Bombay High Court
Smt. Rekha Pravin Nalavade vs The Municipal Corporation Of Greater ... on 2 April, 2025
2025:BHC-AS:15088
FA-1307 of 2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1307 OF 2018.
1. Rekha Pravin Nalavade ]
Adult Age- 49 Years. Mumbai Inhabitant, ]
carrying on Business in the name and ]
style of M/s. Sneh Enterprises having ]
office at Shop No. HE/HC/61A- ]
TALLE
19KHHE00471/1295271, M.H.B. Colony, ]
SHUBHAM Near Building No. 1, Ram Mandir Road, ]
ASHOKRAO Kher Nagar, Bandra (East), Mumbai - 400 ]
Digitally signed by
TALLE SHUBHAM 051. ] ... Appellant.
ASHOKRAO
Date: 2025.04.02
14:38:31 +0530
Versus
1. The Municipal Commissioner of Greater ]
Mumbai, a Corporation duly ]
incorporated Under the Bombay ]
Corporation Act, 1888 Having its Head ]
Office at Mahapalika Bhavan, Mahapalika
Marg, Fort, Mumbai- 400 001
2. Maharashtra Housing & Area ]
Development Authority Having office at ]
Griha Nirman Bhavan, Kala Nagar, Bandra ]
(East), Mumbai - 400 051 ]
3. Khernagar Shriram C.H.S. Ltd., Through ]
its Hon. Chairman, Shri Jaiprakash ]
Mamchand Bagoria, Khernagar Shriram ]
C. H. S. Ltd. Building No. 1, M.H.B. Colony, ]
Khernagar, Bandra (East), Mumbai - 400 ]
051. ] ...Respondents.
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Mr. Pradeep J. Thorat, Ms. Pratibha Shelke i/b Mr. Shyam Singh for Appellant.
Mr. G. S. Godbole, Senior Advocate a/w Ms. Pallavi Khale for Respondent No.1-
Corporation.
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Mr. Akshay Shinde for Respondent No.2-MHADA.
Mr. A. Y. Sakhare, Senior Advocate i/b Mr. Virendra Neve for Respondent No.3.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: January 17, 2025.
Pronounced on : April 2, 2025.
JUDGMENT :
1. The First Appeal is at the instance of the Original Plaintiff challenging the Judgment dated 26th September, 2018 passed by the City Civil Court in Long Cause Suit No. 3233 of 2013 dismissing the suit. PLEADINGS:
2. L. C. Suit No. 3233 of 2013 challenged the Section 314 notice issued by Mumbai Municipal Corporation Act, 1888 ("the MMC Act") and the impugned order of the Assistant Municipal Commissioner passed therein and for permanent injunction. The suit premises is described as Shop Number HE/HC/61A- 19KHHE00471/1295271, situated at M.H.B. Colony, Near building no. 1, Ram Mandir Road, Kher Nagar, Bandra (East), Mumbai - 400 051 admeasuring 10ft x 15ft and constructed of brick masonary walls and A.C. Sheet roof. The case of the Plaintiff was that the Plaintiff's father was in occupation of the suit premises since 1976 and the structure was censused at census number HE/HC/61A and hut occupiers card was issued in his name. The Plaintiff's by general power of attorney Shubham Talle 2 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc dated 2nd April, 1993, the Plaintiff's father relinquished his right, title and interest in suit structure in Plaintiff's favour and she is carrying on business in name of M/s Sneh Enterprises. By communication dated 8 th December, 1993 the Plaintiff requested the Tehsildar to transfer the record of the suit shop in her name. In the year 2000, the premises was censused in the name of the Plaintiff and census receipt was issued. On 2nd August, 2005, the Plaintiff received notice from MHADA calling upon her to pay compensation to the Senior Colony Officer which was paid regularly and receipts were issued by the concerned department.
3. On 30th May, 2012 notice came to be issued under Section 314 of MMC Act alleging that the suit premises is on the road, which was responded by producing all requisite documents on 11 th June, 2012. Due to threats of demolition in month of March, 2013, Plaintiff filed L.C Suit No 1090 of 2013 for injunction. The hearing on the impugned notice took place on 7th June, 2013 before the Assistant Commissioner H- East Ward and order was passed on 24 th June, 2013 directing the Plaintiff to remove the suit premises which is not speaking order, hence the suit came to be filed.
4. The Municipal Corporation of Greater Mumbai (MCGM), Maharashtra Housing and Area Development Authority (MHADA) and Kher Nagar Shriram CHS Limited were arrayed as Defendants to the suit. As far as the MCGM is concerned, the written statement was filed Shubham Talle 3 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc contending that the Corporation had undertaken the work of road widening and it was found that the Plaintiff's structure alongwith some other structures are situated on road and hence notice was issued. As the Plaintiff submitted documents issued by MHADA, there was exchange of communication dated 14th October, 2012, 24th December, 2010 and 25th March, 2013 with MHADA as to issuance of photo pass by MHADA in respect of the suit structure. MHADA by letter dated 20 th February, 2013 and 11th March, 2013 informed the Corporation that the structure is not beside the building but is outside compound wall of the building no. 1 and the structure was on road for which Corporation can take action. Subsequently hearing was held and by detailed speaking order dated 12th February, 2013 the Corporation directed the removal of the structure.
