Case Note & Summary
The appellant, Maneklal N. Shah alias Kothari, was the original plaintiff in a suit filed against the Municipal Corporation of Greater Bombay (respondent). The appellant was a tenant of a shop that he claimed existed since prior to 1962, taken on rent by his father, and he carried on his livelihood business there. The Municipal Corporation issued a notice dated 22.3.2007 under Section 351 of the Mumbai Municipal Corporation Act, 1888, alleging unauthorized construction of a structure with B.M. Walls, A.C. Sheet Roof, and a wooden door admeasuring 14' x 7'. The appellant showed cause by replies dated 29.3.2007 and 11.4.2007, but the Assistant Municipal Commissioner, D Ward, passed an order on 29.10.2010 directing removal, stating that only two documents were produced which were not acceptable as authentic proof of authorization. The appellant had previously faced a similar notice in 1975, which was withdrawn after a statement by the Deputy Municipal Commissioner, and the suit was withdrawn on 8.12.1993. The appellant contended that a fresh notice for the same cause ought not to have been issued. The trial court dismissed the suit on 10.1.2013, holding that the plaintiff failed to prove the notice and order were illegal. On appeal, the High Court heard submissions. The appellant's advocate argued that the shop was longstanding and the earlier withdrawal barred a fresh notice. The respondent's advocate supported the trial court's decision. The court analyzed that the appellant had not produced any documentary evidence to show that the structure was authorized or that it existed prior to the relevant date. The court noted that the earlier withdrawal did not create a right in favor of the appellant, as the structure remained unauthorized. The court held that the burden of proof was on the appellant to show authorization, which he failed to discharge. The appeal was dismissed, and the civil application was disposed of. No order as to costs.
Headnote
A) Municipal Law - Unauthorized Construction - Section 351 of the Mumbai Municipal Corporation Act, 1888 - Burden of Proof - The appellant, a tenant, challenged a demolition notice for an alleged unauthorized shop structure. The court held that the appellant failed to produce authentic documents to prove the structure was authorized, and the earlier withdrawal of a similar notice did not bar a fresh notice. The appeal was dismissed. (Paras 1-6)
Issue of Consideration
Whether the appellant (original plaintiff) had proved that the impugned notice dated 22.3.2007 and order dated 29.10.2010 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 were illegal, null and void.
Final Decision
The appeal is dismissed. The impugned judgment and order dated 10.1.2013 passed by the City Civil Court, Mumbai in L.C.Suit No.2597 of 2010 is confirmed. Civil Application No.1700 of 2013 is disposed of. No order as to costs.
Law Points
- Burden of proof lies on the person challenging a demolition notice to show that the structure is authorized
- Withdrawal of earlier notice does not bar fresh notice for same cause if structure remains unauthorized
- Section 351 of the Mumbai Municipal Corporation Act
- 1888 empowers the Corporation to remove unauthorized constructions
