Properties P. Ltd. Vs. Mun.Corp. of Gr. Mumbai & Ors.  INSC 382 (10
APPELLATE JURISDICTION CIVIL APPEAL NO.............../2010 (ARISING OUT OF
SLP(C) NO. 27069/2009) Esteem Properties Private Ltd. .. Appellant Versus
Municipal Corpn. of Greater Mumbai & Ors. ...Respondents
appeal has been preferred against the interim order passed by the High Court of
Bombay dated 8.10.2009 in Appeal from Order No.1040 of 2009. Facts and
circumstances giving rise to this case are that appellant/plaintiff filed the
Civil Suit No.1177/08 for determination of the site of demolished structure and
to determine the area thereof to be reconstructed pursuant to the order dated
21.6.2008 passed by the Respondent-Authority.
predecessor-in-interest of respondent no.3 was an unauthorised occupant of a
hut/structure in the slum area measuring about 600 sq. ft. Respondent No.3 vide
Deed of Assignment dated 15.7.2006 assigned her rights to the respondent no.4.
The partner of the present appellant submitted a list of persons to the
B.M.C.-Respondent who had to be evicted. In the said list one Shri Gupta Ram
Rekha Ram Bakhash was shown occupying room no.14, behind S.H. Compound, near
DTC Hotel, Saraswati Nagar, Sahar Road, Andheri (East), Mumbai. The show cause
notices under Section 55 of the Maharashtra Regional Town Planning Act, 1966
were issued to all such occupants for eviction. The notice was sent to Shri
Gupta Ram Rekha Ram Bakhash and not to the respondent No.3. The aforesaid
structure was demolished on 11.6.2008. Immediately after demolition of the said
structure, a representation dated 17.6.2008 was made by respondent no.3 through
her Advocate Smt. Sangeeta Lanjewal alleging that her structure had wrongly
been demolished by the respondents and it was requested to restore the same.
Documents in support of her case were also filed.
Statutory Authority considered the said representation and allowed the same
vide order dated 21.6.2008. Being aggrieved by the said order of restoration of
the demolished structure, appellant filed Suit No.1177/08 in Bombay City Civil
Court along with Notice of Motion No.1342/08 which was dismissed by the Court
vide order dated 8.6.2009. Being aggrieved, appellant preferred an appeal,
however, the High Court vide order dated 30.7.2009 rejected the appeal and
directed the respondents to restore the structure. However, it was clarified
that restoration would be subject to the final result of the suit. The appellant
preferred SLP (C) No.21977/09 challenging the order dated 30.7.2009 passed by
the High Court. The said SLP was dismissed by this Court vide order dated
respondent no.4 in the meanwhile filed an application for impleadment as a party
making it explicit that vide Deed of Assignment dated 15.7.2006, respondent
no.4 had been assigned all rights in respect of the structure by respondent
no.3. The said application was allowed vide order dated 12.9.2008. The present
appellant being aggrieved by 3 the order of impleadment challenged the said
order dated 12.9.2008. The High Court vide order dated 10.11.2008 held that
respondent no.4 was necessary party and appeal was dismissed. The said order
also stood affirmed by this Court as SLP(C) No.28084/08 against the said order
has been dismissed vide order dated 5.12.2008.
5. In the
matter of restoration of the demolished structure, new issues have been raised
by the present appellant by filing Notice of Motion in the pending suit on
22.9.2009 for determination of the above referred two issues. The Trial Court
vide order dated 25.9.2009 rejected the said application and did not restrain
the respondent nos.3 and 4 for carrying out reconstruction. Against the said
Order, an appeal was preferred before the High Court and the High Court vide
its order dated 8.10.2009 dismissed the said appeal. Hence, the present appeal.
