IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………/2010 (ARISING OUT OF SLP(C) NO. 27069/2009)

 Esteem Properties Private Ltd. .. Appellant  

Versus

Municipal Corpn. of Greater Mumbai & Ors. ...Respondents

J U D G M E N T  

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the interim order  

passed  by  the  High  Court  of  Bombay  dated  8.10.2009  in  

Appeal from Order No.1040 of 2009. Facts and circumstances  

giving  rise  to  this  case  are  that  appellant/plaintiff  filed  the  

Civil  Suit  No.1177/08  for  determination  of  the  site  of  

demolished structure and to determine the area thereof to be  

reconstructed pursuant to the order dated 21.6.2008 passed  

by the Respondent-Authority.

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3. The  predecessor-in-interest  of  respondent  no.3  was  an  

unauthorised occupant of a hut/structure in the slum area  

measuring about 600 sq. ft.   Respondent No.3 vide Deed of  

Assignment  dated  15.7.2006  assigned  her  rights  to  the  

respondent  no.4.   The  partner  of  the  present  appellant  

submitted a list of persons to the B.M.C.-Respondent who had  

to be evicted.  In the said list one Shri Gupta Ram Rekha Ram  

Bakhash  was  shown  occupying  room  no.14,  behind  S.H.  

Compound,  near  DTC Hotel,  Saraswati  Nagar,  Sahar  Road,  

Andheri  (East),  Mumbai.   The  show  cause  notices  under  

Section 55 of the Maharashtra Regional Town Planning Act,  

1966 were issued to all such occupants for eviction. The notice  

was sent to Shri Gupta Ram Rekha Ram Bakhash and not to  

the respondent No.3. The aforesaid structure was demolished  

on  11.6.2008.   Immediately  after  demolition  of  the  said  

structure,  a  representation  dated  17.6.2008  was  made  by  

respondent  no.3  through  her  Advocate  Smt.  Sangeeta  

Lanjewal  alleging  that  her  structure  had  wrongly  been  

demolished by the respondents and it was requested to restore  

the same. Documents in support of her case were also filed.  

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The  Statutory  Authority  considered  the  said  representation  

and  allowed  the  same  vide  order  dated  21.6.2008.   Being  

aggrieved by the said order of restoration of the demolished  

structure,  appellant  filed  Suit  No.1177/08  in  Bombay  City  

Civil Court along with Notice of Motion No.1342/08 which was  

dismissed  by  the  Court  vide  order  dated  8.6.2009.   Being  

aggrieved,  appellant  preferred an appeal,  however,  the  High  

Court  vide  order  dated  30.7.2009  rejected  the  appeal  and  

directed the respondents to restore the structure.  However, it  

was  clarified  that  restoration  would  be  subject  to  the  final  

result  of  the  suit.  The  appellant  preferred  SLP  (C)  

No.21977/09 challenging the order dated 30.7.2009 passed by  

the High Court.  The said SLP was dismissed by this Court  

vide order dated 18.9.2009.   

4. The  respondent  no.4  in  the  meanwhile  filed  an  

application for impleadment as a party making it explicit that  

vide  Deed of  Assignment  dated  15.7.2006,  respondent  no.4  

had been assigned all  rights  in  respect  of  the  structure  by  

respondent no.3.  The said application was allowed vide order  

dated 12.9.2008.   The present appellant  being aggrieved by  

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the  order  of  impleadment  challenged  the  said  order  dated  

12.9.2008.  The High Court vide order dated 10.11.2008 held  

that  respondent  no.4  was  necessary  party  and  appeal  was  

dismissed.  The said order also stood affirmed by this Court  

as  SLP(C)  No.28084/08  against  the  said  order  has  been  

dismissed vide order dated 5.12.2008.

5. In the matter of restoration of the demolished structure,  

new issues have been raised by the present appellant by filing  

Notice  of  Motion  in  the  pending  suit  on  22.9.2009  for  

determination of the above referred two issues. The Trial Court  

vide order dated 25.9.2009 rejected the said application  and  

did not restrain the respondent nos.3 and 4 for carrying out  

reconstruction.   Against  the  said  Order,   an  appeal  was  

preferred before the High Court and the High Court vide its  

order dated 8.10.2009 dismissed the said appeal.  Hence, the  

present appeal.

6. Shri  Harish N.  Salve and Shri  Mukul Rohatgi,  learned  

Senior  counsel  appearing  for  the  appellant  have  submitted  

that  the  aforesaid   two  questions  are  very  essential  for  

determination  for  the  reason  that  unless  the  area  is  

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determined, identified and demarcated  specifically, the said  

respondents cannot be permitted to raise the construction at  

any place.  The report of the Court Commissioner as well as  

the B.M.C.-respondent had been to the effect that it was not  

possible  to  determine  the  exact  location  of  the  demolished  

structure. On behalf of appellant, Mr. Salve made an offer to  

have a constructed area at the cost of the appellant with CST  

Survey No.229 with a right of ingress and egress and handover  

the  same to  respondent  no.3  within  a  period  of  3  months.  

