While parting with this judgment I may observe
that in proceedings such as the present one, where
the plaintiff approaches the court for a limited
relief that the authority be directed to follow due
process of law,there is very little or no defence
available to the authority. It would be a
different matter if the authority was to assert
that the subject matter of the suit (suit premises)
were not in existence at all on the date of
institution of the suit or that the due process of
law has already been followed in respect of the
suit structure in the suit, in which case the
question of granting relief in such suit would not
arise.
However, in any other situation where
existence of some structure is not disputed or
indisputable, relief such as prayed in the present
suit, will have to be granted for asking, as no
authority can be permitted to take unilateral
action, even if the structure is unauthorized -
except by following due process of law. Therefore
all the Corporations and the Municipal Authorities
may be well advised to consider issuance of
appropriate directions to all its officers
concerned with the subject that in a suit of this
kind a statement be made on the first date of
hearing of the suit before the court on behalf of
the authority that they will follow the due process
of law on which basis the suit can be disposed of.
That will assuage the apprehension of the plaintiff
in relation to the suit property. Besides, that
would not only result in conserving avoidable court
time but also public exchequer in requiring to
undergo the rigmarole of a full fledged trial.
9. There will be one other practical advantage of
such a course. Even if the general scenerio is
that the officers of the Municipal Authorities are
sincere and known to be honest; but there is
always a possibility of some abrasion down the
line. The unscrupulous litigant on being
pre-warned of the proposed or contemplated action
regarding the structure by an obliging officer, may
rush to the court of law with a suit for injunction
that no action be taken against the structure
without following due process of law. In such a
suit ad-interim order were to be granted by the
court. Judicial notice can be taken of the fact
that the suit and later on appeal would remain
pending for some time. All this time lost will
inevitably enure to the benefit of the plaintiff as
the legal action regarding the structure will be
deferred on the specious plea that the matter is
subjudice. Instead, such a suit can be disposed of
on the first date of hearing on the statement to be
made on behalf of the Authority that the due
process of law will be followed. Soon thereafter
the legal process against the structure can be
proceed with and taken to its logical end. In the
process,there will be no opportunity to the
unscrupulous litigant to gain undue time by using
the process of law.
l0. Indeed, it is possible that in a given case,
taking advantage of such statement to be made by
the Authority the unscrupulous plaintiff may carry
on some unauthorised construction or extend the
existing structure. To obviate such a situation,
the plaintiff shall be obliged to produce on
record, on affidavit, the latest photographs
showing all the dimensions of the suit structure
and the plans thereof to be certified by a licenced
Architect , so that the onus will rest on the
plaintiff if any additional construction is noticed
later on during the action before the Authority or
the court of law and such plaintiff can be denied
the equitable relief as also proceeded against for
appropriate action, civil and criminal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
First Appeal No.2426 of 2005
with
Civil Appln No.5957 of 2005
Mr Abdul Hasan Shaikh Mansuri . appellant
vs
Mun Corpn of Mumbai and ors .. respondents
CORAM; A.M.KHANWILKAR J.
DATED
2.3.2006
Read original judgment here:click here
P.C.
Mr
Heard learned counsel for the parties.
Xavier
waives notice for Mun Corporation.
As
question is involved, the appeal is taken up
short
Admit.
l.
for hearing forthwith by consent.
This
appeal
emanates from the
2.
decree
instituted
in
appellant
for
premises
L.C
Suit
No.
the
532
of
suit before
2004.
the
The
lower
declaration and injunction against
defendants
and
passed by the City Civil Court Mumbai dated
22.9.2005
court
judgment
to
forebear from demolishing the
the
suit
admeasuring 5 ft x 4 ft constructed of GI
sheet wall and AC sheet roof bearing S.No.44, Hissa
No.9B, CTS No.
Borivli,
737(pt) of village Kandivli, Taluka
Mumbai,
situated
at Gandhi
Nagar
Near
Power
House,
Mumbai.
The
Durga
Mandir Road,
substantive
Kandivli
relief claimed
West,
by
the
"a) That this Hon‘ble court be pleased to
declare that the threat
given by
the
defendants to demolish the suit premises
admeasuring 5’ x 4’ sq ft constructed of GI
sheet wall and AC
sheet roof
bearing
S.No.44, Hissa No.9B CTS no.737 (pt) of
Village Kandivli, Taluka
Borivli Mumbai
Suburban District situated at Gandhi Nagar
Near
Power House,
Durga Mandir
Road,
Kandivli(West)
Mumbai 400067
as
more
particularly shown in Exhibit A annexed
hereto without following due process of law
is illegal and unlawful.
appellant plaintiff read thus:
ig
b)
That the
defendants their
agents,
servants, officers, employees be permanently
restrained by an order and injunctions of
this Hon‘ble court from demolishing the suit
premises/
admeasuring
5’ x 4’ sq
ft
constructed of GI sheet wall and AC sheet
roof bearing S.No.44, Hissa No.9B CST no.737
(pt) of Village Kandivli, Taluka Borivli
Mumbai Suburban District situated at Gandhi
Nagar Near Power House, Durga Mandir Road,
Kandivli(West)
Mumbai
400067
without
following due process of law
c) that interim and ad-interim reliefs
terms of prayer (b) above be granted.
in
d) costs of this suit be provided for
e) for such other and further reliefs as the
nature and circumstances of the case may
require be granted".
