IMPORTANT POINT
The court established that the Municipal Corporation has the authority to take action against unauthorized structures, regardless of their status as censused properties, and that the cancellation of a census certificate negates any claim of immunity from demolition.

JUDGMENT/ORDER

N.J.JAMADAR,J. - This appeal is directed against an order dtd. 10/2/2023 passed by the learned Judge, City Civil Court, Dindoshi (Borivali Division) in Notice of Motion No. 4118 of 2017 in L.C. Suit No. 3231 of 2016 whereby the Notice of Motion taken out by the appellant/plaintiff for temporary injunction came to be rejected.

2. For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed before the City Civil Court.

3. Shorn of superfluities, the facts are:

<WXY>a] The plaintiff claimed to be in use, occupation and possession of a structure admeasuring 15 x 9 ft. made up by B.M. Wall and A.C. sheet roof and a shed in front of the said structure admeasuring 45 x 15 situated at Survey No. 163, Kandivali (w), Mumbai (the notice structure). The plaintiff asserts the notice structure is duly censused in the year 1976. Ravi (Rev) Joseph Pareira was the original occupant of the notice structure. It was censused vide Census No. RXC-1-1/1A. A census certificate was issued on 29/11/2016 in favour of the previous occupant. The factum of the notice structure being a censused property is also recorded in the census form dtd. 22/10/1976 maintained by the Additional Collector (ENC) which has been furnished to the plaintiff under the Right to Information Act. A repair permission dtd. 10/11/1982 was issued to the previous occupant. Since the previous occupant was carrying on the business of auto spare parts and repair work under the name and style of "Janta Auto Garage ", according to the plaintiff, Municipal Corporation has issued shops and establishment certificate. An electric connection was provided to, and electricity bills were also issued in respect of, the notice structure.</WXY>

4. The plaintiff avers that the plaintiff acquired the suit premises under the agreement for sale dtd. 12/1/2000 for a valuable consideration and there are documents which evidence the occupation of the notice structure by the plaintiff.

5. On the basis of a false complaint, according to the plaintiff, the designated officer issued notice dtd. 7/7/2016 under Sec. 351 of Mumbai Municipal Corporation Act, 1888 alleging that the plaintiff has unauthorizedly erected the notice structure. An appropriate reply with supporting documents was submitted on 14/7/2016. The speaking orders came to be passed on 21/11/2016 and 30/11/2017 without adverting to the contentions and documents submitted by the plaintiff calling upon the plaintiff to remove the alleged unauthorized structure within 15 days thereof. The plaintiff was thus constrained to institute the suit seeking a declaration that the notice dtd. 7/7/2016 and the speaking orders dtd. 21/11/2016 and 30/11/2017 are illegal, malafide, and to permanently restrain the defendant No. 1 and its agent from demolishing the notice structure pursuant to the said notice and orders.

6. An affidavit in reply was filed by defendant No. 1 resisting the prayer in the Notice of Motion. The impugned notice and the speaking orders were stated to be in order and issued and passed in conformity with the governing provisions of law. The documents relied upon by the plaintiff, according to the defendant No. 1, did not establish that the notice structure is either a censused premises or a slum or otherwise tolerated commercial structure which is in existence prior to 1/4/1962, nor the plaintiff could establish that the notice structure is a slum and has been in existence prior to 1/1/2000. The plaintiff, according to defendant No. 1, failed to produce any authentic document like city survey plan and assessment bills showing existence of the notice structure prior to the datum line. Consequently, the notice structure being wholly unauthorized was liable to be demolished.

7. After appraisal of the rival contentions and the documents tendered for his perusal, the learned Judge, City Civil Court was persuaded to reject the Notice of Motion opining, inter alia, that the cen