IN THE COURT OF JUDGE, CITY CIVIL COURT AT BOMBAY S.C. ...

1SC Suit No. 2572 of 2005IN THE COURT OF JUDGE, CITY CIVIL COURT AT BOMBAYS.C.SUIT NO. 2572 OF 2005Mars Food Services,(Previously known as M/s.NarangEnterprises), A Registered Partnershipfirm under the Indian Partnership Act,1932 and having Office at Jazz By theBay, Soona Mahal, Netaji Subhash Road,Mumbai­400020. ..PlaintiffVersusThe Municipal Corporation ofGreater Mumbai, A Corporationconstituted under The MumbaiMunicipal Corporation Act, 1888and having office at Mahapalika Marg,Fort, Mumbai­400 001. ..Defendant.Shri. P. D. Gandhy, Advocate for Plaintiff.Shri M. B. Jadhav, Advocate for Defendant.Coram: Shri S. P .Kulkarni,Judge, City Civil Court,Greater Bombay.Court Room No. 4.Dated: 20 th April 2011.ORAL JUDGMENT1. The present suit is filed by the plaintiff for declaration thatnotice bearing no. A/BF­II/351/3847/05­06 dated 11.5.2005 andorder bearing no. Asst.C./A/3814/05­06 dated 20.6.2005(hereinafter referred as “impugned notice” & “impugned order”

2SC Suit No. 2572 of 2005respectively) are illegal and void. He also sought perpetualinjunction restraining the defendants from implementingimpugned notice and impugned order.2. The brief facts, leading to the case of plaintiff are asunder:­3. The plaintiff is a registered Partnership Firm and runs aRestaurant by name and style “Jazz By The Bay”(formerlyknown as “Talk of Town”) at Ground floor, Soona Mahal, NetajiSubhash Road,k Mumbai­400 020 (hereinafter referred as “suitpremises”). The building belongs to the Soona Mahal Co­Operative Housing Society and the plaintiff's Restaurantpremises i.e. suit premises is owned by M/s. J.N. Nazir andothers. Plaintiff is tenant of the said premises since 1968. Thelandlords were carrying on the business of Restaurant in thesuit premises in the name of “Parsian Dairy”. After the plaintifftook over the business, the name was changed to “Jazz By TheBay”. The restaurant comprises of licensed area of 366.53 sq.meters and defendant Corporation has since 1957­58 grantedall necessary licenses to carry on restaurant business and alsothe structure is assessed to the taxes. The licensed area of thesuit premises, which was originally an open space in front ofrestaurant, was permitted to be covered by awning. Thedefendant raised the dispute about the said awning many timesand then withdrew subsequently. By his letter dated 1.8.1956

3SC Suit No. 2572 of 2005addressed by Collector of Bombay to Mr. F.C. Sidhwa andothers, the then lessees of Plot No. 203 of the building SoonMahal, the Collector granted permission for the use of frontopen space to the lessee and a permission was also accorded toput canvas shelter. A license fees of Rs. 200/­ per annum wascharged for the said permission.4. By Deed of License dated 30.07.1958, the Governor ofBombay granted to the then lessees of the aforesaid property,permission to use the open space in front of the demisedpremises for the purposes of business on payment of a licensefee of Rs. 200/­ per annum and it was provided that the openspace could be covered by some temporary structure forproviding shelter from rain and sun. Pursuant to the saidpermission, predecessor in title of plaintiff put canvas shelterbut it was not sufficient to provide adequate protection. Hence,they made application on 03.06.1957 to construct a metal Ajaxawning over the front open space and it was approved byArchitect to Government by letter dated 20.6.1957 bearingReference No.P43/1376 of 1957. By letter dated 04.02.1960addressed by Collector's Office(Survey Branch) to the lessee,the Collector placed on record that he had no objection to thecovering of open space by metal awning as permitted byGovernment Architect subject to the payment of fee of Rs.100/­ per annum. A demand of Rs. 400/­ for the period 1957 to1960 was made and it was complied. On 9.11.1968 plaintiff

4SC Suit No. 2572 of 2005through their Architects applied for renovation and alteration inthe premises acquired by them and the said plans wereapproved by Architect to Government by his letter dated17.11.1968. Under the plans approved by Architect toGovernment on 5.11.1968 inter­alia the use of garages for thepurposes of kitchen was approved and the enclosure of frontopen space with awning was also approved. By letter dated29.5.1978 addressed by Architect to Government to the SoonaMahal CHS Ltd., the permission was granted on 20.06.1957 forcovering the front open space that the awning was purported tobe revoked and further the Government Architect requesteddefendant to take appropriate action. By letter dated 21.7.1978addressed by the defendant to the Collector, the defendantstated that plaintiff made representation to the DeputyMunicipal Commissioner and as he was proceeding on leave,the matter could be taken up after he resumed duties. On17.10.1980 defendant again issued notice U/Sec. 351 of MMCAct in respect of awning alleging that the same was liable to beremoved. The plaintiff filed suit no. 1530/1983 and obtained anorder of injunction against the defendant restraining them fromremoving or pulling down the awning and enclosure of openspace.On 11.9.1984, the Government Architect by letterbearing no. BBRS/203/22/50 once again granted permission forthe said awning and withdrew the letter of revocation dated29.5.1978. On 04.9.1985 defendant granted permission toplaintiff to carry out repairs to the existing metal awning as it

