Bombay High Court
Mohd Iqbal Ali Mohd. Wadia vs The Municipal Corporation Of Greater ... on 31 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:30010
FA 2539-11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2539 OF 2011
Mohd. Iqbal Ali Mohd. Wadia. ]
Age 57 years, an Adult, Indian ]
Inhabitant of Mumbai, tenant ]
in respect of Structure Strucutre ]
situated at 73, Ismail Cuttery Road, ]
Mumbai - 400 003. ] ...Appellant.
Versus
The Municipal Corporation of Greater ]
Mumbai, a body corporate duly ]
constituted under the provisions of ]
BMC Act, 1888, Having their head office ]
at Mahapalika Bhavan, Mahapalika Marg, ]
Mumbai - 400001. ] ...Respondent.
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Mr. Shobhit Shukla i/b Mr. Ashok Pande for the appellant.
Mr. Pradeep M. Patil and Ms. Pallavi Khare i/b Mr. Navneet Jadhav for the
Respondent.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : July 12, 2024 Pronounced on : July 31, 2024.
Judgment :
1. The present appeal is at the instance of Plaintiff, having suffered dismissal of L.C. Suit No. 1515 of 2008 by City Civil Court vide judgment dated 29th November 2011.
Patil-SR (ch) 1 of 14
FA 2539-11.doc
FACTUAL MATRIX :
2. L.C. suit No.1515 of 2008 was filed challenging the notice dated 2nd May 2008 issued under section 354-A of the Mumbai Municipal Corporation Act (for short "MMC Act") and the order dated 9 th July 2008 passed by the Assistant Engineer, (B&F) C-Ward as illegal, bad in law and unenforceable and for an order of permanent injunction restraining the Corporation from enforcing the notice and the order impugned in the suit.
3. It was pleaded that the Plaintiff is the owner of building consisting of ground plus 6 floors situated at 73, Ismail Curtey Road, Mumbai 400003. There is AC sheet roof of the 6th floor and the building was constructed as per the sanctioned plan and the suit premises is assessed to the municipal taxes prior to the year 1961-62.
On 10th February 1986 the Assistant Health Officer issued a notice to the Plaintiff to remove the old broken corroded water tank installed on the 6th floor. It was contended that there was some minor repairs carried out by the Plaintiff to the roof of 6 th floor which was not in the nature of any structural additions and/or alterations and/or unauthorised work and as such no permission under section 342 of the MMC Act was required. On 2nd May 2008, the Corporation issued notice under Section 354-A of the MMC Act alleging unauthorised construction carried out of roof on the 5 th floor of the suit building and Patil-SR (ch) 2 of 14 FA 2539-11.doc called upon the Plaintiff to produce necessary documents within 24 hours, failing which the unauthorised structure will be demolished. The notice was replied to by the Plaintiff on 3 rd May 2008 and also by his Advocate's letter dated 26th June 2008 submitting the documentary evidence. It was contended that no order was passed or at least communicated to the Plaintiff by the Assistant Commissioner. On 2 nd July 2008 at about 11.00 a.m. the Junior Engineer of C-Ward came to the suit premises and threatened to demolish the roof of 6 th floor, as such the suit came to be filed challenging the notice. On 9 th July 2008 the Assistant Engineer, (B&F) C-Ward passed an order holding that the documents produced by the Plaintiff do not prove the existence of suit premises prior to the datum line and directed the demolition of suit premises. The Plaintiff relied upon the plan, assessment bill, notices dated 10th February 1986, 2nd May 2008 and the reply dated 26th June 2008.
4. The suit was filed on 3rd July 2008 and subsequently the order was passed on 9th July 2008 by the Corporation and the suit was amended to incorporate the challenge to the order dated 9 th July 2008. On 8th June 2010, the trial Court passed an order for the suit to proceed without written statement of Defendant and the matter was adjourned for ex-parte evidence.
