Saturday, 21 May 2016

Whether plaintiff can prove pucca construction on the basis of passport,electricity bill and telephone bill?

Even copy of the passport, electricity bill and telephone
bill, produced on record by the appellant would not indicate that the
suit premises was a pacca structure or that the appellant was
carrying on business in the premises since 1961-1962. If the
appellant was carrying on any business in the premises since 1961-
1962, the appellant would have in his possession several documents
and/or permission from the Municipal Corporation or other authorities
to indicate that such business was being carried on since 1961-1962.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.75 OF 2015
WITH
CIVIL APPLICATION NO.89 OF 2015
Mohd. Ismail Gulam Shaikh ...Appellant
V/s.
Municipal Corporation of Gr.Mumbai & Anr.
 CORAM : R.D. DHANUKA, J.
 DATE : 1ST FEBRUARY, 2016.
Citation;2016(3) MHLJ247

1. By this appeal from order, the appellant has impugned the
order passed by the learned trial Judge on 2nd January, 2015 refusing
to grant ad-interim relief in favour of the appellant (original plaintiff) in
the notice of motion inter-alia praying for an injunction against the
Municipal Corp[oration (original defendants) from acting upon or from
taking any steps pursuant to the notice dated 16th December, 2014

issued under section 55 of the M.R.T.P. Act, 1966 as against the
plaintiff and the suit premises being 43-45, Mathuradas Estate Chawl,
Ground Floor, Behind Apollo Floweriest, Causeway, Colaba, Mumbai
400 005.
2. Mr.Mehta, learned counsel appearing for the appellant
invited my attention to various averments made in the plaint and the
documents annexed to the plaint and submits that the impugned
structure, which was the subject matter of the notice issued under
section 55 of the M.R.T.P. Act is in existence since 1961-1962 and
the appellant has been carrying on business in the said premises
since then. He submits that since the structure in question was not a
temporary structure, notice itself issued under section 55 of the
M.R.T.P. Act by the Municipal Corporation was without jurisdiction.
He submits that the appellant has been also residing in the suit
premises. In support of his submission that the suit structure is not a
temporary structure and that the appellant has been carrying out the
business in the suit premises since 1961-1962, Mr.Mehta, learned
counsel for the appellant invited my attention to the alleged Deed of
Declaration dated 11th May, 1949 alleged to have been executed by
one Mr.N. Saliyan. He submits that by the said document alleged to
have been executed by the said Mr.N. Saliyan, the said Mr.N. Saliyan
had given the space between two buildings at Mathuradas Estate

Bombay to Mossa Korachamkandil. The appellant is claiming through
the said Mossa Korachamkandil.
3. Learned counsel also placed reliance on a copy of the
power of attorney alleged to have been executed in the month of
June, 2014. He submits that even the said power of attorney would
indicate the address of the suit premises in the month of June, 2014.
He also placed reliance on the notice dated 10th November, 2005
issued by the Municipal Corporation under section 381 of the Mumbai
Municipal Corporation Act (M.M.C. Act). Reliance is also placed on
the notices dated 10th December, 2005 and 14th November, 2005. He
also placed reliance on the ration card issued at the suit address.
4. It is submitted by the learned counsel for the appellant that
even the telephone bills as well as electricity bills issued by various
authorities would clearly indicate the address of the suit premises. He
submits that all these documents were produced for perusal of the
authorities in respect of which the notice under section 55 of the
M.R.T.P. Act has been issued. He submits that though the appellant
had demanded oral hearing from the Municipal Corporation, no oral
hearing was provided to him. He submits that the entire action on the
part of the Municipal Corporation is without jurisdiction.
5. It is submitted that this Court has already taken a primafacie
view in favour of the plaintiff and has granted status-quo which

is in force for quite some time. It is submitted that the appellant has
no objection if hearing of the notice of motion is expedited and is
heard within a reasonable period of time after the defendants filing
affidavit in reply.
6. Mr.Thorat, learned senior counsel appearing for the
Municipal Corporation invited my attention to various documents
referred to and relied upon by Mr.Mehta, learned counsel for the
appellant. He also invited my attention to the notice issued under
section 55 of the M.R.T.P. Act, 1966 and would submit that upon
inspection of the suit property, the officers of the Municipal
Corporation found that the appellant had erected temporary structure,
which was totally unauthorized as described in the notice issued
under section 55 of the M.R.T.P. Act. He submits that since the
Municipal Corporation found an unauthorized structure of a temporary
nature, action under section 55 of the M.R.T.P. Act cannot be
challenged. He submits that whether authorized structure is of
temporary nature or not, the opinion of the Municipal Corporation
under section 55(2) of the M.R.T.P. Act is final and cannot be
challenged.
7. It is submitted by the learned senior counsel for the
Municipal Corporation that the appellant cannot be granted any
discretionary relief in view of the fact that after obtaining status-quo

