Bombay High Court
Municipal Corporation Of Greater … vs C Ghangi Raju And Anr on 17 June, 2025
2025:BHC-AS:23757
First Appeal No. 1546 of 2010 (f).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1546 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. Ganga Timmappa ]
Age 70 years, ]
Residing at Hut No. 5 (Old FNGA ]
47-7/7 Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17454 OF 2022
IN
FIRST APPEAL NO. 1546 OF 2010
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Sairaj 1 of 49
First Appeal No. 1546 of 2010 (f).doc
Versus
1. Ganga Timmappa (since deceased) ]
Raju ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand CHS Ltd., ]
Tilak Nagar, Mumbai - 89. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1547 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Kaveri Bindu (since deceased) ]
Saroja ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17456 OF 2022
IN
FIRST APPEAL NO. 1547 OF 2010
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Sairaj 2 of 49
First Appeal No. 1546 of 2010 (f).doc
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Kaveri Bindu (since deceased) ]
Saroja ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
FIRST APPEAL NO. 1560 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. Jaya Parmeshwar (since deceased) ]
Fatima ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
Sairaj 3 of 49
First Appeal No. 1546 of 2010 (f).doc
INTERIM APPLICATION NO. 17479 OF 2022
IN
FIRST APPEAL NO. 1560 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Jaya Parmeshwar (since deceased) ]
Fatima ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1558 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Lata Minu Swami ]
Sairaj 4 of 49
First Appeal No. 1546 of 2010 (f).doc
Age 51 Adult, Occ: Nil ]
Residing at Hut No. 16 (Old FNGA ]
45-5/7 Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
INTERIM APPLICATION NO. 17476 OF 2022
IN
FIRST APPEAL NO. 1558 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Lata Minu Swami ]
Residing at Hut No. 47, 7/7, ]
Antop Hill, Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
FIRST APPEAL NO. 1559 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Sairaj 5 of 49
First Appeal No. 1546 of 2010 (f).doc
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. Kaveri Ganesh (since deceased) ]
Papa (also known as Mina) ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17478 OF 2022
IN
FIRST APPEAL NO. 1559 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Kaveri Ganesh (since deceased) ]
Papa ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
Sairaj 6 of 49
First Appeal No. 1546 of 2010 (f).doc
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1561 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Mohaddin Mohd. ]
Occ. Nil ]
residing at Hut No. 10 (Old FNGA ]
44/47 Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17481 OF 2022
IN
FIRST APPEAL NO. 1561 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Sairaj 7 of 49
First Appeal No. 1546 of 2010 (f).doc
Fort, Mumbai 400 001. ] ...Appellants
Versus
1. Mohaddin Mohd. ]
residing at Hut No. 47, 7/7, ]
Antop Hill, Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1557 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. Nagnath R. Mahadik ]
Age 53 Adult, Occ: Nil ]
residing at Hut No. 4 (Old FNGA ]
47-6/7 Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17475 OF 2022
IN
FIRST APPEAL NO. 1557 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Sairaj 8 of 49
First Appeal No. 1546 of 2010 (f).doc
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Nagnath R. Mahadik ]
Residing at Hut No. 47, 7/7, ]
Antop Hill, Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1562 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. Kala Gauri (since deceased) ]
Rani (also known as Malar) ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17482 OF 2022
Sairaj 9 of 49
First Appeal No. 1546 of 2010 (f).doc
IN
FIRST APPEAL NO. 1562 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Kala Gauri (since deceased) ]
Rani ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1556 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Devika Muthu ]
residing at Hut No. 1 (Old FNGA ]
47-7/7) Kokari Agar, Antop Hill, ]
Sairaj 10 of 49
First Appeal No. 1546 of 2010 (f).doc
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17474 OF 2022
IN
FIRST APPEAL NO. 1556 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Devika Muthu ]
residing at Hut No. 47, 7/7, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1550 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Sairaj 11 of 49
First Appeal No. 1546 of 2010 (f).doc
Versus
1. C. Changi Raju ]
Age 70 years ]
residing at Hut No. 19 (Old FNGA ]
45-1/5 Kokari Agar, Antop Hill, ]
Wadala, Mumbai. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
INTERIM APPLICATION NO. 17462 OF 2022
IN
FIRST APPEAL NO. 1550 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Bombay ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. C. Ghangi Raju ]
residing at Hut No. 47, 7/7, ]
Antop Hill, Wadala, Mumbai. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
Sairaj 12 of 49
First Appeal No. 1546 of 2010 (f).doc
FIRST APPEAL NO. 1549 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Krishnaji Sriniwas ]
Age 55 Adult, Occ: Nil ]
residing at Hut No. 12 (Old FNGA ]
43-C Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17460 OF 2022
IN
FIRST APPEAL NO. 1549 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Bombay ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Krishnaji Sriniwas ]
Sairaj 13 of 49
First Appeal No. 1546 of 2010 (f).doc
Residing at Hut No. 47, 7/7, ]
Antop Hill, Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1554 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Katrika R. Mugam ]
Age 55 years, ]
Residing at Hut No. 18 (Old FNGA ]
47-3/7) Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
INTERIM APPLICATION NO. 17470 OF 2022
IN
FIRST APPEAL NO. 1554 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Sairaj 14 of 49
First Appeal No. 1546 of 2010 (f).doc
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Katrika R. Mugam ]
Residing at Hut No. 47, 7/7, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
FIRST APPEAL NO. 1555 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
1. D. Balan ]
Adult, Occ: Nil ]
Residing at Hut No. 14 (Old FNGA) ]
46-1/2 Kokari Agar, Antop Hill, ]
Wadala, Mumbai ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17471 OF 2022
IN
FIRST APPEAL NO. 1555 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Sairaj 15 of 49
First Appeal No. 1546 of 2010 (f).doc
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. D. Balan (since deceased) ]
Ponnamma ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand CHSL, Tilak Nagar, ]
Mumbai - 89. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1552 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Gopi Munni Swami (since deceased) ]
Mala ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
Sairaj 16 of 49
First Appeal No. 1546 of 2010 (f).doc
WITH
INTERIM APPLICATION NO. 17464 OF 2022
IN
FIRST APPEAL NO. 1552 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Gopi Munni Swami (since deceased) ]
Mala ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1553 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant.
