Dismissed

Mr.Aslam Ismail Sorathiya v. the Municipal Corportionf for Greater Mumbai

Bombay HC8 Oct 2015AO/1112/2015

Case brief

AI extract

What is this about?

Appeal dismissed. The Court ruled that the appellants failed to prove the existence of their structure from 1961, as the approved plan was only for repairs. Demolition photographs confirmed the structure in question was the appellants' unique structure, not the bungalow referenced in their documents.

What did the court decide?

Appeal dismissed; status quo order extended from one week to two weeks.

Mr.Aslam Ismail Sorathiya Vs the Municipal Corportionf for Greater Mumbai — Bombay HC (2015) — LawSathi Research

¶1

(1) (9) AOST 27590/15

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

¶3

Amk

¶4

APPEAL FROM ORDER (ST) NO. 27590 OF 2015

¶5

Aslam Ismail Sorathiya & Anr. Vs.

¶6

The Municipal Corporation for Gr. Mumbai

¶7

.. Appellants

¶8

.. Respondent

¶9

Mr. Ashok D. Khillare for the Appellants. Mr. A. V. Diwate for the Respondent.

¶10

CORAM : MRS. ROSHAN DALVI, J. DATE : 8 th OCTOBER, 2015.

¶11

P.C.

¶12

Rule. Made returnable forthwith.

¶13

The appellants/plaintiffs sought to protect their structure in BCCC Suit No. 1185 of 2015. The plaint showed the suit structure situated on C.S. No. 700, final plot No. 755A alongside the bungalow/building No.9 consisting of Ground + 4 upper floors, Balamiya Lane, Opp. Caddel Queen Building, Mahim (West), Mumbai 400 016. The appellants/plaintiffs produced a plan which is stated to be the sanctioned plan of the MMC. The plan does not sanction the construction of the suit building/structure. The plan approves the proposed repairs to the existing building on C.S. No. 1346, Mahim Division. The plan has No. EB/8849/A dated 09.02.1961. The appellants/plaintiffs must produce the sanctioned plan sanctioning construction and not repairs of the structure. However such a plan would show that the original structure which was to be repaired in 1961 did exist in 1961. Such a structure repaired in 1961 could be protected. The appellants/plaintiffs must show that the protection sought against demolition is for such a structure. The appellants/plaintiffs must show that such a structure is in existence. There is no document to show that the structure described in para 1 of the plaint is the structure for which the plan

¶14

(2) (9) AOST 27590/15

¶15

for repairs approved by the MMC was produced. The learned Judge has considered the said plan of the appellants/plaintiffs showing the structure on C.S. 1346 and the averments in the plaint for structure on C.S. 700.

¶16

It is contended by the appellants/plaintiffs that C.S. 700 is the new C.S. number. Hence the new C.S. number must be shown by the appellants/plaintiffs to connect their case with the approved plan. That is not done.

¶17

The appellants/plaintiffs have produced the assessment bill under No. GN 5143(1)/9 at Balamiya Lane which is assessed as a house for the first time in this appeal. Number 9 in the assessment bill would show bungalow No.9. Hence the assessment bill is for bungalow No.9 which is averred in para 1 of the plaint. The appellants/plaintiffs have not produced the assessment paid by the appellants/plaintiffs for the structure until 2012. The assessment bills are for the aforesaid number of assessment which is for building/bungalow No.9 at Balamiya Lane. Even the assessment bill of 2012 is not produced in the Bombay City Civil Court.

¶18

The appellants' structure is stated to be alongside that structure. Hence the appellants' structure is not the structure assessed under the said assessment bill. The bungalow/building No.9 is seen to be constructed prior to 1961 and which could have been repaired under the approved plan for repair of the MMC. The appellants/plaintiffs have tried to push in the documents of old bungalow/building No.9 as their structure.

¶19

The appellants/plaintiffs have relied upon a sketch plan, a license, electricity bills, notice of the MMC and a circular to the plaint of dates much later than 1962. There is no other document of the appellants/plaintiffs to show their structure in existence since 1961.

¶20

(3) (9) AOST 27590/15

¶21

The MMC has contended that the appellants/plaintiffs' structure has been demolished.

¶22

The MMC has produced the photographs of demolition which took place on 10.03.2015 pursuant to the complaint received. The photographs do show one structure alongside bungalow No.9 which has been demolished. Bungalow No.9 is shown to be an old structure. The structure which is shown to be demolished is alongside bungalow/building No.9. The structure demolished is, therefore, appellants/plaintiffs' structure. That is not the structure reflected in the documents produced by the appellants/ plaintiffs.

¶23

The impugned order is correct. The Appeal from Order is dismissed.

¶24

The status quo order granted by the learned Judge, Bombay City Civil Court on 01.10.2015 for one week shall continue for two weeks from today.

¶25

(ROSHAN DALVI J.)

¶26

(4) (9) AOST 27590/15

¶27

C E R T I F I C A T E

¶28

“I certify that this Order uploaded is a true and correct copy of original signed Order.”

Mr.Aslam Ismail Sorathiya v. the Municipal Corportionf for Greater Mumbai

Case brief

What is this about?

What did the court decide?

Mr.Aslam Ismail Sorathiya v. the Municipal Corportionf for Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

L and T Finance Ltd. Vs Mrs. Manjuben M. Sisodiya and Anr.

Pankj Unit No. 1 Housing Development Co, Pvt. Ltd. and 2 Ors. Vs Oshiwara Land Development Co. Pvt. Ltd.

Cvk and Associates Vs Mr. Shreyas Alias Ashok Narayan and 2 Ors.

Mr. Mitul S. Poddar and Anr. Vs Shri Kishor Lalchand Makhija

Mr. Mitul S. Poddar and Anr. Vs Shri Kishor Lalchand Makhija

Shri Pandit Ramchandra Dive Vs Shri Deepak Pandit Dive