Suit against municipal body challenging demolition notice requires proven pre-suit notice under Section 527 MMC Act; mere plaint averment insufficient against specific denial, no waiver without explicit evidence; inadequate property description defeats proof of pre-datum line existence.

JUDGEMENT :

Firdosh P. Pooniwalla, J.

1 This Appeal challenges the Judgement dated 19^th December, 2006 passed by the Bombay City Civil Court at Bombay dismissing L.C. Suit No.1717 of 1998 filed by Abdul Wahid Ismail. The present Appellants are the legal heirs of Abdul Wahid Ismail.

2 The property that is the subject matter of the Suit is described in the Plaint as business premises situated at a building originally known as Bhiwandiwala building and now called Sayed Manzil, Chimna Butcher Street, Junction of 98, S. V. P. Road, Bombay 400 003 (herein after referred to as the “suit premises”).

FACTS

3 The facts in the present suit, as presented by the Original Appellant (Plaintiff), are as follows:-

(a) On 29^th September, 1959, the Plaintiff submitted an Application to the Respondent seeking permission to replace the old sloping roof of the suit premises as it was in a dilapidated condition;

(b) On 8^th December, 1959, the Executive Engineer, South Zone, of the Respondent, granted NOC for the roof alteration and imposed certain conditions. According to the Appellants, the improvements in the suit premises were thus duly authorised.

(c) On 1^st March, 1960, four Agreements were executed between the Plaintiff and Abdul Majid Khan Habib Khan, documenting the Plaintiff’s occupation of the suit premises. These Agreements formally record the Plaintiff’s tenancy/ license rights.

(d) On 7^th November, 1961, an Agreement was executed between the Plaintiff and Abdul Majid Khan Habib Khan, for temporarily giving a shop on a conducting basis for 11 months.

(e) On 30^th July, 1970, the Assistant Engineer (Building and Factory Department ‘C’ Ward) of the Respondent issued a Notice to the Plaintiff to remove the unauthorized construction of the suit premises within two days. Action was initiated under Section 351 of the MUMBAI MUNICIPAL CORPORATION ACT , 1888 (“ the MMC Act”) regarding the suit premises.

(f) On 1^st August, 1970, the Plaintiff submitted a written reply to the Respondent refuting the allegation of unauthorized construction. He submitted that the structure is long standing and authorized and enclosed documents, including the 1959 permission, and requested that no demolition be done without a proper hearing.

(g) On 14^th August, 1970, the Respondent directed the Plaintiff to produce documentary evidence in support of the structure's legitimacy. In response, the Plaintiff gathered further proof of the structure’s existence.

(h) On 29^th August, 1970, the Municipal Councillor – Shri T. E. Kachwala issued a certificate confirming that the Plaintiff had been occupying a shop in the Bhinwandiwalla Compound since long. This certificate supported the Plaintiff’s case regarding the structure’s long standing existence.

(i) On 31^st August, 1970, the Plaintiff submitted a written reply to the Respondent refuting the allegation of unauthorized construction. He asserted that the structure was long standing and authorized. He enclosed prior documents, including the 1959 permission, the Municipal Councillor’s Certificate, old Agreements etc, to prove the structure’s prior existence. He reiterated that the suit premises had existed and had been standing since 1962. He requested that no demolition be done without a proper hearing.

(j) On 18^th September, 1970, the Respondent asked the Plaintiff to produce original copies of the documents earlier submitted for verification. It is the case of the Plaintiff that he complied by showing original Agreements and letters to the officials of the Respondent.

(k) On 5^th October, 1970, the MCGM withdrew the action taken against the suit premises by issuing the aforesaid Notice dated 30^th July, 1970. The Assistant Engineer of the Respondent, by a letter dated 5^th October, 1970, informed the Plaintiff that the demolition action was dropped after finding the structure “existing since long”.

(l) On 15^th April, 1971, a fresh Agreement was executed between the Plaintiff and Shri Habib Khan Rahim Khan (successor landlord), further confir