Versus
Sairaj 17 of 49
First Appeal No. 1546 of 2010 (f).doc
1. Rangama D. Muthu (since deceased) ]
Kumari ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17466 OF 2022
IN
FIRST APPEAL NO. 1553 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Rangama D. Muthu (since deceased) ]
Kumari ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
Sairaj 18 of 49
First Appeal No. 1546 of 2010 (f).doc
FIRST APPEAL NO. 1548 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Madhubala (since deceased, through LR) ]
Jhansi ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
INTERIM APPLICATION NO. 17459 OF 2022
IN
FIRST APPEAL NO. 1548 OF 2010
Municipal Corporation of Greater Mumbai ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Maha Palika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahanagar Palika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Madhubala (since deceased, through LR) ]
Sairaj 19 of 49
First Appeal No. 1546 of 2010 (f).doc
Jhansi ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents.
WITH
FIRST APPEAL NO. 1551 OF 2010
The Municipal Corporation of Greater Bombay ]
Established and constituted under 1888 ]
Mumbai Municipal Corporation Act, ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Mani Radha (since deceased, through LR) ]
Radha ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
WITH
INTERIM APPLICATION NO. 17463 OF 2022
IN
FIRST APPEAL NO. 1551 OF 2010
The Municipal Corporation of Greater Mumbai ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Applicant
In the matter between :
Sairaj 20 of 49
First Appeal No. 1546 of 2010 (f).doc
The Municipal Corporation of Greater Bombay ]
Established and constituted under ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai 400 001. ] ...Appellant
Versus
1. Mani Radha (since deceased, through LR) ]
Radha ]
Building No. 36, Flat No. B-4, ]
Shree Sadanand Co-Op. Hsg. Soc. Ltd., ]
Tilak Nagar, Mumbai - 400089. ]
2. M.M.R.D.A. ]
having their office at Bandra Kurla ]
Complex, Mumbai 400 051. ] ...Respondents
------------
Mr. Dharmesh Vyas, Ms. Vidya Vyavhare i/b Ms. Komal Punjabi for Appellant-
BMC.
Mr. Bhavin Gada, Ms. Pratibha Mehta i/b Ms. Pratibha Mehta for Respondent
No. 1.
Mr. Kuldeep Patil for Respondent No. 2-MMRDA.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : 9th May, 2025
Pronounced on : 17th June, 2025.
Judgment :
1. These group of Appeals are at the instance of Municipal
Corporation of Greater Mumbai [for short, "MCGM"]-original
Defendant No. 1 challenging the impugned judgment dated 23 rd
October, 2008 directing the Appellant to make available land to the
Respondent No 1 as and when available on priority basis. The suits
filed by the Respondent No. 1 also impleaded Mumbai Metropolitan
Region Development Authority [for short, "MMRDA"] as Defendant
No. 2.
Sairaj 21 of 49
First Appeal No. 1546 of 2010 (f).doc
2. With consent, First Appeal No. 1546 of 2010 arising out of L.C.
Suit No 3354 of 2007 is taken as lead Appeal for factual clarity.
Common submissions were advanced and the group of Appeals are
being disposed of by this common judgment. For sake of convenience,
the Parties are referred to by their status before the Trial Court.
FACTUAL MATRIX:
3. The case of the Plaintiffs in L. C. Suit No. 3354 of 2007 was that
the Plaintiff was in use and occupation of Pitch Hut No 5 admeasuring
15' x 10' with height 9' situated at Kokari Agar, Antop Hill, Wadala,
Mumbai - 37. The Plaintiff was earlier occupying Hut No F/N/GA/44-7/7
admeasuring 261 square feet at Kokari Agar for which Pitch Holder
Card was issued in the name of Plaintiff in the year 1976 and
compensation was being regularly paid. In the year 1986, the old huts
came to be removed by MCGM as it was creating an obstruction in the
way of proposed nallah. The Additional Collector (Encroachment), vide
order dated 29th March, 1994, permitted rehabilitation of the affected
occupiers on adjoining land admeasuring about 4,000 sq. yards.
Subsequently, the plaintiff constructed hut admeasuring 15'x10' with
height 9' and was occupying the same for which compensation was
paid to Additional Collector (Encroachment). On 10 th March, 2006,
MCGM's officers inspected the suit premises and threatened
demolition of the suit premises for which, the suit came to be filed
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before the City Civil Court for injunction against the Corporation to not
demolish the structure without following due process of law. On 19 th
October, 2006, at about 1 p.m., the Defendants with their demolition
squad and with the help of MMRDA demolished the suit premises
without following due process of law and without giving any notice to
plaintiff. In view of demolition, the suit filed by the Plaintiff came to be
withdrawn on 28th November, 2006. On 27th November, 2006, the
Assistant Commissioner (F/North) Ward communicated to the
Plaintiff's Advocate that the demolition was carried out by MMRDA.