Patil-SR (ch) 3 of 14
FA 2539-11.doc
5. On 27th July 2010, the Plaintiff filed his affidavit of evidence in lieu of examination in chief through his Constituted Attorney and produced the documentary evidence of power of attorney, sanctioned plan dated 15th of February 1991 with file No. EV/ 3891/A15/02/ 1991, the assessment receipt, the notice dated 10 th February 1996 issued by the Corporation under Section 381 of the MMC Act by the Assistant Health Officer, the notice dated 2nd May 2008 issued under section 354- A of the MMC Act, the reply of Plaintiff dated 26 th June 2008 and the order dated 9th July 2008. Although no written statement was filed by the Corporation, the Plaintiff was cross-examined by the Corporation. The Trial Court framed and answered the following issues as under :
POINTS FINDINGS.
1. Whether the suit is maintainable without In the negative.
notice under Section 527 of MMC Act ?
2. Whether the Plaintiff has proved that the In the negative.
notice dated 2.5.2008 issued under Section 354A of MMC Act vide Exh.4 and order dated 9.7.2009 Exh.5 are void and illegal ?
3. Is the Plaintiff entitled to get declaration as In the negative.
prayed ?
4. Is the Plaintiff entitled to get permanent In the negative.
injunction as prayed ?
5. What order and decree ? As per final order.
Patil-SR (ch) 4 of 14
FA 2539-11.doc
FINDINGS OF TRIAL COURT:
6. Broadly summarized, findings of the Trial Court while dismissing the suit are as under:
(a) The notice was issued on 2 nd May 2008 whereas the instant suit was filed on 3rd July 2008 and in the evidence there is no explanation as to why no action was taken for period of 2 months.
(b) The plan dated 25th of February 1991 is not sanctioned plan or the approved plan but only a proposed plan.
(c) The assessment receipts are not produced on record and no documents have been produced to show that the notice structure has been in existence since beginning.
(d) Notice of 10th February 1986 suffers from material lacuna as the name of Assistant Health Officer is not mentioned and it does not bear the stamp of BMC Department.
SUBMISSIONS:
7. Mr. Shukla, learned counsel appearing for the Appellant would submit that in the plaint it was specifically contended that the building was a ground plus 6 floors structure. Pointing out to the notice issued under Section 381 of the MMC Act by the Assistant Health Officer, C- Ward on 10th February 1986, he submits that in the year 1986, notice was issued to remove the corroded water tank installed on the 6 th floor Patil-SR (ch) 5 of 14 FA 2539-11.doc terrace, which makes it evident that in the year 1986 there was 6 th floor in existence. Pointing out to the impugned notice dated 2 nd May 2008, he submits that the unauthorised construction alleged is construction of roof in laddi koba laddi by removing GI sheets of 5 th floor, and as the 6th floor was already existing in the year 1986, the impugned notice is illegal and void. He would further submit that the notice under section 527 of the MMC Act was not given as there was serious apprehension of demolition and it was specifically pleaded in the plaint that on 2 nd July 2008, junior Engineer of the Corporation had come to the premises and threatened to demolish the roof of 6 th floor and immediately thereafter the suit was filed. He has taken this Court through the evidence as well as the cross-examination and would submit that there is nothing in the cross-examination which would demolish the case of Plaintiff. He submits that the trial Court has dismissed the suit by not accepting the notice of 10th February 1986 and on the ground that the plan was not the sanctioned plan. He has tendered a compilation of judgments but has relied upon only on the decision in the case of Motilal Mahadev Sharma v. MCGM [MANU/MH/0160/2005] in support of his contention that when immediate relief is sought from the court in the form of injunction, it is not necessary to issue the statutory notice under section 527 of the MMC Act.
Patil-SR (ch) 6 of 14
FA 2539-11.doc
8. Per contra Mr. Patil, learned counsel appearing for the Respondent- Corporation would point out to the cross-examination of Plaintiff where the Plaintiff has admitted that in the year 2008 he has repaired the roof by small plastering and that the Plaintiff has also admitted that there are no documents produced to show that the notice structure is in existence since beginning and also that there is no assessment file on record.
POINTS FOR DETERMINATION:
9. The following points arise for determination:
(1) Whether the suit is not maintainable for want of notice under Section 527 of MMC Act ?
(2) Whether the notice dated 2nd May, 2008 issued under Section 354-A of MMC and the order dated 9 th July, 2008 are illegal and bad in law ?
(3) Whether the evidence on record proves the existence of 6 th floor at the time of issuance of Section 354-A notice by the Corporation ?
