Bombay High Court
Smt. Sharda Pujari Widow Of Krishana ... vs Brihan Mumbai Mahanagarpalika on 23 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:30469
5-FA-1013-2012-F31.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1013 OF 2012.
Smt. Sharda Pujari Widow Of Krishana
Pujari D/O Somaya Amin Of Mumbai ...Appellant.
Versus
Brihan Mumbai Mahanagarpalika ...Respondent.
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Mr. Hemant P. Ghadigaonkar for the appellant.
Ms. Vidya Vyavhare a/w. Ms. Pallavi Khare for the respondent-
Corporation.
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Coram : Sharmila U. Deshmukh, J.
Date : 23rd July, 2024.
P.C. :
1. By this appeal, exception is taken to the judgment dated 7 th April 2012 passed by the City Civil Court dismissing the Suit seeking perpetual injunction against the Mumbai Municipal Corporation from executing the notice issued under Section 351 of Mumbai Municipal Corporation Act, 1888.
2. The facts of the case are that L.C. Suit No.2060 of 2005 was instituted by the plaintiff seeking an order of perpetual injunction rsk 1 of 9 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 02/08/2024 18:37:25 ::: 5-FA-1013-2012-F31.doc restraining the Corporation from acting upon or implementing or executing the show cause notice issued under Section 351 of Mumbai Municipal Corporation Act, 1949 and from demolishing the unauthorized construction. It was pleaded that the Plaintiff is occupying Room No.13 on Ground floor situated at 154, Bora Bazar Street Maruti Lane, Fort, Mumbai 400 001 i.e. Suit premises since her birth on 1st June, 1955. In support, the Plaintiff relied upon the death certificates of her family members, her own birth certificate, the voters identity card, repair permission given by Corporation, electricity connection, copy of the plan sanctioned for repairs. It was pleaded that the notice under Section 351 dated 1 st April 2005 issued by the Corporation was responded by the Plaintiff contending that the structure was tolerated structure and by order dated 25 th April 2005, the Corporation has wrongly held that the Plaintiff has failed to prove the existence of the building prior to the datum line of 1 st April 1962.
3. The suit came to be resisted by the Corporation contending that the Plaintiff is in use and occupation of unauthorized structure constructed in open space between two buildings known as Rasik Mansion and Shishu Vihar Vikas Mandal School which is an addition and alteration to the existing structure. It was contended that the rsk 2 of 9 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 02/08/2024 18:37:25 ::: 5-FA-1013-2012-F31.doc Plaintiff has failed to produce authentic documents such as sanctioned plan, City Survey Sheet showing existence as well as assessment bill prior to 1961-1962. It was contended that the landlord in response to notice issued to him has denied that he is owner of the structure.
4. The parties went to trial. The Trial Court framed and answered the issues as under:
Sr. POINTS FINDINGS
No.
1. Does plaintiff proves that she is in lawful In the negative.
possession in suit premises ?
2. Does she further prove that notice issued In the negative.
by defendant No.1 dated 1/4/2005 under Section 351 of B.M.C. Act is incorrect and improper ?
3. Whether plaintiff is entitled for perpetual In the negative injunction ?
4. Whether prayer in the suit is defective for In the negative.
want of statutory notice under Section 527 of M. M. C. Act ?
5. What order and decree ? As per final order.
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5. The Trial Court considered the documentary evidence produced on record and held that the only document produced to substantiate the existence of structure prior to the datum line of 1962 is the birth certificate which is at Exhibit 9 showing the date of birth of plaintiff in the year 1955. The Trial Court held that the certificate has been issued on 26th February 1994 and issued on the basis of information supplied by the plaintiff herself. The Trial Court further held that the only inference which can be drawn from the birth certificate is that the entry showing the birth of plaintiff as 1 st June 1955 is admissible in evidence under Section 35 of Indian Evidence Act, 1872. It held that merely because the address is shown at Room No.13 on Ground floor situated at 154, Bora Bazar street Maruti Lane, Fort, Mumbai 400 001, it cannot be said to establish that the notice structure forms part and parcel of Building No.154 or any other building legally assessed to tax.
6. Heard Mr. Hemant P. Ghadigaonkar for the Appellant and Ms. Vidya Vyavhare for the respondent-Corporation.
7. Learned counsel for the appellant would submit that there were various documents which were produced on record to show occupation and possession of the Plaintiff of the notice structure. He however fairly concedes that prior to the datum line the only rsk 4 of 9 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 02/08/2024 18:37:25 ::: 5-FA-1013-2012-F31.doc document which was produced by the plaintiff was the birth certificate showing the date of birth of the Plaintiff on 1 st June 1955. He draws attention of this Court to the decision of Division Bench of this Court in the case of Gangadhar s/o Gonduram Tadme vs. Trimbak Govindrao Akingire and Ors., W.P. No.2381 of 2024 decided on 12/4/2004. He submits that Division Bench has held that the certificate of birth will carry presumptive value in relation to the correctness of the entries in such certificates. He submits that in view of the fact that the birth certificate shows the address of the parents of the Plaintiff at Room No.13 on Ground floor situated at 154, Bora Bazar street Maruti Lane, Fort, Mumbai 400 001, the existence of the structure prior to the datum line is established.
