Plaintiffs challenging notice under Section 351 of MMC Act must prove structure's legality by cogent documentary evidence matching notice details and permissions; tax receipts, notifications, letters without leases or construction proof insufficient.

JUDGMENT :

JITENDRA JAIN, J.

1. This appeal is filed by the appellants (original plaintiffs) against the order passed by the City Civil Court, Bombay on 14 November 2011, whereby challenge to notice under Section 351 of the MUMBAI MUNICIPAL CORPORATION ACT , 1888 (‘MMC Act’) dated 5 February 1999 was rejected. The parties are referred to as per their status in original proceedings.

2. The issue which arises for my consideration is whether the Trial Court was justified in dismissing the suit on the ground that the plaintiffs have failed to prove that the structure for which the notice was issued is legal ?

3. The Trial Court framed various issues and gave a finding against the plaintiffs which are reproduced :-

4. The Trial Court after considering the evidence and the documents relied upon by both the parties has come to a conclusion that the plaintiffs have failed to prove that the suit structure is legal and authorized. The Trial Court has also noted admissions made in the course of the evidence of the witnesses of the plaintiffs. I am not reproducing the paragraphs, but suffice to say that the Trial Court, by a detailed reasoned order after considering all the evidence, has dismissed the suit by observing that plaintiffs’ have failed to produce any evidence in support of the suit structure being legal.

5. The short point which arises for my consideration is whether the plaintiffs have proved by documents that the suit structure is legal and in accordance with the permissions obtained from the Corporation.

6. The notice under Section 351 of the MMC Act dated 5 February 1999 gives the description of unauthorized work and the location of the suit structure which is at S.J.K. Compound, C.T.S. No.156, Mohili Village, Mumbai-72.

7. The first document which has been relied upon by the learned counsel for the appellants is a property tax receipt dated 3 October 1998. The said receipt records name of lessor as ‘Mohd. Yusuf Trust and one of the plaintiffs has been described as a lessee. This document does not give the description of the property which is recorded in the notice under Section 351 except the name ‘Mohili Village.’ There is no C.T.S. number mentioned on this document. Furthermore, the document between lessor- Mohammed Yusuf Trust and the lessee is also not on record. Therefore, it cannot be said that this document pertains to the structure mentioned in the notice.

8. Second document which is relied upon by the learned counsel for the appellants in support of his submission is a receipt issued in favour of the tenants by Mahesh Kumar Maurya Chawl. On this document, the name of the landlord/lessor Mohd.Yusuf Trust is not mentioned. Though it is stated that the person named therein is a tenant of S.J.K. compound, CTS No.156, there is no tenancy agreement shown. Therefore, even on this count, this document cannot be relied upon to prove the legality of the structure. It is only a document evidencing payment of tax by a tenant for the period January 1994 onwards.

9. The third document relied upon by the learned counsel for the appellants is a notification dated 4 March 1978 issued for the village Saki wherein CTS No.156 admeasuring 5000 square meters is notified as ‘slum area.’ The impugned notice pertains to Mohili village whereas the notification deals with village “Saki”. Therefore, even this document cannot come to the assistance of the learned counsel for the appellants.

10. The last document which has been relied upon is a letter dated 12 November 1999 issued by the Corporation to one Mr. Mahesh Kumar P.