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CASE NO.: Special Leave Petition (civil)  26241-42 of 2005

PETITIONER: KASAM ALI MOMIN

RESPONDENT: MUNICIPAL CORPORATION OF GREATER BOMBAY & ORS

DATE OF JUDGMENT: 04/01/2008

BENCH: G.P. MATHUR & D.K. JAIN

JUDGMENT: JUDGMENT

O R D E R

D.K. JAIN, J.:

1.      These petitions under Article 136 of the Constitution, are  directed against the judgment, dated 14th September, 2005,  rendered by the High Court of Judicature, at Bombay in First  Appeal No.580 of 2005 and order dated 28th October, 2005,  passed in the review petition, whereby the appeal as well as  the review application preferred by the petitioner against the  judgment of the Bombay City Civil Court, dismissing his suit  have been dismissed. 2.      In order to appreciate the controversy involved, a few  relevant facts may be stated. 3.      The petitioner is the original plaintiff.  He filed a suit for  declaration and permanent injunction against the Bombay  Municipal Corporation (hereinafter referred to as the  \021Corporation\022), restraining them from carrying out demolition  of the property bearing Shed No.80, Bombay Talkies  Compound, Malad (West) Bombay.  The case of the petitioner  is that since 1969 he is the tenant in respect of an open piece  of land admeasuring 1118 sq. feet, owned by a Trust, namely,  Ram Kumar Jalan Public Charitable Trust, respondent No.2  herein.  This land was given to him with a right to put up  construction thereon as per the rent receipt dated 13th May,  1969.  He carried out further construction on the plot prior to  1981 and constructed ground plus two upper floors.   According to the petitioner, a fire broke out in the suit  premises and the adjoining premises on 25th August, 1999,  affecting the second floor along with the loft therein.  On being  informed, an officer of the Corporation inspected the site,  prepared the inspection report and observed that no major  damage was caused to the structure. 4.      On 1st September, 1999, a notice under Section 354-A of  the Bombay Municipal Corporation Act (for short \021the Act\022) was  issued to the petitioner, alleging unauthorised reconstruction  of the structure by him, to which he responded vide his reply  dated 5th September, 1999.  On 6th October, 1999, the  Corporation issued yet another notice under Section 351 of  the Act, requiring the petitioner to show cause as to why the  notice structure be not pulled down or unauthorised change  be not restored to its sanctioned user.  He was called upon to  produce documentary evidence to show that the building or  work or change of user was not unauthorised.  The petitioner

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furnished explanation to the said notice vide letter dated 11th  October, 1999, refuting the allegation of unauthorised  construction.  In the same letter the petitioner issued a notice  to the Corporation, purporting to be a notice under Section  527 of the Act, threatening a legal action against the said show  cause notice. 5.      The explanation so furnished by the petitioner came to be  rejected by the Corporation vide their letter dated 3rd  December, 1999, inter alia, on the ground that the petitioner  had failed to produce documentary evidence to show that the  structure was in existence prior to datum line of 1st April,  1962.  Aggrieved, the petitioner filed the suit challenging the  said notice and order passed by the Corporation, seeking a  declaration to the effect that the order and notice were illegal.   Relief of injunction, restraining the Corporation from  demolishing the structure which was referred to as Shed  bearing No.180, was prayed for. 6.      Initially, the suit was filed only against the Corporation.   However, subsequently the said owner of the property, namely,  the Trust was also impleaded.  The Corporation did not file its  written statement.  However, the suit was contested by the  Trust, by filing written statement.  The stand of the Trust was  that the petitioner was never given an open piece land on lease  but a built up Shed (No.180), on the ground floor only, was  given to him on rent.  However, the petitioner carried out  unauthorised construction under the guise of repairs to the  portions of the Shed which was partially damaged in the fire,  which broke out in the year 1999.  It was also the stand of the  Trust that the Shed was initially admeasuring 450 sq. feet  only but the petitioner constructed ground plus two upper  floors illegally without permission, consent and approval of the  Trust and without getting the plan sanctioned from the  Corporation. 7.      On the basis of the pleadings, the Trial Court framed six  issues.  The petitioner and the Trust led evidence and the  Corporation was permitted to cross examine the witnesses.   On consideration of the evidence, so adduced, the trial court  came to the conclusion that the petitioner had failed to prove  that the first floor was in existence in the year 1969, when he  had taken possession of the suit premises or that construction  above the first floor was in existence before the datum line.   Accordingly, the suit was dismissed. 8.      Being aggrieved, the petitioner filed First Appeal to the  High Court.  The main point urged before the High Court was  that the datum line for construction in the Bombay Talkies  Compound being 1981 and since the structure of the  petitioner was put up prior thereto, it was not liable to be  demolished.  The stand of the petitioner did not find favour  with the High Court.  Consequently, the appeal was dismissed.   Against the said judgment, the petitioner unsuccessfully  preferred Review Application.  Both these orders are  questioned in the present Special Leave Petitions. 9.      We have heard learned counsel for the parties.  It was  vehemently contended by Mr. U.U. Lalit, learned senior  counsel on behalf of the petitioner that the trial court as well  as the High Court have failed to return a clear finding on the  question of datum line, though it was specifically pleaded.   Learned counsel submitted that in view of this fallacy in the  order of the High Court, the matter deserves to be remitted  back to the High Court for fresh consideration on this vital  question. 10.     We are unable to persuade ourselves to agree with  learned counsel for the petitioner. 11.     Indubitably, in the plaint as well as in his affidavit it was  the specific case of the petitioner that the datum line for