The Additional Collector informed the Plaintiff's that the ownership of
the land vests in MCGM and Additional Collector is not concerned with
the land. The statutory notice under Section 527 of the Mumbai
Municipal Corporation Act, 1888 [for short, "MMC Act"] was given to
the Defendants on 17th July, 2007 and the suit is not barred by law of
limitation as cause of action arose on 19 th October, 2006. The prayer
sought declaration that the demolition is illegal and mandatory
injunction to the Defendants to reconstruct the demolished hut at the
cost of the Defendants. In the alternative, the Plaintiffs be permitted
to reconstruct the hut at cost of Defendants or for permanent
alternate accommodation.
4. The Defendants failed to file their written statement though
served with writ of summons.
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5. The Plaintiff adduced evidence through her Constituted
Attorney who deposed as to the contents of the Plaint. PW-1
specifically deposed that as Constituted Attorney, PW-1 is fully
conversant with the facts of the case and the Power of Attorney was
produced on record. P.W.-1 also produced the Pitch Holder's Card
(Exhibit-6), order dated 29th March, 1994 passed by Additional Collector
(Encroachment) (Exhibit-7), compensation receipts paid to the
Additional Collector (Encroachment)-(Exhibit-8), letter dated 27 th
November, 2006 issued by the Assistant Commissioner (F/North Ward)
(Exhibit-9), letter dated 15th November, 2006 issued by the Additional
Collector (Exhibit-10), statutory notice under Section 527 of MMC Act
(Exhibit-11).
6. PW-1 was cross examined by Defendant No. 1-present
Appellant. There was no cross-examination by Defendant No 2-
MMRDA. In cross-examination, P.W.1 admitted that she does not know
the Ward number of her residence and the name of the land owner on
which the structure is erected. She has deposed that the structure is
not in existence and is demolished by Defendant No. 1 and Defendant
No. 2. She has deposed that her structure was in existence since 1996
and representation was made by Plaintiff that demolition was carried
out without giving any notice.
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7. The Trial Court framed and answered the following issues:
POINTS FINDINGS
1. Whether the Plaintiff proves that the Yes.
demolition of the suit premises carried
out by the Defendant is illegal?
2. Whether the plaintiff proves that he is Yes
entitled for alternative accommodation in
lieu of the structure demolished by the
Defendant?
3. What order and decree? As per final order
8. The Trial Court noted that it is not a case of encroachment or
illegal structure but that Government had allowed the Plaintiff to
construct the hut on the land and prior to that plaintiff was having
Pitch-holder's card with her. The Trial Court further noted that
demolition is not denied by Defendants and no Written Statement has
been filed to show the purpose of demolition . The Trial Court held that
as no notice was served, the demolition is illegal and contrary to law.
The Trial Court held it is immaterial as to who demolished the structure
because Defendant Nos. 1 and 2 both had power of demolition. The
Trial Court further noted that the letter of Assistant Commissioner
(Exhibit-12) informed the Plaintiff that the demolition was carried out
by MMRDA. Taking note of the letter of the Addtional Commissioner
Exhibit 10 informing the plaintiff that the land owner was Defendant
No 1, the Trial Court held Defendant No. 1 responsible for demolition
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First Appeal No. 1546 of 2010 (f).doc
of structure illegally even if it was carried out by MMRDA. The Trial
Court noted that the argument is that the demolition was carried out
to widen the stream wide and directed the Defendants to make
available alternative suitable land. The Trial Court decreed the suit as
under:
ORDER
“Suit is decreed with costs on following terms:
Defendant No. 1 is hereby directed to make available the land
admeasuring 15′ x 10′ ft to the plaintiff as and when such land
would be available on priority basis, on same terms and
conditions mentioned at Ex. 7.
However, the defendants are at liberty to evict the plaintiff
from the place that would be allowed to her for the public
purpose, but before removing the plaintiff from that place
give her suitable alternative place. Decree be drawn up
accordingly.”
INTERIM APPLICATION NO. 17454 OF 2022:
9. The Interim Application has been filed by the Appellants under
Order XLI, Rule 27 of CPC seeking permission to produce the
documents and records annexed thereto. The Application pleads that
the Appellants were not permitted to file the Written Statement and
the suit proceeded ex-parte. It is pleaded that the property card of the
land on which the structures were erected belonged to State
Government and is in possession of MMRDA. It is pleaded that on 18 th
October, 2006 MMRDA had asked for police protection for demolition
to be carried out by MMRDA at Kokri Agar where the tenants were
Sairaj 26 of 49
First Appeal No. 1546 of 2010 (f).docrehabilitated by Additional Collector and the document makes it clear
that demolition has been carried out by MMRDA. The Application
purports to place on record the communication between the State
Government and the Appellant regarding the rehabilitation of the
eligible 23 slum dwellers.
SUBMISSIONS:
10. Mr. Dharmesh Vyas, Learned counsel appearing for Appellant
submits that the plaintiffs are transgenders whose huts came to be
demolished for the purpose of widening of nallah in the year 1993-
1994 and alternate accommodation was given pursuant to order
passed by the Additional Collector on 29th March, 1994. He submits that
in view of threatened demolition, the suit was filed by them in the year
2006 in which, interim order was passed not to take a coercive action
and despite thereof, on 19th October, 2006, the structures came to be
demolished, which according to MCGM’s letter was done by MMRDA.
He submits that subsequently, the suit came to be withdrawn and
present suit came to be filed for declaration that the demolition was
illegal and for alternate accommodation.
