Case Note & Summary
The appellants, Smt. Saminussa Tawakal Hussein, Jaffar Ali Abdul Jaffar, and Mohd. Ishaq Kasam Ali, were tenants of M/s. Kay Kay Enterprises (respondent no.2) in respect of plots 11,12,13,14-B,15-B at K.S.Nagar, Dahisar, Mumbai. They had erected structures on these plots in 1983 with permission from the Municipal Corporation of Greater Bombay (respondent no.1). On 24.8.2000 and 26.8.2000, the corporation issued notices under Section 314 of the Mumbai Municipal Corporation Act, 1888, calling upon the appellants to show cause why the structures should not be demolished as unauthorized. The appellants filed L.C. Suit No.5088 of 2000 in the City Civil Court, Bombay, challenging the notices. The trial court dismissed the suit on 12.6.2006, holding that the structures were unauthorized and the notices were valid. The appellants appealed to the High Court. The High Court found that the trial court had erred in not considering that the structures were erected with municipal permission and that the appellants had been in possession for over 23 years. The court also noted that the notices under Section 314 were issued without proper inquiry and without giving the appellants an adequate opportunity of hearing. The High Court allowed the appeal, set aside the trial court's judgment, and quashed the notices. The court directed the corporation to consider the appellants' representations afresh in accordance with law.
Headnote
A) Municipal Law - Demolition Notice - Section 314 of Mumbai Municipal Corporation Act, 1888 - Validity of Notice - The appellants, tenants of Kay Kay Enterprises, challenged notices dated 24.8.2000 and 26.8.2000 issued under Section 314 of the Act for demolition of structures on plots 11,12,13,14-B,15-B at K.S.Nagar, Dahisar. The trial court dismissed the suit. The High Court held that the notices were not preceded by proper inquiry and the appellants were not given an opportunity of hearing. The court also noted that the structures were erected in 1983 with permission from the municipality and the appellants had been in possession for over 23 years. The appeal was allowed and the notices were quashed. (Paras 1-10) B) Civil Procedure - First Appeal - Appellate Court's Power - The High Court, in a first appeal under Section 96 of CPC, can re-appreciate evidence and interfere with findings of fact if they are perverse or based on no evidence. In this case, the trial court's finding that the structures were unauthorized was not supported by evidence, as the municipality had granted permission for construction. (Paras 2-8)
Issue of Consideration
Whether the notices under Section 314 of the Mumbai Municipal Corporation Act, 1888 issued against the appellants were valid and whether the trial court erred in dismissing the suit challenging those notices.
Final Decision
The High Court allowed the appeal, set aside the judgment and order dated 12.6.2006 of the City Civil Court, Bombay, and quashed the notices dated 24.8.2000 and 26.8.2000. The court directed the corporation to consider the appellants' representations afresh in accordance with law.
Law Points
- Section 314 of Mumbai Municipal Corporation Act
- 1888
- Notice under Section 314 must be preceded by proper inquiry and opportunity of hearing
- Long-standing possession and construction with municipal permission may create equity in favor of tenant
- Appellate court can interfere with trial court's findings if perverse or based on no evidence
