As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects. {Para 20}
26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.
Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."
31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.
32. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.
35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.
36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.
37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.
38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he re-erected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.
39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.
40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. DESHPANDE, J.
Namdev Pandurang Panchal Vs. Mumbai Municipal Corpn. Of Gr. Bombay & Anr.
First Appeal No.1241 of 2005
16th September, 2005
Citation: 2005(4) ALL MR 689,2006(1) MHLJ 194
JUDGMENT :- Heard counsel for the appellant and the respondent Nos.1 and 2.
2. Appellant is the plaintiff. He filed a suit for declaration that notice dated 19.10.2001 Exhibit "L" to the plaint, served upon him, is bad in law, illegal, issued at the instance of the respondent No.2 and not binding on the plaintiff and that action under Section 351 of the BMC Act as per Exhibit "O" to the plaint and the order dated 14.5.2002 in respect of his suit premises admeasuring about 256 sq. meters are bad in law, void, null, unconstitutional, and for permanent injunction. According to the plaintiff, he was in occupation, possession and enjoyment of the land bearing Survey No.163 (Part) admeasuring 500.5 sq. meters together with a pucca structure admeasuring 256 sq. meters consisting of 4 rooms at Adarsh Nagar, Dhanukarwadi, Kandivali, Mumbai. He purchased the property from one Lallu Bhika under an Agreement dated 26.4.1972 for the valuable consideration, and has been in use and occupation thereof since then, that he has been paying non-agricultural tax from 1972. He is shown as Imla Malak in the extract of the Property Register Card and he has number of other documents to show his occupation and use.
3. Further, according to the plaintiff, the defendant No.2 is a builder and developer of the adjoining land. He had an evil eye on the plaintiffs property and therefore he was instrumental moving the machinery of the respondent No.1 BMC and getting notices aforesaid issued upon the plaintiff. In the notice dated 19.10.2001, it was contended that the structure is affected by road widening of 120 ft. wide D. P. Road and it was proposed to vacate the set back land by removing the structure and shifting the occupants. The Plaintiff was called upon to produce documentary evidence showing authenticity of the structure. Son of the plaintiff gave reply to this notice but the respondent No.1 did not communicate any order. The Plaintiff in the suit also contended that the property was situate in the slum area, it was protected property and therefore in that background, the suit came to be filed.
4. Both the defendants resisted the suit. First contention of the BMC was that the suit was bad for want of notice under Section 527 of the BMC Act. Then it was contended that on 10.1.2002 it was found by the officers of the BMC that plaintiff had constructed the structure of brick masonry wall with A.C. sheet roof consisting of four rooms on the ground floor admeasuring 42'.3" x 21'.6", and that the plaintiff had not shown any permission for such construction. Therefore, notice under Section 351 was issued; that when the plaintiff sent reply and submitted documents, Assistant Municipal Commissioner passed an order on 14.5.2002 of demolition of structure. BMC also contended that the said structure was affected by 120 ft. wide D. P. Road. (It is necessary to mention that when the appeal was pending, appellant - plaintiff conceded for demolition of the part of the structure which was affected by 120 ft. wide D.P. Road and photographs thereof were tendered for by the appellant, there is no dispute about it). The counsel for the BMC also contended that no document of the plaintiff were sufficient to prove that the structure was authorised one or that it existed prior to 1964. The contention of the plaintiff that the suit structure falls in slum area, was also denied. The ownership of the plaintiff was also denied and all other documents were denied.
5. Defendant No.2 contended that the plaintiff has no right, title and interest in the suit property. One Pereira was the owner of the land and after his death, his L.Rs. have entered into an agreement with the defendant No.2 and also executed an Irrevocable Power of Attorney in favour of the defendant that Lallu Bhika the vendor of the plaintiff had no right to the property and the document being unregistered could not clothe the plaintiff with any ownership right over the suit property.
6. In this background, the trial court, framed following issues :
1. Whether the plaintiff proves that the plaintiff is the owner of the suit property/Panchal House admeasuring 500.5 sq. mtrs. together with a structure admeasuring 256 sq. mtrs. consisting of 4 rooms?
2. Whether the plaintiff proves that the suit premises is situated in slum area?
3. Whether the plaintiff proves that the notice bearing No.AC/RS/17509/AEB dated 19.10.2001 is bad in law, illegal and not binding on the plaintiff?
