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2012 Supreme(SC) 287
Supreme Court of India
P. SATHASIVAM & J. CHELAMESWAR
Municipal Corporation of Greater Mumbai
Versus
Thomas Mathew & Others
CIVIL APPEAL NO. 3417 OF 2012 (Arising out of S.L.P. (Civil) No. 11866 of 2012) (CC No. 20207/2011)
Decided on : 09-04-2012
For the Appellants:R.P. Bhatt, Sr. Advocate, S. Sukumaran, Anand Sukumar, Bhupesh Kumar Pathak, Ms. Meera Mathur, Advocates For the Respondent: Thomas Mathew - In - Person.
IMPORTANT POINT
Inaction on part of the Corporation deplored.
Headnote:(a) Code of Civil Procedure, 1908 – Section 100 – Material not placed before trial court or first appellate court – Cannot be placed before second appellate court. (Para 6)
(b) Mumbai Municipal Corporation Act, 1888 – Section 314 – Corporation demolishing allegedly unauthorised constructions – Not producing any ownership documents – Inaction of Corporation deplored – High Court issuing directions – Corporation bound to comply with direction 2 if it wants to keep the site open. (Para 7)
Facts of the case:
On 17.04.1998, a notice under Section 314 of the Mumbai Municipal Corporation Act, 1888 was issued to all persons who were in occupation of the Patra structures which are constructed on foot paths and streets situated near Empire House on Veera Desai Road, Last Bus Stop, Andheri (West), Mumbai directing to remove the said Patra Sheds etc. together with their belongings within two days. On failure to comply with the said direction, the Corporation demolished the unauthorized structures raised by the respondents on 22.04.1998.
Again on 19.12.2001, the Corporation issued notice under Section 354A of the MMC Act directing the respondents to stop the erection of structure/execution of the work forthwith failing which the same shall be removed.
The respondents filed L.C. Suit and the Civil Judge restrained the Corporation from taking any action in pursuance of the notice issued under Section 354A of the MMC Act till filing its reply affidavit in the suit.
On 08.01.2002, the Corporation issued another notice under Section 314 of MMC Act directing the respondents to demolish the reconstructed structure on the very site which was demolished by the Corporation earlier on 22.04.1998. The respondents replied to the above notice through their advocate stating that the said notice was illegal and bad in law.
After filing of the reply affidavit by the Corporation in L.C. Suit the Civil Judge discontinued the injunction order passed earlier.
The respondents filed Suit No. 539 of 2002.
On 25.01.2002, the earlier Suit was dismissed as withdrawn.
On 16.09.2003, the Corporation demolished the unauthorized suit structure. Justifying its action taken in public interest, the Corporation filed its written statement and additional written statement in second Suit on 30.06.2004 and 14.03.2005. The Civil Judge partly decreed the suit declaring that notice dated 08.01.2002 issued by the Corporation under Section 314 of the MMC Act was illegal and allowed the respondents to reconstruct the said structure as it was prior to the demolition at their own cost.
The Corporation filed First Appeal before the High Court. The High Court confirmed the decree passed by the trial Court with certain modifications.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result: Appeal dismissed with cost.
Judgment :
P. Sathasivam, J.
1) Delay condoned.
2) Leave granted.
3) This appeal is directed against the final judgment and order dated 10.02.2011 passed by the High Court of Judicature at Bombay in First Appeal No. 223 of 2009 whereby the High Court disposed of the appeal filed by the appellant herein with certain modifications in the judgment and decree passed by the trial Court in Notice of Motion No. 4026 of 2003 in L.C. Suit No.539 of 2002.
4) Brief facts:
(a) The appellant-Corporation is a public body duly enacted and formed for the benefit of public at large and to regulate and control the unauthorized construction carried out in the city of Mumbai. The respondents are the owners of the suit premises.
(b) On 17.04.1998, a notice bearing No. KW/036/AEM/OD under Section 314 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as ‘the MMC Act’) was issued to all persons who are in occupation of the Patra structures which are constructed on foot paths and streets situated near Empire House on Veera Desai Road, Last Bus Stop, Andheri (West), Mumbai directing to remove the said Patra Sheds etc. together with their belongings within two days. On failure to comply with the said direction, the Corporation demolished the unauthorized structures raised by the respondents on 22.04.1998.
(c) Again on 19.12.2001, the Corporation issued notice under Section 354A of the MMC Act bearing No. KW/BF/354A/2154/JE-V/SEB-II directing the respondents to stop the erection of structure/execution of the work forthwith failing which the same shall be removed.
(d) Questioning the said notice, the respondents filed L.C. Suit No. 6650 of 2001 before the City Civil Court, Bombay. By order dated 21.12.2001, the Civil Judge restrained the Corporation from taking any action in pursuance of the notice issued under Section 354A of the MMC Act till filing its reply affidavit in the suit.
(e) On 08.01.2002, the Corporation issued another notice under Section 314 of MMC Act being KW/1138/AEM/OD directing the respondents to demolish the reconstructed structure on the very site which was demolished by the Corporation earlier on 22.04.1998. The respondents replied to the above notice through their advocate stating that the said notice was illegal and bad in law.
(f) After filing of the reply affidavit by the Corporation in L.C. Suit No. 6650 of 2001, the Civil Judge by order dated 19.01.2002 discontinued the injunction order passed earlier.
(g) Challenging the notice dated 08.01.2002 issued by the Corporation under Section 314 of MMC Act, the respondents filed Suit No. 539 of 2002.
(h) On 25.01.2002, Suit No. 6650 of 2001 was dismissed as withdrawn.
(i) On 16.09.2003, the Corporation demolished the unauthorized suit structure. Justifying its action taken in public interest, the Corporation filed its written statement and additional written statement in Suit No. 539 of 2002 on 30.06.2004 and 14.03.2005. By order dated 06.01.2009, the Civil Judge partly decreed the suit declaring that notice dated 08.01.2002 issued by the Corporation under Section 314 of the MMC Act was illegal and allowed the respondents to reconstruct the said structure as it was prior to the demolition at their own cost.
(j) Being aggrieved by the aforesaid order, the Corporation filed First Appeal being No. 223 of 2009 before the High Court. Vide order dated 10.02.2011, the High Court confirmed the decree passed by the trial Court with certain modifications.
(k) Being aggrieved by the order passed by the High Court, the appellant- Corporation has filed this appeal by way of special leave before this Court.
5) Heard Mr. R.P. Bhatt, learned senior counsel for the appellant and Mr. Thomas Mathew, respondent No.1, who appeared in person.
6) Though learned senior counsel for the appellant insisted that in view of the fact that the suit structure (shops) situate on the road margin which belongs to the appellant-Corporation, admittedly the said stand was not substantiate
