The court ruled that a statutory notice under Section 487 of the BPMC Act is waived in cases of urgency and that the notices regarding alleged illegal construction were improper due to a lack of adequate evidence from the Corporation.

JUDGMENT :

MADHAV J. JAMDAR, J.

1. Heard Ms. Agarwal, learned Counsel appearing for the Appellants and Mr. Pethe, learned Counsel appearing for the Respondent.

2. The challenge in this Second Appeal is to the Judgment and Decree dated 6^th August, 2001 passed by the learned Additional District Judge, Pune in Civil Appeal No.127 of 1998. By the said Judgment and Decree the said Appeal filed by the Respondent-Corporation has been allowed and Judgment and Decree passed by the learned Trial Court has been set aside. The learned Civil Judge, Junior Division, PMC, Court Pune, by Judgment and Decree dated 5^th July, 1997 passed in Regular Civil Suit No.984 of 1996 decreed the said suit and declared that the notices of the Defendant-Corporation dated 29^th November, 1995, 12^th December, 1995 and 5^th June, 1996 are illegal and restrained Defendant from taking any action pursuant to those notices.

3. A learned Single Judge by order dated 17^th January, 2002 has admitted the Second Appeal on the following substantial questions of law:

“(1) Whether the Learned Judge has rightly considered the provisions of Section 487 of the Bombay Provincial Municipal Corporations Act, 1949 and whether the suit was not maintainable for want of notice under the said Section?

(2) Whether the notices given by the Defendant Corporation under Section 260(i) and Section 260(ii) of the Bombay Provincial Municipal Corporations Act, 1949 treating the shed as new construction were legal and proper?”

4. It is the main contention of Ms. Agarwal, learned Counsel appearing for the Appellants that the suit property has been purchased by registered sale deed dated 12^th January, 1981. The Appellants have only carried out repairs which are tenantable repairs and therefore, the suit notices issued under Sections 260(i) and 260(ii) treating the shade as new construction were illegal. She submitted that, even the notice under Section 487 of the BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT , 1949 (“BPMC Act”) was also not required as by the suit notices the corporation has informed the Appellants that within a period of seven days the construction would be demolished. Learned Counsel therefore submitted that, non-issuance of notice under Section 487 of the BPMC Act, in the facts and circumstances cannot be considered as fatal.

5. On the other hand, Mr. Pethe, learned Counsel appearing for the Respondent-Corporation submitted that notice under Section 487 of BPMC Act is mandatory and as the said notice has not been given the suit is not maintainable. He further submitted that, notices under Sections 260(i) and 260(ii) of the BPMC Act are also legal and valid as new construction has been carried out.

6. Before considering the substantial questions of law raised in this Second Appeal, it is necessary to set out certain factual aspects:-

i. The Appellants have purchased the suit property by registered sale deed dated 2^nd January, 1981. The description of the suit property as set out in the said sale deed is as follows:-

(Emphasis added)

ii. The Corporation has issued three notices dated 29^th November, 1995, 12^th December, 1995 and 5^th June, 1996. By the last notice dated 5^th June, 1996, it has been informed to the Appellant that within a period of four days, if, the construction is not demolished then the Corporation would demolish the same.

iii. The Appellant-Plaintiff had filed Regular Civil Suit No.984 of 1996 on 2^nd July, 1996 seeking injunction that the suit notices are illegal. In the plaint, the suit premises is described as follows:-

(Emphasis added)

iv. The learned Trial Court while decreeing the suit has observed that, admittedly Pune Municipal Corporation is not having any record about the sanctioned map of suit property and therefore, the Pune Municipal Corporation is