AS TO POINT NO 1 :
10. The Constituted Attorney of Plaintiff has deposed that no notice could be given under Section 527 of MMC due to urgency as the Defendant had directed demolition of the alleged work at any time. The deposition about the apprehension of demolition is not shaken in Patil-SR (ch) 7 of 14 FA 2539-11.doc the cross examination. The notice under Section 354-A was issued on 2nd May, 2008 which was responded by the Plaintiff on 26 th June, 2008. There was no order passed on the said notice and the suit came to be filed on 3rd July, 2008. Considering the urgency of seeking relief of injunction as there was apprehension of demolition order being passed, the issuance of the pre suit notice was not necessary. The Trial Court has considered that the notice under Section 354-A was issued on 2nd May, 2008 and the suit is filed on 3 rd July, 2008 but has failed to appreciate that the Plaintiff had replied to the notice on 26 th June, 2008 and the deposition of the Plaintiff that there was apprehension of demolition and hence urgency of seeking injunction. Learned Counsel for Plaintiff has rightly relied upon the decision of this Court in Motilal Mahadev Sharma and Others Vs The Municipal Corporation of Greater Bombay passed in First Appeal No 970 of 1998 , where the Learned Single Judge has held that when the plaintiff seeks immediate relief in form of injunction, it is not necessary for him to issue statutory notice or wait till the statutory notice is served and period prescribed under Section 527 is over. The dismissal of the suit on ground of want of notice under Section 527 in the instant case by the Trial Court is not proper. Accordingly, I answer the Point No 1 in favour of the Plaintiff. AS TO POINT NOs. 2 and 3:
11. The notice dated 2nd May, 2008 was issued under section 354A of Patil-SR (ch) 8 of 14 FA 2539-11.doc the MMC Act alleging unauthorised construction of roof in laddi koba laddi by removing the GI sheets roof of 5 th floor. In the affidavit of evidence the Plaintiff has specifically deposed that the Plaintiff is the owner of building consisting of ground and 6 upper floors. He has further deposed that the building was constructed as per sanctioned plan dated 15th February, 1991 and that on 10 th February 1986 the Assistant Health Officer had issued notice to remove the water tank installed on the 6th floor of the building. In the cross examination the case put forth was that the plan produced on record is not sanctioned by BMC which suggestion was denied by the Plaintiff. There is no cross examination on the issuance of the notice dated 10 th February, 1986 by the Assistant Health Officer.
12. Coming to the documentary evidence produced on record, the plan produced on record shows the stamp and signature of the Executive Engineer of BMC. Perusal of the said plan would indicate sixth floor of the building and the terrace on top of sixth floor. This plan is of the year 1991. The notice dated 10 th February 1986 has been marked as Exhibit 9 and has been issued by the Assistant Health Office "C" ward directing the removal of the broken and corroded water tank installed above 6th floor (terrace). The notice dated 10 th February 1986 establishes that there is a water tank installed above the 6 th floor terrace. As the notice discloses the water tank installed on 6 th floor Patil-SR (ch) 9 of 14 FA 2539-11.doc terrace, there cannot be any GI sheets roof of 5 th floor as the same would not have sustained the 6 th floor and the water tank on the top of 6th floor terrace.
13. The Plaintiff has produced the reply dated 26 th June, 2008 and the impugned order dated 9th July,2008. In the reply dated 26 th June, 2008, the Plaintiff has stated that there was heavy leakage to the roof and the roof was repaired without changing the nature of the roof. The impugned order dated 9th July, 2008 directs the removal of additional work carried out. The notice under Section 354-A was in respect of unauthorised work of replacing G.I sheets with Laddi Coba Laddi. There is no sketch annexed to the notice of 2 nd May 2008 to show the alleged unauthorised construction. The impugned order is in respect of some additional work carried out which allegation is different from the unauthorised construction mentioned in the notice. The impugned order discloses non application of mind to the reply submitted by the Plaintiff.
14. The Plaintiff has specifically deposed that there was some minor repairs of the roof of 6th floor of suit building carried out by the Plaintiff for which no permission of Corporation was required. In the cross examination the suggestion given was that there was leakage from the roof in the year 2008 thus in fact admitting the case of Plaintiff about repairs carried out to the roof to arrest the leakage.
