MUNICIPAL CORPORATION OF GREATER MUMBAIversusTHOMAS MATHEW & ORS.

                        (2012] 5 S.C.R. 218


A      MUNICIPAL CORPORATION OF GREATER MUMBAI
                                  v.
                    THOMAS MATHEW & ORS.
                  (Civil Appeal No. 3417 of 2012)
                          APRIL 09, 2012
B
        [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

        Mumbai Municipal Corporation Act, 1888 - s. 314 - Illegal
   demolition - Issuance of notice by the Municipal Corporation
C uls. 314 to occupants directing them to demolish
   reconstructed structure on the site which was earlier
   demolished by the Municipal Corporation - Suit filed by the
   occupants against the Municipal Corporation - Thereafter,
   Municipal Corporation demolished the unauthorized structure
D in public interest - Trial court holding that the Municipal
   Corporation could not place any materials in support of its
   claim that the property in dispute belongs to them and the
  structure put up by the occupants is unauthorized - Suit
   decreed partly declaring that the notice issued was illegal and
E occupants allowed to reconstruct the said structure as it was
  prior to the demolition at their own cost - Appeal filed by the
   Corporation - Said order upheld by the High Court with certain
  modifications - Appeal before Supreme Court - Municipal
   Corporation though did not file any material before the Courts
F below but filing certain documents as additional evidence
  before Supreme Court claiming to be owners of the property
  - Held: There is no need to go into these materials at this
  juncture considering the alternative direction issued by the
  High Court granting alternative site to the occupants which is
G quite reasonable - If the Corporation wants to keep the site
  open, in public interest, they are bound to comply with the
  direction with the stipulated time period - Such a conclusion
  is arrived at because there was inaction on the part of the
  officers of the Corporation before the courts below.

H                               218
 MUNICIPAL CORPORATION OF GREATER MUMBAI 219
          v. THOMAS MATHEW & ORS.
     Appellant-Corporation issued notice under Section A
314 of the Mumbai Municipal Corporation Act, 1888 to
respondent who were in occupation of patra structures
constructed on foot paths and streets and directed them
to remove the said patra sheds. On mm-compliance of
the direction, the Municipal Corporatioa demolished the B
unauthorized structures. Thereafter, the Corporation
issued notice under Section 354 A directing the
respondents to stop the erection of structure/execution
of the work. The respondents filed a suit cliallenging the
said notice .. The Civil Judge restrained the Corporation c
from taking_· any action in pursuance of issuance of the
notice under Section 354A till filing its reply affidavit in
the suit. The said injunction order was discontinued later
and thereafter, the suit was dismissed as withdrawn.
Meanwhile, the Corporation issued another notice u/s 314
                                                               0
of the Act directing the respondents to demolish the
reconstructed structure of the very site which was
demolished by the Corporation earlier. The respondents
filed another suit challenging the said notice. Thereafter,
the Corporation demolished the una1.tthorized suit
structure and justified its action as taken in public interest E
in its written statement. The Civil Judge holding that the
Corporation was not in position to place any material in
support of its claim that the property in dispute belongs
to the Corporation and the structure put up by the
respondents is unauthorized, partly decreed the suit F
declaring that notice was illegal and allowed the
respondents to reconstruct the said structure as it was
prior to the demolition at their own cost. The Corporation
filed first appeal. The High Court upheld the decree
passed by the trial court with certain modifications. G
Therefore, the appellant-Corporation filed the instant
appeal.

    Dismissing the appeal, the Court
                                                              H
    220      SUPREME COURT REPORTS              [2012) 5 S.C.R.


