NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._392_____/2009  (@ SPECIAL LEAVE PETITION (CIVIL) NO.21543 OF 2006)

Prakash Harishchandra Muranjan ...Appellant

- Versus -

Mumbai Metropolitan Region  Development Authority and Another   ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted. 2. The  Appellant  impugns  the  judgment  and

order  dated  23.11.2006  passed  by  a  learned

Single Judge of the High Court of Bombay in an

appeal from Order No. 688 of 2006 of City Civil

Court,  Mumbai  whereby  the  learned  Judge

rejected the application for injunction after a

detailed judgment dated 23.8.2006.  

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3. The City Civil Court, Mumbai in a detailed

judgment, came to a finding that the Plaintiff-

Appellant herein failed to show that the suit

structures  existed  prior  to  datum  line  i.e.

prior to 1962 and no Sanctioned Plan of the

suit structure was produced before the Court.

The  documentary  evidence,  produced  by  the

Plaintiff-Appellant was discrepant in that the

Assessment Numbers and the addresses did not

tally.

4. Further finding of the City Civil Court,

Mumbai was that the Appellant could not produce

any documentary evidence to link the assessment

documents with the suit structure and thus the

Court held that the Appellant failed to make

out  any  prima-facie  case  for  grant  of

injunction.

5. Virtually  on  those  findings,  the  prayer

for injunction was concurrently refused by the

High Court.

6. Apart  from  those  two  proceedings,  other

proceedings were also initiated in respect of

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the structures in question as would appear from

the facts discussed below.

7. The  Appellant  claims  to  be  one  of  the

owners  of  land  measuring  485  square  yards,

bearing  Survey  No.35,  Hissa  No.1  (Part),

C.T.S.No.688,  situated  at  Saki  Vihar  Road,

Kilick Nikason Marol, Andheri (East), Mumbai-

40007  and  a  Chawl  standing  thereon  and  the

Appellant  claims that  his father  constructed

the same Chawl in the year 1956 and the shops

therein  were  let  out  to  various  tenants  on

rent.

8. One  of  the  tenants  Chetan  Prakash  Jain

received  a  notice  under  Section  351  of  the

Mumbai Municipal Corporation Act (hereinafter

‘the said Act’), from the second respondent who

had issued the same in purported exercise of

the powers delegated to him under Section 4A of

the Mumbai  Metropolitan  Region  Development Authority Act, 1974 (hereinafter ‘the Act of

1974’). The noticee was asked to show cause why

the shop in his possession be not demolished

since it has been constructed in contravention

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of the provisions of Section 347 of the said

Act.

9. That  notice  was  replied  to  by  Chetan

Prakash Jain to the effect that the structure

in question was in existence much prior to the

date of the notice and hence the same is a

tolerable structure under the said Act and is

not required to be removed.

10. The  grievance  of  the  Appellant  is  that

the  second  Respondent  without  giving  the

noticee an opportunity of being heard, passed

an order directing him to remove the portion of

the  structure  to  be  affected  by  the  road

widening scheme and to hand over the possession

of  the  same  to  the  first  Respondent.  The

further grievance is that no such notice was

given  to  the  other  tenants  and/or  adjoining

shop owners in the said Chawl.

11. Thereafter, in the second week of  March,

2006  some  of  the  officers  and  the

representatives  of  the  Respondent  No.1-

Corporation allegedly fixed boundary marks in

and around the said Chawl on the basis that the

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area covered under the said boundary wall would

be required for the widening of the road.

12. The Appellant and the other owners of the

Chawl  through  the  notice  of  their  Advocate

dated  22.3.2006  claimed  to  have  placed  on

record  correct  facts  and  documents  and

complained  against  such  activities  of  the

Respondent.

13. The  second  Respondent  while  exercising

the powers under Section 351 of the said Act

directed  Chetan  Prakash  by  a  notice  dated

3.4.2006 to remove the suit structure, inter-

alia,  on  the  ground  that  the  same  is

unauthorized and not tolerable.