Patil-SR (ch) 10 of 14
FA 2539-11.doc
The witness has volunteered that in the year 2008, the roof was repaired by small plastering. Cumulative reading of the evidence would disclose that the specific case of the Plaintiff was of repair of roof of 6th Floor due to heavy leakage. In the cross examination there is not even a suggestion given that the repairs were carried out to the 5 th floor roof. There is not even a suggestion given that the building consists of only five floors and there is no 6 th floor. In the absence of any such case put forth by the Defendant, the evidence of the Plaintiff as regards the existence of the 6 th floor and the repairs being carried out to the 6th floor roof stands uncontroverted. In the cross- examination, the evidence of the Plaintiff about tenantable repairs being carried out to the roof is not shaken. The notice under Section 354-A is to be issued upon execution of such work which would require permission under Section 342 of BMC Act. The impugned order has been passed without dealing with the reply of the Plaintiff wherein it was specifically contended that the work of repair of roof was being carried out. While assessing the notice and the reply, submission of Plaintiff that the building consisted of ground plus 6 upper floors was not verified and in fact the assessment bill and the electric bills were also produced on record. In the order there is no discussion on the assessment bill and the electric bills which were submitted by the Plaintiff.
Patil-SR (ch) 11 of 14
FA 2539-11.doc
15. It was enough to show that there was a 6 th floor in existence in the year 1986 and therefore it was improbable that in the year 2008 there would be some unauthorised construction of replacement of roof of 5th floor. Considering the evidence on record, firstly no notice could have been issued under Section 354-A for the reason that there was no work of the nature described in Section 342 of MMC Act being carried out and secondly the documentary evidence on record establishes the existence of sixth floor. The impugned order consequent to the issuance of notice is bad in law and illegal as the same does not deal with the contents of the reply of the Plaintiff and directs removal of an additional work which is at variance with the unauthorised work alleged in the notice under Section 354-A of MMC Act. Accordingly, I answer the Point Nos.2 and 3 in the affirmative.
16. The trial court has held that no documents were produced to show that the notice structure is in existence since beginning and no assessment bills are filed on record. It was further held that there is no sanctioned plan. What was required to be considered was the validity of notice issued under section 354A of the MMC Act which directed the removal of unauthorised construction of roof in laddi koba laddi by replacing the GI sheets roof of 5th floor. The unauthorised construction alleged was the replacement of GI sheets roof of 5 th floor with laddi koba laddi roof. Considering that in the year 1986 itself, the Patil-SR (ch) 12 of 14 FA 2539-11.doc Corporation had issued a notice through its Assistant Health Officer directing the Plaintiff to remove the corroded water tank installed above the 6th floor terrace, the notice proved that 6 th floor was in existence. It was therefore improbable that the roof of 5 th floor would be of GI sheets which cannot bear the weight of 6 th floor. As the allegation was of replacing of roof, the burden was upon the defendant Corporation to show that such work was in fact being carried out. The Plaintiff has discharged the burden of showing the invalidity of impugned notice by producing the notice of 10 th February 1986 issued by the Corporation itself pertaining to the 6 th floor terrace. The onus then shifted upon the defendant to prove that any such construction as alleged in the impugned notice was carried out by the Plaintiff. The defendant has neither filed its written statement nor stepped into the witness box.
17. Upon a cumulative appreciation of material on record the Plaintiff has proved that the notice dated 2 nd May 2008 and the order dated 9th July 2008 are void and illegal. Hence, the following order is passed :
[a] The judgment and decree of trial Court dated 29 th November, 2011 in L.C. Suit No. 1515 of 2008 is hereby quashed and set aside.
[b] L. C. Suit No.1515 of 2008 stands decreed. [c] Decree be drawn up accordingly.
Patil-SR (ch) 13 of 14
FA 2539-11.doc
18. In view of the disposal of First Appeal, nothing survives for consideration in the pending civil/interim applications and the same stand disposed of.
[Sharmila U. Deshmukh, J.] Patil-SR (ch) 14 of 14 Signed by: Sachin R. Patil Designation: PS To Honourable Judge Date: 31/07/2024 18:42:45