Esteem Properties P.Ltd vs Mun.Corp.Of Gr.Mumbai & Ors

Esteem Properties Private Ltd. .. Appellant

Versus

Municipal Corpn. of Greater Mumbai & Ors. ...Respondents

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the interim order

passed by the High Court of Bombay dated 8.10.2009 in

Appeal from Order No.1040 of 2009. Facts and circumstances

giving rise to this case are that appellant/plaintiff filed the

Civil Suit No.1177/08 for determination of the site of

demolished structure and to determine the area thereof to be

reconstructed pursuant to the order dated 21.6.2008 passed

by the Respondent-Authority.

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3. The predecessor-in-interest of respondent no.3 was an

unauthorised occupant of a hut/structure in the slum area

measuring about 600 sq. ft. Respondent No.3 vide Deed of

Assignment dated 15.7.2006 assigned her rights to the

respondent no.4. The partner of the present appellant

submitted a list of persons to the B.M.C.-Respondent who had

to be evicted. In the said list one Shri Gupta Ram Rekha Ram

Bakhash was shown occupying room no.14, behind S.H.

Compound, near DTC Hotel, Saraswati Nagar, Sahar Road,

Andheri (East), Mumbai. The show cause notices under

Section 55 of the Maharashtra Regional Town Planning Act,

1966 were issued to all such occupants for eviction. The notice

was sent to Shri Gupta Ram Rekha Ram Bakhash and not to

the respondent No.3. The aforesaid structure was demolished

on 11.6.2008. Immediately after demolition of the said

structure, a representation dated 17.6.2008 was made by

respondent no.3 through her Advocate Smt. Sangeeta

Lanjewal alleging that her structure had wrongly been

demolished by the respondents and it was requested to restore

the same. Documents in support of her case were also filed.

2 The Statutory Authority considered the said representation

and allowed the same vide order dated 21.6.2008. Being

aggrieved by the said order of restoration of the demolished

structure, appellant filed Suit No.1177/08 in Bombay City

Civil Court along with Notice of Motion No.1342/08 which was

dismissed by the Court vide order dated 8.6.2009. Being

aggrieved, appellant preferred an appeal, however, the High

Court vide order dated 30.7.2009 rejected the appeal and

directed the respondents to restore the structure. However, it

was clarified that restoration would be subject to the final

result of the suit. The appellant preferred SLP (C)

No.21977/09 challenging the order dated 30.7.2009 passed by

the High Court. The said SLP was dismissed by this Court

vide order dated 18.9.2009.

4. The respondent no.4 in the meanwhile filed an

application for impleadment as a party making it explicit that

vide Deed of Assignment dated 15.7.2006, respondent no.4

had been assigned all rights in respect of the structure by

respondent no.3. The said application was allowed vide order

dated 12.9.2008. The present appellant being aggrieved by

3 the order of impleadment challenged the said order dated

12.9.2008. The High Court vide order dated 10.11.2008 held

that respondent no.4 was necessary party and appeal was

dismissed. The said order also stood affirmed by this Court

as SLP(C) No.28084/08 against the said order has been

dismissed vide order dated 5.12.2008.

5. In the matter of restoration of the demolished structure,

new issues have been raised by the present appellant by filing

Notice of Motion in the pending suit on 22.9.2009 for

determination of the above referred two issues. The Trial Court

vide order dated 25.9.2009 rejected the said application and

did not restrain the respondent nos.3 and 4 for carrying out

reconstruction. Against the said Order, an appeal was

preferred before the High Court and the High Court vide its

order dated 8.10.2009 dismissed the said appeal. Hence, the

present appeal.

6. Shri Harish N. Salve and Shri Mukul Rohatgi, learned

Senior counsel appearing for the appellant have submitted

that the aforesaid two questions are very essential for

determination for the reason that unless the area is

4 determined, identified and demarcated specifically, the said

respondents cannot be permitted to raise the construction at

any place. The report of the Court Commissioner as well as

the B.M.C.-respondent had been to the effect that it was not

possible to determine the exact location of the demolished

structure. On behalf of appellant, Mr. Salve made an offer to

have a constructed area at the cost of the appellant with CST

Survey No.229 with a right of ingress and egress and handover

the same to respondent no.3 within a period of 3 months.