14. Against the said notice, a Writ Petition

being  W.P.(L)  No.868  of  2006  was  filed  on

12.4.2006 by the Appellant which was disposed

of on the same very day by the Division Bench

of the Bombay High Court, inter-alia, holding

that the first Respondent is to give notice to

the Petitioner No.1 who will accept the notice

on behalf of the Petitioners and all co-owners

and  directed  the  first  Respondent  to  pass

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appropriate order according to law. The Court

made it clear that the construction shall not

be demolished without notice and hearing the

Petitioner No.1.

15. Thereafter,  the  second  Respondent  on

13.4.2006 sent several notices to the Appellant

and other tenants under Section 351 of the said

Act asking the occupants to vacate the suit premises and to remove the suit structure.

16. The case of the Appellant is that even

though the said notices were replied to, but no

hearing was given to them nor were they given

inspection of those orders by which the powers

were delegated upon the second Respondent by

the first Respondent.

17. The  second  Respondent,  it  is  alleged,

without hearing the Appellant passed orders on

13.5.06  declaring  the  suit  structure  to  be

illegal  and  directing  the  Appellant  and  the

tenants to remove the construction within seven

days.

18. Challenging the same, the Appellant filed

L.C. Suit No. 2238 of 2006, out of which the

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present  proceedings arise,  before the  Bombay

City Civil Court praying for interim order. The

learned Trial Judge rejected on 19.5.2006 the

prayer for ad-interim injunction holding that

the  plaintiff  failed  to  make  out  any  prima

facie case on any of the grounds urged before

the Court.  

19. Against  the  said  order,  an  appeal  was

filed before the High Court and the High Court

took up the matter for hearing on 18.7.2006 and

by granting an interim injunction remanded the

matter to the Trial Court for consideration of

injunction prayer afresh.

20. Thereafter,  the  Trial  Court  heard  the

matter and dismissed on 23.8.2006 the prayer

for interim injunction and the said order has

been  upheld  by  the  High  Court  under  the

impugned judgment dated 23.11.2006.

21. In the background of these facts, the only

legal issue which arises is:  

Whether  the  second  Respondent,  the

Executive Engineer of Mumbai Metropolitan

Region Development Authority (hereinafter,

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the said Authority) is entitled in law to

issue  notice  dated  13.04.2006  under

Section  351  of  the  said  Act.   It  was

further argued since the second Respondent

has no authority to issue the notice, all

steps  taken  pursuant  to  such  notice  are

illegal and should be set aside by this

Court.   

22. These  questions  have  been  very  adequately dealt with in the judgment of the High Court. The

High Court after considering the provisions of

the Act of 1974 and specially the amendment made

to  it  in  1989,  came  to  a  finding  that  the

Executive Engineer can exercise or perform the

functions  and  duties  delegated  to  him  by  the

Metropolitan Commissioner.  The High Court noted

that provisions for delegation were statutorily

made. Therefore, notice issued by him cannot be

held to be illegal.  Those findings have not been

challenged  before  us  during  the  course  of

argument  and  in  view  of  the  provisions  for

statutory delegation, which have been noted in

the judgment of the High Court, we do not think

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there  is  any  merit  in  the  aforesaid  legal

contention.  No other argument is made before us.

It is well settled when prayer for injunction is

concurrently refused by two courts, this court,

in  a  proceeding  under  Article  136  of  the

Constitution,  will  be  very  slow  and  cautious

before it can take a different view.  This court

can only do so, if it finds that the judgment of

the court below is perverse.  In the facts of

this  case,  discussed  above,  the  court  cannot

arrive at such a finding.  Therefore, we do not

find  any  merit  in  this  appeal,  which  is

accordingly dismissed.  No costs.

.......................J. (Dr. ARIJIT PASAYAT)

.......................J. New Delhi (ASOK KUMAR GANGULY)

January 23, 2009

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