FIRST APPEAL 538 of 2004 on 16 December 2003

ORAL JUDGMENT :

1. The Appellant has challenged the judgment and order dated 16.12.2003 of the Judge of the Bombay City Civil andSessions Court, Bombay, dismissing the Appellant's (original Plaintiff's) Suit, which was for an injunction restraining the Respondents from demolishing the structure impugned inthe notice issued to the Appellant under Section 351 of theBombay Municipal Corporation Act (BMC Act).

2. The notice was in respect of construction of a structure of B.M. Walls and ladi coba slab with partly mazanine floor. It was at the rear of the Appellant's structure in which hecarried on business in the names of Central Stores andCentral Oil. The Appellant's Advocate states that thisbusiness is carried by the sons of the Appellant. Theimpugned construction extends from the structure of theAppellant until the compound wall of the building viz. MaladDeep.carried on business in the names of Central Stores andCentral Oil. The Appellant's Advocate states that thisbusiness is carried by the sons of the Appellant. Theimpugned construction extends from the structure of theAppellant until the compound wall of the building viz. MaladDeep.

3. In reply to the notice, the Appellant relied upon the rentreceipt of 1998, the city survey plan dated October 1998,licence issued to the Appellant in April 1987 and theregistration certificate of his shops and establishment issuedreceipt of 1998, the city survey plan dated October 1998,licence issued to the Appellant in April 1987 and theregistration certificate of his shops and establishment issued in January 1990. The DMC considered his reply and passedan order that his documents do not show authorization oreven toleration of the suit structure. The notice and theorder were challenged in the Suit. The Appellant ledevidence. From the evidence it is seen that the Appellantfailed to prove the authorization of his structure.

4. The Appellant essentially relies upon the city survey planand the plan issued by the Superintendent of Land Records(which is not a part of the record) which show all theconstruction on the entire survey number. The Appellant'sAdvocate is unable to identify the precise suit structure onthe plan. The plan is, therefore, of little assistance. Theother documents show his possession of the entire shop (notonly the unauthorized portion) from and after 1987

which also do not carry the case of the Appellant any further.

5. The Appellant failed to prove that the structure under reference in the notice was authorized. The Appellant'sevidence has been fully considered by the learned trialJudge. He has correctly come to the conclusion that theAppellant failed to prove authorization of his structure and isnot entitled for any relief. The Suit, accordingly, stooddismissed.

6. The Appellant has relied upon a further notice issued to hisneighbour also under Section 351 of the BMC Act. Thatnotice is in respect of several unauthorized constructionsshown therein. The Appellant also was issued this notice asthe owner of the Central Stores. The notice shows hispremises of Central Stores excluding the unauthorizedconstruction which is by way of extension extending upto thecompound wall. Hence, it is seen that the impugnedconstruction in the notice issued to the Appellant which wasa part of the impugned judgment in the above Suit was not apart of the later notice. The earlier structure of theAppellant which is shown to be Central Stores is the only portion shown in that notice. The neighbour's portion ishowever of a larger land. That portion extends until thecompound wall of the building Malad Deep.

7. The Appellant's Advocate relies upon the letter/order of the Assistant Engineer (B. & F.) P/North Ward of the BMC,dropping action on scrutiny of the documents in the laternotice. Consequently, it is seen that the action in respect ofthe main structure of the Appellant has been dropped. Thereis no action in respect of that structure under the impugnednotice in the above Suit. The only offending portion is thefurther construction of the extension behind that structureand extending upto the wall. That portion has not beenregularized. Action in respect of that portion has not beendropped in the later notice. In fact, that portion does notform a part of the later notice at all.

8. Reliance upon the later notice and dropping of the action is not only outside the record but is misplaced and mischievous. That does not form part of the record. Aminute consideration shows that the later notice is not inrespect of the same construction. Only the offending portionof the Appellant's structure which is not proved by theAppellant to be either authorized or tolerable and whichforms a part of the notice in the above Suit is required to beconsidered. The Appellant has not proved the authorizationof that structure. The learned Judge has correctlyconsidered his case. The Suit is correctly dismissed. TheAppeal stands dismissed. Interim order, if any, standsvacated.

9. No order as to costs.

(ROSHAN DALVI, J.)