Case Note & Summary
The appellant, Mohd. Zuber Mohd. Yusuf Memon, filed an appeal against an order of the City Civil Court, Mumbai, which refused to grant ad-interim relief restraining the Municipal Corporation of Greater Mumbai from acting on a notice under Section 354-A of the Mumbai Municipal Corporation Act, 1888, and a subsequent demolition order. The appellant claimed possession of a ground+two floor structure in a slum area declared in 1976, which he acquired via consent terms in a prior suit. He argued that he only replaced the damaged A.C. sheet roof, not constructed a new floor. The Municipal Corporation issued a notice on 23.05.2016 alleging unauthorized construction of a second floor, and the Assistant Municipal Commissioner passed a final order on 19.08.2016 for removal. The appellant filed a suit and sought interim injunction, which was denied. On appeal, the High Court considered whether replacement of a roof constitutes unauthorized construction. The Court noted the structure existed since before 1976, was in a slum area, and was assessed to municipal taxes. The Court held that replacing a roof is not erection of a new structure, and the appellant had a prima facie case. The Court set aside the Trial Court's order, allowed the appeal, and granted interim relief restraining the Corporation from demolishing the structure pending the suit.
Headnote
A) Municipal Law - Unauthorized Construction - Section 354-A, Mumbai Municipal Corporation Act, 1888 - Replacement of Roof - The appellant replaced the A.C. sheet roof of his existing ground+two floor structure. The Municipal Corporation issued a notice under Section 354-A treating it as new unauthorized construction. The Court held that replacement of a roof does not amount to erection of a new structure and the notice was not justified. (Paras 1-8) B) Property Law - Slum Declaration - Protection of Existing Structures - The suit premises are in a slum area declared by Government Notification dated 12.02.1976. The structure existed prior to 1976 and was assessed to municipal taxes. The Court held that the slum declaration and tax assessment indicate the structure is old and not newly constructed, supporting the appellant's claim. (Paras 4-8) C) Civil Procedure - Interim Injunction - Prima Facie Case - The Trial Court refused ad-interim relief. The High Court found that the appellant had made out a prima facie case, balance of convenience in his favor, and irreparable loss would be caused if demolition proceeded. The Court set aside the Trial Court's order and granted interim relief. (Paras 7-8)
Issue of Consideration
Whether replacement of A.C. sheet roof of an existing structure amounts to 'erection of unauthorized construction' under Section 354-A of the Mumbai Municipal Corporation Act, 1888, warranting demolition?
Final Decision
Appeal allowed. Order dated 31.08.2016 of City Civil Court set aside. The respondent-Municipal Corporation is restrained from taking any action in pursuance of notice dated 23.05.2016 and order dated 19.08.2016 until disposal of the suit. Civil Application also disposed of.
Law Points
- Replacement of roof is not new construction
- Section 354-A MMC Act applies only to unauthorized erection
- Slum declaration protects existing structures
- Prima facie case for injunction