5. MHADA in its written statement contended that the Plaintiff by letter dated 6 th August, 2013 has informed MHADA that the suit structure was tin sheet and around 2007 she has constructed pucca structure and requested for allotment of alternate accommodation. As per GR dated 5th October, 2005 the number of huts in slums should be 15 or more for issuing photo pass and in the present case there is only one hut standing on the footpath and therefore the structure is not eligible for alternate accommodation. It was contended that by communication dated 12th July, 2013 the Corporation was informed by Shubham Talle 4 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc MHADA that photo pass is issued to the Plaintiff for place near building no. 1 whereas suit premises is situated completely on road outside compound wall of building no. 1 and therefore the photo pass annexed with the plaint is not in respect of the suit structure and the Plaintiff is not eligible for alternate accommodation.
6. The Defendant No. 3 filed its written statement contending that while issuance of photopass by MHADA, the location plan shows that the structure is within the premises of society whereas the fact is that the suit premises is located outside the society's premises and on the road. During the inspection carried out in the year 2004 by Defendant No. 2 MHADA, it appears that the alleged structure premises is touching the building of Defendant No 3. Except building premises and office premises of society, no other structure exists within the compound wall of the society's plot of land. On 26 th July, 2005 during water logging photographs were taken which does not show the suit premises adjacent to the compound gate outside the compound wall of the building.
EVIDENCE:
7. The Plaintiff filed her affidavit of evidence under Order 18 Rule 4 of CPC and deposed as to the contents of the Plaint. She produced the hut occupiers card at Exhibit-14, general power of attorney at Exhibit-15, communication dated 8 th December, 1993 at Shubham Talle 5 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc Exhibit-16, protection card at Exhibit-17, notice dated 2 nd August, 2004 at Exhibit-18, compensation payment receipts at Exhibit-19, notice dated 3rd May, 2012 at Exhibit-20, reply dated 11th June, 2012, at exhibit-21, Order dated 24th June, 2013 at Exhibit-22 and photocopy of order dated 12th August, 2013 at Exhibit 25.
8. The Plaintiff was cross-examined by the Advocate for Corporation where she has admitted that there is public road known as Ram Mandir road in front of building No. 1 MHB Colony. She has stated that the suit premises is not on the road but it is being said that it will come on the road in view of the proposed road widening. She has deposed that in the power of attorney Exhibit-15 the suit structure is mistakenly typed as behind building No. 1 of MHB colony.
9. There is no material elicited in cross examination by Defendant No 2 MHADA.
10. In cross-examination by Defendant No 3 Society, the Plaintiff has admitted that there is printing mistake and the affidavit of evidence shows the photo pass number as HEHC61/1A, whereas the photopass issued to her father bears the number HEHC6/1A. She has admitted that the protection card number issued to her in the year 2004 is not mentioned in her affidavit of examination-in-chief. She has further admitted that there is road from the nallah in front of the compound wall of the building no. 1 up to the compound wall of the Shubham Talle 6 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc building on the other side. She has further admitted that the photo pass was issued to her father for electric shop. She has admitted that the suit premises is not adjacent to building no. 1 but in front/opposite of building no. 1 and that the photo pass of the suit shop is issued by MHADA. She has further admitted that the photo pass number issued in favour of her father and mentioned in the power of attorney is different from the photo pass number given in the affidavit of examination-in-chief. She has admitted that Corporation has not issued photo pass in favour of her father. She has denied the suggestion that she constructed pucca structure of the suit shop in the year 2005. In the cross examination she was confronted with a photograph of Building no 1 by Defendant No. 3, which was denied by her. She was also confronted with two photographs filed along with the plaint which showed the suit structure and the compound of building no. 1 at the back of the suit structure.
11. On behalf of the Defendant No 1, the Sub Engineer of the Corporation was examined as DW-1, who deposed as to the contents of the written statement. He produced copy of the letter dated 22 nd October, 2012 issued by the Corporation to MHADA at Exhibit-31, copy of the letter dated 24th December, 2012 issued by Corporation to MHADA at Exhibit-32, copy of letter dated 18th January, 2013 issued by MHADA to Corporation at Exhibit-33, copy of letter dated 2 nd February, Shubham Talle 7 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc 2013 issued by Corporation to MHADA at Exhibit-34, copy of letter dated 20th February, 2013 issued by MHADA to Corporation at Exhibit 35, copy of letter dated 13th March, 2013 issued by Corporation to MHADA at Exhibit-36, copy of letter dated 18 th March, 2013 issued by MHADA to Corporation at Exhibit-37, copy of letter dated 17 th July, 2013 issued by MHADA to Corporation at Exhibit-38 and the copy of the final order passed by the Corporation dated 12 th August, 2013 at Exhibit-39.