Essentially, the relief claimed in the suit was
to 3. issue
against
direction to the corporation to
the suit structure after following the due
process of law.
the
proceed
suit
The case of the plaintiff was that
structure
was constructed by
one
Khan
Sabuddin
Nazirkhan
purchased
it
from
under
whom the
an agreement
appellant
of
sale
had
dated
Indeed, the agreement of sale is not a
registered document as has been noted by the trial
court.
Nevertheless, such document can be used in
the relief claimed.
suit
structure
To establish the fact that the
is
relied
existing
Tahasildar dated 2/2/l996 which mentions that the
plaintiff was for
unauthorized
allegedly
agricultural
relied upon the
the
land
purpose. The
agricultural tax
ig
also
using
dated 2.5.l996 and the licence granted
by
corporation under the Shops and Establishments
Act.
It
is
not
the
non
passed
the
the
receipt
the order
long,
by
appellant
upon
since
appellant
evidence for collateral purpose such as to buttress
3.l2.l99l.
necessary
to
refer
to
other
circumstances pressed into service by the appellant
to assert that the suit structure is existing since
long.
In my opinion, these documents and the evidence
4.
produced
that
by the appellant was sufficient to
some structure did exist on the disputed land
on the date of the institution of the suit.
infer
Such a
finding was inevitable as the respondent-defendants
did not file any written statement.
finding
to
be
reached,
the
If this is the
court
below
has
committed
which
manifest
was
error in dismissing
essentially for direction
Authorities
to
take
the
suit
against
action against such
a
the
suit
The
trial
court
however,adopted
specious
5.
structure by following due process of law.
reasoning that the agreement of sale relied by the
appellant was
opinion
a registered
overlooks
document.
that even such document can
in evidence for collateral purpose,
for
establishing title.
be
though
The trial court has
of
observed that the order of Tahasildar and the
agricultural
receipt cannot show legality
structure.
scope
of
namely,
suit
This opinion overlooks
receipt
in the suit was
the
tax
ig
then
This
relied
not
not
that
very
the
limited,
the Authorities should proceed against the
structure
is
following the due
process
too late in the day even for a
law.It
by
of
private
individual leave alone Statutory Authorities - such
as
the
respondents to contend that it is open
dispossess
any
one
settled possession
process of law.
case
of
from the property who
is
to
in
thereof without following due
It will be useful to refer t the
Krishna Ram Mahale vs Shobha
l989(4)SCC
l3l.
In para
Venkat
8
of
Rao
reported in
the
reported decision it is observed that it is a well
settled law in this country that where a person is
in
settled
possession
assumption
on the
he had no right to remain on the
that
of property, even
property, he cannot be dispossessed by the owner of
property
also
refer
except by recourse to law.
to
the
case
of
We Club vs
Anamallai
may
l69.
It
is
possession
held
that
cannot
be
a
person
Government of T N and ors, reported in (l997) 3 SCC
in
dispossessed
the
juridical
unilaterally
without recourse to law, as law respects possession
even
if
is no valid title to
support
it.
is also authority on the point that even
There
there
an
encroacher is justified in making grievance that he
be
heard before being dispossessed
ig
should
-
See
Kanniappan and ors vs. A Perumal and ors, reported
in Viewed thus, the fact
the
suit
l0 SCC 98.
structure
(2002)
is not
legal
or
that
authorised
cannot be the basis to throw out a suit simplicitor
a direction to the Authority to take action in
for
regard to the structure by following due process of
law.
the
plaintiff witness;
trial
court
admitted
show
has
that
that
noted
examine
and on which evidence
that
the
plaintiff
he has no documentary
the suit structure was
the
has
evidence to
constructed by
taking permission of the Corporation.
and
statement
record the respondent no.l could cross
on
Assuming that without any written
Such inquiry
finding is travelling beyond the limited scope
of
the suit for direction against the
Authorities
to refrain from taking any action in respect of the
structure except by following due process
trial
appellant
to
found
that
has not produced any assessment
indicate
and
court has then
further
in
the
observed
appellant
receipt
that the suit structure was
numbered
municipal
by to
assessed
indicate
record.
trial
court
It
that
is
the
the name the appellant on
that he would take action in respect
officer
failed
the
the
The
law.
of
of
who
24.l.2004
gave
threats
to
of
the
suit
the suit structure,which compelled the appellant to
the
suit
on
the
basis
apprehension without
formality issuance of statutory
even
527 of the MCC Act.
that,
complying
such
approach
to
such
with
the
notice
section
of
of
ig
institute
under
Suffice it to observe
say
the
least,
is
6.
impertinent to the point in issue.