A         HELD: 1.1 Though counsel for the appellant insisted
    that in view of the fact that the suit structure (shops)
    situate on the road margin which belongs to the
    appellant-Corporation, admittedly the said stand was not
    substantiated either before the trial court or the High
B   Court by placing any documentary evidence. In fact, the
    trial judge, in his judgment, pointed that in the year 1996,
    when the affidavit in reply filed in the earlier suit not to
    take action without following due process of law, the
    Municipal Corporation never stated that the suit premises
C   is falling on the road and also denied that they ever
    demolished the suit premises. The question as to why
    and how they allegedly issued the notice under Section
    314 of the Mumbai Municipal Corporation Act, 1888 and
    demolished the suit premises, the finding is that the
    defendants did not issue any notice under Section 314
0
    of the MMC Act. Even before the High Court, the
    appellant-Corporation was not in a position to place any
    material in support of its claim. As a matter of fact, before
    the High Court, it was pointed out by the 1st respondent,
    who appeared in person about the amendment of the
E   plaint directing the appellant to provide an alternative site
    or land in similar locality so that the respondents could
    reconstruct their structure. The appellant-Corporation
    and their counsel failed to take note of the amendments
    made in the original plaint. Even in this Court, the
F   appellant did not place the amended copy of the plaint
    and the entire claim of the respondents as projected
    before the courts below. As a matter of fact, the first
    respondent pointed out that the appellant-Corporation
    deliberately omitted certain paragraphs. On going
G   through the same, the claim of the first respondent that
    the relevant portions have not been correctly filed before
    this Court, is accepted. No doubt, counsel for the
    appellant by filing certain documents as additional
    evidence wanted to project that the property in dispute
H   belongs to the appellant-Corporation and the structure
 MUNICIPAL CORPORATION OF GREATER MUMBAI 221
          v. THOMAS MATHEW & ORS.
put up by the respondents is unauthorized, a pertinent           A
question is asked as to why those materials were not
placed either before the trial court or at least before the
High Court for which Assistant Commissioner filed an
affidavit. The lame excuse set up by the appellant-
Corporation cannot be accepted. It is not the case of the        B
appellant that they are unaware of the procedure and how
to contest their case when they are contesting thousands
of cases on behalf of the Municipal Corporation.
Inasmuch as the relevant materials were not placed by
the appellant either before the trial court or before the        c
High Court, considering the alternative direction issued
by the High Court in the impugned order which is quite
reasonable, there is no inclination to go into those
materials at this juncture. [Para 6] [224-C-H; 225-A-C; F-
H]                                                               D
     1.2 If the appellant wanted to keep the site open, in
public interest, they are bound to comply with the
direction No.2 in the impugned judgment. For compliance
of the said direction of the High Court, the appellant is
granted the stipulated time failing which the respondents        E
are free to execute the modified judgment of the High
Court at once. Such a conclusion is arrived at only
because of the inaction on the part of the officers of the
appellant-Corporation before the courts below. [Para 7]
~26~~                                                            F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3417 of 2012.

    From the Judgment & Order dated 10.02.2011 of the High
Court of Judicature at Bombay in First Appeal No. 223 of 2009.   G

   R.P. Bhatt, S. Sukumaran, Anand Sukumar, Bhupesh
Kumar Pathak, Meera Mathur for the Appellant.

     Thomas Mathew (Respondent-In-Person).
                                                                 H
    222        SUPREME COURT REPORTS              [2012] 5 S.C.R.


A         The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Delay condoned.

          2. Leave granted.

B        3. This appeal is directed against the final judgment and
    order dated 10.02.2011 passed by the High Court of
    Judicature at Bombay in First Appeal No. 223 of 2009 whereby
    the High Court disposed of the appeal filed by the appellant
    herein with certain modifications in the judgment and decree
c   passed by the trial Court in Notice of Motion No. 4026 of 2003
    in L.C. Suit No.539 of 2002.

          4. Brief facts:

       (a) The appellant-Corporation is a public body duly
D enacted and formed for the benefit of public at large and to
  regulate and control the unauthorized construction carried out
  in the city of Mumbai. The respondents are the owners of the
  suit premises.

E        (b) On 17.04.1998, a notice bearing No. KW/036/AEM/OD
    under Section 314 of the Mumbai Municipal Corporation Act,
    1888 (hereinafter referred to as "the MMC Act") was issued to
    all persons who are in occupation of the Patra structures which
    are constructed on foot paths and streets situated near Empire
F   House on Veera Desai Road, Last Bus Stop, Andheri (West),
    Mumbai directing to remove the said Patra Sheds etc. together
    with their belongings within two days. On failure to comply with
    the said direction, the Corporation demolished the unauthorized
    structures raised by the respondents on 22.04.1998.

G        (c) Again on 19.12.2001, the Corporation issued notice
    under Section 354A of the MMC Act bearing No. KW/BF/354A/
    2154/JE-V/SEB-ll directing the respondents to stop the erection
    of structure/execution of the work forthwith failing which the
    same shall be removed.
H
  MUNICIPAL CORPORATION OF GREATER MUMBAI 223
  v. THOMAS MATHEW & ORS. [P. SATHASIVAM, J.]
     (d) Questioning the said notice, the respondents filed L.C.         A
Suit No. 6650 of 2001 before the City Civil Court, Bombay. By
order dated 21.12.2001, the Civil Judge restrained the
Corporation from taking any action in pursuance of the notice
issued under Section 354A of the MMC Act till filing its reply
affidavit in the suit.                                                   B

     (e) On 08.01.2002, the Corporation issued another notice
under Section 314 of MMC Act being KW/1138/AEM/OD
directing the respondents to demolish the reconstructed
structure on the very site which was demolished by the
Corporation earlier on 22.04.1998. The respondents replied to            C
the above notice through their advocate stating that the said
notice was illegal and bad in law.

    (f) After filing of the reply affidavit by the Corporation in L.C.
Suit No. 6650 of 2001, the Civil Judge by order dated                    D
19.01.2002 discontinued the injunction order passed earlier.

      (g) Challenging the notice dated 08.01.2002 issued by the
Corporation under Section 314 of MMC Act, the respondents
filed Suit No. 539 of 2002.
                                                                         E
    (h) On 25.01.2002, Suit No. 6650 of 2001 was dismissed
as withdrawn.

