SADU VITHAL JOSHI Vs. MUNICIPAL CORPORATION

JUDGEMENT

(1.) This appeal arises against the decree dismissing plaintiffs suit for injunction and against the order simultaneously passed rejecting appellants notice of motion for interim injunction. The appellant is a tenant of a room on the terrace of a building situate on Plot No. 134, Govindji Kani Road, Dadar, Bombay. On the allegation that the appellant unauthorisedly constructed a shed adjoining the room in his possession, the respondent-Corporation served a notice on the appellant under section 351 of the Bombay Municipal Corporation Act calling upon him to show cause why the unauthorised construction mentioned in the notice should not be demolished. This notice dated September 5, 1980 was received by the appellant on November 12, 1980. It was issued by the Deputy Municipal Commissioner, Zone II. To this notice appellant gave a reply on November 18, 1980 through his Advocate contending inter alia that he was not carrying out any new construction but he was just repairing the old structure which was in a very dialpidated condition and to repair the same he had sought permission of the Corporation on several occasions, but without granting such permission and without making proper enquiries the structure was sought to be demolished at the instigation of the landlord who wanted to dispossess him. The appellant also stated in para 4 that thought no notice under section 527 of the Bombay Municipal Corporation Act was necessary the aforesaid reply should be treated as a notice under section 527. Thereupon the Assistant Engineer (Buildings & Factories), F/South, by his letter dated December 5, 1980 addressed to the appellants Advocate called upon the appellant to produce the documents in his possession within seven days from the receipt of the notice. According to the appellant he went to the office of the Assistant Engineer, (Building & Factories), F/South Ward at Parel, on December 24, 1980 but he was informed that the decision to demolish the structure in question was already taken. The appellant, therefore, filed a suit for declaration that the notice dated September 5, 1980 was illegal, ultra vires and issued a non-germane, extraneous and irrelevant considerations, without application of mind, mala fide, and for permanent injunction restraining the Corporation from enforcing the said notice. Simultaneously he took out notice of motion for interim injunction restraining the respondent-Corporation from executing the aforesaid notice. The interim injunction was granted ex parte. The respondent-Corporation filed their written statement and also affidavit-in-reply to the notice of motion adopting the contentions raised in the written statement and praying that the notice of motion should be dismissed and the ad interim injunction should be dissolved. The respondent-Corporation contented that the unauthorised structure was detected when the premises were inspected on receiving information to that effect from the landlord and that in response to the impugned notice the appellant never approached the officers of the Corporation to show that the construction sought to be demolished was not unauthorised. It was also contented that the suit itself was not maintainable as no valid notice under section 527 of the Bombay Municipal Corporation Act was served on the Corporation before filing the suit. The learned trial Judge rejected the contention of the appellant that no notice under section 527 of the Bombay Municipal Corporation Act was necessary. He also held that the letter dated November 18, 1980 which the appellant wanted to be treated as a notice under section 527 was not a valid notice inasmuch as it was addressed to the Deputy Municipal Commissioner and not to the Corporation. He also held that issuing a notice under section 351 for demolition of unauthorised construction is not a mala fide action. Consequently he dismissed the suit and rejected the notice of motion.

(2.) Shri Vyas, the learned Advocate for the appellant, contended that the suit was dismissed by the learned trail Judge even though it was not posted for hearing or for determination of the issue about maintainability of the suit, and that no relief on notice of motion was granted solely on the ground that the suit was being dismissed. He also contended that the learned trial Judge has failed to consider the question whether any notice under section 527 was necessary.

(3.) There is no substance in the contention that no notice under section 527 was necessary. The impugned notice was given in exercise of the powers conferred on the Corporation under section 351 of the Act which empowers the Municipal Commissioner to call upon, by a written notice a person commencing, contrary to the provisions of section 347, erection of any building or execution of such work as is described in section 342 to show cause why such building or work should not be removed or pulled down. A notice issued in purported exercise of this power cannot be said to be ultra vires. Hence a notice under section 527 must be given before filing a suit for challenging validity of such a notice and of the legality of the action taken in pursuance of the same.