5SC Suit No. 2572 of 2005deteriorated and corroded due to environmental effects. Inpursuance of grant of permission, plaintiff withdrew the abovesaid suit No. 1530/1983 and on 8.11.1985 paid necessary feesand deposits towards the repair charges. On 10.3.1971defendant issued the Circular setting guidelines for permissionfor covering of front and/or side open spaces for restaurantsand the said guidelines inter alia provided that the covering ofthe roof shall have sufficient gradient so as to assure effectivedrainage of water and shall be strong enough to enable aperson to sweep it every day. Hence, the plaintiff covered theopen space awning by strong G.I. Corrugated sheets.5. On 29.03.1994 the plaintiff received yet another noticeu/sec. 351 of MMC Act from the defendant in respect of awning.The plaintiff filed suit no. 1282/1995 in this Court and took outNotice of Motion No 1492/1995. The said Notice of Motion wasdismissed on 9.10.1995. The plaintiff filed A.O. No. 1265/1995against the said order of dismissal in respect of awning. Theappeal was admitted by the Hon'ble High Court and an interimorder of status­quo was passed in respect of the awning. Statusquoorder is as follows:­“Admitted. Status quo in all respect to be maintainedtill further orders. Appellant is restrained frommaking additions, alterations and renovations in thedisputed structure.”

6SC Suit No. 2572 of 2005In the Lease Deed dated 30.8.1940 in respect of user of demisedpremises, a provision in clause 2(o) is made as follows:­“(o) Not to use or permit to be used the demisedpremises or any part thereof for any purpose otherthan for private residential purposes or for officeshotels libraries schools colleges and clubs, butexcluding shops. Show rooms and workshop providedalways that such part only of the demised premises asfronts upon Churchgate street may be used for shopsand Provided Always that a medical practitioner or adentist may use the rooms in any flat occupied by himin the demised premises as consulting rooms ordentist's rooms”.6. By an order dated 9.10.2000 bearing reference no.0254/Bldg, the defendant withdrew the proceedings u/sec. 351of MMC Act and formally regularized the structure on thecondition mentioned in their letter dated 20.10.2000. By letterdated 31.10.2001, the Chief Architect, Maharashtra Stategranted approval to the said awning and alterations thereto.Subsequently on 24.5.2004 the office of Executive Engineer,PWD certified that the repairs and renovation work has beencarried out in accordance with the approval granted by ChiefArchitect. By letter dated 22.5.2002 issued by Deputy ChiefEngineer of defendant Corporation, approval of structure by theMumbai Heritage Conversation Committee has beencommunicated to the plaintiff. By letter dated 16.9.2003, theCollector of Mumbai called upon plaintiff to pay arrears oflicense fee for enclosure of front open space of Rs. 4600/­ and

7SC Suit No. 2572 of 2005arrears of Rs.11,400/­ towards the sign board for the periodupto 2002­2003. By letter dated 20.9.2003, the plaintiffdeposited the amount. The plaintiff also recorded payment ofRs. 800/­towards the awning charges to the Collector ofMumbai for enclosure of said open space and an amount of Rs.950/­ towards the license fee for the period up to 2003­2004.The plaintiff also paid sum of Rs. 3500/­ towards the license feeand awning charges of Rs. 800/­ for year 2004­2005.7. On or about 12.4.2005 plaintiff received notice u/sec. 351of MMC Act alleging that the plaintiff raised unauthorizedconstruction mentioned in the notice. As the defendant askedfor removal of the structures mentioned in the notice, theplaintiff replied the notice through Advocate on 17.5.2005 andpointed out that the structure in the front open space is notunauthorized and it exists since prior to 1.4.1964 and it hasbeen included in the licensed area and assessed to the taxes.All the previous litigations were also brought to the notice ofdefendant together with the correspondence with thedefendant and the Government. The plaintiff claimed that thegarages were used for restaurant purposes since prior to 1963and no objection was raised by the Collector. So far asenclosure of front open space is concerned, it is in existencesince 1963­64 and hence, the notice is invalid, illegal and bad inlaw. The plaintiff therefore, claimed that the impugned noticeand the impugned order passed by the defendant are illegal and