12. In the cross-examination of DW-1 by MHADA, DW-1 has stated that the suit structure is on the road and outside Building No 1 and outside its compound wall.
13. In cross examination by Defendant No 3 Society, DW-1 was confronted with the photographs of Building No 1, which was admitted by him and came to be marked as Exhibit 40. He has admitted that the suit structure is standing outside the compound of Building No 1 and is unauthorised. He has stated that his department has demolished all unauthorised structures from Ram Mandir Road except the suit structure. He has admitted that due to the suit structure there is vehicular problem and vehicles of Building No 1 also face trouble.
14. In cross examination by Plaintiff, DW-1 has stated that he got photopass verified by MHADA who has replied that the photopass issued is not of suit premises. He admitted that there is no other Shubham Talle 8 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc premises of Plaintiff on Ram Mandir Road. He has admitted that there is no road widening proposal at present. He has further admitted that as per the Corporation circulars there are guidelines to provide alternate accommodation and compensation to the affected structure occupants. He has further admitted that protected structure should be upto the date of 1st January, 2000. He has stated that the plot of land below suit structure is owned by Corporation and has admitted that he has no document to show that plot of land on which suit structure is standing is owned by Corporation.
15. The Defendant No 2 MHADA and Defendant No 3 Society did not lead evidence.
16. The Trial Court framed the issues and answered them as under:-
Sr. Issues Findings No. 1 Whether the plaintiff Rekha Pravin Nalavade proves No.
that her suit shop is censused in the year 1976, then in the year 2000 and thereby protected and tolerated ? 2 Whether plaintiff Rekha Pravin Nalavade proves that No. notice under section 314 of MMC Act and order passed by defendant No. 1 MCGM dated 24/6/2013 are illegal ?
3 Whether suit is maintainable without notice under No. section 527 of Bombay Municipal Corporation Act ? 4 Whether Defendant No. 3 Khernagar Shriram CHS Ltd. Yes.
proves that suit is false one as the suit premises is situated completely on road outside compound wall of its building No. 1 ?
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5 Whether the plaintiff is entitled for the reliefs of No.
declaration and perpetual injunction as sought for ?
17. Issue Nos 1 and 4 were considered together by the Trial Court. The Trial Court accepted that the Defendant No 1 and 2 failed to elicit admission from the Plaintiff that the suit shop is on public road of MCGM and not on MHADA land. The Trial Court accepted that the Plaintiff's documents prove that the Plaintiff's father had commercial shop of 150 square feet either behind or adjacent to Building No 1. The Trial Court ignored the printing mistakes as the document itself was produced.
18. On the location of suit shop, the Trial Court considered the case put by DW-3 to PW-1 about existence of road from Nallah in front of the compound wall of building no 1 up to compound wall of the building of other side, the non production of electricity bill till 2007, the photographs shown by DW-3 in cross examination. The Trial Court considered the evidence of DW-1 regarding the joint inspection by one Mr. Patke, officer of Corporation and MHADA and found the suit shop outside compound wall of building no 1 showing that it is completely on road. The Trial Court considered that MHADA by letter dated 12 th July, 2013 had informed MCGM that MHADA cannot allot the alternate accommodation to suit shop as it was on public road owned by MCGM.
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The Trial Court noted the admission of the Plaintiff that the suit shop is not adjacent to building no 1 but in front of building no 1 and her own photographs which shows suit structure is on the footpath and has road frontage, which too shows the possibility that the suit shop may be on road.
19. The Trial Court came to a finding that though the Plaintiff is in possession of photopass, census certificate etc of shop admeasuring 150 square feet adjacent to building no 1 the suit shop is not on land of MHADA but is on public road.
SUBMISSIONS:
20. Mr. Thorat, learned Counsel appearing for the Appellant has taken this Court through the documentary evidence produced by the Appellant and would submit that photo pass, photo identity card issued by MHADA, power of attorney as well as letter to Tehsildar, the receipt for payment of compensation shows the existence of the suit structure prior to 1975 and submits that the structure is protected. He submits that for removal of suit structure for purpose of road widening, the bottle neck policy of 2017 of the Corporation will apply and the Appellant is entitled to alternate accommodation. He submits that the Corporation has relied upon its correspondence with MHADA to establish that the suit structure is on road. He submits that the Corporation had requested MHADA to cancel the photopass issued in Shubham Talle 11 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc respect of the notice structure which is an admission that the photopass is issued in respect of notice structure. He would further submit that the present suit structure being completely new structure is a case put forward only by the Defendant No. 3-Society attempted to be substantiated by relying on some photographs. He submits that as no evidence was led by DW-3, the photographs could not be proved and when Defendant No. 3 confronted the Plaintiff with the photographs, she has denied the same and hence the same were not marked as exhibit. He submits that the same photographs were shown to the DW-1 in cross examination and the same were marked as Exhibit-
40. He submits that the provisions of order XIII Rule 1 (1) of CPC do not cover the documents which are part of the written statement of the Defendant. By drawing support from the decision in the case of Laxmikant Sinal Lotlekar vs. Raghuvir Sinai Lotlkear1 he would further submit that mere marking of documents as exhibit does not amount to proof of content and the photographs are not proved.