4. Whether the plaintiff proves that the notice under Section 351 of M.M.C. Act bearing No.RS/BF/02/351/1970/2002 dated 21.1.2002 and order bearing No.AC/R/S/024794/B/WE dated 14.5.2002 is bad in law, illegal and null and void and time barred?
5. Whether the plaintiff proves that the suit is maintainable for want of notice u/sec. 527 of M.M.C. Act?
6. Whether the defendant No.2 proves that the suit is bad for non-joinder of necessary party and misjoinder of parties?
7. Whether defendant No.2 proves that this court has no jurisdiction to entertain and try this suit?
8. What relief ? What Order?
The findings of seven issues were given in negative against the plaintiff, and, ultimately the suit came to be dismissed, and, therefore this appeal.
7. Mr. Diwan, Counsel appearing for the appellant strenuously urged and contended that if the structure of the plaintiff was there in existence since 1972 then issuing notice under Section 351 in 2001, though not barred by limitation, was improper exercise of jurisdiction vested in the BMC under the Act. He also contended that there was no rationale in fixing the datum line of 1964 i.e. construction prior to 1964 and construction after 1964. He also contended that exercising powers under Section 351 in 2001 in respect of the constructions admittedly in existence since before 1972, was, firstly, improper exercise of jurisdiction or it was exercise of power beyond jurisdiction.
8. So far as merits of the matter are concerned, i.e. one structure was in existence prior to 1964, my attention was invited and emphasis was led by Mr. Diwan to the evidence in cross-examination of the witness of the BMC. My attention was also invited to the number of documents on record and on the basis of this, he contended that if the structure is admittedly old, it is used for residence since then and the numerous documents of the plaintiff are supportive of this fact, then the order of issuance of notice under Section 351 and the subsequent order of demolition, were completely illegal.
9. Mr. Diwan also contended that the plaintiff has examined one witness who used to visit the suit premises when the father of the plaintiff was alive, and who has given evidence to support the contention of the plaintiff that the suit structure was very old. Mr. Diwan contended that if in the cross-examination of this witness nothing is brought on record to nullify the effect of his evidence, then there were no reasons to discard that evidence. He also contended that there is no rule of law that oral evidence regarding a particular fact, cannot be accepted or should not be accepted, and according to him the trial court committed grave error in rejecting that evidence without any sound, convincing, legal and logical reasons. Mr. Diwan accepted that the document executed by Lallu Bhika dated 26.4.1972 was not registered one, but he contended that it could be relied upon for collateral purposes. He also contended that Section 351(1) was not mandatory in nature and the discretion was given to the Commissioner whether to act in a given case or not and if the structure was admittedly there since 1972 or even prior thereto subsequent to 1964, then the Commissioner did not exercise the discretion properly and non exercise of discretion, in the circumstances, was totally unjustifiable and not proper exercise of jurisdiction or it was exercise of excessive jurisdiction. Mr. Diwan also relied upon certain authorities in respect of this contention.
10. On the other hand, it was argued by the counsel for the BMC that there was no improper exercise of jurisdiction or exercise of excessive jurisdiction by the Commissioner. There was no question of any delay in issuing notice to the plaintiff because thousands and thousands structures are constructed all over Bombay, illegally. When and how structure will come to the notice of the BMC, depends upon the facts of each case, and, therefore merely because the structure was in existence since 1972 and the notice came to be given in 2001, did not give any legality to the structure nor it could affect the jurisdiction or power of the Commissioner to take action under Section 351. Counsel for the BMC also contended that the plaintiff was not at all the owner of the land because even his vendor did not have any ownership right over the land and the land belonged to the defendant No.2. None of the documents, according to the counsel for the BMC, were sufficient to prove the existence of the structure prior to 1964. Regarding the datum line of 1964, counsel for the BMC contended that there is nothing wrong or unconstitutional in fixing a particular line for a particular purpose and whether that datum line is legal or not, was beyond the competence of the civil court but it was constitutional question, which could not be gone into by the civil court. About the evidence of the plaintiffs witness, the counsel for the BMC contended that when the issue was whether a structure existed prior to 1964 then admittedly it was a matter that could be decided only on the basis of permission granted by the BMC to erect such structure or some such document which would show existence of the structure prior to 1964. But oral evidence not only of one witness but of 10 - 12 or 100 persons would not and could not be substituted for documentary evidence. He contended that after oral evidence was permitted to be adduced or if adduced and accepted in this regard, then there would be no shortage of witnesses in Bombay to support each other's case for protection of all the illegal structures in Bombay. He, therefore, contended that the witness of the plaintiff who has visited the plaintiffs house during the time of his plaintiff's father, could not be of any help in proving the existence of structure prior to 1964. Absence of cross examination of such a witness or effective cross-examination was not sufficient to reach to the conclusion that the evidence of that witness should be accepted as a gospel truth and is a substitute for documentary evidence.
