Reserved Sr. No.13-AO-383-2021 aw IA-1383-2021.doc

Reserved-15.02.2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Appeal from Order No. 383 / 2021

Alongwith

Interim Application No. 3183 / 2021

in

Appeal from Order No. 383 / 2021

Saheb Singh Shingara Singh Sandhu

Appellant

Versus

Municipal Corporation of Greater

Mumbai and another

Respondents

****

Mr. G.S. Godbole a/w Mr. Surya Das i/by R.R. Sharma, Advocate for the

Appellant/Applicant.

Mr. Dharmesh Vyas, Advocate for MCGM.

****

CORAM : SANDEEP K. SHINDE, J.

RESERVED ON : 15^th FEBRUARY, 2022.

PRONOUNCED ON : 18^th FEBRUARY, 2022.

P.C.

Heard. Mr. Godbole, learned Counsel for the Appellant and Mr.

Vyas, learned Counsel for the Corporation.

1.

This appeal under Order-43 Rule-1(r) read with Section 104 of the

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Civil Procedure Code, challenges the order dated 18^th March, 2021

passed in Notice of Motion No. 236/2021 in L.C. Suit No. 195/2021, by

which the learned Judge declined to stay the implementation and

execution of Show Cause Notice issued under Section 351 of the

Mumbai Municipal Corporation Act, 1888 ( MMC Act for short).

2.

Facts in brief are that the MCGM vide Notice dated 29^th January,

2020 under Section 351 of the MMC Act, called upon the Appellant-

Plaintiff, to show cause within the stipulated period, as to why, the suit

building or construction, should not be removed or pull down. Suit

construction described in Notice reads as under;

“SCHEDULE : Unauthorised construction of G + 1

structure adm. 25 M x 29.6 M x 6.80 M with the help of

reinforced connect concrete Slab Roof and flooring

supported with B.M. Wall and Channel Section and on

open space and used as guest ( 43 Rooms and 1 Hall )

house, without permission from Competent Authority. ”

3.

Appellant replied the notice and principally relied on and placed

two documents among others, that is Repair Permission dated 27^th

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April, 1984 and City Survey Map for consideration of the Designated

Officer to show that the suit construction was existing prior to detum

line. Ignoring these two documents, Designated Officer by speaking

order dated 18^th January, 2021, concluded that notice structure was

erected without permission and noticee could not produced any

document to show that he has applied for regularization, nor he could

established suit structure was erected before 1^st April, 1962.

4.

Plaintiff, thus instituted the suit and lodged the legality of the

notice issued under Section 351 of the MMC Act and Speaking Order

dated 18^th January, 2021 passed by the Designated Officer. Pending

suit, the learned Judge declined to stay the operation and execution

of the impugned notice and order. Thus, this appeal.

5.

Question falls for consideration is, whether Appellant-Plaintiff,

has prima-facie established that suit structure was erected prior to 1^st

April, 1962 AND whether impugned order calls for interference?

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6.

Mr. Godbole, learned Senior Counsel for the Appellant relied on

the following documents, obtained under Right to Information Act, to

contend that the suit structure standing on CTS No. 1500, new CTS No.

1483 C was in existence prior to 1^st April, 1962.

[i]

First document is CTS plan issued by the City Survey Officer,

Mumbai-54;

[ii]

A letter dated 29^th September, 1980 addressed to the Appellant

by the Office of Controller of Slum, Bombay, Old Custom House, Fort.

[iii]

Repair permission no. 70 dated 27^th April, 1984 granted by the

Municipal Corporation of Greater Mumbai.

[iv]

Particulars relating to Tax Revision Assessment in respect of

suit construction, consisting of ground + one floor.

7.

It may be stated