21. He submits that the DW-1 has admitted that there is no proposal for widening of Ram Mandir road and in the absence of any proof by the Respondents that the suit structure is not the structure in respect of which photopass is issued, the suit structure is protected structure. On aspect of waiver on notice under Section 527 of MMC 1 1984 SCC Online Bom 228 Shubham Talle 12 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc Act, he draws support from decision of Vasant Ambadas Pandit vs Bombay Municipal Corporation2.
22. He would further submit that Interim Application has been filed under Order 41 Rule 27 for bringing on record the receipts for the compensation paid for the period from 2005 till March-2023 and the RTI information that the compound wall of the Defendant No. 3 was constructed in the year 2001 and as said information was received after the Trial Court order and the same is essential for proper adjudication of the case permission may be granted to produce the additional evidence. In support he relies upon the following decisions:
Laxmikant Sinal Lotlekar vs. Raghuvir Sinai Lotlkear (supra) Vasant Ambadas Pandit vs Bombay Municipal Corporation (supra)
23. Mr. Godbole, learned Senior Advocate appearing for the Corporation would submit that the fundamental problem is the absence of challenge to the speaking order dated 12 th August, 2013 as the suit challenged only Section 314 notice and the order dated 24 th June, 2013. He would further point out from the filing of the speaking order dated 12th August, 2013 by Plaintiff makes it clear that she was served with the order. He would further submit that the provisions of Section 527 (1) (a) were not complied with and the only exception is either wavier or malafide action which is not their case.
2 AIR 1981 Bombay 394
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24. On the merits of the matter, he points out the power of attorney executed by the Plaintiff's father in her favour where the location of the shop is shown as behind building no. 1 MHB colony and the admission in cross examination that the suit premises is not adjacent to building no 1 but in front of building no 1. He would further point out that in the transfer application to Tehsildar for transfer of the shop and the photopass, the same mentions as near building No. 1. He would further point out that the photographs- Exhibit-40 does not show the structure and therefore in 2007 there was new construction which is located outside the compound wall of building no. 1. He would further point out the cross examination of Plaintiff by Defendant No. 3 where she was confronted with the photographs annexed alongwith the plaint, which shows the suit structure and compound of building no. 1 at the backside. He submits that in the plaint there is no prayer for an alternate accommodation and there is no pleading about the applicability of the bottle neck policy of the Corporation.
25. Mr. Sakhare, learned Senior Advocate appearing for the Respondent No. 3-Society would submit that under Section 314 of the MMC Act this structure can be removed irrespective of whether the same is authorized or unauthorized. He would further submit that the challenge is confined only to the order of 24 th June, 2013, which are minutes of meeting, and not to the speaking order of 12 th August, Shubham Talle 14 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc 2013. He submits that there was no prayer for amendment of the plaint though the speaking order was to the notice of the Plaintiff. He submits that as the order was not challenged no relief can be granted in respect of the said order. He would further submit where there is no prayer for alternate accommodation.
26. He would further point out that there is difference in the photopass number as admitted by the Plaintiff in cross-examination. He would further submit that the Plaintiff has admitted in cross- examination that the suit premises is not adjacent to building no. 1. He would further submit that in the cross-examination by Defendant No. 3, specific case was put that the Plaintiff has constructed pucca structure in the year 2007. He would further point out that she has admitted that on 27th May, 2005 there was water logging in building no. 1 to the extent of 4 to 5 feet and the photograph were shown which were not denied but subsequently marked as Exhibit-40 in the cross- examination of DW-1. He would further submit that in the various documents produced by Plaintiff, there is discrepancy about the actual location of the structure and also the photophass number.
27. He submits that MHADA in the correspondence dated 18 th January, 2013 has communicated that the photopass is in respect of hut adjacent to building no. 1. He submits that as none of the documents show the location of the suit structure in front of the Shubham Talle 15 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc building no. 1, the construction work is subsequent construction. He has taken this Court in detail through the findings of the Trial Court and would submit that the Trial Court has rightly appreciated the evidence on record to hold that the suit structure is constructed subsequent to the year 2005 and is not protected.
28. Mr. Shinde, learned Counsel appearing for MHADA would adopt the submissions of Mr. Godbole, and would submit that the description of location structure which was subject matter of the photopass issued by MHADA differs and the evidence on record shows that it is not within the compound wall of building no. 1 but located outside the compound wall of building no. 1.
29. In rejoinder, Mr. Thorat, would submit that Exhibit-40 which are the photographs is the only document on the basis of which Trial Court came to finding that the structure is subsequent structure and the same being inadmissible in evidence could not have been relied upon by the Corporation.
30. The following points would arise for consideration:
(i) Whether the photopass and protection card issued by MHADA in favour of Plaintiff is in respect of the suit structure?
