The duty of municipal officers to take action against illegal and unauthorized structures, and the need for a well-considered approach by the Civil Court in dealing with applications for temporary injunctions in such cases.

JUDGMENT

1. This appeal from order arises from an order dtd. 18/1/2023 passed by the learned Judge, City Civil Court at Bombay, whereby ad-interim reliefs as prayed in the Notice of Motion taken out by the appellant/plaintiff in L.C.Suit (L) No.14624 of 2022, have been rejected.

2. At the outset, as the facts would demonstrate, the present proceedings reflect an absolute abuse of process of law even in filing the suit in question. This would be clear not only from the averments as made in the plaint but also from the plea of the appellant/plaintiff which was taken before the City Civil Court and before this Court.

3. The dispute in suit in question is in regard to the action being taken against the unauthorised structure of the appellant/plaintiff by the respondent/defendant municipal corporation by issuance of a notice under Sec. 351 of the Mumbai Municipal Corporation Act,1888 (for short 'the MMC Act') dtd. 31/12/2019. The notice was in regard to the unauthorised structure in question which is stated to be put up on a land leased out to the grandmother of the appellant one Smt.Rabiyabai Hakimuliah, under a purported agreement of lease dated Nil executed in the year 1975. The original of the agreement is not available and was not produced before the City Civil Court. A copy of the agreement which has been annexed to the paperbook is also not a complete document inasmuch as paragraphs 2 to 5 of the said agreement itself are missing and hence, are not on record. However, from whatever portion of the said agreement as disclosed by the appellant/plaintiff, it seems that the said land as leased to the grandmother Smt.Rabiyabai Hakimuliah was only a open piece of land in City Survey No. 668 of Village Nahur, Taluka Kurla. As what is the area of the plot which was leased by such agreement is not borne out by any material, in ascertaining any legal rights in respect of the said land in favour of the appellant/plaintiff. This apart, such lease agreement is also not a registered agreement. There is also no corresponding document namely the City Survey Records etc, placed for consideration of the trial Court or even before this Court, to show that such lease agreement was given effect to in City Survey Records, or in any other municipal records, so as to demonstrate that some legal rights in respect of the land in question were enjoyed by the appellant/plaintiff. Thus, looking at such lease agreement prima facie it is difficult to accept a plea of the appellant that the said lease agreement could at all be recognized by law and / or under such agreement any tenancy rights in perpetuity, in an immovable property were transferred to the appellant/plaintiff.

4. The appellant/plaintiff despite such basic infirmities appears to have proceeded to undertake construction of commercial premises without obtaining any permission from the municipal corporation to put up construction of any commercial premises of the nature they stand, namely a shop wherein hardware business is conducted by the appellant/plaintiff. There is no document on record which would show that any portion of the said construction has been authorised by the municipal corporation under any sanctioned plan or any other permission granted by the municipal corporation to put up such structure.

5. It also appears from the record that certain portion of the illegal structure belonging to the appellant/plaintiff about 48.38 sq.meters was affected by road widening and the same was demolished keeping aside the structure admeasuring 148.35 sq.meters. However, what is pertinent is that merely because some portion of such illegal construction was demolished for the purpose of road widening, the appellant/plaintiff presuming that he has an absolute right in law, to compensate himself for such action of the municipal corporation, without prior permission/approval from the municipal corporation, put up a vertical construction on the existing structure, by virtue of which the remaining structu