PREM LAKHANI Vs. BOMBAY MUNICIPAL CORPORATION

JUDGEMENT

(1.) BOTH these Appeals are being disposed of by this common order as they arive from the order dated 18th October, 1997 in Notices of Motion taken out in Long cause Suit No. 7386 of 1995 and Long Cause Suit No. 7387 of 1995.

(2.) PURSUANT to a show cause notice the respondent Corporation issued a notice of demolition in respect of two flats situated in a building known as "jamna Sagar building" situated at 59-60. Shahid Bhagatsingh Road, Colaba, Bombay-400 005 while passing the order of demolition the Deputy Municipal Commissioner proceeded on the footing that the area in which the building has been put up admeasured 1372. 76 sq. mtrs. The original plans submitted on 28th July, 1973 disclosed this area and accordingly building permission was granted. Subsequently in the year 1981 the Architect for the building was changed and he submitted a revised plan in which the area of the building was shown as 1533. 69 sq. mtrs. The permission in terms thereof was granted. Subsequent thereto it was found that the documents based upon which the permission was granted were not in fact issued by the Authorities. The Collector in fact in his correspondence to the respondent pointed out that such a document was not issued. There was some controversy in the matter. By an order dated 12th December, 1997 the Collector of Mumbai was permitted to be added as party-respondent. He was called upon to produce through the Authorised Officer the relevant records showing the area of the plot c. S. No. 60, 1/60 and 2/59. Pursuant thereto Shri Ranjit Jaisinhrao Ghorpade has filed an affidavit. Along with the said affidavit he has enclosed the necessary documents. In para 2 it is averred that the area of the suit plot i. e. C. S. No. 60, 2/59 and 1/60 is 1641. 26 sq. yards i. e. 1372. 36 sq. mtrs. It is also therein averred that the purported letter dated 7th May, 1981 persumed to have been issued by the Collector, Mumbai city, in fact was not issued by the said office and that the same was informed to the bombay Municipal Corporation vide office D. O. letter no. CSLR/s, 7 KR/i/t-1/c. S. NO. 60, 1/60 AND 2/59, Colaba division/2273 dated 8th August, 1989. In para. 3 it is reiterated that the area of the plot is 1372. 36 sq mtrs. NO other document has been produced to show that the area of the plot is other than 1372. 36 sq. mtrs.

(3.) WITH this background we may now deal with the Appeals before us. It is strongly contended on behalf of the Appellants that apart from the development permission of 1975 and the subsequent permission granted pursuant to application dated 14th May, 1981 in fact revised plans were submitted and based on the revised plans as approved, construction was put up. Reliance has been placed on two letters. Letter dated 15th May, 1979, is purported to be fay the Executive engineer, Building Proposal (City) addressed to M/s Harish Shah and Associates, the first Architect and copy thereof endorsed to the persons shown in the said letter. In the said letter it is mentioned that the amended plans submitted are approved subject to the conditions in the Intimation of Disapproval issued or, 28th july, 1975. The next letter purported to be a commencement certificate dated 13th may, 1979 on which there is an endorsement that the commencement certificate is extended for ground plus 11 upper floors only. The endorsement is dated 17th october, 1979. It is contended that though a specific plea was taken in the plaint, in para 10 (g)there has been no specific denial of this averment and, therefore, it must be presumed that in fact such licenses and/or permission had been granted. It is secondly contended that the order against the Appellants was passed in violation of the principles of natural justice and fair play in as much as no personal hearing was given to the appellants though asked for. It is further contended that there are disputes between the partners and as a result thereof any admission made or statement recorded from the erstwhile partners of the partnership of which admittedly the Appellant in Appeal No. 1236 of 1997 was a partner cannot be used against him It may be also mentioned that the appellant in Appeal No. 1237 of 1997 is the wife of the appellant in Appeal No. 1236 of 1997. It is, therefore, contended that there are triable issues in the matter and once it is held that there are triable issues the appellants have made out a prima facie case and if injunction is not granted the respondents are likely to demoilish the construction which will result in irreparable loss to the appellants. In these circumstances it is argued that the balance of convenience is in favour of the appellants.