(ii) Whether the notice issued by the Corporation under Section 314 of MMC Act and the order dated 12 th August, 2013 is illegal as it orders demolition of the suit structure which is a protected structure, without Shubham Talle 16 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc allotting alternate accommodation as per the policy guidelines of Corporation?
(iii) Whether in the absence of specific prayer challenging the Speaking order dated 12th August, 2013, no relief could be granted to the Plaintiff?
31. Firstly coming to the Interim Application filed under Order 41 Rule 27 of CPC, the provision permits the production of additional evidence in the Appellate Court where the Trial Court has refused to admit evidence which ought to have been admitted or the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after exercise of due diligence be produced by him or where the Appellate Court requires any document to be produced or any witness to be examined to enable to pronounce Judgment.
32. In the present case, the Application seeks to bring on record the receipts for the compensation paid by the Plaintiff to the Corporation for the period from 2005 till March-2023 and the information received under RTI that the compound of the building of the Respondent No. 3 was constructed in the year 2001. The Application pleads that it is while discussing the matter with her advocate that the Applicant become aware that though the receipts of Shubham Talle 17 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc compensation were issued by the Corporation were handed over to the Trial Court advocate and inadvertently he did not produce it before the Trial Court. The pleadings in the Application would take the Application outside the ambit of the provisions of Order 41 Rule 27 as clause(aa) of Sub Rule-1 of Rule 27 of Order 41 permits the production of additional evidence where such evidence is not within the knowledge of party or could not after exercise of due diligence be produced by him at the time of passing of the decree. The pleading in the Application itself is that the receipts were handed over to the Trial Court Advocate and therefore it is not case that the evidence was not within the knowledge of the Plaintiff. The production of additional evidence can be permitted only upon satisfaction of the ingredients of Order 41 Rule 27 of CPC, which is not so in the present case. As such I am not inclined to permit the production of additional evidence and the Interim Application stands dismissed.
AS TO POINT NO (i) and (ii):
33. The suit structure is entitled to be protected, if it is established that the photopass/pitch holder's card issued by MHADA is in respect of the suit structure.
34. There is no dispute that the oral and documentary evidence produced by the Plaintiff establishes that the Plaintiff's father had been issued photopass in respect of a structure Shubham Talle 18 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc admeasuring 150 square feet which was censused in the year 1976.
There is also no dispute that in the year 2000, the structure was censused in favour of the Plaintiff and in the year 2004, MHADA had issued protection card in favour of Plaintiff. The crux of the dispute is about the location of the suit structure and whether these documents pertain to the notice structure.
35. In cross examination of PW-1 by Corporation and MHADA, they have not been able to elicit any admission that the suit structure and the censused structure are different, which is also the finding of the Trial Court. In cross examination by Defendant No 3, the location of the suit structure was established to be in front of Building No 1 and by relying heavily on the description given in the documents pertaining to the censused structure, it is contended by the Defendants that the suit structure and censused structure are different and the suit structure is located on the road.
36. The documents which are produced by Plaintiff when perused discloses that the pitch card, protection card and the communication by MHADA do not describe the censused structure by its precise location and is mentioned as "Near Building No 1", which can be construed as located either on the side of side of building no 1, or in front of building no 1. The reference to the location of the structure is general reference and cannot be magnified to mean that the admission Shubham Talle 19 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc of PW-1 about the suit structure being located in front of building no 1 proves that the notice structure and censused structure are different. Pertinently, the documents do not mention as the protected structure being located inside the compound wall of building no 1, however, the same establishes that the protected structure is located on land owned by MHADA.
37. The Trial Court has relied upon the admission by PW-1 that the photographs produced by her shows that the suit structure is in the front and the compound of building no 1 is at its backside. It has further relied upon the joint inspection report of Corporation and MHADA official that the suit structure is outside compound wall of the building and is completely on the road. Based on the location of the suit structure, the Trial Court has concluded that as the suit structure is outside the compound wall of Building No 3, it is located on road, which finding could not have been arrived at without being supported by cogent evidence as regards the ownership of the land beneath the suit structure.
38. To support their notice and order, the Corporation's witness DW-1 has relied upon the correspondence between the Corporation and MHADA, which has been accepted by the Trial Court on the ground that public authorities have no reason to make improper record against the Plaintiff. That by itself cannot be a Shubham Talle 20 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc sufficient to uphold the order of demolition, when the scrutiny of correspondence between the Corporation and MHADA presents a different picture. The Corporation sought verification from MHADA about the photopass produced by Plaintiff. The first letter was addressed by Corporation on 22nd October, 2012 asking MHADA if the photopass is in respect of shop situated on road. There was no response by MHADA. The second communication was addressed on 26th December, 2012 by the Corporation informing MHADA that the work of road widening and concretising of Ram Mandir Road is proposed which is affected by the Plaintiff's shop. Corporation has stated that the shop Sneh Enterprise is situated on road and major portion of the shop is affected by road widening and therefore photopass be cancelled.