8. Per contra, learned counsel for BMC would submit that apart from the birth certificate there is no other documentary evidence which is produced on record to show either authorization of the notice structure or to show the existence prior to the datum line of 1 st April 1962. She submits that the birth certificate cannot be taken to be the conclusive proof of the existence of the structure in the year 1955.
9. Considered the submissions and perused the record.
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10. The plaint pleads that the Plaintiff is occupying Room No 13 on ground floor of building No 154, Bora Bazar Street, 20 Maruti Lane, Fort, Mumbai whereas the prayer clause seeks injunction against demolition of the structure constructed in the open space between two buildings known as Rasik Mansion and Shishu Vihar Vikas Mandal School at 18, Maruti Lane, Fort, Mumbai. Admittedly an application for regularization was made by the Plaintiff in the year 1998 which shows that the structure was unauthorized. The Plaintiff seeks protection of the suit structure under the policy of the Corporation of tolerated structures constructed prior to 1962. The only documentary evidence produced to substantiate the existence of the structure prior to 1962 is the birth certificate of the Plaintiff showing the birth of the plaintiff on 1st June 1955. The address in the birth certificate is Maruti Lane, Ground Floor, 20. The suit premises is described in the plaint as Room No.13 on Ground floor of Building No 154, Bora Bazar street, 20 Maruti Lane, Fort, Mumbai 400 001, the notice under Section 351 of MMC Act is in respect of construction carried out in open space between two buildings whereas the birth certificate shows the address as Maruti Lane Ground floor, 20. As the plaint described the suit premises as Room No 13 on ground floor of Building No 154, it was incumbent upon the plaintiff to establish that the Plaintiff is in occupation of room on the ground floor of building rsk 6 of 9 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 02/08/2024 18:37:25 ::: 5-FA-1013-2012-F31.doc No.154 and not in occupation of structure constructed in open space between two buildings. There was no evidence produced by the plaintiff to conclusively establish the identity of the structure in her occupation.
11. That apart, reliance is placed on birth certificate which shows the address as only Maruti Lane, Ground Floor, 20. The address does not mention any building number or Room Number. The information about the address of the parents is required to be given by the informant and there is no verification or inquiry carried out in respect of the correctness of the address provided by the informant. The date of birth is supported by the hospital record and the birth certificate can be said to carry presumptive value qua the date of birth of the Plaintiff. However birth certificate cannot be said to have any presumptive value as regards the address which is stated in the certificate.
12. In that view of the matter, the Plaintiff has neither established that the structure was unauthorized structure or the structure was in existence prior to the datum line of 1 st April 1962. In the absence of any such evidence being brought on record, the order of 25 th April 2005 holding that the structure admeasuring 5.50 x 1.70 square meters in the open space between two buildings known as Rasik rsk 7 of 9 ::: Uploaded on - 02/08/2024 ::: Downloaded on - 02/08/2024 18:37:25 ::: 5-FA-1013-2012-F31.doc Mansion, Shishu Vihar Vikas Mandal School at 18 Maruti Lane, Mumbai cannot be said to be illegal.
13. The reliance on decision of Gangadhar s/o Gonduram Tadme vs. Trimbak Govindrao Akingire and Ors., W.P. No.2381 of 2024 decided on 12/4/2004 is misplaced as in that case the date of birth of the third child was being considered in the context of disqualification of the Petitioner therein as member of Gram Panchayat. The Division Bench observed that the certificate of birth is issued on basis of records maintained by the Gram Sevak and will carry presumptive value in relation to the correctness of entries in such certificates. The reference to the entry is obviously to the date of birth recorded in the birth certificate. The decision cannot aid the proposition sought to be canvassed by the Appellant that even the address stated in the birth certificate will carry presumptive value. Apart from this singular submission no other submissions were canvassed by learned counsel for Appellant.
14. In view of the discussion above, the Trial Court has rightly appreciated the evidence which has come on record holding that there is nothing to show that the structure was authorized or that was in existence prior to the datum line.
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15. First Appeal is without merit and stands dismissed. In view of disposal of appeal, Interim/Civil Applications, if any, do not survive for consideration and stand disposed of.
16. At this stage, learned counsel for the Appellant seeks extension of interim relief for a period of eight weeks. Interim relief to continue to a period of eight weeks from the date of uploading of the order.
[Sharmila U. Deshmukh, J.]
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