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2021 Supreme(Bom) 224
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Ramesh R. Pandey and Others – Appellants
Versus
Municipal Corporation of Greater Mumbai – Respondent
Appeal from Order (ST) No. 4532 of 2021, Interim Application (ST) No. 4533 of 2021
Decided On : 18-05-2021
Advocate Appeared:
For the Appellants : Mr. Pradeep Thorat, Mr. Janardan S. Yadav.
For the Respondents: Mr. Dharmesh Vyas, Ms. Madhuri More.
Point of Law: Municipal Corporation of Greater - Construction of toilet block - Mere glance at photographs clearly show that as alleged by Plaintiffs toilet block is not covering entire open space which is between Plaintiff's structure and the Link road. Despite toilet block being constructed there is adequate open space which is left open.
Headnote:
Mumbai Municipal Corporation Act, 1888 - Section 351 - Specific Relief Act, 1963 - Section 38 - Maharashtra Land Revenue Code, 1966 - Section 44 - Construction of toilet block - Executive Engineer (D.R.) R/North, remarks/requirement of public toilet - Swacch Bharat Mission Scheme - Plaintiffs have contended that their suit structures are used as godowns since last several years - It is stated that suit open space in front of suit structures of Plaintiff Nos. 1 and 2 are levied to N.A. tax alongwith suit structures and that Plaintiff Nos. 1 and 2 are paying N.A. tax to concerned authority. Plaintiffs have referred to and relied upon N.A. order which I shall deal with later - Suit is filed for injunction u/s 38 of Act, 1963 - It is contended in plaint that Plaintiffs are in use, occupation and possession of their respective structures and open space in front of suit structures.
Finding of the Court:
N.A. order states that the construction is without prior permission of Collector u/s 44 of Maharashtra Land Revenue Code, 1966. Land is therefore liable to pay penalty u/s 45 of M.L.R.C. 1966. It further states that encroacher should pay N.A. Assessment at above mentioned rate till N.A. rates are revised or structure shall be removed by Municipality, Demolition squad of State Govt. or any other Govt. body whichever is earlier. It is further stated that this order does not confirm any right, title or interest in land to encroacher. It is clarified that payment of N.A. Assessment and fine does not mean it is regularized u/s 47(b) of M.L.R.C. 1966 - Plaintiffs have not filed any suit for declaration of title and have merely filed a suit for injunction. Therefore, the facts of the case referred to and relied upon by the Plaintiffs are clearly distinguishable. The Plaintiffs have also referred to and relied upon judgment passed in L.C. Suit was filed by Plaintiff No.2 whereas L.C. Suit was filed by Plaintiff No.1 to challenge notices u/s 351 issued by Corporation for demolition of their unauthorised structures only. Plaintiffs led evidence in trial court and produced several documents pertaining to existence of censused structures since 1976 and thus sought protection of structures from action of Corporation. Trial court in above two suits held that Plaintiffs were entitled to perpetual injunction in respect of suit structures only. Suit property i.e. suit structures is described in Para No. 3 of above judgment. There is no whisper about suit open space in the above judgment so as to enable Plaintiffs to claim any right, title or entitlement in respect of same.
Result: Appeal dismissed.
JUDGMENT :
MILIND N. JADHAV, J.
1. Heard.
2. By the present Appeal against Order the Appellants (original Plaintiff Nos. 1, 2 and 3) have challenged the order dated 10.02.2021 passed by the City Civil Court at Dindoshi dismissing the Notice of Motion No. 438 of 2021 in L.C. Suit No. 149 of 2021 filed by the Appellants. The sole respondent is the Municipal Corporation of Greater Mumbai. For the sake of convenience the parties shall be referred to as Plaintiffs and Defendant. Plaintiffs have also filed Interim Application bearing No. 4533 of 2021 seeking injunction against the Defendant-Corporation from carrying out further construction of the toilet block in the open portion in front of the suit premises.
3. Before we advert to the submissions made by the respective parties, it will be apposite to briefly state the relevant facts.
3.1. Plaintiffs are owners of structures bearing Census No. RXC-85-1/1, RXC-84-1/1 and RXC-18-1/1A standing in survey No. 221, CTS No. 532 (pt), Ganpat Patil Nagar, Kandar Pada, near I.C. Colony, Dahisar (West), Mumbai-400068. There is an open space admeasuring 15000 sq. ft. in front of these structures abutting the Dahisar Link road which is vacant. In the plaint filed by the Plaintiffs this open space is referred to as the suit premises and it is claimed that the suit premises belong to the Plaintiffs. The censused structures of the Plaintiffs are referred to as suit structures. The suit is filed for injunction u/s 38 of the Specific Relief Act, 1963. It is contended in the plaint that the Plaintiffs are in use, occupation and possession of their respective structures and the open space in front of the suit structures. Though it is stated in the plaint that the Corporation had initiated action against the Plaintiff's structures u/s. 351 of the Mumbai Municipal Corporation Act, 1888 (hereinafter for brevity referred to as the “M.M.C. Act”) the Plaintiffs succeeded in setting aside the notices issued u/s 351. However, all facts stated in respect of the structures or any litigation pertaining to action u/s 351 is not relevant for the purpose of the present case.
3.2. Plaintiffs have contended that their suit structures are used as godowns since the last several years. It is stated that the suit open space in front of the suit structures of Plaintiff Nos. 1 and 2 are levied to N.A. tax alongwith the suit structures and that Plaintiff Nos. 1 and 2 are paying N.A. tax to the concerned authority. Plaintiffs have referred to and relied upon the N.A. order dated 26.01.2005 which I shall deal with later.
3.3. Plaintiffs have contended that the open space is in exclusive possession of the Plaintiffs since the last several years and is used by the Plaintiffs for parking of their vehicles for loading and unloading goods from the suit structures. It is stated that some portion of the open space was acquired for the widening of the Link road. If that be the case then the Plaintiffs should have placed on record the details of acquisition so as to enable the Plaintiffs to claim right, title and entitlement to the suit open space. This has admittedly not been done.
3.4. The Defendant Corporation wanted to construct a public toilet on some portion of the open space. The construction of this public toilet was initiated by a Public Notice dated 28.01.2020 and objections were received from aggrieved persons till 04.02.2020. This notice was specifically pasted on the suit structures of the Plaintiffs and there is no denial of this fact. The Corporation has followed the due process of law in ensuring that the public toilet is constructed under the ‘Swacch Bharat Mission Scheme’ initiated by the Urban Development Department and as per the SBM (Urban) Guidelines Para 4.3.2 for construction of household toilets, beneficiary household would be targeted under this scheme irrespective of whether they live in authorized/unauthorized colonies or notified/non-notified slums. Further, the construction of this public toilet having 16 toilet