However, this would be subject to the final orders to be passed  

in Civil Suit No.1177/08.   

7. On  the  other  hand,  Dr.  A.M.  Singhvi  and  Shri  C.A.  

Sundaram, learned Senior counsel appearing for Respondent  

Nos. 3 & 4  have opposed the prayer contending that the title  

of the appellant on the suit land is itself in dispute as a Public  

Interest Litigation i.e.  W.P. No.1657 of 2006  has been filed  

giving backdrop in respect of the title of the land, therefore, no  

offer made by the appellant at this stage would be acceptable  

to  them.   A  declaration  had  been  sought  in  the  said  Writ  

Petition that suit land belongs to Govt.  of  Maharashtra and  

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not the appellant or its predecessors–in-interest.  In the said  

writ petition final arguments have been heard and judgment is  

reserved.  The High Court has also  passed an interim order to  

maintain the status quo with liberty to the parties to move an  

application in case there is any change in the circumstances.  

It is further submitted that the land has been identified by the  

Court Commissioner as well as by the BMC and therefore, the  

petition is liable to be rejected.

8. Mr.  Goolam  E.  Vahanvati,  learned  Attorney  General  

appearing for the BMC, has submitted that none of the reports  

submitted  so  far  is  sufficient  to  find  out  the  location  of  

demolished structure exactly and it requires a fresh exercise to  

determine the same.

9. We  have  considered  the  rival  submissions  made  on  

behalf of the parties and perused the record.

10. Large number of documents have been filed by both the  

parties  to  substantiate  their  respective  claims  and counter-

claims  regarding  identification/location  of  the  demolished  

structure.   This  is  the  only  issue  involved  in  this  case  as  

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number of offers made by the appellant are not acceptable to  

the respondent nos.3 and 4.   

11. We  have  compared  the  maps  prepared  by  the  Court  

Commissioner  and BMC,  however,  they  do not  match  each  

other.  The reports submitted by both of them regarding the  

identification are also far from satisfaction.   

The Court Commissioner, Shri M.D. Narvekar concludes  

his report as under:

“The suit site is a vast land without any demarcation   as to survey or city survey number. I further noticed  hundreds of huts on the land I visited.  

In the absence of latest Map it was difficult for  me to  ascertain  and identify  the boundaries of  the   suit site in question.

 At this stage parties and advocates on both the  

sides requested to execute the Commission with the   assistance of a Govt. Approved Surveyor.  

I,  therefore,  seek  directions  from this  Hon’ble  Court.”  

The report of the BMC is also to the same effect as  

its relevant part reads  as under:

“The tentative location as per plan was marked  where  no  structure  was  seen.  Hence,  the  suit   

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structure No.14 had been demolished totally and no  structure  could  be  seen at  the  location  marked  on  CTS No.229.

Copy of plan ‘markings’ attached on CTS Sheet  as annexed ‘B’.

Court Commissioner’s plan as annexed ‘C’.

As per the court receiver plan and City Survey  Plan,  there  was  no suit  structure  seen on the  plot  bearing CTS No.229. The photographs were taken of   the  plot  bearing  CTS  No.  229  and  all  the  representatives agreed that there is no suit structure   no.14 on the plot bearing CTS No. 229, the question   of  taking  measurement  did  not  arise  as  plot  was  vacant.”

12. This is not the stage for the court to decide any issue on  

merit as whatever interim order is passed it would be subject  

to the final outcome of the Suit as well as the PIL wherein the  

judgment has been reserved.  In such a fact situation, it is  

desirable that BMC may undertake an exercise in respect of  

identification/determination to the location of the demolished  

structure giving due opportunity of hearing to both sides and  

determine  the  location  of  the  demolished  structure  

expeditiously,  preferably  within  a  period  of  3  months  from  

today.  It is further clarified that on such identification, the  

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work of restoration may be carried out by the respondents. In  

deciding so, the BMC may also consider the convenience of the  

parties in fixing the location especially with regard to ingress  

and egress to such site.  However, it shall be subject to the  

outcome of the Suit.  

13. The appeal stands disposed of accordingly. No costs.   

……………………….CJI.

                                                                   .………………………. J.  

(DEEPAK VERMA)

 .………………………. J.  

(Dr. B.S. CHAUHAN)  

New Delhi  May 10, 2010

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