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industrial units at the Bombay Talkies Compound was 3rd  March, 1981 as according to the petitioner this fact had been  recognised by virtue of various orders issued by the officers of  the Corporation as well as by the Government and the order  passed by the High Court in the writ petition filed by the  association of the unit holders.  In support of his stand the  petitioner produced several documents; examined himself and  deposed on the lines of the averments in the plaint.  The  Corporation led no evidence, necessitating the petitioner to  summon some official records. His application seeking leave to  lead secondary evidence was also allowed.  The Corporation  was called upon to produce certain documents.  As noted  above, though the Corporation had not filed its written  statement yet they were allowed to cross examine the  petitioner.  By giving certain suggestions, the Corporation set  up a specific case that the datum line was never changed from  1st April, 1964, as applicable to all industrial sheds existing all  over the city of Bombay, to 3rd March, 1981 as pleaded by the  petitioner.  Therefore, the onus was on the petitioner to prove  that the Corporation had extended the datum line to 3rd  March, 1981.  It is manifest that no specific issue was framed,  as claimed by the petitioner, with regard to the datum line.   Nevertheless, while collectively dealing with the issues No.2, 3  and 4, relating to the question whether the notice structure  was unauthorised and/or tolerated, the trial court examined  threadbare the entire documentary and ocular evidence,  referred to various orders passed by the High Court, brought  on record by the petitioner and returned the findings that : (i)  in none of the orders passed by the High Court, there was  direction regarding regularisation and there was no mention of  any datum line or policy statement on behalf of the  Corporation much less 3rd March, 1981; (ii) the  communication between the Corporation and the State  Government was only draft guidelines sent for approval, inter  alia, suggesting that because of litigation started by the  occupants of the sheds, 3rd March, 1981 may be treated as a  cut off date but there was no material on record to show that  the proposal, sent as far back as in 1988, was accepted by the  Government, (iii) admissions in the plaint as well as in the  statement of the petitioner showed that he did not have any  documentary evidence to show that the suit structure was in  existence prior to 1st April, 1962 (iv) the petitioner had failed to  prove the existence of the first floor and, in any case, the  existence of the first floor when gala No.80 was taken into  possession by him and (v) the petitioner had failed to prove  that the first floor was in existence on or before the datum  line. 12.     In the light of the aforenoted findings returned by the  trial court and affirmed by the High Court, which are primarily  findings of fact, we do not find any reason to entertain the plea  sought to be raised by learned counsel for the petitioner that  the matter may be remanded back for determination of the  datum line.  It needs little reiteration that in exercise of its  extraordinary power under Article 136 of the Constitution,  ordinarily this Court does not interfere on questions of fact,  except in exceptional cases when the finding is such that it  shocks the conscience of this Court.  In our opinion, the  present case does not fall in the latter category.  13.     In the conspectus of the circumstances aforesaid, the  petition is devoid of any merit.  We decline to grant leave.    Dismissed.