Case Note & Summary
The appellants, owners of a structure at Champa Niwas, Jogeshwari (East), filed a suit seeking protection from demolition by the Municipal Corporation of Greater Mumbai. The Corporation had issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 on 24.2.2012, alleging the structure was unauthorized. The appellants replied on 30.4.2012 claiming the structure existed for over 30 years, prior to the datum line of 1.4.1962. The trial court, by order dated 22.10.2020, declined to protect the structure pending suit. Aggrieved, the appellants appealed under Order 43 Rule 1 CPC. The High Court found that the trial court had not properly considered the prima facie case, balance of convenience, and irreparable injury. The court noted that the structure was used for residence and had existed for a long time. The High Court allowed the appeal, set aside the trial court's order, and directed that the suit structure be protected pending disposal of the suit, subject to the appellants not alienating or creating third-party rights.
Headnote
A) Civil Procedure - Interim Injunction - Prima Facie Case - Balance of Convenience - Irreparable Injury - The court considered whether the trial court correctly declined to protect the suit structure pending suit. Held that the appellants had made out a prima facie case, balance of convenience was in their favor, and they would suffer irreparable injury if the structure was demolished. (Paras 1-11)
B) Municipal Law - Unauthorized Construction - Section 351 of Mumbai Municipal Corporation Act, 1888 - Notice and Demolition - The respondent Corporation issued a notice under Section 351 on 24.2.2012 calling for removal of the suit structure. The appellants claimed the structure existed prior to the datum line of 1.4.1962. Held that the trial court ought to have considered the long existence and the fact that the structure was used for residence, and granted interim protection. (Paras 2-10)
Issue of Consideration
Whether the trial court erred in declining to protect the suit structure pending suit, and whether the appellants are entitled to interim relief against demolition.
Final Decision
Appeal allowed. The order dated 22.10.2020 passed by the trial court is set aside. The suit structure shall be protected pending disposal of the suit. Appellants shall not alienate or create third-party rights in the suit structure.
Law Points
- Interim relief
- balance of convenience
- irreparable injury
- prima facie case
- Section 351 of Mumbai Municipal Corporation Act
- 1888
- Order 43 Rule 1 CPC
Case Details
2020 LawText (BOM) (12) 45
Appeal from Order (ST.) No. 94879 of 2020 along with Interim Application (ST.) No. 94880 of 2020
Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare for the appellants; Mr. Vishwajeet S. Kapse a/w. Ms. Anushka Goyal for Intervenor; Ms. Purnima Kantharia a/w. Mrs. Madhuri More for M.C.G.M.
Bhalchandra Vasudeo Rao (since deceased, through heirs and legal representatives) 1. Smt. Himati Bhalchandra Rao 2. Shri. Dinesh Bhalchandra Rao 3. Shri. Amit Bhalchrandra Rao 4. Shri. Durgesh Bhalchandra Rao 5. Shri. Durgprasad Bhalchandra Rao
The Municipal Corporation of Greater Mumbai
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Nature of Litigation
Civil appeal against trial court order declining interim protection of suit structure pending suit.
Remedy Sought
Appellants sought protection of the suit structure from demolition by the Municipal Corporation pending disposal of the suit.
Filing Reason
The trial court declined to protect the suit structure vide order dated 22.10.2020, prompting the appeal.
Previous Decisions
Trial court order dated 22.10.2020 declining to protect the suit structure.
Issues
Whether the trial court erred in declining to protect the suit structure pending suit.
Whether the appellants are entitled to interim relief against demolition.
Submissions/Arguments
Appellants argued that the suit structure existed for over 30 years, prior to the datum line of 1.4.1962, and they had a prima facie case, balance of convenience, and would suffer irreparable injury if demolished.
Respondent Corporation argued that the structure was unauthorized and no construction permission was produced.
Ratio Decidendi
The court held that the trial court failed to properly consider the prima facie case, balance of convenience, and irreparable injury. The long existence of the structure and its use as residence warranted interim protection pending suit.
Judgment Excerpts
Pending suit, vide order dated 22.10.2020, the learned trial Court declined to protect the suit structure in respect of which the respondent, Corporation on 24.2.2012, had issued a notice under Section 351 of the Mumbai Municipal Corporation Act.
The structure described in the schedule is 'unauthorised construction of structure with B.M. wall and bamboo and tarpaulin sheet admeasuring 15 ft.3 inches x 32 feet and height 10 feet'
Plaintiff respondend the notice vide reply dated 30.04.2012; but did not submit 'construction permission'. He, simply stated that the suit structure came into being since before 30 years.
Procedural History
The respondent Corporation issued a notice under Section 351 on 24.2.2012. The appellants replied on 30.4.2012. The trial court declined to protect the structure on 22.10.2020. The appellants appealed under Order 43 Rule 1 CPC on 15.12.2020 (reserved) and judgment pronounced on 22.12.2020.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 351
- Code of Civil Procedure, 1908 (CPC): Order 43 Rule 1