11. Regarding the so-called admission given by the witness of the BMC in the cross examination, Counsel for the BMC contended, that, firstly, it was no admission at all. Secondly, witness has given opinion only that the structure could be old but considering the fact that the witness had seen structure in 2001 or 2000, his statement that structure could be old could not be stretched to the extent that it would be old prior to 1964. The structure of 1972 could also appear to be old in 2001 if seen for the first time. Counsel for the BMC also pointed out that basis of notice under Section 351 was new construction and the photographs, now produced on record after demolition of the part of the structure for widening the road, would clearly show that the structure was new and it was constructed afresh by the plaintiff soon before it was demolished and it is not the same structure that was in existence in 1972. Counsel for the BMC also contended that the suit was rightly dismissed for all these reasons and also for non serving the notice under Section 527 of the BMC Act upon the BMC.
12. Counsel for the respondent No.2 Builder contended that the appellant miserably failed to prove his ownership of the property. There is no registered conveyance with the appellant in respect of the property admittedly because Lallu Bhika was not the owner of the property. Secondly, he contended that so-called agreement dated 26.4.1972 being an unregistered document was completely inadmissible in evidence for any purpose whatsoever. According to him the appellant was an encroacher, even structure was not prior to the datum line and he was not entitled for protection. He urged that the plea that action taken by the BMC was barred by the law of limitation, was not applicable to the administrative actions, viz. the action taken by the BMC under Section 351 and merely because the structure is allegedly standing since 1977, it does not get and cannot get any protection as it is outright trespass, encroachment and illegal construction, being without the permission of the BMC.
13. In view of these submissions of the respective counsels, it is to be seen whether the appeal is required to be allowed or dismissed.
14. So far as factual aspect of the matter is concerned, the appellant is not the owner of the land. The document dated 26.4.1972 upon which the plaintiff-appellant is relying, states that his vendor Lallu Bhika was the owner of 30 gunthas of land from Survey No. 162. He was doing agriculture since 1925 and 5 acres (gunthas ?) out of that with one hut thereupon was given by him to Namdeo P. Panchal i.e. the present appellant for Rs.3,000/- and Namdeo is placed in possession.
15. Admittedly this was a transfer in respect of immovable property and the value in 1972 was Rs.3,000/-. It was a document requiring compulsory registration. It is not so registered. It is not also on requisite stamp paper or no stamp paper at all because the copy filed in this appeal does not show use of any stamp paper, and, therefore the trial court rightly refused to discard (?) the document.
16. Mr. Diwan tried to contend that this document can be used for collateral purpose. The alleged collateral purpose obviously can be to show the possession because if the document is unregistered, it cannot be considered for the purpose of transfer of title or ownership. Apart from this document, the appellant-plaintiff has no other document of ownership or title. He could not produce any document to show how his vendor Lallu Bhika was the owner of the property. The plaintiff also examined one witness Ramdar Ramgarbi Kurmi-P.W.2. He also does not state anything about Lallu Bhika being the owner of the property and therefore there is nothing to substantiate the contention of the plaintiff about the ownership of the property. In fact J. S. Pereira claimed to be the owner and plaintiff has only pleaded ignorance about this fact. The trial court therefore rightly gave finding in the negative against the plaintiff on Issue No.1 and also held that ownership was not material in this case.
17. The second ground of challenge raised by the plaintiff was that this area is not slum. That point was not raised before me, and, in any case, the plaintiff has no documentary evidence to shows that the suit structure is in the slum. Next question is that this document at the most show that there was a hut in 1972 but the question is whether this hut was prior thereto from 1962 i.e. the datum line. The plaintiff has no documentary evidence in this regard i.e. to show that the suit structure or the earlier hut was in existence since 1962. All these documents are after 1972. However, Mr. Diwan laid emphasis in this regard on two aspects of the matter. Firstly, the evidence of the plaintiffs witness Kurmi at Exhibit-32A, and, secondly, certain admissions given by he witness of the Corporation.
