The central legal point established in the judgment is the determination of unauthorized construction under Section 354-A of the MMC Act and the reliance on evidence to support the claim of tenantable repairs.

JUDGMENT :

1. Plaintiffs in Long Cause Suit No.749 of 2020 have preferred this appeal against the order dated 22nd September, 2020 passed in the Draft Notice of Motion by the learned Judge, City Civil Court, (Borivali Division), Dindoshi, Goregaon, Mumbai inter-alia refusing to restrain the Corporation from executing/enforcing notice issued under Section 354A of the Mumbai Municipal Corporation Act (“MMC Act” for short).

2. In the subject suit, plaintiffs have challenged validity of the notice issued under Section 354-A of the MMC Act and the order passed by the Designated Officer dated 27th-29th July, 2020.

FACTS:

3. That upon receiving the complaint RC/009/22/07/2020/154, Officer of the Respondent- Corporation visited suit premises on 22nd July, 2020. He found ongoing unauthorised construction of independent structure (not extention of existing structure) with brick masonary wall and AC sheet roof admeasuring 13.10 mtrs X (4.25+5.8)/2 metres with average height of (3.0+3.6)/ 2 metres, at Gorai Macchi Mar Sahakari Sanstha Limited, Borivali (West), Mumbai 91. Officer enquired about the permission for said ongoing construction but the plaintiffs could not produce the same. Thereupon, Officer prepared a inspection report dated 22nd July, 2020, along with twelve photographs. Inspection report is at Page 14 and photographs are at Pages 16 to 22 of the affidavit-in-reply fled by the Assistant Engineer of the Municipal Corporation of Greater Mumbai. I have perused it.

4. This inspection report was placed before the Designated Officer (Building & Factory), who after perusing the same, issued a notice under Section 354-A of the Act on 22nd July, 2020, whereby, plaintiffs were directed to stop construction of unauthorised, which was in progress and further directed to produce permission granted by the Competent Authority, i.e., Building and Proposal Department. In response to this notice, appellants submitted documents other than ‘construction permission’. The tenor of the plaintiffs’ reply suggests that permission was not required since plaintiffs’ were carrying on the ‘tenantable repairs’. In paragraph no.8 of the reply, it is stated:

“8. My client states that my client has not carried out any unauthorized construction as alleged in the impugned notice contrary to the provision of Section 342 and 347 of the MMC Act. My client states that my client had carried out and completed only tenantable repairs to the structure in question such as plastering, painting and replaced the decayed A.C.Sheet of the roof with new ones. My client states that only the said tenantable repairs were carried out without any addition and alteration to the structure in question and such repairs do not require any permission u/s. 342 and 347 of the MMC Act from the Municipal Corporation.”

5. Besides, it is contended that the suit structure is situated in slum area and was in existence since before 1976. Also, contended that suit structure was censused under RXC 29-1/1A in the name of Mr. Pascol Kiny in the year 1976 and the Competent Authority had issued Census Certificate dated 21st December, 1978 in favour of said Pascol Kiny giving the details of structure. It is, therefore, contended that structure in question is protected one and the same was not recently constructed as alleged the impugned notice.

6. In support of aforesaid contentions, plaintiffs have placed on record a Census Certificate issued by the Office of the Controller of Slums, Bombay and B.S.D., Old Customs House, Yard, Fort, Mumbai. It is at Page 59 of the paper-book. This certificate relates to structure RXC 29/1/1A admeasuring 43 X 17 sq.ft. approximately. The Plaintiffs had also produced, demand notice issued by the Assessment and Collection Department of the Corporation and a few electricity bills.

7. Yet another contention raised was that, notice under Section 354-A of the MMC Act could not have been issued, since at the material time, suit construction was complete. Reliance has been placed on t