Case Note & Summary
The appellants, legal heirs of late Jyotiswarup Valmiki, filed an appeal against the judgment and decree of the City Civil Court, Bombay, dismissing their suit challenging a notice issued under Section 55 of the Maharashtra Regional and Town Planning Act, 1966. The notice, dated 04.02.2006, was issued at the instance of the Bombay Port Trust, alleging that an unauthorized structure (a room admeasuring 3.0 m x 1.65 m with a height of 4.75 m, made of G.I. sheets) existed on open space at Room No. 11, Galli of Phiroz Building, Steven Street, Colaba, Mumbai. The appellants claimed that they were in possession of the suit premises as watchmen and had documentary evidence such as ration cards, electricity bills, and voter IDs. They contended that the landlord had allowed their predecessor to stay there. The trial court dismissed the suit, leading to the present appeal. The High Court observed that the appellants failed to produce any evidence to show that the structure was authorized or that they had any right to occupy the open space. The court noted that the land belonged to the Municipal Corporation and the structure was built without permission. The court held that mere possession, even if long-standing, does not confer any right to retain an unauthorized construction. The appeal was dismissed with no order as to costs.
Headnote
A) Municipal Law - Unauthorized Development - Section 55 Maharashtra Regional and Town Planning Act, 1966 - Validity of Demolition Notice - The appellants challenged a notice issued under Section 55 of the MRTP Act, 1966 directing removal of an unauthorized room constructed on open space. The court held that the notice was valid as the structure was built without permission on land belonging to the Municipal Corporation. The appellants' possession, even if long-standing, did not confer any right to retain the unauthorized construction. The appeal was dismissed. (Paras 1-8)
B) Evidence - Burden of Proof - Ownership and Permission - The appellants failed to produce any documentary evidence to show that the structure was authorized or that they had any right to occupy the open space. The court noted that the burden was on the appellants to prove the legality of the structure, which they did not discharge. (Paras 5-7)
Issue of Consideration
Whether the impugned notice under Section 55 of the Maharashtra Regional and Town Planning Act, 1966 was valid and whether the appellants had any right to retain the unauthorized structure.
Final Decision
The appeal is dismissed. The judgment and decree of the City Civil Court is confirmed. No order as to costs.
Law Points
- Unauthorized development
- Section 55 MRTP Act
- 1966
- Burden of proof on occupier
- Possession not a defence against demolition
- Notice valid if structure unauthorized
Case Details
2013 LawText (BOM) (03) 89
First Appeal No. 739 of 2012 with Civil Application No. 1471 of 2012
Mr. R.P. Ojha i/by Mr. A. Singh for the Appellants, Mrs. Geeta Jogalekar for the Respondent/BMC
Smt. Chandravati Jyotiswarup Valmiki (deleted) through LRs Rajesh, Anil, and Sunil Valmiki
The Assistant Municipal Commissioner, 'A' Ward, Municipal Corporation of Gr. Mumbai
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Nature of Litigation
Appeal against dismissal of suit challenging notice under Section 55 of MRTP Act, 1966 for removal of unauthorized structure.
Remedy Sought
Appellants sought to set aside the judgment and decree of the City Civil Court dismissing their suit and to quash the notice.
Filing Reason
The appellants challenged the notice dated 04.02.2006 issued by the Assistant Municipal Commissioner directing removal of an unauthorized room constructed on open space.
Previous Decisions
The learned Adhoc Judge, City Civil Court and Additional Sessions Judge, Greater Bombay dismissed L.C. Suit No. 755 of 2006 with cost.
Issues
Whether the notice under Section 55 of the MRTP Act, 1966 was valid?
Whether the appellants had any right to retain the unauthorized structure?
Submissions/Arguments
Appellants argued that they were in possession of the suit premises as watchmen and had documentary evidence such as ration card, electricity bill, voter ID to prove possession.
Appellants contended that the landlord had allowed their predecessor to stay in the suit premises.
Respondent/BMC argued that the structure was unauthorized and built on open space without permission.
Ratio Decidendi
The notice under Section 55 of the MRTP Act, 1966 was valid as the structure was unauthorized and built on open space without permission. Mere possession, even if long-standing, does not confer any right to retain an unauthorized construction. The burden of proof to show authorization lies on the occupier, which the appellants failed to discharge.
Judgment Excerpts
By this Appeal the Appellant challenges the judgment and decree passed by the learned Adhoc Judge Judge, City Civil Court and Additional Sessions Judge, Greater Bombay in L.C. Suit No. 755 of 2006, whereby the learned Judge has dismissed the suit with cost.
The impugned Notice was issued on 04.02.2006 under section 55 of the Maharashtra Regional and Town Planning Act, 1966, whereby the occupiers were directed to remove the unauthorized development i.e. unauthorized construction of room admeasuring 3.0 mtrs. X 1.65 meters with the height of 4.75 mtrs. on the open space/house galli with G.I. Sheet covering.
Procedural History
The appellants filed L.C. Suit No. 755 of 2006 in the City Civil Court, Bombay challenging the notice under Section 55 of the MRTP Act, 1966. The suit was dismissed with cost. The appellants then filed First Appeal No. 739 of 2012 in the High Court of Judicature at Bombay.
Acts & Sections
- Maharashtra Regional and Town Planning Act, 1966: 55
