Prakash Harishchandra Muranjan vs Mumbai Metropolitan Region Development Authority

2. The Appellant impugns the judgment and

order dated 23.11.2006 passed by a learned

Single Judge of the High Court of Bombay in an

appeal from Order No. 688 of 2006 of City Civil

Court, Mumbai whereby the learned Judge

rejected the application for injunction after a

detailed judgment dated 23.8.2006.

1

3. The City Civil Court, Mumbai in a detailed

judgment, came to a finding that the Plaintiff-

Appellant herein failed to show that the suit

structures existed prior to datum line i.e.

prior to 1962 and no Sanctioned Plan of the

suit structure was produced before the Court.

The documentary evidence, produced by the

Plaintiff-Appellant was discrepant in that the

Assessment Numbers and the addresses did not

tally.

4. Further finding of the City Civil Court,

Mumbai was that the Appellant could not produce

any documentary evidence to link the assessment

documents with the suit structure and thus the

Court held that the Appellant failed to make

out any prima-facie case for grant of

injunction.

5. Virtually on those findings, the prayer

for injunction was concurrently refused by the

High Court.

6. Apart from those two proceedings, other

proceedings were also initiated in respect of

2 the structures in question as would appear from

the facts discussed below.

7. The Appellant claims to be one of the

owners of land measuring 485 square yards,

bearing Survey No.35, Hissa No.1 (Part),

C.T.S.No.688, situated at Saki Vihar Road,

Kilick Nikason Marol, Andheri (East), Mumbai-

40007 and a Chawl standing thereon and the

Appellant claims that his father constructed

the same Chawl in the year 1956 and the shops

therein were let out to various tenants on

rent.

8. One of the tenants Chetan Prakash Jain

received a notice under Section 351 of the

Mumbai Municipal Corporation Act (hereinafter

`the said Act'), from the second respondent who

had issued the same in purported exercise of

the powers delegated to him under Section 4A of

the Mumbai Metropolitan Region Development

Authority Act, 1974 (hereinafter `the Act of

1974'). The noticee was asked to show cause why

the shop in his possession be not demolished

since it has been constructed in contravention

3 of the provisions of Section 347 of the said

Act.

9. That notice was replied to by Chetan

Prakash Jain to the effect that the structure

in question was in existence much prior to the

date of the notice and hence the same is a

tolerable structure under the said Act and is

not required to be removed.

10. The grievance of the Appellant is that

the second Respondent without giving the

noticee an opportunity of being heard, passed

an order directing him to remove the portion of

the structure to be affected by the road

widening scheme and to hand over the possession

of the same to the first Respondent. The

further grievance is that no such notice was

given to the other tenants and/or adjoining

shop owners in the said Chawl.

11. Thereafter, in the second week of March,

2006 some of the officers and the

representatives of the Respondent No.1-

Corporation allegedly fixed boundary marks in

and around the said Chawl on the basis that the

4 area covered under the said boundary wall would

be required for the widening of the road.

12. The Appellant and the other owners of the

Chawl through the notice of their Advocate

dated 22.3.2006 claimed to have placed on

record correct facts and documents and

complained against such activities of the

Respondent.

13. The second Respondent while exercising

the powers under Section 351 of the said Act

directed Chetan Prakash by a notice dated

3.4.2006 to remove the suit structure, inter-

alia, on the ground that the same is

unauthorized and not tolerable.

14. Against the said notice, a Writ Petition

being W.P.(L) No.868 of 2006 was filed on

12.4.2006 by the Appellant which was disposed

of on the same very day by the Division Bench

of the Bombay High Court, inter-alia, holding

that the first Respondent is to give notice to

the Petitioner No.1 who will accept the notice

on behalf of the Petitioners and all co-owners

and directed the first Respondent to pass

5 appropriate order according to law. The Court

made it clear that the construction shall not

be demolished without notice and hearing the

Petitioner No.1.

15. Thereafter, the second Respondent on

13.4.2006 sent several notices to the Appellant

and other tenants under Section 351 of the said

Act asking the occupants to vacate the suit

premises and to remove the suit structure.

16. The case of the Appellant is that even

though the said notices were replied to, but no

hearing was given to them nor were they given

inspection of those orders by which the powers

were delegated upon the second Respondent by

the first Respondent.

17. The second Respondent, it is alleged,

without hearing the Appellant passed orders on

13.5.06 declaring the suit structure to be

illegal and directing the Appellant and the

tenants to remove the construction within seven

days.

18. Challenging the same, the Appellant filed

L.C. Suit No. 2238 of 2006, out of which the

6 present proceedings arise, before the Bombay

City Civil Court praying for interim order. The

learned Trial Judge rejected on 19.5.2006 the

prayer for ad-interim injunction holding that

the plaintiff failed to make out any prima

facie case on any of the grounds urged before

the Court.

19. Against the said order, an appeal was

filed before the High Court and the High Court

took up the matter for hearing on 18.7.2006 and

by granting an interim injunction remanded the

matter to the Trial Court for consideration of

injunction prayer afresh.

20. Thereafter, the Trial Court heard the

matter and dismissed on 23.8.2006 the prayer

for interim injunction and the said order has

been upheld by the High Court under the

impugned judgment dated 23.11.2006.

21. In the background of these facts, the only

legal issue which arises is:

Whether the second Respondent, the

Executive Engineer of Mumbai Metropolitan

Region Development Authority (hereinafter,

7 the said Authority) is entitled in law to

issue notice dated 13.04.2006 under

Section 351 of the said Act. It was

further argued since the second Respondent

has no authority to issue the notice, all

steps taken pursuant to such notice are

illegal and should be set aside by this

Court.

22. These questions have been very adequately

dealt with in the judgment of the High Court. The

High Court after considering the provisions of

the Act of 1974 and specially the amendment made

to it in 1989, came to a finding that the

Executive Engineer can exercise or perform the

functions and duties delegated to him by the

Metropolitan Commissioner. The High Court noted

that provisions for delegation were statutorily

made. Therefore, notice issued by him cannot be

held to be illegal. Those findings have not been

challenged before us during the course of

argument and in view of the provisions for

statutory delegation, which have been noted in

the judgment of the High Court, we do not think

8 there is any merit in the aforesaid legal

contention. No other argument is made before us.

It is well settled when prayer for injunction is

concurrently refused by two courts, this court,

in a proceeding under Article 136 of the

Constitution, will be very slow and cautious

before it can take a different view. This court

can only do so, if it finds that the judgment of

the court below is perverse. In the facts of

this case, discussed above, the court cannot

arrive at such a finding. Therefore, we do not

find any merit in this appeal, which is

accordingly dismissed. No costs.

.......................J. (Dr. ARIJIT PASAYAT)

.......................J. New Delhi (ASOK KUMAR GANGULY)

January 23, 2009

9