18. In his evidence Kurmi P.W.2 has stated that Lallu Bhika was residing in the suit premises in the year 1955-56 in which year they all were working with Dahanukar Seth. He further stated that he used to visit the suit premises frequently and that Lallu Bhika resided in the suit premises upto 1972 and thereafter the plaintiff came to occupy the same exclusively. He has also visited the house when it was purchased by the plaintiff-Appellant Namdeo. This witness was cross examined. In the cross-examination he stated "I cannot say if Lallu Bhika had any source by which he became the owner of the land. I cannot say if Lallu Bhika was financially in a position to acquire property". Then suggestions were put to him that he was not visiting the suit premises prior to 1972 but those suggestions were denied.
19. Mr. Diwan therefore contended that there is no effective cross examination of this witness P.W.2 and whatever cross examination is there has not yielded any benefit to the Corporation or the defendant No.2 and the evidence of P.W.2 has practically gone unchallenged. He therefore contended that if the evidence of the witness goes unchallenged, then the court was bound to accept it.
20. As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects.
21. Mr. Diwan then contended that the evidence of witness of the Corporation D.W.1 Pralhad Gopal Pednekar, and the cross-examination helps the plaintiff to establish this crucial aspect. This witness Pednekar has stated that on 10.1.2002 during his usual round of inspection the officers of the Corporation noticed that the plaintiff has constructed the structure with brick masonry walls and AC sheet roof consisting of four rooms. Thereafter measurements were taken and the plaintiff was asked to produce permission for construction, then notice under section 351 was given. In the cross-examination he has stated that he visited the house of the plaintiff for the first time in 2001 at the time of demarcation of road widening. Further, he has stated that it is true that the structure was old, he will not be able to say what was the life of the structure on the date of the visit. He stated "I cannot say when the structure was constructed. I will not be able to deny if it is suggested that structure was in existence prior to 1.1.1962". He admitted that since 1962 to 2001, no stop work notice was given since no construction was going on.
22. Mr. Diwan also pointed out from the cross-examination of Pednekar his admission that no panchnama was made and no photographs were taken and no date of construction was written on Exhibit D-3. The witness further stated that he is not the authority but if the plaintiff removes the portion, which comes within road widening, problem can be solved, and then he also stated that in case there is no sanction plan, assessment of that particular structure prior to datum line has to be shown.
23. From the aforesaid evidence of the witness Pednekar in cross-examination and particularly his statement that he will not be able to deny if it is suggested that the structure was in existence prior to 1.1.1962, Mr. Diwan tried to contend and repeatedly urged that this is an admission of the witness of the Corporation about the existence of the structure prior to 1962.
24. It is difficult and impossible to accept this contention. The witness has stated that he visited the structure in 2001 only and he found that the structure was old but he has clearly stated that he was not in a position to state about the life of the structure on the date of the visit and whether the structure could be or could not be in existence prior to 1.1.1962 is merely an opinion of the witness, and, opinion is totally irrelevant because it is not shown that this witness was an expert on fixing the age of structures. Nothing is brought on record, and, inability to deny a particular suggestion, and that too regarding the existence of a structure upon the particular day cannot be construed as an admission of the existence of that structure on a particular day.
25. Therefore neither the evidence of P.W.2 Kurmi nor the evidence of Pednekar, assist and helps the plaintiff in proving that the structure was there since before 1962.
26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.
27. Regarding the excessive exercise of jurisdiction by the Commissioner, submissions have already been noted by me, earlier. He contended that under section 351, sub-section 2, the Commissioner is given discretionary power to order removal or pulling down of the structure. From the use of the words "Commissioner may", Mr. Diwan contended that it has not compelled the Commissioner to take the drastic action of demolition and if discretion is given to the Commissioner, then it has to be judicial discretion , therefore, the order of demolition in this case being not proper exercise of jurisdiction is totally illegal and void. Mr. Diwan relied upon a judgment of Gauhati High Court reported in 1996 AIHC 2126 (Gauhati High Court) Jadav Chandra Das Vs. Gauhati Municipal Corporation and others. The question was with reference to Section 337 of the Gauhati Municipal Corporation Act, 1971 regarding the scope and power of the Corporation to issue notice under that section, and the next question was that whether such a notice can be issued after completion of the building and it being assessed by the Authority and taxes are realised and can this power be utilised by the Authority at any time according to its sweet will keeping the sword of damocles hanging over the head of the person who completes the construction of the building, gets it assessed under Section 150 of the said Act and the assessment list is prepared and amended from time to time.