39. The contention of Corporation in the first instance by communication dated 26th December, 2012 was that major portion of the shop was affected by road widening and not that the entire shop was located on the public road. The request for cancellation of photopass strengthens the case that the photopass was issued for the suit structure. MHADA responded for the first time on 18 th January, 2013 accepting that the photopass has been issued to Plaintiff in respect of hut next to Building No 1. The Corporation renewed its request by communication dated 2 nd February, 2013 that major portion Shubham Talle 21 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc is affected by road widening and to cancel the photopass. The communications by Corporation does not question the authority of MHADA to issue photopass in respect of structure located on public road. Both the authorities accepted that the suit structure is the same structure in repsect of which photopass has been issued by MHADA. MHADA by its communication dated 20 th February, 2013 maintains that photopass has been issued in respect of hut admeasuring 150 square feet and action can be taken in respect of the portion which is on road.
40. Thereafter joint inspection is stated to have been held by officials of MHADA and Corporation which found that the entire shop is outside the compound wall and located on the road, which is recorded in the letter dated 18th March, 2013. No notice of such joint inspection was given to the Plaintiff and she was not present during the inspection. The joint inspection report was not produced on record and the concerned officers were not examined. The joint inspection only finds mention in the communication of MHADA which has been accepted by the Trial Court. The internal correspondence between the Corporation and MHADA cannot be accepted as proof of fact that the suit structure is located on public road. After the joint meeting was held on 7th June, 2013 of which minutes were recorded on 24 th June, 2013 in which MHADA was called upon to allot alternate accommodation that on 12th July, 2013, MHADA completely disowned Shubham Talle 22 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc the premises as located on MHADA land.
41. It is nobody's case that the censused structure was located within the compound wall of Building No 1. If the censused structure is not shown to be located inside the compound wall of building no 1, no inference can be drawn that the suit structure which is located outside the compound of building no 1 is not the censused structure. The oral and documentary evidence adduced by Plaintiff would establish that in 2004 the Plaintiff was in occupation of a structure for which protection card was issued by MHADA. Once it is accepted that the Plaintiff was issued photopass in respect of a structure near Building No 1 and there is no other premises of Plaintiff on Ram Mandir Road, in the absence of cogent evidence to establish that the protected structure was shifted or demolished and new structure has been constructed by the Plaintiff at a different location, the Plaintiff's case is to be held as proved on pre-ponderance of probabilities.
42. The discrepancies in the various documents as regards the structure number on which much emphasis is laid is immaterial as the official records itself makes a mistake in the pitch card numbers.
43. As no evidence was led either by MHADA or Defendant No 3 Society, their case cannot be considered. It is not the Corporation's case that after the year 2004, the protected structure was shifted from MHADA land and completely new structure has been constructed by Shubham Talle 23 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc the Plaintiff on the public road. This is the case which is set up by Defendant No 3 Society. However, Defendant No 3 did not lead evidence and sought to prove its case by cross examination of the Plaintiff and the Co-Defendants. the case of the Defendant No. 3 set out in the written statement could not have been put to the Plaintiff in the cross-examination. In cross examination, the Defendant No 3 had attempted to put its case to the Plaintiff that the Plaintiff had constructed "pucca" structure of the suit shop in the year 2007, which it could not have done. From the cross-examination of the Plaintiff as regards her own case, the cross-examination would only show that there is discrepancy in the structure number in the various documents produced by Plaintiff, which has been sufficiently explained by the Plaintiff and in any event immaterial.
44. The Plaintiff was confronted with photographs to show that during water logging in the year 2005, the suit structure is not seen outside the compound wall, which were denied by Plaintiff. During the cross examination of DW-1, he was confronted with the same photographs by Defendant No 3, which were admitted by DW-1 and the entire case of Defendant No 3 was admitted by DW-1. The Defendant No. 3 has adopted a unique course of confronting the co- defendant's witness with the photographs and getting them marked as exhibit. The provisions of Evidence Act do not permit cross Shubham Talle 24 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc examination of co-defendant if the interest is not adverse. Section 137 of Evidence Act specifically provides that the examination of a witness by the adverse party is cross examination. Section 138 of Evidence Act refers to cross examination if the adverse party so desires after the witness is first examined in chief. These provisions made it abundantly clear that a party has a right of cross examining his adversary. The pleadings indicate that there is no conflict of interest between the Defendants interse. On the contrary, the Defendants have common interest of removing the suit structure. The Defendants qua each other cannot be termed as adverse parties and would not have the right to cross examine the co-defendant. Being impermissible in law, the cross examination of the DW-1 by co-defendants is required to be discarded. As such even the photographs cannot be read in evidence.
45. There is yet another reason why the photographs could not have been admitted in evidence. The Defendant No 3 not having led any evidence, the photographs could not have been proved through the cross-examination of the witness for the co-defendant. In the case of Geeta Marine Service Pvt Ltd., Vs. State of Maharashtra 3 Co- ordinate bench of this Court has held that merely because document referred to cross-examination is marked as Exhibit the same does not dispense with the proof of documents in accordance with the law of 3 2008 SCC Online Bom. 924.
