LAWS(BOM)-2011-2-195

MUNICIPAL CORPORATION OF GREATER MUMBAI Vs. MR. THOMAS MATHEW, MR. JHONSON MATHEW AND MR. SABASTIAN MATHEW

Decided On February 10, 2011
MUNICIPAL CORPORATION OF GREATER MUMBAI Appellant
V/S
Mr. Thomas Mathew, Mr. Jhonson Mathew And Mr. Sabastian Mathew Respondents

JUDGEMENT

(1.) BY an Administrative order of the Hon'ble the Chief Justice, the Appeal was specially assigned to this Court. Accordingly, the appeal was fixed for final hearing on 31st January, 2011. With a view to appreciate the submissions made by the parties, it will be necessary to make a brief reference to the facts of the case. The Respondents are the Original Plaintiffs and the Appellant Corporation is the Original Defendant. The Respondents have stated in the plaint that they were in use, occupation and possession of the structure consisting of three shops more particularly described in paragraph No. 1 of the plaint. In paragraph No. 3 of the plaint, it is contended that the three shops (for short "suit shops") were in possession of one Jamros Itbargul Khan and two others. The Respondents are relying upon agreements dated 20th July, 1993, 1st June, 1994 and 3rd February, 1995, under which they claim to have acquired the suit shops. Reliance is placed on payment of non agricultural assessment. It is contained that an application was made by the Respondents for getting the suit shops assessed for municipal taxes. In the plaint, reliance is placed on various documents in respect of electricity and water connection relating to the suit shops. It is stated that as there was a threat issued by the Appellant Corporation to demolish the suit shops without following due process of law, L.C. Suit No. 3078 of 1996 was filed by the Respondents for injunction restraining the Appellant from demolishing the suit shops without following due process of law. The Respondents are relying upon ad -interim relief granted in the said suit by the trial Court on 10th June, 1996 by which the Appellant was restrained from demolishing the suit shops without following due process of law. It is contended that notwithstanding the said order, on 27th June, 1996, a portion of the roof of the suit shops was demolished and, therefore, a Notice of Motion was taken out by the Respondents for taking action against the Appellant for breach of the order of injunction. It is stated that though the Respondents were allowed to repair the roof, in reply filed by the Appellant to the Notice of Motion in the said suit, it was contended that no such demolition was carried out. The plaint discloses that notice dated 19th December, 2001, was issued by the Appellant under Section 354A of the Mumbai Municipal Corporation Act, 1888 (herein after referred to as the "said Act") alleging that the Respondents were carrying out unauthorized work. In the plaint, it is stated that as there was threat of demolition, L.C. Suit No. 6650 of 2001 was filed by the Respondents in which ad -interim injunction was granted by the Trial Court on 21st December, 2001.

(2.) ON 8th January, 2002, another notice was issued by the Appellant alleging that the suit shops were demolished on 22nd April, 1998 and without obtaining permission, Respondents have reconstructed the suit shops. The Respondents were called upon to remove the suit shops within a period of 24 hours. Reply was issued on 11th January, 2002 by the Respondents through their Advocate. The present suit was initially filed for a declaration that notice dated 8th January, 2002 was illegal and for perpetual injunction. It appears that on 16th September, 2003, the suit shops were demolished by the Appellant Corporation. Various allegations have been made in the suit as regards the movable properties of the Respondents taken by the officers of the Corporation. On the basis of the said subsequent event of demolition, plaint was permitted to be amended. Apart from adding averments, the Respondents prayed for declaration that action of demolition was illegal. Another prayer was added for directing the Appellant to reconstruct the suit shops with same measurement and similar material and for restoration of status -quo ante. In the alternative, it was prayed that the Respondents be allowed to reconstruct the suit shops at the same place at their own costs. Paragraph No. 17A was incorporated in the plaint by another amendment contending that the Appellant -Defendant be directed to provide alternative site and/or plinth and/or accommodation in lieu of the demolished suit shops. A prayer was added for a mandatory injunction directing the Appellant to provide the Respondents an alternative site and/or land in similar locality and/or the same size of the suit shops.

(3.) AFTER the parties adduced evidence, the learned trial Judge come to the conclusion that the Appellant has failed to prove that the demolition of the suit shops was carried out on 22nd April, 1998 after service of notice under section 314 dated 17th April, 1998. Relying upon admissions of the witness examined by the Appellant, the Trial Court held that the case that the suit shops were within road line, cannot be accepted. The Court held that the action of demolition carried out on 16th September, 2003 was illegal. The trial Court held that notice dated 8th January, 2002 was illegal. The trial Court permitted the Respondents to reconstruct the suit structure, however, rest of the prayers were not granted.