8SC Suit No. 2572 of 2005void and defendant be restrained from implementing them.8. The defendant resisted the suit by filing written statementdated 13.07.2005. Defendant contended that the suit is bad forwant of notice u/sec. 527 of MMC Act and liable to bedismissed. It is further contended that during usual round ofinspection on 9.5.2005 at 11 a.m. Assistant EngineerP.S.Kokate(B & F), P.S.Makhija, Sub Engineer(Bldg) and ShriS.M. Mhatre, Junior Engineer detected unauthorizedconstruction of shed with G.I. Shed in compulsory open spacewith wooden­cum­glass panel and unauthorized change ofuser of garage to kitchen/store/staff dining, which is aextension to the existing structure and occupied by the plaintiffand used by them for commercial purposes. Plaintiff was askedabout the authorization of the structures but he failed toproduce any permission obtained from the competentauthority in respect of it. Moreover, plaintiff also failed toproduce any document to show that the structure is inexistence since prior to datum­line. Hence, they prepareddetail inspection report and put it before the AssistantCommissioner, 'A' Ward for necessary action, who in turnissued impugned notice dated 11.5.2005 calling upon theplaintiff to explain why the structures should not bedemolished and they be not prosecuted u/sec. 475 of the Act.The notice was duly served upon the plaintiff. The plaintiffreplied the notice through the Advocate and questioned the

9SC Suit No. 2572 of 2005impugned notice claiming that the structure is authorized bythe Government and necessary permission have been taken.Moreover, the structure is assessed. However, rejecting thecontentions raised,the Assistant Commissioner passedreasoned order directing removal of the suit structure. Theyclaimed that the plaintiff filed his suit and obtained ad­interimorder misleading the Court. The plaintiff failed to producesanctioned plan from the competent authority or anydocument showing the existence of structure prior todemolition. Defendant further contended that the permissiongranted by the Collector to put awning is revoked. The maincontention raised by defendant is that the plaintiff failed toproduce any authorized plan in respect of covering of openspace and conversion of garages and claimed that in absence ofthese documents the suit is liable to be dismissed and bedismissed with costs.9. The defendant also filed additional written statementdated 19.12.2005. In the additional written statement also thesame grounds have been raised stating that after consideringthe entire documents referred by the plaintiff in his reply to theimpugned notice, the impugned order came to be passed andthere was no evidence to show that the Restaurant existedsince prior to 1963 or 1957­58. Even the licensed area of1957­58 was 366.58 sq.mts and the premises consisting ofeating house located within building line and the area covered

10SC Suit No. 2572 of 2005under garages nos. 1 to 5 as well as the shed. The property beingthe Government property, the breaches were communicated tothe Collector, Mumbai City and the garage nos. 1 to 5 nevercomprised part of breaches before. It was only in the year 1998the garages have been shown to the constituting a breach by theoffice of the Collector. It is further observed by the AssistantCommissioner in his order that shed is constructed incompulsory open space of the building. Again Municipal recordin the form of license issued u/sec. 394 of the said Act as well asassessment record indicated that shed or awning is in existencefrom 1963­64 or even before the shed.10. It is further observed by the Assistant Commissioner thatthe permission for awning granted on 3.10.1955 as well as4.2.1960 by the Collector, Mumbai City along with letter fromGovernment Architect issued under no. P­43/1396/1957subsequently revoked the permission of awning vide letter no.S/SS/BBR/LND/157(203) dated 5.7.1978 as well as his letter ofeven number dated 5.1.1990. It is further observed by AssistantCommissioner that the land on which the building of theSociety stands belongs to the Collector and the office ofCollector has revoked the permission for awning thrice in 1978,1990 and 1998. However, they have not demolished the awningand taken revocation to it's logical end and hence thedefendant justified the action of Assistant Commissioner andclaimed that the impugned notice and order are legal and valid.

11SC Suit No. 2572 of 2005Hence, prayed that the suit be dismissed with costs.11. Following issues are framed at Exh.6 and my findings onthem for the reasons stated below are as under:­ISSUES1) Does plaintiff prove that notice bearing no.A/BF­II/351/3847/05­06 dated 11.5.2005 andorder bearing no. Asst.C/A/3814/05­06 dated20.6.2005 in respect of suit structure bydefendant is illegal and void?2) Is the suit bad for want of notice u/sec. 527 ofMMC Act?3) Does defendant prove that plaintiff constructedShed of GI Sheets in compulsory open space &also unauthorizedly changed user of Garage toKitchen/Store/Staff Dinning ?4) Is the plaintiff entitled for relief of declarationclaimed ?5) Is the plaintiff entitled for relief of injunctionclaimed?6) What order and costs ?FINDINGSIssue No. 1­In the affirmative.Issue No. 2­In the negative.Issue No. 3­In the negative.

12SC Suit No. 2572 of 2005Issue no. 4 ­In the affirmative.Issue no. 5­ In the affirmative.Issue no. 6­ As per final order.REASONS12. Before adverting to take up the issues for discussion, itwould be appropriate to state the evidence adduced by theparties. The plaintiff examined his employee Kantilal Sethia,who is conversant with the facts of the case. His evidence is atExh.9. The plaintiff relied upon the documentary evidencementioned in Exh.10 detailed as follows:­Ex.11Ex.12Ex.13Ex.14Ex.15Certified True Copy of order dated15.4.1983 passed in Suit No. 1530/1981.Xerox copy of letter dtd 4.9.1985 fromSenior Officer, 'A' Ward to the Manager(Administration­ Talk of the Town forrepairs of the awning.)Xerox copy of letter dtd 8.11.1985 from theplff to Sr.Ward officer of BMC.Original notice dtd 29.3.1994 issued by theDeputy Municipal Commissioner toMr.Manu Narang.Certified copy of Order passed by theHon'ble High Court, Mumbai dated13.11.1995 passed in Suit No. 1265 of 1995.Ex.16 Letter no.WOA/02584/Bldg dtd 9.10.2000

