Case Note & Summary
The appellant, M/s. B. Jayantilal, a partnership firm, filed a suit challenging a notice issued by the Municipal Corporation of Greater Bombay under Section 351 of the Mumbai Municipal Corporation Act, 1888, and the subsequent demolition order dated 17 January 2002. The notice alleged that the appellant had carried out unauthorized construction admeasuring 16 feet by 16 feet, shown in a sketch annexed to the notice. The appellant contended that the structure was not a room but an open space covered with a grill and collapsible gate used as a garage for parking a vehicle. The Assistant Commissioner of the Corporation rejected the appellant's reply and ordered demolition. The trial court dismissed the suit, holding that the structure was unauthorized. The appellant appealed. During the appeal, the first respondent (Corporation) sought to treat its reply to the Notice of Motion for temporary injunction as its written statement, citing administrative difficulties. The appellant opposed this, relying on a decision of the Bombay High Court in Ramesh Thakkar v. Renuka D. Bagaria (Appeal From Order No. 952 of 1996), which held that an affidavit-in-reply to a Notice of Motion cannot be treated as a written statement. The High Court agreed with the appellant on this procedural point, refusing to allow the Corporation to adopt its reply as a written statement. On the merits, the court noted that the trial court had correctly found the structure to be unauthorized. The appellant failed to produce any evidence to show that the construction was authorized. The High Court upheld the trial court's decision and dismissed the appeal, confirming the demolition order.
Headnote
A) Civil Procedure - Written Statement - Affidavit-in-Reply to Notice of Motion - An affidavit-in-reply filed by a defendant to a Notice of Motion for temporary injunction cannot be treated or adopted as a written statement in the suit - The court relied on the decision in Ramesh Thakkar v. Renuka D. Bagaria (Appeal From Order No. 952 of 1996) - Held that such a reply cannot substitute a formal written statement (Para 4). B) Municipal Law - Unauthorized Construction - Section 351 of Mumbai Municipal Corporation Act, 1888 - The appellant challenged a notice and demolition order under Section 351 alleging unauthorized construction of a 16 ft x 16 ft structure - The trial court dismissed the suit holding the structure unauthorized - The High Court upheld the dismissal, noting that the appellant failed to prove the structure was authorized - Held that the demolition order was valid (Paras 2-5).
Issue of Consideration
Whether an affidavit-in-reply filed by a defendant to a Notice of Motion for temporary injunction can be treated as a written statement.
Final Decision
The First Appeal is dismissed. The trial court's judgment is upheld. The appellant's challenge to the notice and demolition order fails.
Law Points
- Affidavit-in-reply to Notice of Motion cannot be treated as written statement
- Unauthorized construction under Section 351 of Mumbai Municipal Corporation Act
- 1888
- Demolition order upheld