11. He would submit that the suit is bad for non-joinder of
necessary party as the State Government who had allotted the land
was not impleaded. He submits that the plaint is indecisive about the
authority which had carried out the demolition. He would submit that
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the Trial Court did not grant any opportunity to file any Written
Statement and proceeded expeditiously with the suit. He submits that
even if no written statement was filed, the burden was upon the
Plaintiff to prove ownership of land and the authority which had
carried out the demolition. He submits that MCGM participated in the
proceedings by cross examining PW-1 and the judgment ought to have
been passed against MMRDA. He would submit that there is no definite
finding by the Trial Court about the authority responsible for
demolition and despite thereof has imposed the liability on MCGM. He
would submit that there is no proof that demolition was carried out by
MCGM. He submits that the Trial Court has granted relief which was
not prayed. He would further submit that the original Plaintiff in the
present suit had expired and legal heir has been brought on record
who has given the address of a residential flat.
12. On legal issues, he submits that the suit is barred by limitation
under Section 527 of MMC Act. He submits that the plaint pleads that
the cause of action arose on 19 th October, 2006 and the suit was filed
on 21st July, 2007 and was barred being beyond period of six months.
He would further submit that Interim Application has been moved
under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for
leading additional evidence which should be permitted as Appellant
was not allowed to file Written Statement and other relevant
documents on record and suit has proceeded ex-parte.
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13. Mr. Patil, learned counsel appearing for the MMRDA submits that
the beneficiary in all these proceedings is one Lata and therefore, the
prosecution is not bona fide. He would submit that most of the suits in
these group of matters have been filed by power of attorney holders
and First Appeals by another Constituted Attorney. Taking this Court
through the Power of Attorney, he would submit that the Power of
Attorney has been executed in the year 2008 in respect of old
structure and there is nothing to show that new structure has come
into existence. He submits that no documents are produced to show
existence of new structure and therefore, it is doubtful whether upon
allotment, the new structure was in existence or whether the same has
been demolished.
14. He would further submit that the compensation receipts refers
to the old structure number. He submits that the claim is that from
1994-2006, the structures existed, in which case there would
electricity bills, election cards, ration cards etc which are not produced
on record. He submits that MMRDA has nothing to do with the
structures or the demolition. He submits that Plaintiff has not
examined any witness and has not proved the letters issued by the
Assistant Commissioner and Additional Collector. He submits that
within a period of two months, after the service of writ of summons,
the suit came to be decreed and the plaintiffs have neither proved
construction nor demolition.
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15. Per contra, Mr. Gada, learned counsel appearing for original
Plaintiffs would submit that Defendants case cannot be considered in
absence of written statement and there is no question of leading
additional evidence by MCGM as MCGM has failed to file its written
statement and lead evidence. He has taken this Court through the
evidence and would submit that it has been specifically deposed that
huts were constructed on alternate lands given earlier and which came
to be demolished and therefore, earlier suit was withdrawn. He
submits that in the cross-examination, there is nothing to demolish the
Plaintiff’s case and as there was no Written Statement, the
Defendant’s defense could not be put even in the cross-examination.
He submits that the compensation receipts proved existence of the
huts and the old hut number is mentioned as the structure number
does not change. He would submit that MCGM has acknowledged that
the demolition has been carried out by MMRDA.
16. He submits that there was no issue framed about the existence
of new structure as there was no denial to the said plea. He submits
that once the Trial Court has held that demolition is illegal, the
plaintiffs are entitled to reconstruct the structure. He submits that it is
only in one of the suit, the Written Statement was sought to be
preferred by the Appellant. He would further submit that Interim
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First Appeal No. 1546 of 2010 (f).doc
Application (Stamp) No. 20769 of 2024 has been preferred for perjury,
however, on instructions, he is not pressing the said Application. He
would further submit that while permitting the legal heir to be
brought on record, considering the gender of the plaintiff, an
undertaking was given that it will be used by only one person.
17. He would submit that as far as notice under Section 527 of the
MMC Act is concerned, there is no ground taken in the First Appeal in
view of Section 527(1)(a). He submits that in any event, in absence of
any objection, the same constitutes waiver. He submits that Section
527 Notice was issued and the cause of action arose after refusal by
the Authorities to permit reconstruction or grant alternate land. He
would further submit that there is no question of remanding the
matter back as the ingredients of Order XLI, Rule 23 of Code of Civil
Procedure, 1908 are not satisfied. He submits that the Trial Court has
the power to mould the relief and as it was argued that demolition was
carried out to widen the stream, it was not possible to ask the plaintiff
to erect the hut on the same place. In support, he relies upon the
following decisions :
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First Appeal No. 1546 of 2010 (f).doc
Tajabai w/o Dhanji Chavan v. Mohanlal s/p Devram
Parmar1
Union of India v. Ibrahim Uddin2
Rekha Pravin Nalawade v. Municipal Commissioner
of Greater Mumbai3
J. Ganapatha v. N. Selvarajalou Chetty Trust4
Sabira Aslam Sikwani v. Mohammed Yusuf Hussain5
Meiazhagan v. Mangayarkkarasi6
Bachahan Devi v. Nagar Nigam, Gorakhpur7
Delho Hansda v. Charani Hansda8
Kanda v. Waghu9
Shivkumar v. Sharnbasappa10
Sirajudheen v. Zeenath11
P. Purushottam Reddy v. Pratap Steels Ltd.12
Barku Pundlik Patil v. Subhash Govindrao Pagare13
Godrej Rustom Karmani v. Hari Alidas Thadani14
Mahadeorao v. N. I. T.15
1 SA No. 390 of 2005.
2 (2012) 8 SCC 148
3 2025 SCC OnLine Bom 860
4 2025 SCC OnLine SC 633
5 2003 (3) ALL MR 536
6 2017 SCC OnLine Mad 1452
7 (2008) 12 SCC 372
8 1952 SCC OnLine Pat 108.
