The main legal point established in the judgment is the interpretation of the Municipal Policy for protecting structures and the application of Section 354-A of the Mumbai Municipal Corporation Act, 1888.

JUDGMENT :

Sandeep K. Shinde, J.

1. Pending suit instituted by the appellants, learned trial Court vide order dated 12th November, 2020, declined to restrain the Corporation, from taking coercive steps concerning Suit Structure, in pursuance of the notice dated 11th March, 2020 issued under section 354-A of the Mumbai Municipal Corporation Act, 1888. That order is challenged in this Appeal From Order under Order 43, Rule 1(r) read with 104 of the Code of Civil Procedure, 1908.

2. Heard learned counsel appearing for the respective parties.

3. Question that falls for consideration is, whether notice structure qualifies for protection, as per Municipal Policy of protecting the structures, which were constructed prior to datum line, i.e. 1st April, 1962. Briefly stated facts of the case are like this;

4. In 1979, appellants, M/s S.K. Constructions, a partnership firm purchased the property bearing CTS Nos. 2583 to 2596, admeasuring 783 sq.mtrs. with structures standing thereon. First Structure was abutting Nehru Road. It was a ground plus one upper floor. Ground floor, was housing six shops, occupied by tenants. Second Structure was behind the 1st structure. It was a chawl. Yet, both the structures were known as ‘S.K. House’ and assessed to property tax, since 31st March, 1961. It is evident from Property Tax Bill. The tenants in shops, on the ground floor, in the building abutting Nehru Road i.e. ‘First Structure’, had filed RAD Suit No. 278 of 2003 against the land-lords, i.e., partners of S.K. Constructions Company, seeking decree to restrain them from demolishing their tenanted shops. Tenants’ case, was that the land-lords (S.K. Constructions) had agreed to sell land CTS 2583-2596 with building/structures, thereon to M/s Romell Real Estate Private Limited (Defendant No. 3 therein and respondent No. 4 in this appeal). Thus, tenants pleaded, as per understanding between land-lords and prospective purchasers, upper floor of the S.K. House (above shops) was demolished. However, while demolishing the upper floor, cracks were developed on the walls and ceiling of the shops in possession of the tenants. In paragraph 7 of the plaint, tenants pleaded that that “there were two buildings at CTS Nos. 2583 and 2596 at Nehru Road, Vakola, Santacruz (East), Mumbai. One building is at Nehru Road commonly known as S.K. House and one chawl behind the said building, both commonly known as S.K. House. Chawl at the rear side of the building was demolished by the defendants as such building S.K. House on the Nehru Road was in existence. (emphasis supplied) Yet, another suit was filed by the tenants, being Long Cause Suit No. 2502 of 2003 against the partners of S.K. Constructions Company, being land-lords and respondent No. 4 herein, i.e., M/s Romell Real Estate Private Limited, being prospective purchasers. It was instituted in the City Civil Court, Bombay, by which the tenants were seeking a mandatory injunction directing the Municipal Corporation to disclose, as to whether they had sanctioned demolition of, tenanted shops. In Paragraph 8 of the plaint, tenants pleaded that “Plaintiffs state that there were two buildings on plot of land bearing Survey No. 65, Hissa No. 48, CTS Nos. 2583 and 2596 situated at Nehru Road, Santacruz (East); one building is at Nehru Road and one chawl behind the said building on Plot No. 79, both commonly known as S.K. House. Chawl at the rear side of the building was demolished by the defendants.” (emphasis supplied). In the Suit No. 278 of 2009, Court Commissioner was appointed with the directions to visit the Suit shop Premises, and submit a report. Accordingly, Court Commissioner, submitted report, in 2007 along with rough sketch/plan. Rough sketch shows, existence of six shops; however, no construction or chawl was shown behind the suit shops. Yet, another Court Commissioner’s report submitted on 23rd June, 2011 along with map, (at Page 173 of the paper-book) shows that structure on the rear side of the suit shops wer