Harish N. Salve and Shri Mukul Rohatgi, learned Senior counsel appearing for
the appellant have submitted that the aforesaid two questions are very
essential for determination for the reason that unless the area is 4
determined, identified and demarcated specifically, the said respondents cannot
be permitted to raise the construction at any place. The report of the Court
Commissioner as well as the B.M.C.-respondent had been to the effect that it
was not possible to determine the exact location of the demolished structure.
On behalf of appellant, Mr. Salve made an offer to have a constructed area at
the cost of the appellant with CST Survey No.229 with a right of ingress and
egress and handover the same to respondent no.3 within a period of 3 months.
this would be subject to the final orders to be passed in Civil Suit
7. On the
other hand, Dr. A.M. Singhvi and Shri C.A. Sundaram, learned Senior counsel
appearing for Respondent Nos. 3 & 4 have opposed the prayer contending that
the title of the appellant on the suit land is itself in dispute as a Public
Interest Litigation i.e. W.P. No.1657 of 2006 has been filed giving backdrop in
respect of the title of the land, therefore, no offer made by the appellant at
this stage would be acceptable to them. A declaration had been sought in the
said Writ Petition that suit land belongs to Govt. of Maharashtra and 5 not the
appellant or its predecessors-in-interest. In the said writ petition final
arguments have been heard and judgment is reserved. The High Court has also
passed an interim order to maintain the status quo with liberty to the parties
to move an application in case there is any change in the circumstances.
further submitted that the land has been identified by the Court Commissioner
as well as by the BMC and therefore, the petition is liable to be rejected.
Goolam E. Vahanvati, learned Attorney General appearing for the BMC, has
submitted that none of the reports submitted so far is sufficient to find out
the location of demolished structure exactly and it requires a fresh exercise
to determine the same.
have considered the rival submissions made on behalf of the parties and perused
number of documents have been filed by both the parties to substantiate their
respective claims and counter- claims regarding identification/location of the
demolished structure. This is the only issue involved in this case as 6 number
of offers made by the appellant are not acceptable to the respondent nos.3 and
have compared the maps prepared by the Court Commissioner and BMC, however,
they do not match each other. The reports submitted by both of them regarding
the identification are also far from satisfaction.
Commissioner, Shri M.D. Narvekar concludes his report as under:
suit site is a vast land without any demarcation as to survey or city survey
number. I further noticed hundreds of huts on the land I visited.
absence of latest Map it was difficult for me to ascertain and identify the
boundaries of the suit site in question.
stage parties and advocates on both the sides requested to execute the
Commission with the assistance of a Govt. Approved Surveyor.
therefore, seek directions from this Hon'ble Court."
report of the BMC is also to the same effect as its relevant part reads as
tentative location as per plan was marked where no structure was seen. Hence,
the suit 7 structure No.14 had been demolished totally and no structure could
be seen at the location marked on CTS No.229.
plan `markings' attached on CTS Sheet as annexed `B'.
Commissioner's plan as annexed `C'.
the court receiver plan and City Survey Plan, there was no suit structure seen
on the plot bearing CTS No.229. The photographs were taken of the plot bearing
CTS No. 229 and all the representatives agreed that there is no suit structure
no.14 on the plot bearing CTS No. 229, the question of taking measurement did
not arise as plot was vacant."
is not the stage for the court to decide any issue on merit as whatever interim
order is passed it would be subject to the final outcome of the Suit as well as
the PIL wherein the judgment has been reserved. In such a fact situation, it is
desirable that BMC may undertake an exercise in respect of
identification/determination to the location of the demolished structure giving
due opportunity of hearing to both sides and determine the location of the
demolished structure expeditiously, preferably within a period of 3 months from
today. It is further clarified that on such identification, the 8 work of
restoration may be carried out by the respondents. In deciding so, the BMC may
also consider the convenience of the parties in fixing the location especially
with regard to ingress and egress to such site. However, it shall be subject to
the outcome of the Suit.
appeal stands disposed of accordingly. No costs.
............................. J. (DEEPAK VERMA)