13SC Suit No. 2572 of 2005addressed by Ward Officer 'A' Ward toMr.Sanjay Narang withdrawing the noticeu/s 351 dtd 29.3.1994.Ex.17 Office copy of letter dtd 20.10.2000showing the compliance andacknowledged by the defendants.Ex.18Original letter dtd 22.5.2002 by DeputyChief Engineer I, Development Plan,approving / NOC from the MumbaiHeritage Conservation Committee alongwith drawings.Ex.19 Original office copy of letter dtd 24.5.2005addressed by the plaintiff to thedefendants.Ex.20Ex.21Original notice u/s 351 of the MMC Actdtd 11.5.2005 from Asst.MunicipalCommissioner, 'A' Ward to the partners ofMars Food Services.Original office copy of reply dated17.5.2005 by the plff's advocate ShriD.T.Gandhy.Ex.22 Original office copy of letter dtd 15.6.2005from plff to the dfts for giving details ofpayment for property tax.Ex.23Ex.24Original order passed by the Asst.Commissioner 'A' Ward dtd 20.6.2005.Original Special Power of Attorney issuedby all the partners of Mars Food Servicesdtd 18.11.2004 in favour of Mr. KantilalSethia.

14SC Suit No. 2572 of 2005Ex.25Original letter dtd 21.6.1978 from the Wardofficer to 'A' Ward to the Collector ofMumbai.Ex.36 Certified True Copy of letter dtd 1.8.1956from Collector of Mumbai toMr.F.C.Sidhwa & ors. Licensee of the land.Ex.37Ex.38Ex.39Certified true copy of License Agreementdtd 30.7.1958 between the Governor ofMumbai and Sidhwa Family for use ofopen space in front of demised premises.Certified copy of letter dtd 4.2.1960 fromCollector of Mumbai to F.C.Sidhwa &family.Certified copy of letter dtd 19.11.1968 fromGovernment Architect to Premnath &Associates along with copy of plan.Ex.40 Certified true copy of letter dtd 23.11.1968from the Govt. Architect to the Collector ofMumbai along with certified copy of theplan.Ex.41collyEx.42Ex.43Original letter dtd 11.7.1978 from SoonaMahal C.H.S. To the plffs along with lettersdtd 5.7.1978 and 29.5.1978.Original letter dtd 31.10.2001 from ChiefArchitect of Maharashtra to Mr. SanjayNarang approving the proposed awningand alterations along with drawings.Original completion certificate dtd24.5.2004 issued by Executive Engineer,Presidency Division Mumbai certifying the

15SC Suit No. 2572 of 2005alteration and renovation of awning.Ex.44Original letter dtd 16.9.2003 from Collectorof Mumbai to Partner, Mars RestaurantsPvt. Ltd., asking for license fees.Ex.45 Original office copy of letter dtd 20.9.2003from the plff to the Collector of Mumbaialongwith xerox copy of cheque and dulyacknowledged by the Collector.Ex.46 Original office copy of letter dtd 19.11.2004from the plff to the Collector of Mumbaiduly acknowledged by the Collector'soffice.Ex.51 Xerox copies of Circulars dtd 10.3.1971,to 53. 17.5.1972 and 26.4.1976.Ex.54Xerox copy of letter dtd 28.11.1985 fromthe plff to Sr.Ward officer of BMC alongwith three receipts.Apart from these documents, the plaintiff relied upon thedocuments Exh.31 colly, 32 and 33. He also relied upon thedocuments filed with list Exh.49 with the plan dated 20.6.1957Exh.50 colly. The plaintiff also produced notice dated23.12.2005 bearing No. CSLR/REV­1/LND/1579(203)SoonaMahal/2005 directing the Secretary to stop the use of garagenos. 1 to 5 for the purposes of Restaurant by Mars Food Services“Talk Of The Town Hotel” and also to remove the unauthorizedpermanent construction of open space. Against the said order,the plaintiff preferred an Appeal u/sec. 247 of Maharashtra

16SC Suit No. 2572 of 2005Land Revenue Code 1966 and the stay has been extended untilfurther orders on 21.8.2007 by the Additional Commissioner,Konkon Division, the copy is at Exh.63.13. The evidence of defendant consists of deposition of SatishM. Mhatre, Sub­Engineer of the defendant at Exh.57. Thewitness proved the original inspection report Exh.59 and xeroxcopy of letter dated 9.10.2000 Exh.60 admitted by defendant.14. AS TO ISSUE NO.1 : At the outset, I would like to statethat it is admitted position on record that the land on which thedisputed structures stand belongs to Government ofMaharashtra and it is governed by the terms of lease on whichthe land has been allotted to the Soona Mahal Co­OperativeHousing Society for the construction of building. It is also anadmitted position on record that the defendant previouslymade unsuccessful attempts to demolish the suit structures byissuing notice u/sec. 351 of MMC Act. It is also on record thatthe Government sanctioned the covering of open space fromtime to time from 1957 and now in the year 2005 it revoked thepermission, which are under challenge. The plaintiff filed anAppeal against the said order before Additional Commissioner,Konkon Division bearing No. Appeal/Desk/LNA/9/2006 and itis pending and the impugned order of the Collector bearing no.CSLR/REV­1/LND/1579(203)Soona Mahal/2005 dated29.12.2005 and it is pending. Therefore, the evidence of the