9 AIR (37) 1950 Privy Council 68
10 (2021) 11 SCC 277
11 2023 (2) SC 521.
12 (2002) 2 SCC 686.
13 2022 SCC OnLine Bom 4694
14 1990 SCC OnLine Bom 244
15 2015 (5) Mh.L.J. 70
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First Appeal No. 1546 of 2010 (f).doc
18. In rejoinder, Mr. Vyas would submit that there is no case of
waiver and in any event, as the notice under Section 527 was sent,
there is no question of waiver. He submits that the Plaintiff was
required to wait for a period of one month after issuance of notice. He
submits that the relief cannot be moulded in absence of any clarity as
the pleading is about allotment of plot on land no 5 and prayer refers
to Pitch/Hut No 5. In support, he relies upon the following decisions :
Asma Lateef v. Shabbir Ahmad16
Satish Dalichand Shah v. State of Maharashtra17
19. Mr. Patil would submit that the land does not belong to MMRDA,
the demolition was not carried out by the MMRDA and MMRDA could
not be saddled with the liability to provide for alternative
accommodation.
POINTS FOR DETERMINATION:
20. The facts of the case and the submissions canvassed would give
rise to the following points for determination:-
(i) Whether the Appellant can be permitted to adduce additional
evidence in Appeal in the absence of any pleading?
(ii) Whether the evidence proves illegal demolition of the huts
constructed by the Plaintiffs on the lands allotted by the Additional
Collector for rehabilitation consequent to the demolition of the old
structures by MCGM in the year 1986?
16 2024 INSC 36.
17 (2006) 1 Bom CR 922.
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First Appeal No. 1546 of 2010 (f).doc
(iii) Whether the Plaintiffs are entitled to reconstruction of the
structures on the alternate land made available by the order of the
Additional Collector dated 29th March, 1994?
(iv) Whether the suit is barred by limitation in view of Section 527 of
MMC Act having being filed within period of one month from date of
issuance of notice?
REASONS AND ANALYSIS:
21. The Interim Application has been preferred by Defendant No 1
under Order XLI, Rule 27 for permission to produce additional
evidence. Rule 27 of Order XLI of Code of Civil Procedure, 1908 reads
as under:-
“27. Production of additional evidence in Appellate Court.
–(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the
Appellate Court. But if —
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced by
him at the time when the decree appealed against was passed,
or
(b) the Appellate Court requires any document to be produced
or any witness to be examined to enable it to pronounce
judgment, or for any other substantial cause,the Appellate
Court may allow such evidence or document to be produced,
or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by
an Appellate Court, the Court shall record the reason for its
admission.”
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First Appeal No. 1546 of 2010 (f).doc
22. The Application is premised on the ground that as no
opportunity was given to the Defendant No 1 to file Written
Statement, the documents could not be produced on record. The
additional evidence is sought to be introduced to show that the
Defendant No 1 was not the owner of the land and demolition was not
carried out by Defendant No 1. Despite service of summons, the
Appellant chose not to file the written statement. In Appeal against ex
parte decree, it is open for the Appellant to demonstrate on merits why
the decree of this nature could not have been passed against the
Appellant.
23. The production of additional evidence is permissible strictly
upon satisfaction of the conditions mentioned in Order XLI Rule 27 of
CPC. The pleading that as written statement was not permitted to be
filed, documentary evidence could not be adduced is no ground for
leading additional evidence. There is no vested right in any party to
produce additional evidence. The purport of filing the present
application is to introduce the defence which the Defendant No 1
would have taken if written statement would have been filed and
evidence to support the defence. Such a course is unknown to law. The
intent of Order XLI Rule 27 of CPC is not to assist a party who has failed
to file its written statement to introduce its case at appellate stage.
Permitting such application would amount to de novo trial which is
impermissible.
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24. In absence of pleading, the additional evidence would constitute
evidence without pleading and inadmissible. In the decision of Union
of India v. Ibrahim Uddin (supra) the Hon’ble Apex Court held in
paragraph 36 to 40 held as under:
“36. The general principle is that the appellate court
should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as
an exception, Order 41 Rule 27 CPC enables the
appellate court to take additional evidence in
exceptional circumstances. The appellate court may
permit additional evidence only and only if the
conditions laid down in this Rule are found to exist. The
parties are not entitled, as of right, to the admission of
such evidence. Thus, the provision does not apply,
when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment.
The matter is entirely within the discretion of the court
and is to be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation
specified in the Rule itself. (Vide K. Venkataramiah v. A.
Seetharama Reddy [AIR 1963 SC 1526], Municipal
Corpn. of Greater Bombay v. Lala Pancham [AIR 1965
SC 1008], Soonda Ram v. Rameshwarlal [(1975) 3 SCC
698 : AIR 1975 SC 479] and Syed Abdul Khader v. Rami
Reddy [(1979) 2 SCC 601 : AIR 1979 SC 553] .)
37. The appellate court should not ordinarily allow new
evidence to be adduced in order to enable a party to
raise a new point in appeal. Similarly, where a party on
whom the onus of proving a certain point lies fails to
discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the court can, in
such a case, pronounce judgment against him and does
not require any additional evidence to enable it to
pronounce judgment. (Vide Haji Mohammed Ishaq v.
Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493 :
AIR 1978 SC 798] )
38. Under Order 41 Rule 27 CPC, the appellate court
has the power to allow a document to be produced and
a witness to be examined. But the requirement of the
said court must be limited to those cases where it found
it necessary to obtain such evidence for enabling it to
pronounce judgment. This provision does not entitle the
appellate court to let in fresh evidence at the appellateSairaj 36 of 49
First Appeal No. 1546 of 2010 (f).docstage where even without such evidence it can
pronounce judgment in a case. It does not entitle the
appellate court to let in fresh evidence only for the
purpose of pronouncing judgment in a particular way. In
other words, it is only for removing a lacuna in the
evidence that the appellate court is empowered to
admit additional evidence. (Vide Lala Pancham [AIR
1965 SC 1008] .)
39. It is not the business of the appellate court to
supplement the evidence adduced by one party or the
other in the lower court. Hence, in the absence of
satisfactory reasons for the non-production of the
evidence in the trial court, additional evidence should
not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the
indulgence of being allowed to give further evidence
under this Rule. So a party who had ample opportunity
to produce certain evidence in the lower court but failed
to do so or elected not to do so, cannot have it
admitted in appeal. (Vide State of U.P. v. Manbodhan Lal
Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M.
Armugam [AIR 1969 SC 101] .)
40. The inadvertence of the party or his inability to
understand the legal issues involved or the wrong
advice of a pleader or the negligence of a pleader or
that the party did not realise the importance of a
document does not constitute a “substantial cause”
within the meaning of this Rule. The mere fact that
certain evidence is important, is not in itself a sufficient
ground for admitting that evidence in appeal.”
25. In A. Meiazhagan v. Managarkkarasi (supra), the Hon’ble
Madras High Court in context of challenge to ex-parte decree in Appeal
considered the provisions of Order XLI Rule 27 and noted the decision
of Hon’ble Apex Court in Union of India vs Ibrahim Uddin (supra) to
hold that without any pleadings before the Trial Court, reception of
documents in the appeal stage will not assist the Appellant. It further
held that without resorting to Order 9 Rule 13 of CPC by showing
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sufficient cause to set aside ex parte decree, the Appellant cannot take
recourse of Order 41 Rule 27 to introduce evidence without any
pleadings before the Trial Court.
26. The Plaintiff’s case is that there was illegal demolition of the
structures by the Defendants entitling the Plaintiffs to reconstruction
at the cost of the Defendants. The burden is upon the Plaintiff to prove
her case. If there is some lacunae in the evidence on record which
requires clarification to enable the Appellate Court to pronounce
judgment, the additional evidence can be accepted. I have gone
through the documents produced by the Appellant and in my view, the
evidence on record referred to during the course of arguments in the
Appeal are sufficient to pronounce judgment. Hence the Interim
Application is sans merit and stands dismissed.
27. Now dealing with the aspect of illegal demolition, the Plaintiff
has adduced oral as well as documentary evidence. The existence of
the old structure being Hut No. F/N/GA 44-7/7 located at Kokari Agar,
Antop Hill, Wadala, Mumbai – 37 is established from the Pitch Holders
Card produced by PW-1 at Exhibit 6. The Pitch Holder Card is issued in
name of the Plaintiff and mentions the area of structure being 261
square feet, location at Kokari Agar, Mumbai, the number of the hut,
the ration card number, the monthly compensation amount etc. The
Pitch Holder Card has been issued by the Naib Tahsildar
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(Encroachment), Bombay in the year 1976 which establishes firstly the
existence of the old structure since the year 1976 and that the
structure has acquired the status of being protected structure. The
photopass is issued to protected structures under Section 3Y of the
The Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 [for short, “Slums Act“] and Section 3Z
provides that no protected occupiers shall be evicted from his dwelling
structure unless required in larger public interest but subject to
condition of relocating and rehabilitating them.
28. PW-1 has deposed that Defendant No. 1-MCGM removed the
said structure in the year 1986 as it was obstructing the way of the
proposed “nallah”. PW-1 has further deposed that vide order dated
29th March, 1994, the Plaintiff was rehabilitated by the Additional
Collector (Encroachment) dated 29th March, 1994. The order of
rehabilitation states that in the year 1986, the Mumbai Municipal
Corporation had evicted the occupants of the huts located at Kokari
Agar for proposed work of nallah. It is stated that 52 protected
structures were rehabilitated in the nearby vicinity by allotting 15′ x 10′
alternate land and 23 eligible hutment dwellers remained to be
rehabilitated. The order further states that the State Government has
agreed for the rehabilitation of the eligible hutment dwellers on 4000
square yards of land in the vicinity. With specific reference to the
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Plaintiff and the structure number it is ordered that the Plaintiff is
allotted alternate 15′ x 10′ vacant Plot No 8 at Kokari Agar as per the
plan annexed to the order on temporary basis on the terms and
conditions contained therein. One of the conditions of allotment is that
the construction of 15′ x 10′ structure should be beyond 4 meter
service road from the nallah.
29. The order dated 29th March, 1994 (Exhibit-7) proves that the old
protected structure was demolished by MCGM for the purpose of
widening of nallah and alternate vacant land at Kokari Agar was
allotted to the Plaintiff being Plot No 8 as per the plan annexed to the
order. P.W.-1 had deposed that after the land was allotted in the year
1996, the Plaintiff had constructed their structure and in support has
produced the compensation receipts for intermittent periods from
1977 to 2000. One of the conditions of allotment was payment of
compensation and the production of the compensation receipts would
prove that subsequent to the allotment, the structures were
constructed by the Plaintiff and compensation was duly paid. The
deposition of PW-1 on aspect of the old structure being protected,
allotment of alternate land, construction of new structure, payment of
compensation remained uncontroverted. The cross examination by
MCGM touched upon the ownership of the land and the cross
examination discloses that PW-1 has maintained her stands that the
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structure was demolished by MCGM and MMRDA which was in
existence since the year 1996. The oral and documentary evidence on
record establishes that the Plaintiff’s case of being occupier of
protected structure constructed on alternate land by Additional
Collector.