28. Thereafter Section 337 of the said Act was reproduced in the judgment.
29. Facts of the case were that the petitioner had constructed three houses in 1945 in Ward No.13 on Holding No. 61, year of construction 1945, Holding No.61-A, semi R.C.C., year of construction 1948, Holding No.62(A), year of construction 1977, Holding No.62 construction of three storied in 1960. All the houses were assessed, taxed and the notice came to be given on 14.1.1994. Thereafter on 2.4.1994 notice under Section 337(1)(1) and (2) were given for pulling down the illegal structure.
30. While considering the provisions of Section 337, the Gauhati High Court noted in paragraph 8 that no time has been prescribed regarding exercise of power under Section 337 and therefore according to Gauhati High Court as no time was prescribed, it must be held that reasonable time will apply regarding exercise of such power and the word "reasonable" means fair, just and not absurd. Thereafter in paragraph 9 the object of the Municipal laws was taken up to regulate the matters of public convenience and compel public to conform to certain rules. In paragraph 13, the Court has observed that the building rules are enacted for the benefit of the public and where those rules have been violated, and proceeding are taken for an order for demolition of the building under Section 363 what has to be decided is whether the breaches are of a formal or trivial character, in which case the imposition of fine might meet the requirements of the case, or whether they are serious and likely to affect adversely the interests of the public, in which case it would be proper to pass an order of demolition. Then Section 363(2) from Gauhati Municipal Act is quoted, which came to be considered by the Supreme Court in AIR 1956 SC 110 (Corporation of Calcutta Vs. M. Agarwalla). The Gauhati High Court noted in paragraph 10 that in the case before the Supreme Court under the Calcutta Municipality Act, 1923, the time was fixed for particular action of demolition but in Gauhati Municipal Act there was no limitation, but, at the same time, because the building was assessed, taxes was being realised, the Authorities cannot have as held by the Gauhati High Court, any right to exercise the power of demolition, otherwise it will amount to giving a long handle to the authority and it will be fraud. Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."
31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.
32. Mr. Diwan also relied upon judgment of this Court reported in 1992 Mh.L.J. 1573, G. J. Kanga, Adm. of Municipal Corporation Greater Bombay and Anr. Vs. S. S. Basha. The question in that matter was whether the order passed by the Deputy Municipal Commissioner is an administrative order or quasi judicial order and whether the said order is liable to be reviewed not by the D.M.C. but by the Additional Municipal Commissioner. In that case the owner of the structure where he was running a shops ought to replace C.I. sheets. On noticing the Construction in progress, the BMC issued Stop Work notice to him. He gave reply. Thereafter BMC issued notice under Section 351 but after hearing him the action was dropped by BMC and on payment of certain amount as penalty, the structure was regularised. A complaint was made about the same structure and therefore Additional Municipal Commissioner found that fraud has been perpetrated in the previous enquiry and therefore the notice was again issued to the concerned person as to why the earlier order of DMC should not be set aside and structure be demolished under section 351. A.M.C. set aside that order and ordered demolition. The owner therefore filed a suit for declaration. Interim injunction was granted to the plaintiff. BMC challenged that order contending that the DMC's order was an administrative order and it was open to review by the Additional Commissioner.
33. It will be clear that the factual matrix of that case is totally different. The court found that Additional Municipal Commissioner's order was without jurisdiction and without authority of law and court came to the conclusion that the plaintiff has prima facie case for grant of injunction.
34. This judgment was cited by Mr. Diwan in order to show that passing of the order of demolition involved large area of discretion and Municipal Authorities are required to follow principles of natural justice. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.
35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.
36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.
37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.
38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he reerected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.
39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.
40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal. It is dismissed with costs all throughout.
Print Page
No comments:
Post a Comment