order from this Court, the appellant has violated the said order of
status-quo and has created further encroachment on the public road
and also on the open space and has expanded the unauthorized
construction. In support of this submission, learned senior counsel
invited my attention to the photographs of the temporary structure
taken on the date of issuance of such notice and also recently to
indicate that after obtaining the order of status-quo, the appellant has
created further extension.
8. Mr.Kamdar, learned senior counsel for the intervenor
invited my attention to each and every documents referred to and
relied upon by the appellant and would submit that none of the
documents would indicate that the appellant's suit structure was in
existence since 1961-1962 or that the same was permanent in
nature. Insofar as the alleged Deed of Declaration dated 11th May,
1949 relied upon by Mr.Mehta, learned counsel for the appellant is
concerned, it is submitted that said Deed of Declaration does not
indicate any complete address of the suit premises. It also does not
indicate whether the alleged predecessor-in-title was carrying on any
business in the pacca structure in the said open space.
9. My attention is also invited to various notices issued by the
Municipal Corporation and it is submitted that even those notices
which were issued in the year 2005 or subsequently, which

documents are relied upon by the appellant, would clearly indicate
that even in the year 2005 or even thereafter, the notices were issued
in view of the appellant keeping certain wooden boxes in the open
space between the two buildings. He submits that even if the
Municipal Corporation would have found any pacca structure even in
the year 2005, the notices issued by the Corporation would not have
indicated any open space between the two buildings. He submits that
it was not the case of the appellant that when the notices issued by
the Municipal Corporation there was no open space and the entire
area between the two buildings was covered by pacca structure. He
submits that the order passed by the Criminal Court also would assist
the case of the respondents and the intervenor and not the case of
the appellant. My attention is also invited to some of the annexures
annexed to the civil application filed by the intervenor.
10. Learned senior counsel submits that even in the
application made for certificate under Shops & Establishment Act, the
appellant has alleged that in the year 2014, the business was
commenced by the appellant. He submits that the appellant has
suppressed this fact from the trial Court and also from this Court.
11. My attention is also invited to some of the photographs
annexed to the civil application and would submit that after obtaining
the status-quo order from this Court, the appellant has carried out

substantial unauthorized construction in the suit structure.
12. There is no dispute that the Municipal Corporation has
issued a notice under section 55 of the M.R.T.P. Act A perusal of
section 55(1) of the M.R.T.P. Act clearly indicates if it is found that
any person has carried out any development of a temporary nature
unauthorizedly as indicated in section 52 of the M.R.T.P. Act, the
Corporation is empowered to order such person to remove or
discontinue the use of the land unauthorizedly. The Municipal
Corporation has to be satisfied that the authorized construction of a
temporary nature is carried out as provided in section 52 of the
M.R.T.P. Act. A perusal of section 55(2) of the M.R.T.P. Act clearly
indicates that the decision of the planning authority on the question
whether the development is a temporary in nature shall be final. In my
view, the action taken by the Municipal Corporation under section 55
of the M.R.T.P. Act thus in the facts and circumstances of the case
and in view of section 55 read with section 55(2) is final and
conclusive.
13. With the assistance of the learned counsel for the parties, I
have perused the documents referred to and relied upon by the
appellant in support of the submission of the appellant that the suit
structure was not of a temporary nature and that the appellant has
been carrying on business in the suit structure since 1961-1962.