17SC Suit No. 2572 of 2005parties is required to be appreciated in light of thisdocumentary evidence.15. Plaintiff Kantilal Sethia(PW 1) in his deposition at Exh.9stated that he is associated with plaintiff as the CompanySecretary for the plaintiff for last 35 years and is personallyaware of the legal and property matters of the plaintiff. Thewitness further deposed that the building in which the suitstructure was situated belongs to Soona Mahal Co­OperativeHousing Society and plaintiff's restaurant premises are ownedby M/s. J.N. Nazir and others and the plaintiffs are tenants ofthe suit premises since 1968. The landlords were carrying onRestaurant Business in the name and style of Parsian Dairysince 1955­56 and lateron the name was changed to “Talk OfThe Town” and the plaintiff after taking over the same changedthe name as “Jazz by the Bay”. As per the license, the licensedarea of restaurant is 366.53 sq. mts. and the licensed area ofrestaurant premises included an open space in front ofrestaurant since 1957 and it was permitted to be covered byawning in 1957. By the letter dated 1.8.1956 addressed byCollector of Bombay to Mr. Sidhwa and others, the licensee ofthe plot no. 203 of building Soona Mahal, the Collector grantedpermission for the use of open space by the lessee of groundfloor who were Caterers or hoteliers for Soona Mahal for servingfood and drink. The permission was also granted for puttingcanvas shelters and license fees of Rs. 200/­ p.a.was charged .

18SC Suit No. 2572 of 2005The said letter is at Exh.36. The Governor of Bombay by licensedated 30.7.1958 granted permission to then lessee. The copy ofit is at Exh.37. It further appears in his evidence that thepredecessor in title of the plaintiff put up canvas shelters but itwas not sufficient protection against sea­winds. Hence, theymade application on 3.6.1057 to construct a Metal Ajak Awningover the front open space. It was approved by Architect toGovernment by letter dated 20.6.1957 bearing reference no.P43/1396/1957. The Collector also placed on record that theyhave no objection to the covering of open space by awningsubject to payment of fees of Rs. 100/­ per annum and ademand of Rs. 400/­for the period 1957 to 1960 is made inrespect of awning. It is at Exh. 38. On 9.11.1968 the plaintiffapplied through Architect for renovation and alteration in therestaurant and the plan was approved by the Architect toGovernment with his letter and the same is at Exh. 50 colly. Bythe said letter, the use of garages for the purpose of kitchen wasalso approved.16. He further deposed that on 23.11.1968, the plaintiffthrough their Architect N.M. Barai submitted plan to the officeof Collector. It is at Ex.40. The Secretary of Soona Mahal Co­Op.Society under his letter dated 11.7.1978 forwarded the copies oftwo letters, one from Architect from Government ofMaharashtra dated 29.05.1978 and other from Collector,Bombay dated 5.7.1978. By the letter dated 29.5.1978 addressed

19SC Suit No. 2572 of 2005by Architect to Government to the Soona Mahal CHS Limited,permission granted for covering front open space waspurported to be revoked and by the letter dated 5.7.1978 theCollector cancelled the said permission, which are at Exh. 41collectively.17. Kantilal Sethia(PW 1) further deposed that by letter dated21.7.1978 the concerned Ward Officer of A­ Ward addressed aletter to Collector that the concerned ward officer being onleave, action will be taken against plaintiff after he resumedduty. The said letter is at Exh.25.18. On 17.10.1980 defendant issued notice U/Sec. 351 of MMCAct. Plaintiff filed suit bearing No. 1530/1981 and obtainedinterim injunction on 15.4.1983 restraining defendant frompulling down the awning and the enclosures of the open space.The said order is at Exh.11.19. On 4.9.1985 defendant granted permission to the plaintiffto carry out repairs to the existing metal awning which gotcorroded. In pursuance to the said permission, plaintiffwithdrew Suit No. 1530/1981. The said permission is at Exh.12.The plaintiff also produced the copies of letters dated 8.11.1985,28.11.1985 and from plaintiff to Senior Ward officer of BMC.They are at Exh. 13 and 45. The plaintiff also produced circularof the defendant dated 10.3.1971, 17.5.1972 and 26.4.1976 ,

