upon the Judgement of this Court in Ashok Babulal Avasthi v/s. Munna Nizamuddin Khan & Another (2024) 2 Mh.L.J. 322 to submit that the owner of a property should be a party to a suit for unauthorized constructions.

32 The learned Counsel also referred to the Judgement in the SLP in the same matter which is reported in 2024 SCC Online 5193.

33 Further, as far as the approach that has to be adopted by the Court in Appeal, the learned Counsel for the Intervenor referred to the Judgement of this Court in Suresh Raithatha v/s. Bharti Navnit Raithatha (Commercial Arbitration Appeal (L) No. 15179 of 2023).

34 The learned Counsel for the Intervenor submitted that, for all the aforesaid reasons, the Appeal is required to be dismissed.

35 The learned Counsel appearing on behalf of the Respondent submitted that the entire evidence of the Plaintiff does not show that the ground floor and mezzanine floor is constructed with the authorization of the Respondents. In support of his submissions, the learned Counsel relied upon the Order of this Court in Tushar Guru Salien v/s. State of Maharashtra & Others (PIL No. 67 of 2017).

36 The learned Counsel for the Respondent submitted that the datum line for commercial premises is 1st April, 1962. He submitted that the Appellant had not produced any document to show that the suit premises were constructed prior to the datum line.

37 Further, the learned Counsel for the Respondent submitted that the Trial Court rightly held that the description of the suit premises is not mentioned. He submitted that there was no description of the suit premises in the Plaint. Further, he submitted that this plea regarding the suit premises not being properly identified had been taken in paragraph 4 of the Written Statement of the Respondent.

38 Further, he submitted that in paragraph 1 of the Written Statement of the Respondent, it had categorically denied that a Notice under Section 527 of the MMC Act had been given by the Plaintiff.

39 The learned Counsel for the Respondent submitted that, for all these reasons, the suit had been correctly dismissed by the learned Trial Court.

ON POINT FOR DETERMINATION (a) – Whether the Trial Court was correct in holding that the suit is not maintainable for want of Notice under Section 527 of the MMC Act:-

40 Section 527 of the MMC Act reads as under:-

                   “527. Protection of persons acting under this Act against suits.

                   (1) No suit shall be instituted against the corporation or against [the Commissioner, the General Manager] [or the Director] or a Deputy Commissioner, or against any municipal officer or servant, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act-

                   (a) until the expiration of one month next after notice in writing has been, in the case of the corporation, left at the chief municipal office and, in the case of [the Commissioner, the General Manager] [or the Director] or of a Deputy Municipal Commissioner or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney or agent, if any, for the purpose of such suit; [nor]

                   (b) unless it is commenced within six months next after the accrual of the cause of action.

                   (2) At the trial of any such suit-

                   (c) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid;

                   (d) the claim, if it be for damages shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs.

                   (3) Where the defendant in any suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in or in consequence of the suit whether in respect of cost, charges, expenses, compensation for damages or otherwise, may be made, with the [previous] sanction of the [Standing Committee or the Brihan Mumbai Electric Supply and Transport Committee], from the municipal fund or the [Brihan Mumbai Electric Supply and Transport Fund], as the case may be.”

41 It is not in dispute before me that the said Notice under Section 527 of the MMC Act is required to be given before filing of the present suit.

42 In fact it is the case of the Appellants that a Notice under Section 527 of the MMC Act was given by them. It is the case of the Appellants that the said fact has been stated by them in the pleadings and has not been specifically denied by the Respondent. Therefore, it is proved that a Notice under Section 527 of the MMC Act has been given by the Plaintiff. It is also the case of the Appellants that Notice under Section 527 of the MMC Act can be waived, and has been waived by the Respondent.

43 In my view, the Appellants are not right in their submissions. Paragraph 28 of the Plaint states that the Plaintiff had given a Notice under Section 527 of the MMC Act on 3rd March, 1998. The best proof of a document is the production thereof. However, the Original Appellant (Plaintiff) has not produced any such Notice dated 3rd March, 1998 purported to be given by him. For these reasons, it is clear that the Plaintiff has not proved that any Notice under Section 527 of the MMC Act was given by him.

44 Further, in paragraph 28 of the Plaint, the Plaintiff has orally averred that a Notice dated 3rd March, 1998 was given by him under Section 527 of the MMC Act. As stated hereinabove, it is the submission of the Appellants that the Written Statement of the Respondent contains no specific denial of the said averments, and, therefore, the case of the Plaintiff that Notice had been given by him is admitted by the Respondent. I am afraid that I am unable to agree with this submission of the Appellants.

45 In paragraph 1 of the Written Statement, the Respondent has categorically and specifically stated that the Plaintiff had failed to give any such Notice under Section 527 of the MMC Act and, therefore, the suit is liable to be dismissed. Further, in paragraph 28 of the Written Statement, the Respondent has reiterated that the Plaintiff had failed to serve a Notice as required under Section 527 of the MMC Act, and in the absence of such Notice, the Plaintiff’s suit is not maintainable and is liable to be dismissed with costs. These averments in the Written Statement of the Respondent show that the Respondent has clearly and specifically denied that any Notice under Section 527 of the MMC Act was given by the Plaintiff.