30. On aspect of demolition, PW-1 has deposed that the Defendant
No 1’s officer had approached on 10 th March, 2006 and threatened
demolition for which Plaintiff filed L.C. Suit No 4567 of 2006 seeking
injunction against demolition. PW-1 has deposed that on 19 th October,
2006 the Defendants with help of MMRDA demolished the suit
premises without following due process of law and the suit came to be
withdrawn. PW-1 has produced the communication dated 27 th
November, 2006- Exhibit 9 addressed by MCGM to the Plaintiff that the
demolition action has been carried out by MMRDA. There is no cross
examination of PW-1 on this aspect. During cross examination, MCGM
has not questioned its communication and stands by the said
communication even before this Court.
31. In peculiar facts of this case, both MCGM and MMDRA disowns
the demolition. MMRDA goes as far as to contend that there was no
construction of new structure upon allotment of alternate land. Firstly
there is no written statement filed and the Defendants’ case cannot be
considered. Secondly, the fact that LC Suit No 4567 of 2006 was filed
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seeking restraint orders against demolition, it is too far fetched to
accept that there was no construction of new structure. There was no
reason for the Plaintiff to continue to pay compensation and file legal
proceedings for protecting their structure if the same was not in
existence. As there was no denial to the pleading that the Plaintiff had
erected her structure on the alternate land allotted vide order dated
29th March, 1994, no issue was framed by the Trial Court as regards the
existence of the structure of which illegal demolition was pleaded.
Issues are framed when material proposition of fact or law are affirmed
by one party and denied by the other party. Despite non framing of
specific issue, the Plaintiff has adduced oral and documentary evidence
to show the existence of the demolished structure. There is no
plausible reason as to why the Plaintiff, despite being allotted
alternate land, would not construct the new structure and would
continue paying compensation for non existent structure. The oral
evidence of PW-1, the compensation receipts, the filing of L.C Suit No
4567 of 2006, the communication dated 27 th November, 2006 when
considered cumulatively establishes that the Plaintiff’s structure was
protected structure and has been demolished illegally.
32. The new structure was constructed in lieu of the old structure
and was liable to the same protection as accorded to the old structure
under Section 3Z of Slums Act. There is no material on record to show
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that the demolished structure was unauthorised structure and even if
it was unauthorised, the Plaintiff was entitled to due notice and an
opportunity of being heard. In event the structure was required to be
removed in larger public interest, it was necessary to provide alternate
accommodation to the Plaintiff. The demolition of the structure
without issuance of any notice or following the mandate of Section 3Z
of Slums Act was illegal and bad in law.
33. Though it is sought to be contended by Mr. Patil that the
compensation receipts refers to the old structure number to press
home the point that even after allotment of alternate land the
structure was not constructed by the Plaintiff, there is no material to
arrive at a finding that upon demolition of the old structures, the
alternate structure would be given new structure number.
34. The documentary evidence is sought to assailed by Mr. Patil on
the ground that the contents of the documents have not been proved.
The documents produced by PW-1 are Pitch Holders Card, order dated
29th March, 1994 passed by Additional Collector, compensation
receipts, letter dated 27th November, 2006 and letter dated 15 th
November, 2006 and notice issued under Section 527 of MMC Act.
These documents have been issued to the Plaintiff and come from
proper custody. Before the Trial Court there was no objection to
receiving the the documents in evidence and the same came to be
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admitted in evidence and were marked as Exhibits. As the genuineness
or validity of the documents was not disputed by the Defendants, the
contents did not require formal proof and can be read in evidence.
35. Once it is established that the demolition of the suit structure
was illegal, the consequence would be grant of relief of reconstruction.
The plaint seeks mandatory injunction to the Defendants to
reconstruct the structure or permit the Plaintiff to reconstruct the
structure at the cost of Defendants or in the alternative to provide
permanent alternate accommodation to the Plaintiff. As the structure
was protected structure and eviction can take place for public
purpose, the liability for providing alternate accommodation rests on
the authority undertaking the public project and causing demolition for
the said purpose. As in the present case there was no notice issued to
the Plaintiff, the Plaintiff is unaware of the authority who had carried
out the demolition. There was no contest to the suit and from the
evidence on record, it cannot be deduced whether the Corporation or
MMRDA has carried out the demolition. Even before this Court, MCGM
and MMRDA have staunchly maintained that they have not carried out
the demolition. The factum of demolition has been established from
the evidence and the question which remains unanswered from the
evidence is the identity of the authority carrying out the demolition.
The evidence on record is not sufficient to conclude even on pre-
ponderance of probability that MCGM had carried out the demolition.
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36. There is lack of evidence on ownership of land on which the
demolished structures were existing. It is therefore difficult to accept
the finding of the Trial Court that MCGM is owner of the land and
responsible for demolition and thus liable for rehabilitation. The
reliance placed on the communication 27 th November, 2006 addressed
by MCGM that MMRDA has carried out the demolition and the
communication dated 15th November, 2006 of the Assistant Collector
that the land owner is the Corporation by the Trial to hold MCGM
responsible for the demolition in unsustainable in absence of any
corroborative evidence. The Trial Court further noted the argument
that the demolition was carried out to widen the stream and hut
cannot be erected at the same place without there being any evidence
on record.