20SC Suit No. 2572 of 2005which are at Exh. 51, 52 & 53. The plaintiff claimed that thesecirculars are in respect of awning and state guidelines forpermission for covering front and side open spaces inrestaurants.20. On 29.3.1994 the plaintiff again received notice u/sec. 351of MMC Act stating that the awning is unauthorized. Theplaintiff filed suit no. 1282/1995 but no interim relief wasgranted and the Notice of Motion came to be dismissed. Theplaintiff filed A.O. No. 1265/1995 and it was admitted. The orderof status­quo was granted. The copy of the said order is at Exh.15. However, the defendant subsequently withdrew theimpugned notice vide letter bearing reference no.WOA/02584/Bldg. Dated 9.10.2000, which is at Exh.16. Theplaintiff was imposed certain conditions in the said letter Ex.16,which he complied and obtained acknowledgment fromdefendant. The said letter is at Exh.17.21. By letter dated 31.10.2001, Chief Architect, Government ofMaharashtra granted approval to the said awning andalterations and forwarded the copy of it to the ExecutiveEngineer(Building Proposal) of defendant. It is at Exh.42.Subsequently, on 24.5.2004 office of Executive Engineer PWDcertified that the repairs and renovation carried out by theplaintiff is in accordance with the approval granted by ChiefArchitect, vide letter dated 31.10.2001. The said completion

21SC Suit No. 2572 of 2005certificate is at Ex.43.22. He also deposed that by letter dated 22.5.2002 Dy. ChiefEngineer of defendant conveyed approval of the said structureby heritage committee. It is at Exh.18. By letter dated 16.9.2003Collector of Mumbai called upon the plaintiff to pay arrears oflicense fee for the enclosure of front open space. It is at Exh.44.The plaintiff complied the said letter vide Exh.45. The plaintiffreceived acknowledgment from the office of Collector, Mumbaiabout the letter dated 19.11.2004 which is at Exh.46. Despite ofthis defendants once again issued notice u/sec. 351 of MMC Acton 11.5.2005 which is at Exh.20. The plaintiff replied the saidnotice vide Exh.21. However, the plaintiff also produced thedocumentary evidence but the defendant did not pay any hit toit and passed the impugned order about demolition.23. The witness is cross­examined at length by the Advocatefor defendant Shri Jadhav. He was questioned as to who is thelandlord of the plaintiff. The witness categorically replied thatplaintiff is tenant of J.N.Najir and others and he is ready toproduce rent receipts. He also admitted that J.N.Najir andothers are members of Soona Mahal CHS. The land on whichsociety building is situated belongs to the Government ofMaharashtra. He further admitted that the total area underrestaurant is about 366.68 sq. mts. He further admitted that thesuit filed in the year 1983­84 was withdrawn as it was a

22SC Suit No. 2572 of 2005condition put forth by defendant/BMC that the suit bewithdrawn for grant of permission for renovation of awning. Hefurther admitted that in the year 1994 another notice wasissued by BMC and status­quo order was passed. The saidnotice was withdrawn by BMC and therefore, the matter waswithdrawn. It is admitted that order Exh.23 was passed afterreply by the defendant but he stated that no personal hearingwas given. He also admitted that the plaintiff received letterabout revocation of permission from the Collector in year 2008.He also admitted that plaintiff has not filed any application forregularization of suit structure prior to filing of the suit. He alsoadmitted that the matter is pending before KonkonCommissioner. He denied that plaintiff convertedunauthorizedly temporary shed in to permanent shed. This isthe evidence on behalf of plaintiff. The plaintiff produced thecopy of stay order from the Konkon Commissioner at Exh.63collectively showing that the matter pertaining to the executionof letter­cum­order passed by Collector, Mumbai by his orderno. CSLR/REV­1/LND/1579(203)/Soonamahal/2005­2006 dated29.12.2005 is stayed. The said order is passed in Appeal No.LNAAPPEAL NO. 9/2006 filed by the present plaintiff. In the saidAppeal the conversion of garage into kitchen and the coveringof open space is the subject matter which is the same subjectmatter as in this suit. As such, the plaintiff is tossed by twoauthorities simultaneously.

23SC Suit No. 2572 of 200524. The evidence of defendant consists of testimony of SatishMhatre, Sub­Engineer at Exh.57. The witness deposed that onreceipt of complaint from Mr.Majid Oomarbhai, he visited thesuit site at Soona Mahal alongwith P.S. Kokate, AssistantEngineer, P.S. Makhija, Sub Engineer and detectedunauthorized construction of shed with G.I. Sheets incompulsory open space with wooden­cum­glass panels. Healso found change of use of garages to kitchen/store/staffdining. He therefore, made inquiry with the staff members butthey were unable to produce any document of authorization.Hence, he put his inspection report Exh.59 before AssistantMunicipal Commissioner, who directed to issue notice toplaintiff u/sec. 351 of MMC Act for(1)unauthorizedconstruction of shed on M.S.Frame work with vertical M.S.Pipeembedded in the compound wall with G.I.Sheet covering ontop in compulsory open space of building known as SoonaMahal, alongwith wooden cum glass shutters and decorativefiber pillars between the roof and compound wall been used asRestaurant, (2) unauthorized change of user from garage No.(1to 5) to restaurant, kitchen/staff dining/service area withinternal alteration as shown in the notice sketch. The saidnotice was served upon plaintiff on 11.5.2005. The plaintiffreplied the notice and after considering the reply, AssistantCommissioner passed the impugned order.25. In the cross­examination, this witness admitted that they