46 In these circumstances, the Judgement of the Hon’ble Supreme Court in Thangam (supra) will not come to the aid of the Counsel for the Appellants.

47 As far as waiver is concerned, the Judgement of the Full Bench of this Court in Vasant A. Pandit (supra) has held that a Notice under Section 527 of the MMC Act can be waived. Paragraphs 1 and 8 of the said Judgement are relevant and are set out hereunder:-

                   “1:- This reference to the Full Bench arises out of a suit instituted by the plaintiff on 1st July, 1970 in the Bombay City Civil Court. The plaintiff instituted suit (No. 4816 of 1970) against the Bombay Municipal Corporation. The suit is for a declaration that the notice of the Corporation, defendant No. 1, under section 351 of the Act dated 29th March, 1969 was illegal, void, bad in law and unenforceable. The suit is also for an injunction restraining respondent No. 1 from enforcing the said notice dated 29th March, 1969. At a later stage, the landlords of the suit premises also were impleaded as defendants at their request. Defendant No. 1 filed its written statement on 14th August, 1970. In paragraph 1 of the written statement, defendant No. 1 raised a plea that the suit is bad for want of statutory notice under section 527 of the Bombay Municipal Corporation Act, 1888, (hereinafter referred to as "the Act"). In spite of this plea being raised in paragraph 1, defendant No. 1 waived the said objection spying that; "However, in order to avoid delay these defendants are advised to waive the objection as regards the want of a statutory notice". Interim injunction was granted in due course.

                   8:- We have, therefore, no hesitation in holding that the construction placed by the learned Advocate for the defendants on paragraph 10 of the said Division Bench judgment in Ebrahimbhai's case is clearly incorrect and contrary to the clear and unambiguous observations in earlier paragraphs 8 and 9 of the said judgment. In our opinion, the true legal position in this behalf is that no suit can be instituted without service of the notice If such service of the notice is required statutorily as a condition precedent. The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit. The plea of waiver can always be tried by the civil Court. In fact, it is not suggested who else can try. The question whether, in fact, there is waiver or not would necessarily depend on facts and facts of each case, and is liable to be tried by the same Court if raised.”

48 Although, it is true that in the case of Vasant A.Pandit (supra), this Court has held that a Notice under Section 527 of the MMC Act can be waived, from the facts of the said case it can also be seen that this Court came to the conclusion that the Notice had been waived as the Respondent- Corporation had specifically waived the objection as regards want of statutory Notice.

49 In the present case, there is nothing in the Plaint or the Written Statement of the Respondent which shows that any such waiver has been made by the Respondent-Corporation. In these circumstances, the Judgement in Vasant A. Pandit (supra) does not come to the aid of the Appellants as it is very clear that the Respondent has not waived any such Notice.

50 From the above discussion, it is, therefore, very clear that Notice under Section 527 of the MMC Act has not been given by the Plaintiff, and, therefore, the suit is not maintainable. The Trial Court has correctly held so.

51 In these circumstances, the Point for Determination (a) is answered in the affirmative.

On Point of Determination (b) - Whether the Trial Court was correct in holding that the Notice dated 21st October 1995 issued under Section 351 of the Mumbai Municipal Corporation Act and the Order dated 12th December 1998 are correct and legal.

52 The Order dated 12th February 1998 declares the suit structure as unauthorised and directs demolition of the same. The Deputy Municipal Commissioner has come to the said conclusion on the ground that the Plaintiff had not submitted any conclusive or authentic proof to prove the existence of the suit structure prior to the datum line of 1st April 1962 or of its subsequent authorisation.

53 Therefore, this Court will have to consider whether the Plaintiff has produced any proof on record in the evidence in the Suit to prove the existence of the suit structure prior to the datum line of 1st April 1962 or of its subsequent authorisation.

54 The Notice dated 21st October 1995, issued under Section 351 of the MMC Act, describes the suit structure as unauthorised construction on structure with brick masonary side wall and precast hollow block roof with wooden mezzanine floor in between, at 98, S.V.P. Road, 181, Chimna Butcher Street, Mumbai 400003.

55 The first document relied upon by the Plaintiff is the Architect’s letter dated 29th September 1959 addressed to the Executive Engineer, Zone (South) of the Respondent. The said letter has not been proved in evidence, and, therefore, cannot be looked at by this Court.

56 The Plaintiff has then referred to a letter dated 8th December 1959 issued to the Architect by the Respondent giving permission for replacement of sloping roof with flattening roof and raising height of the existing structure at Bhiwandiwalla Building Compound, Chimna Butcher Street, Null Bazar, Bombay 400 003. Although the said letter gives the address as Chimna Butcher Street, Null Bazar, it is not clear from the said letter as to whether the said permission is granted in respect of the suit structure.

