Case Note & Summary
The appellant, Mohammed Kasam, filed a suit in the Bombay City Civil Court seeking a declaration that a notice dated 15.11.1997 issued by the Municipal Corporation of Greater Bombay under Section 351 of the Municipal Corporation Act was illegal and void, and for an injunction restraining the Corporation from demolishing the suit structure. The structure was a shed covering open space on the ground floor at 4, Pandey Road, Colaba, Mumbai. The appellant claimed long-standing existence and relied on documents from a previous owner. The trial court dismissed the suit, observing that the appellant had erected a shed in open space admeasuring 8' x 40' and could seek regularization under a circular, but the notice itself was not invalid. The High Court, in appeal, affirmed the trial court's decision, holding that the appellant failed to prove the structure was authorized or that the notice was illegal. The appeal was dismissed with no order as to costs.
Headnote
A) Municipal Law - Unauthorized Construction - Section 351 of the Municipal Corporation Act - Notice for Demolition - The appellant challenged a notice dated 15.11.1997 issued under Section 351 of the Municipal Corporation Act for demolition of a shed covering open space. The trial court dismissed the suit, and the High Court upheld the dismissal, finding that the appellant failed to prove the structure was long-standing or authorized. The court noted that the appellant could seek regularization under a circular but the notice itself was not illegal. (Paras 1-3)
Issue of Consideration
Whether the notice issued under Section 351 of the Municipal Corporation Act for demolition of the suit structure was illegal and void, and whether the plaintiff was entitled to a declaration and injunction against the Municipal Corporation.
Final Decision
Appeal dismissed. No order as to costs.
Law Points
- Section 351 of the Municipal Corporation Act
- unauthorized construction
- burden of proof
- regularization circular
Case Details
2013 LawText (BOM) (09) 124
First Appeal No.1881 of 2008
Mr. K.D. Jha for the Appellant, Mrs. Geeta Joglekar for the Respondent
The Municipal Corporation of Greater Bombay
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Nature of Litigation
Civil suit for declaration and injunction against municipal demolition notice.
Remedy Sought
Declaration that notice dated 15.11.1997 under Section 351 of the Municipal Corporation Act was illegal and void, and injunction restraining demolition.
Filing Reason
Appellant challenged the notice issued by the Municipal Corporation for demolition of a shed covering open space.
Previous Decisions
Trial court dismissed L.C. Suit No.4016 of 1998 on 7.3.2008.
Issues
Whether the notice under Section 351 of the Municipal Corporation Act was illegal and void.
Whether the appellant was entitled to a declaration and injunction against the Municipal Corporation.
Submissions/Arguments
Appellant argued that the structure was long-standing and relied on documents from previous owner.
Respondent contended that the structure was unauthorized and notice was valid.
Ratio Decidendi
The appellant failed to prove that the suit structure was authorized or that the notice under Section 351 was illegal. The trial court's dismissal was upheld.
Judgment Excerpts
This appeal arose out of judgment and order dated 7.3.2008 in L.C.Suit No.4016 of 1998 which was dismissed by learned Judge of Bombay City Civil Court.
It appears that the trial court, after considering the evidence and copies of documents, observed in concluding paragraph of the judgment as follows : '8 The plaintiff in support of his claim has placed reliance on the Circular bearing no.CE/30054/11 OF 2/12/80. Now from the facts of the present case it appears that the plaintiff has erected shed in the open space and the same is admeasuring 8’ x 40”. If he wants to get the said structure regularized, he is at liberty to do so. However, only on the basis of this Circular, it cannot be said that the notice dated 15th November, 1997 and order passed on 6th...'
Procedural History
The appellant filed L.C. Suit No.4016 of 1998 in Bombay City Civil Court, which was dismissed on 7.3.2008. The appellant then filed First Appeal No.1881 of 2008 in the Bombay High Court, which was dismissed on 16.9.2013.
Acts & Sections
- Municipal Corporation Act: Section 351