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evidence. It had observed that the marking document as Exhibit by such process is based on consistent practice followed in the Court of law and does not dispense with the requirement of proof of the execution, contents and genuineness of the documents in accordance with law of evidence unless the witness concerned admits the execution and genuineness of the document. No reliance could have been placed on the said photographs to lend credence to the case of the Defendant No. 3 that the suit structure was constructed in the year 2007.
46. Mr. Thorat, is also right in pointing out the provisions of Order XIII rule 1 (1)of CPC and Order VIII Rule 1A of CPC which reads thus:
ORDER XIII Production, Impounding and Return of Documents
1. Original documents to be produced at or before the settlement of issues.--(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
ORDER VIII 1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.
(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at Shubham Talle 26 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc the same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."
47. Reading of the aforesaid provisions would indicate that the parties are required to produce on or before settlement of issues all documentary evidence except the documents which are produced for the cross-examination of witness of the other party. The said issue was considered by decision of Laxmikant Sinal Lotlekar vs Raghuvir Sinai Lotlkear (supra) that the only documents which can be produced in cross-examination are those which are outside the case of each of the parties and those meant to refresh witness memory. It has further held that the amendment of 1976 introducing Sub Clause 2 of Rule 2 of Order 13 is to remove the mischief that documents covered by Rule 2 should not find their way in the evidence by way of cross-examination circumventing the provisions of law. The Trial Court has supported its findings based on the photographs, which could not be read in Shubham Talle 27 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc evidence.
48. As the notice was issued under Section 314 of MMC Act, the requirement was that the notice structure should be constructed unauthorisedly on public land. The Corporation has not produced any ownership document in respect of land underneath the suit structure. The Defendants have presumed that the suit structure is on the road as it is located outside the compound wall of Building No 1 without verifying the extent of MHADA's land. MHADA who was party to the proceeding was in possession of best evidence to show the extent of MHADA's land and to establish the boundaries of MHADA land to establish that the suit structure is not located on their land. As MHADA did not step into the witness box, an adverse inference is required to be drawn. The Trial Court puts the burden on the Plaintiff to examine MHADA to prove its case. The Plaintiff has produced the photopass, protection card etc issued by MHADA which were admitted in evidence and there was no necessity for the Plaintiff to examine MHADA. MHADA being the land owning authority was in possession of best evidence of ownership but has failed to produce the same. The case of the Corporation is based on the site position to hold that the suit structure is on road. The Trial Court has held that the suit shop is not on the land of MHADA but it is on public road owned by MCGM without any documentary evidence on ownership of land underneath the suit Shubham Talle 28 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc structure and by relying upon the internal correspondence of MHADA and Corporation and the joint inspection report which is not produced on record.
49. The Plaintiff has produced the photopass and protection card issued in respect of a structure having the same area as the suit structure. The documents issued by MHADA neither gives precise location of censused structure nor mentions that the protected structure is located inside the compound of Building No 1. In the year 2004, the protection card has been issued by MHADA which shows that the protected structure was in existence till the year 2004 on MHADA land. The extent of MHADA land has not been established by leading cogent evidence to demonstrate that the suit structure is not on MHADA land but on the public road.
50. The Trial Court failed to consider the Plaintiff's case based on oral and documentary evidence that the suit structure was issued protection card in the year 2004 by MHADA and has taken into consideration the case put up by the Defendant No 3 in the cross examination by Defendant No 3 and the photographs exhibited through DW-1 to arrive at a finding that the suit structure may be on public road of MCGM. The Trial Court in the absence of any evidence led by Defendant No 3 has answered Issue No 3 which cast the burden on Defendant No 3 to prove that the suit premises is situated Shubham Talle 29 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc completely on road outside compound wall of Building No 1 in the affirmative, which is unsustainable.
51. The Trial Court failed to appreciate that after the notice under Section 314 of MMC Act was issued on 30 th May, 2012, meeting was held on 7th June, 2013 and the minutes were recorded on 24 th June, 2013 -Exhibit 22. In the said meeting, the officials of MHADA, Corporation and the representative of Plaintiff and Defendant No 3 were present. The minutes of the meeting record that the officials of MHADA have stated that since the year 2006, the procedure of issuing new photopass has been stopped and for giving alternate accommodation to old photophass holders, the permission from competent officer has to be obtained. The minutes record that in event the photopass issued to Sneh Enterprise in the year 2004 was legal, MHADA should allot alternative accommodation. The representative of Plaintiff agreed to shift the protected structure in event alternate accommodation is provided. The representative of Society urged the officials to take expeditious decision. The minutes of the meeting would demonstrate that till June, 2013, it was not the stand of MHADA that the photopass has not been issued to the suit structure and that it is located on public road. It also does not record the stand of Defendant No 3 that the suit structure is constructed after the year 2005.
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52. If the oral and documentary evidence on record is cumulatively appreciated, the Plaintiff has established that the suit structure and the censused structure are the same on the touchstone of pre-ponderance of probabilities.