24SC Suit No. 2572 of 2005had been to the suit premises to check whether there iscovering of open space and change of car garages intokitchen/store and staff dining.He also admitted that theinspection was carried out in view of the complaint made byMajid Oomarbhai. He also deposed that the measurementswere recorded, but he is not in a position to produce the saiddiary and papers to show that when it was recorded. Thewitness was asked about the checking of record prior to puttingrecord before Assistant Commissioner, and especially about theprevious notices but he stated that he saw the notice Exh.16and not Exh.14 before issuing Exh.20. He also admitted that noinquiry was made whether Collector is collecting charges forawning or not. The plaintiff also produced the letter Exh.50(colly) together with the plan showing that in the year 1957his predecessor was granted permission to put Ajak folding roofand it shows the entire periphery of building Soona Mahalhaving pillars at a distance of 13 feet as shown in the map. Theorder passed by the Collector, Mumbai regarding the violationby the plaintiff is at Exh.62­A and it clearly goes to show that thesame subject matter has been dealt with by the Collectorregarding which the impugned notice has been issued i.e. thechange of user of motor garages for kitchen and covering ofopen space by permanent structure and the Collector directedthe plaintiff to remove the construction and stop the user ofgarages as kitchen. The same subject matter is taken in Appealand stay is granted against this order till further orders. The said

25SC Suit No. 2572 of 2005order is at Exh.63.26. On going through this entire evidence, it clearly seemsthat the plaintiff has been granted permission to cover the openspace around the building Soona Mahal from time to time andeven the charges for the use has been collected by theGovernment as well as the Municipal Corporation and the saidcovering is in existence since 1957. The Government is thelessor and the Society is the lessee and unless the Governmentrevoke the permission finally, it would be improper to permitthe defendants to demolish the covering which has beentolerated by the defendants also. The above discussionexplicitly shows that the defendants also, as per their choiceissued notices under Sec. 351 of MMC Act of similar nature asthat of the present one which is subject matter of the suit andrecalled the same and tolerate the structure.27. Though the witness for defendant stated that theinspection was carried out and the structure was noticed, thisparticular statement appears to me motivated as thedefendants have record in their possession showing that thesaid structure exists since long and previously also notices wereissued and dropped after the plaintiff filed suits and obtainedreliefs. This particular conduct of the defendant cited abovewhile discussing the evidence, clearly amounts to waiver andacquiescence. Therefore, now the defendants are estopped

26SC Suit No. 2572 of 2005from saying that the said construction is not tolerable.28. The Learned Advocate for the plaintiff submitted that hisevidence is sufficient to demonstrate that the notice is issuedwithout application of mind as well as without considering therecord available with the office and hence, the impugned orderand impugned notice are illegal, void and malafide.29. The Learned Advocate for defendant submitted that theplaintiffs contravened the provisions of section 342, 347 ofMMC Act. He also submitted that the Government is notexempted from obtaining permission for construction andtherefore, the permission granted by the Government could notitself justify the construction by the plaintiff. He also submittedthat the suit is bad for non­joinder of necessary parties as theGovernment of Maharashtra is not joined to the Suit. Hetherefore, prayed that the plaintiff suppressed the material factsand the witness examined is not the plaintiff but his power ofattorney holder. Hence, his evidence can not be believed andtherefore, prayed that suit be dismissed with costs.30. The Learned Advocate for plaintiff drew my attention tounreported judgment of out own High Court in case of B.Shivram Shetty Vs. The Municipal Corporation of GreaterBombay and others, (Writ Petition No. 2305/1992 decided on

27SC Suit No. 2572 of 20054.4.1995) in which it is held that in view of the circular of thedefendants the structure of awning being constructed prior to1978­79 are protected and the Municipal Corporation wasdirected to take decision about regularizing the awning subjectto the conditions, if any, to be imposed. In the instant casepending before me, the awning is older more than involved inthis case. Therefore, the defendant ought to have taken properdecision about it.31. After scrutinizing the entire evidence, it clearly appearsthat the defendants from time and again issued notices underSection 351 of MMC Act in respect of the same structure andthen regularized or abandoned the action. There is sufficientevidence on record in the form of letters of the GovernmentAuthorities i.e. Chief Architect to Government and Collector toMumbai to show that the plaintiff was utilizing the open spacewith the permission of the Government and even the coveringof the open space has been made with the permission ofGovernment Authorities as well as the defendant itself. Underthese circumstances it cannot lie in the mouth of defendantthat the structure and the user of garages has been changedwithout it's permission. The correspondence referred abovealso shows that both the authorities indulged incorrespondence shifting the responsibilities to each other. TheGovernment authority, who authorized the structures andit's uses is competent to revoke the permission granted and