The limited controversy that was required to be
answered
dispute
by the trial court for the nature of
is
whether the suit structure existed
the
on
the site as claimed by the plaintiff and if so, the
Authorities would be obliged to take action against
such structure only by following the due process of
law,
which was the limited direction sought by the
appellant.
In
other words, the decision
of
the
trial
court
sustained
impugned
either
in this
on
appeal
facts or in
cannot be
Same is
law.
therefore set aside and instead the suit is decreed
direction to the respondents to doth take any
action
in
relation
to the suit
that observations in this judgment is not
structure
of
That
made
clear
due
expression
It is
after
following
the
process of law.
structure
with
opinion on the factum of
the
an
suit
is authorised or protected or otherwise.
be
initiated by the respondents in
accordance
to
inquiry will be undertaken in the proceedings
with law before taking any action in respect of the
structure.
proceedings
All questions relevant
such
are kept open to be decided on its own
merit.
7.
in
suit
Appeal as well as civil application is disposed
8.
While parting with this judgment I may observe
in proceedings such as the present one, where
that
of on the above terms with no order as to costs.
the
plaintiff
approaches the court for a
limited
relief that the authority be directed to follow due
process
available
of law,there is very little or no
different
to
the
matter
authority.
It
defence
would
if the authority was
to
be
a
assert
that the subject matter of the suit (suit premises)
not
in
law
has
suit
on
the
date
already been followed in respect
question
of
of the suit or that the due process of
structure
in
the suit, in
the
case
which
of the
of granting relief in such suit would not
arise.
However,
existence
of
any
other
situation
structure is not
where
disputed
have to be granted for asking,
authority
or
relief such as prayed in the present
will
can
be
even
permitted
to
take
if the structure is
as
no
unilateral
unauthorized
-
action,
in
some
indisputable,
suit,
at all
institution
existence
were
except
by following due process of law.
Therefore
the Corporations and the Municipal Authorities
may be
well
concerned
kind
directions
to
consider
to
appropriate
advised
ig
all
all
issuance
its
of
officers
a
with the subject that in a suit of
date of
of the suit before the court on behalf of
be made on the
first
hearing
statement
this
the authority that they will follow the due process
of
law on which basis the suit can be disposed of.
That will assuage the apprehension of the plaintiff
in
relation
to the suit property.
Besides,
that
would not only result in conserving avoidable court
time
but
also
public exchequer in
requiring
to
undergo the rigmarole of a full fledged trial.
9.
There will be one other practical advantage of
such a
that the officers of the Municipal Authorities are
always
and
a
known
to be honest;
possibility
line.
The
scenerio
but
there is
down the
of some abrasion
on being
of the proposed or contemplated action
pre-warned
unscrupulous
is
litigant
sincere
Even if the general
course.
regarding the structure by an obliging officer, may
rush to the court of law with a suit for injunction
no
suit
following
ad-interim
court.
that
be taken
pending
suit
for
the
structure
due process of law.
In such
order were to be granted
Judicial
the
against
by
without
action
and later on appeal
some time.
fact
would
All this time
a
the
notice can be taken of the
ig
that
remain
lost
will
the
inevitably enure to the benefit of the plaintiff as
legal
deferred
action regarding the structure will
on
is
Instead, such a suit can be disposed of
subjudice.
the specious plea that the matter
be
on the first date of hearing on the statement to be
made
on
the
legal
proceed
the Authority
process
that
Soon
the
against the structure
will
be
no
opportunity
can
to
litigant to gain undue time by
the process of law.
the suit
To wit, in the present
It
be
In the
unscrupulous
was filed in January 2004.
due
thereafter
with and taken to its logical end.
process,there
of
of law will be followed.
process
behalf
is
the
using
case
only
hereafter
against
on expiry of over two years, the
the
structure
may be
initiated
action
by
the
Indeed, it is possible that in a given
taking
the
advantage
case,
of such statement to be made
by
l0.
Authorities and proceeded in accordance with law.
on
Authority the unscrupulous plaintiff may carry
some
unauthorised construction or
existing
the
structure.
plaintiff
all
shall
on
showing
To obviate such a
be
affidavit,
obliged
the
the
to
situation,
produce
latest
on
photographs
record,
extend
the dimensions of the suit
structure
Architect
,
ig
and the plans thereof to be certified by a licenced
so
that the onus will
rest
on
the
plaintiff if any additional construction is noticed
later
on during the action before the Authority or
court of law and such plaintiff can be
denied
the equitable relief as also proceeded against for
the
appropriate action, civil and criminal.
The Registrar of the High Court is directed to
ll.
send
copy
of
Commissioners
Chief
in
this
of
order to
the Municipal
all
the
Municipal
Corporations
and
Executive Officers of the Municipal Councils
Maharashtra
for
information
and
necessary
action.
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