of Greater Mumbai Vs. Thomas Mathew & Ors.
[Civil Appeal No.
3417 of 2012 arising out of S.L.P. (Civil) No. 11866 of 2012 (Cc No.
J U D G M E N T
appeal is directed against the final judgment and order dated10.02.2011 passed
by the High Court of Judicature at Bombay in First Appeal No. 223 of 2009
whereby the High Court disposed of the appeal filed by the appellant herein
with certain modifications in the judgment and decree passed by the trial Court
in Notice of Motion No. 4026 of 2003 in L.C. SuitNo.539 of 2002.
appellant-Corporation is a public body duly enacted and formed for the benefit of
public at large and to regulate and control the unauthorized construction carried
out in the city of Mumbai. The respondents are the owners of the suit premises.
b. On 17.04.1998, a
notice bearing No. KW/036/AEM/OD under Section 314of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as the MMC Act) was issued to
all persons who are in occupation of the Patra structures which are constructed
on foot paths and streets situated near Empire House on Veera Desai Road, Last Bus
Stop, Andheri (West), Mumbai directing to remove the said Patra Sheds etc. together
with their belongings within two days. On failure to comply with the said direction,
the Corporation demolished the unauthorized structures raised by the respondents
c. Again on 19.12.2001,
the Corporation issued notice under Section 354Aof the MMC Act bearing No. KW/BF/354A/2154/JE-V/SEB-II
directing the respondents to stop the erection of structure/execution of the work
forthwith failing which the same shall be removed.
d. Questioning the said
notice, the respondents filed L.C. Suit No. 6650of 2001 before the City Civil
Court, Bombay. By order dated 21.12.2001,the Civil Judge restrained the Corporation
from taking any action in pursuance of the notice issued under Section 354A of the
MMC Act till filing its reply affidavit in the suit.
e. On 08.01.2002, the
Corporation issued another notice under Section314 of MMC Act being
KW/1138/AEM/OD directing the respondents to demolish the reconstructed
structure on the very site which was demolished by the Corporation earlier on
22.04.1998. The respondents replied to the above notice through their advocate
stating that the said notice was illegal and bad in law.
f. After filing of the
reply affidavit by the Corporation in L.C. Suit No. 6650 of 2001, the Civil
Judge by order dated 19.01.2002 discontinued the injunction order passed
g. Challenging the
notice dated 08.01.2002 issued by the Corporation under Section 314 of MMC Act,
the respondents filed Suit No. 539 of 2002.
h. On 25.01.2002, Suit
No. 6650 of 2001 was dismissed as withdrawn.
i. On 16.09.2003, the Corporation
demolished the unauthorized suit structure. Justifying its action taken in public
interest, the Corporation filed its written statement and additional written
statement in Suit No. 539 of 2002 on 30.06.2004 and 14.03.2005. By order dated06.01.2009,
the Civil Judge partly decreed the suit declaring that notice dated 08.01.2002
issued by the Corporation under Section 314 of the MMC Act was illegal and
allowed the respondents to reconstruct the said structure as it was prior to
the demolition at their own cost.
j. Being aggrieved by
the aforesaid order, the Corporation filed First Appeal being No. 223 of 2009 before
the High Court. Vide order dated10.02.2011, the High Court confirmed the decree
passed by the trial Court with certain modifications.(k) Being aggrieved by the
order passed by the High Court, the appellant-Corporation has filed this appeal
by way of special leave before thisCourt.
Mr. R.P. Bhatt, learned senior counsel for the appellant and Mr. Thomas Mathew,
respondent No.1, who appeared in person.
learned senior counsel for the appellant insisted that in view of the fact that
the suit structure (shops) situate on the road margin which belongs to the
appellant-Corporation, admittedly the said stand was not substantiated either
before the trial Court or the High Court by placing any documentary evidence. In
fact, the trial Judge, in his judgment, in para 21, pointed that in the year
1996, when the affidavit in reply filed in the earlier suit not to take action without
following due process of law, the defendants (Municipal Corporation) have never
stated that the suit premises is falling on the road and also denied that they have
ever demolished the suit premises.
It was further pointed
out that the question arise as to why and how they have allegedly issued the notice
under Section 314 of the MMC Act and demolished the suit premises. The finding
is that the defendants have not issued any notice under Section 314of the MMC
Act. Even before the High Court, the appellant-Corporation was not in a
position to place any material in support of its claim. As a matter of fact,
before the High Court, it was pointed out by the strespondent, who appeared in person
about the amendment of the plaint directing the appellant to provide an
alternative site or land in similar locality so that the respondents can reconstruct
and their counsel failed to take note of the amendments made in the original
plaint. Even in this Court, the appellant has not placed the amended copy of
the plaint and the entire claim of the respondents as projected before the
Courts below. As a matter of fact, Mr. Thomas Mathew, the first respondent
appearing in person on behalf of the respondents, took us through various pages
and pointed out that the appellant-Corporation has deliberately omitted certain
Ongoing through the
same, we agree with the claim of the first respondent that the relevant
portions have not been correctly filed before us. No doubt, learned senior
counsel for the appellant by filing certain documents as additional evidence wants
to project that the property in dispute belongs to the appellant-Corporation and
the structure put up by the respondents is unauthorized, we asked a pertinent question
why those materials have not been placed either before the trial Court or at least
before the High Court for which Assistant Commissioner K/West Ward of Mumbai
has filed an affidavit stating as follows:
I state that
Petitioner Corporation could not produce the ownership documents of set back
land before City Civil Court/High Court. If the Petitioner Corporation had
produced the documents of ownership of set back land, the Honble Court would not
have passed the orders in favour of respondents. I, therefore, say and submit that
the petitioners being aggrieved by the Honble High Courts order dated 10.02.2011
for reconstruction of the suit structure has filed the present Special Leave
Petition in this Honble Court which is in the interest of public at large.
We are unable to accept
the lame excuse set up by the appellant-Corporation. It is not the case of the
appellant that they are unaware of the procedure and how to contest their case when
they are contesting thousands of cases on behalf of the Municipal Corporation. Inasmuch
as the relevant materials have not been placed by the appellant either before the
trial Court or before the High Court, considering the alternative direction issued
by the High Court in the impugned order which is quite reasonable, we are not
inclined to go into those materials at this juncture.
If the appellant wants to keep the site open, in public interest, we are of the
view that they are bound to comply with the direction No.2 in the impugned
judgment. For compliance of the above direction of the High Court, the
appellant is granted six months time from today failing which the respondents
are free to execute the modified judgment of the High Court at once. We are
constrained to arrive at such a conclusion only because of the inaction on the part
of the officers of the appellant-Corporation before the Courts below.
the light of the above discussion, the appeal fails and the same is dismissed. Inasmuch
as the first respondent i.e. Mr. Thomas Mathew, who is fighting the case on
behalf of all the respondents by appearing in person in this Court, we award a
cost of Rs. 25,000/- to him payable by the appellant-Municipal Corporation
within a period of eight weeks from today.