Failure to establish the existence of an unauthorized structure before the datum line and the lack of balance of convenience led to the dismissal of the appeal.

JUDGMENT :

SANDEEP K. SHINDE, J.

1. Pending suit, vide order dated 22.10.2020, the learned trial Court declined to protect the suit structure in respect of which the respondent, Corporation on 24.2.2012, had issued a notice under Section 351 of the Mumbai Municipal Corporation Act. Aggrieved by the order, the plaintiff has preferred this Appeal, under Order 43 Rule 1 of the Civil Procedure Code.

2. Facts of the case are as under:

On 25.4.2012, the respondent, Corporation issued a notice to plaintiff under Section 351 of the Mumbai Municipal Corporation Act, calling upon him to show cause, why the suit structure described in the notice schedule, should not be removed or pulled down. The structure described in the schedule is “unauthorised construction of structure with B.M. wall and bamboo and tarpaulin sheet admeasuring 15 ft. 3 inches x 32 feet and height 10 feet (“suit structure” for short) situated at Champa Niwas, Plot no. 17, H.F. Society, Road No. 5, Jogeshwari (East). Plaintiff/respondent the notice vide reply dated 30.04.2012; but did not submit construction permission. He, simply stated that the suit structure came into being since before 30 years. Tenor of the reply therefore suggests, suit structure was constructed without permission of the Planning Authority but since it exists prior to the datum line i.e. 1.04.1962, fixed for commercial structures, it cannot be demolished, which was being used for commercial purposes. The authorised officer, after considering the reply, vide order dated 19.05.2012 rejected the explanation/reply and called upon the plaintiff to remove the suit structure within seven days. Soon thereafter, the appellant instituted Long Cause Suit No. 1204/2012 and challenged the validity of notice dated 24.4.2012 issued under Section 351 of the Mumbai Municipal Corporation Act. Pending suit, vide ad-interim order dated 30.05.2012, trial Court protected the, suit structure, which was in force till 22.10.2020, a date on which Notice of Motion was dismissed.

3. Admittedly, no construction permission is coming forth in respect of the suit structure, nor there is acceptable evidence to suggest that the suit structure, was in existence prior to the datum line i.e. 1.4.1962 fixed for commercial structures. A solitary piece of document on which heavy reliance has been placed by the appellant/plaintiff, is ‘assessment extract’ which is at page-49 of the paper-book. This extract is in relation to property: K4182(2), Plot no. 23, (emphasis supplied), AC shed, Hindu Friend Society, Lessee; Smt. Lalita M. Mehta. It shows, described property on Plot no. 23 was assessed to municipal taxes first time on 01.04.1979. Except this document, no other document has been placed on record to substantiate that the suit structure was in existence prior to the datum line. Be that as it may, in my view, even this assessment extract does not further the plaintiff’s case, since it is in relation to structure, on Plot No. 23 (not 17), in as much as, the notice issued under Section 351 was issued in respect of the structure standing on Plot no. 17. When the learned Counsel for the appellant was countered with this anomaly, Counsel would contend that, another notice under Section 354 dated 16.5.2012 addressed to the plaintiff was at Plot no. 23, Natwar Nagar, Road no. 5, HF Society Road, Jogeshwari (East). Relying on this notice, it is contended that the assessment extract produced by the plaintiff was in respect of the suit structure. In the alternative, it is argued, that the suit structure was purchased by the plaintiff from its erstwhile owner, Lalita Mehta, whose name reflects in the Assessment extract, as “lessee” of Plot No. 23. However, for the first time, this plea has been advanced, but in absence of pleadings to that effect, this plea cannot be accepted. Thus, confusion is sought to be created by producing tax assessment extract of other property, though suit notice relates to structure standing on Plot No. 17.

4. Thus, as stat