      (i) On 16.09.2003, the Corporation demolished the
unauthorized suit structure. Justifying its action taken in public       F
interest, the Corporation filed its written statement and
additional written statement in Suit No. 539 of 2002 on
30.06.2004 and 14.03.2005. By order dated 06.01.2009, the
Civil Judge partly decreed the suit declaring that notice dated
08.01.2002 issued by the Corporation under Section 314 of the            G
MMC Act was illegal and allowed the respondents to
reconstruct the said structure as it was prior to the demolition
at their own cost.

    0) Being aggrieved by the aforesaid order, the Corporation
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    224       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A filed First Appeal being No. 223 of 2009 before the High Court.
  Vide order dated 10.02.2011, the High Court confirmed the
  decree passed by the trial Court with certain modifications.

       (k) Being aggrieved by the order passed by the High
B Court, the appellant-Corporation has filed this appeal by way
  of special leave before this Court.

        5. Heard Mr. R.P. Bhatt, learned senior counsel for the
    appellant and Mr. Thomas Mathew, respondent No.1, who
    appeared in person.
c
          6. Though learned senior counsel for the appellant insisted
    that in view of the fact that the suit structure (shops) situate on
    the road margin which belongs to the appellant-Corporation,
    admittedly the said stand was not substantiated either before
0   the trial Court or the High Court by placing any documentary
    evidence. In fact, the trial Judge, in his judgment, in para 21,
    pointed that in the year 1996, when the affidavit in reply filed in
    the earlier suit not to take action without following due process
    of law, the defendants (Municipal Corporation) have never
E   stated that the suit premises is falling on the road and also
    denied that they have ever demolished the suit premises. It was
    further pointed out that the question arise as to why and how
    they have allegedly issued the notice under Section 314 of the
    MMC Act and demolished the suit premises. The finding is that
    the defendants have not issued any notice under Section 314
F   of the MMC Act. Even before the High Court, the appellant-
    Corporation was not in a position to place any material in
    support of its claim. As a matter of fact, before the High Court,
    it was pointed out by the 1st respondent, who appeared in
    person about the amendment of the plaint directing the
G   appellant to provide an alternative site or land in similar locality
    so that the respondents can reconstruct their structure. The
    appellant-Corporation and their counsel failed to take note of
    the amendments made in the original plaint. Even in this Court,
    the appellant has not placed the amended copy of the plaint
H   and the entire claim of the respondents as projected before the
 MUNICIPAL CORPORATION OF GREATER MUMBAI                         225
 v. THOMAS MATHEW & ORS. [P. SATHASIVAM, J.]
Courts below. As a matter of fact, Mr. Thomas Mathew, the first         A
respondent appearing in person on behalf of the respondents,
took us through various pages and pointed out that the
appellant-Corporation has deliberately omitted certain
paragraphs. On going through the same, we agree with the
claim of the first respondent that the relevant portions have not       B
been correctly filed before us. No doubt, learned senior counsel
for the appellant by filing certain documents as additional
evidence wants to project that the property in dispute belongs
to the appellant-Corporation and the structure put up by the
respondents is unauthorized, we asked a pertinent question why          c
those materials have not been placed either before the trial
Court or at least before the High Court for which Assistant
Commissioner K/West Ward of Mumbai has filed an affidavit
stating as follows:

     "I state that Petitioner Corporation could not produce the         D
     ownership documents of set back land before City Civil
     Court/High Court. If the Petitioner Corporation had
     produced the documents of ownership of set back land,
     the Hon'ble Court would not have passed the orders in
     favour of respondents. I, therefore, say and submit that the       E
     petitioners being aggrieved by the Hon'ble High Court's
     order dated 10.02.2011 for reconstruction of the suit
     structure has filed the present Special Leave Petition in
     this Hon'ble Court which is in the interest of public at large."
                                                                        F
We are unable to accept the lame excuse set up by the
appellant-Corporation. It is not the case of the appellant that they
are unaware of the procedure and how to contest their case
when they are contesting thousands of cases on behalf of the
Municipal Corporation. Inasmuch as the relevant materials have          G
not been placed by the appellant either before the trial Court
or before the High Court, considering the alternative direction
issued by the High Court in the impugned order which is quite
reasonable, we are not inclined to go into those materials at
this juncture.
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    226      SUPREME COURT REPORTS                [2012} 5 S.C.R.


A      7. If the appellant wants to keep the site open, in public
  interest, we are of the view that they are bound to comply with s
  the direction No.2 in the impugned judgment. For compliance
  of the above direction of the High Court, the appellant is
  granted six months time from today failing which the
B respondents are free to execute the modified judgment of the
  High Court at once. We are constrained to arrive at such a
  conclusion only because of the inaction on the part of the
  officers of the appellant-Corporation before the Courts below.

       8. In the light of the above discussion, the appeal fails and
C the same is dismissed. Inasmuch as the first respondent i.e.
  Mr. Thomas Mathew, who is fighting the case on behalf of all
  the respondents by appearing in person in this Court, we award
  a cost of Rs. 25,000/- to him payable by the appellant-Municipal
  Corporation within a period of eight weeks from today.
D
  N.J.                                          Appeal dismissed.