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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT.ROSHAN DALVI,J.
Soloman Raj Sigo -Appellant
Vs.
The Municipal Corporation of Gr. Bombay -Respondents
First appeal no. 433 of 2007 in L.C. suit no.6076 of 1999
Decided on:14th June, 2007
Advocates appeared :
Mrs. S.A.Dhamale , Advocate for Appellant
Mr. J. J.Xavier , Advocate for Respondents
Bombay Municipal Corporation Act, 1888 - Section 314 - Notice - Issuance of - Structure on public road - Appellant produced photographs - Stated structure outside of society and by side of tree - Two NA orders electric bill relied in suit - No reference for photographs in evidence of appellant - Appellant first time in appeal contended that structure in slum - Held - Appellant failed to right of natural justice amply given - No case made out - Appeal dismissed. - The appellant has been given full and free liberty to prove his case. He has sought to do the same and has failed. Right of natural justice i s amply given and fully utilised. In fact the further right, even aside from the rights of an appellant in first appeal has been given in this appeal to the appellant. Even the documents relied upon by the appellant not forming the part of the record are allow ed to be produced and considered. No case whatsoever is made out. The appeal is dismissed.
Bombay Municipal Corporation Act, 1888 - Section 314 - Removal of structure - Natural justice - Notice under Section 314 of Act to be given for removal of structure - No-opportunity afforded to party by Executive Authority - Non-compliance of principles of natural justice - Party aggrieved can approach Court of law - After giving such opportunity no case made out - Further opportunity cannot be granted. - It has been observed in that order that an opportunity should be accorded to the parties to whom notice under Section 314 of the BMC Act is issued to produce materials to support their case as to why the proposed action under Section 314 is not warranted. That would be notice to show cause and to give them a fair opportunity. Thereafter if any adverse orders are passed those parties are required to be informed in writing and give a week’s time from the date of the service of the order before taking the proposed action.
It may be mentioned that the party can come to a Court of law when opportunity to him has been refused by an Executive Authority, in compliance of the principles of natural justice. If the plaintiff comes to the Court of law and seeks to make out a case, he is afforded ample opportunity to prove his case. If after such opportunity also no case is shown or proved no further opportunity can be granted.
2. The Appellant is in possession of a structure in Bangur Nagar, Goregaon (West), Mumbai- 400 090. The Appellant carries on business in the said structure.
3. The Respondents' Ward Officer issued notice dated 3rd August, 1998 to the Appellant for removal of the structure which was stated to be unauthorised, in which the Appellant was carrying on business without license from the BMC. The Appellant filed a suit in the Bombay City Civil Court being Suit No.3647 of 1998 and obtained ad- interim injunction order on the next day i.e. On 4th August, 1998 restraining the Defendants from demolishing the said structure. The Appellant gave notice of the order to the Ward Officer of the Respondents on 4th August, 1998.
4. On 22nd February, 1999 an order came to be passed in the Appellant's suit restraining the Respondents from demolishing or removing the Appellant's structure until they followed due legal process.
5. The Respondents followed the legal process of issuing notice under Section 314 of the BMC Act on 21st May, 1999 following the directions passed in the Appellant's Suit No.3647 of 1998.
6. The Appellant replied to the said notice on the very next day i.e. On 22nd May, 1999 contending that the suit structure is not on a public street so as to form any obstruction or any encroachment , to protect the said structure the Appellant filed the present Suit. Upon evidence being led and considered and issues being framed therein, the impugned judgment has been passed. In essence what is to be seen in the said suit and what is to be seen in this Appeal is whether the notice issued under Section 314 of BMC Act on 21st May 1999, is illegal and whether the Plaintiff proves the authorisation of the suit structure so as to have it protected by the order of an injunction. Further issues which came to be framed and considered in the said suit following upon the aforesaid issues is whether the Plaintiff's structure is at Plot No.161, Part of C.T.SNo.1050 of Goregaon (W), Mumbai- 400 090 and is not on public road.
7. The learned trial Judge upon considering the evidence placed before him answered the aforesaid issues in the negative and dismissed the Suit.
8. It is the case of the appellant / plaintiff that his structure is authorised structure and is not on the road and consequently it cannot be demolished under the notice impugned in the above suit, which is issued under Section 314 of the BMC Act. The Appellant has relied upon essentially 3 document s, being 2 NA orders and an electricity bill. The NA orders exhibited in evidence are in respect of a structure in Bangur Nagar on Survey No.161. The N.A.
Orders are issued in favour of one Laxmi Asbestos Products Ltd. The N.A. Orders are dated 15th April, 1998 and 29th June, 1998. These N.A. Orders at best show the Appellant's structure in existence in 1998.
9. The Appellant has also relied upon and produced the electricity bill of May, 1998 also issued in favour of M/s. Laxmi Asbestos Products Ltd. At Bangur Nagar, Goregaon (W), Mumbai- 400 090. (It may be mentioned that the Appellant is stated to be carrying on business in the name of M.M. Electricals).
10. The learned Judge has considered each of these documents of the Plaintiff. All the documents being of 1998, they do not show authorisation or toleration of whatever be the Appellant's structure mentioned therein. The affidavit of evidence of the Plaintiffs does not rely upon any of the documentary evidence with regard to the immovable properties which the appellant claimed.
11. The notice of the suit structure is issued under Section 314. The structure is stated to be on public road. The Appellant must show and prove that the structure is not on public road. Mrs. Dhamale on behalf of the appellant has argued that the appellant's structure is withi
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