53. The case of Corporation is of road widening and if the structure is protected, whether situated inside or outside the compound wall of Building No 1, the same cannot be demolished without providing for alternate accommodation as per the prevailing policy of Corporation. As the notice under Section 314 of MMC Act has been issued without providing for alternate accommodation, the notice under Section 314 is illegal, bad in law and liable to be quashed and set aside.
54. As far as the maintainability of the suit in absence of notice under Section 527 of MMC Act is concerned, the Trial Court has held that the suit does not make reference to the order dated 12 th August, 2013 and shows cause of action on 24th June, 2013 which shows that there was no urgency to file the suit as the suit has been filed in November, 2013. The said finding overlooks the fact that the notice dated 12th August, 2013 was annexed to the plaint and absence of reference to the same in the pleading is a case of improper drafting. The pleading in the plaint is that there is urgency in the matter and due to threats given by the Defendants, the plaintiff could not serve the Shubham Talle 31 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc notice under Section 527 of MMC Act. The suit was filed inter alia seeking injunction restraining the officers of the Defendants from demolition of the structure. The order of demolition was passed on 12th August, 2013 and there is specific pleading about the threats given by the Defendant. In the case of Motillal Mahadev Sharma v. MCGM4 it has been held 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. Considering that prohibitory injunction against demolition was sought, the issuance of notice could have accelerated the execution of the impugned order with the result that the proposed suit itself would have been rendered infructuous. Hence, in view of the threats of demolition, it was not necessary to issue notice under Section 527 of MMC Act.
55. Point No (i) and (ii) are accordingly answered in favour of the Plaintiff.
AS TO POINT NO (iii):
56. Coming now to the submission that as no relief was sought in respect of the speaking order dated 12 th August, 2013, the suit cannot be decreed only in respect of notice. Perusal of the original record and proceedings by this Court, disclose that during the evidence of PW-1, an application came to be filed by Plaintiff on 30 th 4 2005 SCC Online Bom 401.
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July, 2008 seeking production of the order dated 12 th August, 2013 on the ground that though the suit had challenged the said order, however, due to oversight the order copy was not annexed to the list of documents. There was no objection raised by the Defendants and the Trial Court ordered the production. During oral evidence, PW-1 produced the order dated 12th February, 2013 which came to be marked as Exhibit 25. The written statement produced by the Corporation makes a reference to the speaking order dated 12 th August, 2013. The parties were thus aware of the case they had to meet and accordingly led evidence.
57. The power of the Court to mould the relief has been upheld by the Hon'ble Apex Court in U.P. State Brassware Corpn. Ltd vs Uday Narain Pandey5 as under:
" 37. It is one thing to say that the court interprets as provision of statute and lays down a law, but it is another thing to say that the courts although exercise plenary jurisdiction will have no discretionary power at all in the matter of moulding the relief or otherwise give any such reliefs, as the parties may be found to be entitled to in equity and justice. If that be so, the court's function as court of justice will be totally impaired. Discretionary jurisdiction in a court need not always be conferred by a statute.
38. Order 7 Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a given situation....."
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58. This Hon'ble Court in Bhagirath vs Ramprasad6 has held as under:
"24. The Court has power to mould relief which can be granted on the basis of pleadings and evidence before it. Section 151 of Code of Civil Procedure lays down the power of Court to make such orders as may be necessary to meet the ends of justice. This also includes power to give appropriate relief in order to avoid multiplicity of litigants. After hearing both sides and considering the totality of facts and circumstances of the case and law referred to above, in my opinion, relief of partition and possession can be granted. It may be noted that the parties have been litigating for considerably long period. Relief of partition and separate possession can be given on the basis of pleadings and evidence before the Court. That would also avoid multiplicity of litigations...."
59. In the instant case, Prayer clause (a) of the plaint reads as under:
(a) It be declared that the impugned notice issued under Section 314 of MMC Act and the impugned order of the Asstt. Commissioner passed therein are illegal, bad in law, malafide, inoperative, and not binding upon the plaintiff and further same be declared null and void.
60. The prayer makes a specific reference to the order of the Assistant Commissioner passed on notice issued under Section 314 of MMC. The original record and proceedings which contained complete copy of the Plaint, which was not part of the private paper book, 6 (2010) 6 Mah LJ 169 Shubham Talle 34 of 35 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 02/04/2025 22:39:04 ::: FA-1307 of 2018.doc discloses that the order dated 12th August, 2013 is annexed to plaint at Page 32 and is part of Exhibit "I" and the speaking order was produced on 12th August, 2013. Even if the plaint and the prayer clause does not make a specific mention of the speaking order dated 12 th August, 2013, by exercising powers under Order VII Rule 7 of CPC, relief can be granted in respect of the order dated 12 th August, 2013. Point No (iii) is accordingly answered in favour of the Plaintiff.
61. Resultantly, the following order is passed.
::ORDER::
(a) First Appeal stands allowed.
(b) The impugned Judgment and order dated 26th September, 2018 is hereby quashed and set aside.
(c) L.C Suit No 3233 of 2013 is decreed in terms of prayer clause (a) and (b).
(d) Decree to be drawn up accordingly.
62. 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.]
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