14. I have given an opportunity to the learned counsel
appearing for the appellant to demonstrate before this Court from the
documents produced before the learned trial Judge in support of his
contention that the suit structure was not temporary structure and that
the appellant has been carrying on business in the suit premises
since 1961-1962. Pursuant to this opportunity granted by this Court,
the learned counsel for the appellant invited my attention to some of
the documents which were on record before the learned trial Court,
which are dealt with in the later part of the order.
15. Insofar as the alleged Deed of Declaration relied by the
appellant dated 11th May, 1949 is concerned, a perusal of the said
alleged Deed of Declaration does not indicate any description of the
alleged structure between the two buildings. If according to the
appellant, the appellant was carrying on business since 1961-1962 in
the suit premises, such structure would have been definitely
assessed by the Municipal Corporation in last several decades till
date. Admittedly the temporary structure of the subject matter of the
suit is not assessed between 1961 till date.
16. In my view merely on the basis of the said alleged Deed of
Declaration dated 11th May, 1949, this Court cannot accept the
submission of the learned counsel for the appellant that the appellant
had been carrying on business in the said premises from 1961-1962.

17. Insofar as the notices issued by the Municipal Corporation
under different provisions of the M.M.C. Act issued in the year 2005
and thereafter relied upon by the appellant is concerned, a perusal of
such notices clearly indicates that the Municipal Corporation in the
year 2005 had found that the appellant had stored some of the empty
boxes in the open space between two buildings. The said empty
boxes were without obtaining permission from the Municipal
Corporation. The prosecution was launched against the appellant
pursuant to such action initiated by the Municipal Corporation. All
such documents which are relied upon by the appellant would clearly
indicate that there was no shed found by the Municipal Corporation
on its visit in the year 2005. The empty boxes were stored in the open
space. It is thus clear beyond reasonable doubt that whatever
structures are put up by the appellant were after the year 2005.
18. In my view, none of these documents which are relied by
the appellant would indicate that the suit structure which is the
subject matter of the notice was a pacca structure or is in existence
since 1961-62.
19. It is not the case of the appellant that the appellant had
obtained any permission from the Municipal Corporation for erection
of such structure.
20. A perusal of the application, which was filed by the

appellant for the purpose of obtaining the license under the
provisions of the Shops and Establishment Act, which is annexed to
the civil application filed by the intervenor clearly indicates that it was
the case of the appellant himself that he started business in the
premises some time in the year 2014.
21. Even copy of the passport, electricity bill and telephone
bill, produced on record by the appellant would not indicate that the
suit premises was a pacca structure or that the appellant was
carrying on business in the premises since 1961-1962. If the
appellant was carrying on any business in the premises since 1961-
1962, the appellant would have in his possession several documents
and/or permission from the Municipal Corporation or other authorities
to indicate that such business was being carried on since 1961-1962.
22. A perusal of record further indicates that after obtaining
ad-interim order of status-quo from this Court, the appellant has
extended the temporary structure in the suit premises. A perusal of
the photographs produced on record by the Municipal Corporation as
well as by the intervenor clearly indicates such further extension
carried out by the appellant. In my view, the reliefs under the
provisions of Order 39 Rule 1 of the Code of Civil Procedure are
equitable reliefs and are discretionary and such discretion can be
exercised by the Court only when the person has come to the Court

with clean hands and has not suppressed and/or material facts and
makes out a prima-facie case. In my view if a person violates the
order of status-quo granted by this Court, cannot be granted any
relief by exercising discretionary power by Court. A perusal of the
order passed by the learned trial Judge clearly indicates that the
appellant was given an opportunity to produce all the documents. The
learned trial Judge considered each and every document produced
by the appellant before him and has rightly rejected the ad-interim
relief. Though this Court has granted sufficient opportunity to the
appellant to convince this Court that the suit structure was a pacca
structure and that the appellant was carrying on business in the suit
premises since 1961-1962. In my view, the learned counsel
appearing for the appellant could not demonstrate any of these
crucial facts to seek any interim relief from this Court.
23. In my view the appeal is devoid of merits. The appellant
has taken law in his hand by committing prima-facie violation of the
status-quo order granted by this Court. It is for the respondents to file
appropriate proceedings for contempt of court against the appellant
for committing violation of the status-quo order passed by this Court.
The appeal from order is accordingly dismissed.
24. In view of the dismissal of the appeal from order, the civil
application does not survive and is accordingly dismissed. No order

25. Learned counsel for the appellant seeks continuation of
the status-quo order. In view of the fact that this Court has come to
the conclusion that the appellant has violated the order of status-quo
granted by this Court, the application of Mr.Mehta, learned counsel
for the appellant for continuation of the status-quo order is rejected.
 (R.D. DHANUKA, J.)

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