57 In this regard, it is also important to note that Order VII Rule 3 of the CPC provides that where the subject matter of a suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the Plaint shall specify such boundaries or numbers. The Plaintiff has not described the suit property as required by the provisions of Order VII Rule 3 of the CPC. In the Plaint, the suit property has been described as “business premises situated at a building originally known as Bhiwandiwalla Building and now called Sayed Manzil, Chimna Butcher Street, Junction of 98, S.V.P. Road, Bombay 400 003”. As required by Order VII Rule 3 of the CPC, no description sufficient to identify the suit structure has been given in the Plaint nor does the Plaint specify the boundaries or numbers in a record of settlement or survey. As a result of this, the Trial Court and this Court have not been able to ascertain as to whether any of the documents produced by the Plaintiff relate to the suit structure.

58 Next, the Plaintiff has referred to Agreements dated 1st March 1960 and 7th November 1961 entered into between himself and one Abdul Majid Khan Habib Khan. The said Agreements also do not prove that the suit structure existed prior to 1962, as, from the said Agreements, it is not clear that what is being referred to therein is the suit structure. The said Agreements give the description of the property only as a shop in the compound of the Bhiwandiwalla Building situated at Chimna Butcher Street. From the same, it cannot be ascertained as to whether the reference is to the suit structure.

59 Next, the Plaintiff has referred to assessment bills. However, these assessment bills are of the year 1976 and, therefore, do not in any manner prove that the suit structure existed before the datum line of 1st April 1962.

60 The next document produced by the Plaintiff is a letter dated 31st August 1970 which the Plaintiff had written in respect of a letter dated 30th July 1970 addressed to him by the Respondent. The contents of the said letter also do not prove that the suit structure existed prior to the datum line of 1st April 1962.

61 The Plaintiff has also referred to a Municipal Councillor’s Certificate dated 29th August 1970. However, the same has not been proved in evidence and, therefore, cannot be looked at by this Court.

62 Next, the Plaintiff has referred to a letter dated 5th October 1970 addressed to him by the Assistant Engineer (B&F) C Ward of the Respondent wherein it is stated that the action taken against the Plaintiff in respect of the shop is withdrawn as the same was found existing since long. The said letter again refers to a shop in the compound of Bhiwandiwalla Building situated at Chimna Butcher Street and it is not clear from the said letter as to whether the shop referred to therein is the same as the suit structure. Therefore, this letter also does not take the case of the Plaintiff any further.

63 Another document referred to by the Plaintiff is a letter dated 26th October 1995 addressed by him to the Deputy Municipal Commissioner in response to the said Notice dated 21st October 1995 issued under Section 351 of the MMC Act. Apart from the fact that the said letter also does not prove that the suit structure was existing prior to the datum line of 1st April 1962, it is important to note that, in the said letter, the Plaintiff has requested the Respondent to adopt a pragmatic view and regularise the structure as per the policy of the Respondent if, in the opinion of the Respondent, the said structure was not in existence prior to the datum line. This submission of the Plaintiff in the said letter clearly shows that, even according to the Plaintiff, the suit structure was not in existence prior to the datum line.

64 Further, in the Order dated 12th February 1998, which is impugned in the Suit by the Plaintiff, it is clearly stated that the matter was referred to the Assistant Engineer (Survey) (City) for his remarks and that he had offered his remarks on 7th February 1998 stating that as per Survey Sheets No.161 of (i) IIIrd Edition-1942 and (ii) IVth Edition-1968, the suit structure was not reflected in the said sheets.

65 In my view, the aforesaid also clearly shows that the Plaintiff has failed to prove that the suit structure existed prior to the datum line of 1st April 1962 or that it was subsequently authorised.

66 For the aforesaid reasons, in my view, the Trial Court was correct in holding that Notice dated 21st October 1945 issued under Section 351 of the MMC Act, and the Order dated 12th February 1998 passed by the Deputy Municipal Commissioner, are correct and legal.

67 For the aforesaid reasons, I find no reason to interfere with the impugned Judgement dated 19th December 2006 passed by the Trial Court.

ORDER

68 Accordingly, in the light of the above discussion, and for all the reasons stated hereinabove:

                   a. The Appeal is dismissed.

                   b. In the facts and circumstances of the case, there shall be no order as to costs.

                   c. All pending Interim Applications are disposed of.

69 At this stage, the learned Counsel appearing for the Appellant seeks a stay of the operation of this Order and an extension of the interim order granted in 2007.

70 The learned Counsel appearing on behalf of the Intervenor opposes the stay application on the ground that the suit structure is coming in the way of redevelopment of a building, which has been partly demolished.

71 In my view, since the stay been continuing since 2007, the operation of this Order is stayed for a period of six weeks from today and the stay is also extended for a period of six weeks from today.