However, this would be subject to the final orders to be passed

in Civil Suit No.1177/08.

7. On the other hand, Dr. A.M. Singhvi and Shri C.A.

Sundaram, learned Senior counsel appearing for Respondent

Nos. 3 & 4 have opposed the prayer contending that the title

of the appellant on the suit land is itself in dispute as a Public

Interest Litigation i.e. W.P. No.1657 of 2006 has been filed

giving backdrop in respect of the title of the land, therefore, no

offer made by the appellant at this stage would be acceptable

to them. A declaration had been sought in the said Writ

Petition that suit land belongs to Govt. of Maharashtra and

5 not the appellant or its predecessors-in-interest. In the said

writ petition final arguments have been heard and judgment is

reserved. The High Court has also passed an interim order to

maintain the status quo with liberty to the parties to move an

application in case there is any change in the circumstances.

It is further submitted that the land has been identified by the

Court Commissioner as well as by the BMC and therefore, the

petition is liable to be rejected.

8. Mr. Goolam E. Vahanvati, learned Attorney General

appearing for the BMC, has submitted that none of the reports

submitted so far is sufficient to find out the location of

demolished structure exactly and it requires a fresh exercise to

determine the same.

9. We have considered the rival submissions made on

behalf of the parties and perused the record.

10. Large number of documents have been filed by both the

parties to substantiate their respective claims and counter-

claims regarding identification/location of the demolished

structure. This is the only issue involved in this case as

6 number of offers made by the appellant are not acceptable to

the respondent nos.3 and 4.

11. We have compared the maps prepared by the Court

Commissioner and BMC, however, they do not match each

other. The reports submitted by both of them regarding the

identification are also far from satisfaction.

The Court Commissioner, Shri M.D. Narvekar concludes

his report as under:

"The suit site is a vast land without any demarcation as to survey or city survey number. I further noticed hundreds of huts on the land I visited.

In the absence of latest Map it was difficult for me to ascertain and identify the boundaries of the suit site in question.

At this stage parties and advocates on both the sides requested to execute the Commission with the assistance of a Govt. Approved Surveyor.

I, therefore, seek directions from this Hon'ble Court."

The report of the BMC is also to the same effect as

its relevant part reads as under:

"The tentative location as per plan was marked where no structure was seen. Hence, the suit

7 structure No.14 had been demolished totally and no structure could be seen at the location marked on CTS No.229.

Copy of plan `markings' attached on CTS Sheet as annexed `B'.

Court Commissioner's plan as annexed `C'.

As per the court receiver plan and City Survey Plan, there was no suit structure seen on the plot bearing CTS No.229. The photographs were taken of the plot bearing CTS No. 229 and all the representatives agreed that there is no suit structure no.14 on the plot bearing CTS No. 229, the question of taking measurement did not arise as plot was vacant."

12. This is not the stage for the court to decide any issue on

merit as whatever interim order is passed it would be subject

to the final outcome of the Suit as well as the PIL wherein the

judgment has been reserved. In such a fact situation, it is

desirable that BMC may undertake an exercise in respect of

identification/determination to the location of the demolished

structure giving due opportunity of hearing to both sides and

determine the location of the demolished structure

expeditiously, preferably within a period of 3 months from

today. It is further clarified that on such identification, the

8 work of restoration may be carried out by the respondents. In

deciding so, the BMC may also consider the convenience of the

parties in fixing the location especially with regard to ingress

and egress to such site. However, it shall be subject to the

outcome of the Suit.

13. The appeal stands disposed of accordingly. No costs.

............................CJI.

............................. J.

(DEEPAK VERMA)

............................. J.

(Dr. B.S. CHAUHAN)

New Delhi May 10, 2010

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