Dismissed

Shri Manoj Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai and Anr.

Bombay HC29 Sept 2015AO/1114/2015

Case brief

AI extract

What is this about?

High Court dismissed the appeal where the appellant challenged the dismissal of a construction notice under the MMC Act. The court rejected claims that the structure was a repair, deeming it a new structure built on invalid grounds due to the unconstitutional Vacant Lands Act.

What did the court decide?

Ad-interim order for status quo on demolition extended for three weeks. Appeal and Civil Application dismissed.

Shri Manoj Ramnath Prabhu Vs the Municipal… — Execution and Attachment | Bombay HC (2015)

AOST No.26110_2015

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION (ST) NO.26111 OF 2015 IN

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APPEAL FROM ORDER (ST) NO.26110 OF 2015

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Mr. Manoj Ramnath Prabhu … Appellant C/A. Mr. Shashikant R. Prabhu

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Vs.

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The Municipal Corp. of Greater Mumbai … Respondent

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Pramod Bhosle, Adv. i/b. Sharad K Bhosle, Adv. for appellant. N V Walavalkar, Adv. a/w. Mrs. M R Bhoir, Adv. for respondent in BMC.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 29th September, 2015.

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P.C. :

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Rule. Returnable forthwith.

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The appellant (plaintiff) has sought to challenge the order of Bombay City Civil Court dated 27^th August, 2015 dismissing the plaintiff's Notice of Motion. The plaintiff's grandmother is stated to have made an application for issuing a photopass for structure. The suit structure is stated to be censused under NXC 110 1/1. The application is made on 22^nd August, 1976 by the plaintiff's grandmother one Rukma. The photopass has been issued to her by the Tahsildar (Encroachment) Kurla – 3 Mulund on 29^th May, 1978. The application of the plaintiff's grandmother shows the structure which is 'Kaccha' of steel patras and cement patra roof. Though the application shows that there is no rent payable the photopass shows rent of Rs.154/- which is not shown to be paid at any time. It is the plaintiff's case that the suit structure was of patras which was repaired and the patras have been replaced along with roof. The plaintiff has produced the photographs of the old structure as also new structure. The new structure inter-alia shows one shutter which is not shown in the old structure. The photographs of the structure do not show the

AOST No.26110_2015

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entire height of the structure. The part height of the old structure is seen to be lesser than the part height of the new structure in the plaintiff's photographs.

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The plaintiff was issued notice whilst structure was under construction under Section 354A of the MMC Act. The plaintiff would claim that the necessary procedure was not followed. The construction of the structure has been completed despite the admittedly issued notice. The structure is of tin sheets alongside the wall of a private property. The structure is shown to be on CTS No.185.

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How the plaintiff was issued the photopass would require to be seen. The plaintiff claims that structure is on government land. The plaintiff has produced property register card which does not show the name of the owner and hence it is argued that the property which does not belong to any one must be taken to have belonged to government and hence it is government land. Nevertheless it is not slum land. The notification of the slum is for structures on various CTS Nos. until CTS No.184. Hence the structure on CTS 185 would not fall within any slum. The photopass could not have been issued on the ground that the suit structure was in a slum. The photopass issued for a structure not on slum land would be taken to be issued, if at all, on vacant land. Vacant lands Act has been declared to be unconstitutional. Hence such photopass is not a valid document. The structure shown under such a photopass may be seen to be in existence as described therein from the date of the survey made under the Vacant Lands Act. The survey was in 1976. Hence such a structure may, at best, be taken to be in existence, as described in the photopass from 1976. That was not a slum. Hence the structure

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would be required to be in existence since 1962 or 1964 depending upon whether it is a residential or commercial structure. The cut off date applicable to slums being 1995 cannot apply to such a structure.

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The plaintiff would claim that he had only repaired his structure and would fall under Section 342 (b) explanation (i) and (vii). The plaintiff would claim that the patras being replaced would tantamount to reconstruction with the replacement of roof of cement patras. The plaintiff would claim that the new structure is of the same dimensions. The photopass may not show that aspect. The plaintiff has taken photographs which show that the height of the structure is sought to be suppressed. Hence it would be a wholly new structure and not the one censused under the census card produced by the plaintiff even if the plaintiff's structure is taken to be on government land. Such a structure cannot be protected.

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The learned Judge has considered the notice issued to the plaintiff, the replacement and erection of the new structure admittedly averred by the plaintiff in the plaint as also the aspect relating to the non declaration of the slum on CTS No.185. Thus seen the order is correct and cannot be faulted.

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The Appeal from Order as also Civil Application are dismissed.

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Ad-interim order for status quo on demolition shall continue for three weeks from today despite the opposition of counsel on behalf of the MMC.

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( ROSHAN DALVI, J. )

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C E R T I F I C A T E

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Certified to be true and correct copy of the original signed order.

Shri Manoj Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

Shri Manoj Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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Coram

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