Dismissed

Mr. Shashikant Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai

Bombay HC29 Sept 2015AO/1115/2015

Case brief

AI extract

What is this about?

Appeal against dismissal of notice of motion seeking protection of suit structure. High Court upheld lower court's view that prima facie case for protection failed due to structural discrepancies and invalid photopass under unconstitutional Vacant Lands Act.

What did the court decide?

Appeal and Civil Application dismissed; ad-interim status quo order for three weeks.

Mr. Shashikant Ramnath Prabhu Vs the Municipal… — Landlord and Tenant | Bombay HC (2015)

AOST No.26112_2015

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION (ST) NO.26114 OF 2015 IN APPEAL FROM ORDER (ST) NO.26112 OF 2015

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Mr. Shashikant Ramnath Prabhu … Appellant 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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1. Rule. Returnable forthwith.

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The appellant has challenged the order of the Bombay City Civil Court dated 27^th August, 2015 dismissing the plaintiff's Notice of Motion. The plaintiff seeks to protect his structure stated to have been censused under No. NXC 104 1/1. The plaintiff must show that the censused structure has been in existence all through until the filing of the suit. The defendant claims that the plaintiff demolished the structure and reconstructed an entirely new structure. Notice was given at the time of construction. The construction has been completed. It is that structure which was sought to be protected and for which the prima facie case has to be made out. The plaintiff's mother Kasturi is stated to have made an application for issuing the photopass. The application is made in August, 1976. It shows photopass against NXC 104 1/1 on CTS No.185. The structure is shown to be a 'Kaccha' structure made of 'patra' sheets with cement patra roof.

AOST No.26112_2015

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Hence a 'Kaccha' structure made of patra sheets and cement patra roof would require to be protected. The plaintiff's case in paragraph 1 of the plaint itself is that the plaintiff is the owner of the structure of specified dimensions constructed with brick masonry wall and A C sheet roof. Such structure is, therefore, not the censused structure. The defendant's case that the structure was demolished and was reconstructed is made out from the plaintiff's own document.

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The defendant would also contend that the photopass produced by the plaintiff in the name of plaintiff's mother was not issued as per enquiries made by the defendant and that the rent though stated to be Rs.15.4/ per month is shown to be not paid. All those contentions would require to be seen at the trial. The plaintiff's prima facie case having not been made out, the plaintiff would not be entitled to protection of the suit structure pending the trial.

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The learned Judge has considered the plaintiff's documents, the notice issued under Section 351 by the MMC and the construction / reconstruction of the plaintiff's structure. The learned Judge has also considered how the photopass could not have been issued for the plaintiff's structure as per the enquiry result of the defendant because survey No.185 is not a slum land at all for which the photopass could have been issued. 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

AOST No.26112_2015

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photopass from 1976. That was not a slum. Hence the structure 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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Whatever that be, upon the plaintiff's own showing relating to description of the plaintiff's own structure which is not found in the plaintiff's photopass itself the plaintiff's structure cannot be protected.

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Hence the impugned order 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.

Mr. Shashikant Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

Mr. Shashikant Ramnath Prabhu v. the Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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