28SC Suit No. 2572 of 2005unless it is done, it is improper for defendant/BMC to takeaction against suit structure. No doubt, defendant/BMC iscompetent to take action against any offending structure whichdoes not comply or violate provisions of Section 342 and 347 ofthe MMC Act or under M.R.P.T. Act and D. C. Rules, but in theinstant case, the structure is standing since long and the orderrevoking the permission granted by the Government for changeof user and covering of open spaces which is the subject matterof this Suit also has been challenged by the present plaintiffbefore the Konkan Commissioner and it is pending. It is alsoadmitted position on record that the stay is granted to the orderof theCollector Mumbai revoking the permission. Hence,under these circumstances, I find that the action of thedefendant u/sec. 351 of MMC Act is premature, illegal and void.The right course open for the defendant is to wait till theproceedings before the Revenue Authority are completed andthen if law permits, take action against the plaintiff. Similarly,on going through the order it clearly appears that the order hasbeen passed without application of mind and without givingadequate reasons for not relying on the orders passed in thepast by the Court in favour of plaintiff. The notice or the orderdoes not bear any reference to the previous notices and thewitness also made statement that he has no knowledge aboutthe same. This fact itself makes it clear that the notice too hasbeen issued without the application of mind, which is soul ofany quasi­judicial order. The order of demolition is in the name

29SC Suit No. 2572 of 2005of quasi­judicial order and hence, adequate reasoning is sinequa­nonfor such orders. As stated above, I do not find that theAssistant Municipal Commissioner has taken care to giveadequate reasons to counter the detailed reply given by theplaintiff. Hence, I find the impugned notice and and impugnedorder passed are illegal, void and not enforceable against theplaintiff. I therefore, record my findings according in theaffirmative in respect of issue no.1.32. AS TO ISSUE NO.2: The issue about the maintainability ofsuit for want of notice u/sec. 527 of MMC Act is no more acontroversy in the light of decision of Hon'ble High Courtreported in 2005(3) ALL MR 869, Motilal MahadevSharma(deceased through LRs) Vs. The MunicipalCorporation of Greater Bombay dated 01.4.2005. The relevantratio is :­“(A) Bombay Municipal Corporation Act (1888), S.527­ Suit for declaration­ Statutory notice u/sec. 527­Eviction proceedings against plaintiff­ Plaintiff filingsuit for declaration and also for consequential relief ofinjunction against Corporation – When the plaintiffwants to seek immediate relief from the Court in theform of injunction, it is not necessary for him to issuestatutory notice or wait till the statutory notice isserved and the period prescribed under S. 527 of theAct is over.”In the instant case, the plaintiff was asked to remove the suit

30SC Suit No. 2572 of 2005structure within 15 days and restore the user of garages within15 days and hence, the statutory period of notice is waived bythe Corporation itself. Hence, in the light of ratio laid down, Irecord my finding in the negative in respect of issue no.2.33. AS TO ISSUE NO.3: It is admitted position on record thatthe plaintiff has covered the compulsory open space with G.I.Sheets and also changed the user of garages to kitchen/store/staff dinning. However, he has brought sufficient evidence onrecord that the open space has been covered with G.S. Sheetswith the permission of Government Authorities and alsochanged the user with the permission. Hence, through there isa change in user, it cannot be said to be unauthorized. Hence, Irecord my findings in the negative in respect of issue no.3.34. AS TO ISSUE NOS. 4 & 5: Both these issues relates to thereliefs claimed. The plaintiff has duly proved that the defendantis bent upon to demolish the suit structure i.e. covering of openspace and also to restore the user of garage, which he is usingwith the permission of the Government since long.35. The Learned Advocate for defendant Shri Jadhav drew myattention to AIR 2002 DELHI 151, Rohit Dhawan Vs. G.K.Malhotra and another in which it is held that “the relief ofinterim injunction is discretionary and any deliberate attempt

31SC Suit No. 2572 of 2005on the part of either party to suppress material facts woulddis­entitled such party for getting such relief”. Relying on thisruling he submitted that the plaintiff suppressed the fact thatthe order of the Collector, Mumbai has been challenged andstay has been granted.However, in my candid opinion whenthe defendant has knowledge of this order as could be seenfrom the notice itself, he could have verified the same and thereis no question of suppression by the plaintiff. Moreover, thecourt is deciding the matter on merits. Therefore, I do not findthat the ruling will come in the way of plaintiff in any manner.Hence, in the peculiar circumstances, unless the permission isrevoked by the Government, the action of defendant/ BMC ispremature.36. Hence, the plaintiff is entitled to the declaration as well asthe injunction sought for by him to protect the suit structure tillappropriate action is initiated by the authorities. Hence, Irecord my findings in favour of the plaintiff and pass followingorder:­ORDER1) The suit is decreed in terms of prayer clause 'a' and 'b'together with costs.2) Decree be drawn up accordingly.

32SC Suit No. 2572 of 20053) Suit stands disposed off accordingly.Bombay.(S.P. Kulkarni)20.04.2011. Judge.Judgment dictated on 20.04.2011.Transcribed on 29.04.2011.Signed by Hon'ble Court on 29.04.2011.