37. The finding of the Trial Court on the identity of the authority
carrying out demolition is indecisive. The evidence establishes that the
demolition carried out for widening of the stream was the earlier
demolition of the year 1986 and there was no material to substantiate
that further widening of stream was proposed for which demolition
was carried out. As the demolition was illegal, the Plaintiff is entitled
to reconstruction of the structure. As alternate land was allotted by
order of 29th March, 1994, the Plaintiff is entitled to reconstruct the
structure at the same place and on the same terms and conditions of
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the order dated 29th March, 1994 at their own cost. For imposing the
liability of costs of reconstruction, there is no cogent evidence on
record to identify the authority responsible for the illegal demolition.
38. As regards the submission that the proceedings are not bona fide
and the beneficiary is one Lata, the Plaintiffs upon showing the illegal
demolition of their structure is entitled to reconstruction, it is open for
the concerned authority to take appropriate steps in event of breach of
the terms and conditions of the order dated 29 th March, 1994. As
regards the submission of non-joinder of Government to the
proceedings, the plea of non-joinder of necessary party is required to
be taken at the earliest possible opportunity under Order I, Rule 13 of
CPC and any such objection not taken shall be deemed to have been
waived. In the present case, in the absence of any Written Statement,
the plea of non-joinder cannot be considered at the appellate stage.
39. Dealing next with the maintainability of the proceedings as
being barred by limitation, Section 527 of the MMC Act reads as
under:-
“527. Protection of persons acting under this Act against
suits
(1) No suit shall be instituted against the corporation or
against the Commissioner, the General Manager or the
Director or a Deputy Commissioner, or against any municipal
officer or servant, in respect of any act done in pursuance or
execution or intended execution of this Act or in respect of
any alleged neglect or default in the execution of this Act,–
(a) until the expiration of one month next after notice in
writing has been, in the case of the corporation, left at the
chief municipal office and, in the case of the Commissioner,Sairaj 46 of 49
First Appeal No. 1546 of 2010 (f).docthe General Manager or the Director or of a Deputy Municipal
Commissioner or of a municipal officer or servant delivered to
him or left at his office or place of abode, stating with
reasonable particularity the cause of action and the name and
place of abode of the intending plaintiff and of his attorney or
agent, if any, for the purpose of suit; nor
(b) unless it is commenced within six months next after the
accrual of the cause of action.
(2) At the trial of any such suit–
(c) the plaintiff shall not be permitted to go into evidence of
any cause of action except such as is set forth in the notice
delivered or left by him as aforesaid;
(d) the claim, if it be for damages shall be dismissed if tender
of sufficient amends shall have been made before the suit was
instituted or if, after the institution of the suit, a sufficient
sum of money is paid into Court with costs.
(3) When the defendant in any such suit is a municipal officer
or servant, payment of the sum or of any part of any sum
payable by him in or in consequence of the suit whether in
respect of cost, charges, expenses, compensation for damages
or otherwise, may be made, with the previous sanction of the
Standing Committee or the Brihan Mumbai Electric Supply and
Transport Committee, from the municipal fund or the Brihan
Mumbai Electric Supply and Transport Fund, as the case may
be.”
40. The submission of Mr. Vyas is that the notice under Section 527
was given to MCGM on 17 th July, 2007 and the suit was instituted
within period of one month. In unusual facts of this case, the
applicability of Section 527 of MMC Act itself is debatable. Section 527
of MMC Act applies where the suit has been instituted to question the
act done by the Corporation in pursuance of execution or intended
execution of the Act. The purport of the pre-suit statutory notice is to
give opportunity to the Corporation to make sufficient amends to
avoid litigation. The Plaintiff has come with a case that there has been
illegal demolition of the suit structure during the pendency of the
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earlier proceedings without any notice and despite the order of status
quo operating against the Corporation. The act thus attributed to the
Defendant Corporation is an illegal act which cannot be said to have
been done in pursuance of the execution of the provisions of MMC Act.
The nature of the suit and the reliefs sought therein militates against
the suit being for the purpose of questioning the act done by the
Corporation in execution of MMC Act. Further, it is the Corporation’s
own submission that the demolition was not carried out by the
Corporation but by MMRDA and the communication to that effect
dated 27th November, 2006 was also addressed to the Plaintiff. It is
therefore not open for the Corporation to raise the issue of
maintainability of the suit on the ground of Section 527 of MMC Act.
The submission has no merit particularly in peculiar facts of this case
and stands rejected. The decision of Satish Dalichand Shah v. State of
Maharashtra (supra) relied upon by the Appellant does not assist their
case in light of the discussion above.
41. The Trial Court though has the power to mould the relief in the
present case, the same is permissible provided the pleadings and
evidence on record justifies moulding of the relief. In the present case,
sans any evidence to pin point the authority carrying out demolition of
the suit structure and the land owning authority, the liability could not
be imposed on the Defendant No. 1 to make available alternate land or
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to bear the costs of reconstruction. As the demolition has been held to
be illegal, the Plaintiff would be entitled to relief of reconstruction of
the suit premises at their own cost at the same place allotted pursuant
to the order of 29th March, 1994 and in accordance with the terms and
conditions mentioned in the same order. In event, the allotted land is
required for any public purpose, it is open for the authority to issue
proper notice to the plaintiff and evict them after providing them
alternate structure as their structures were protected and in existence
since the year 1976. Hence, the following order is passed:-
:ORDER:
(i) First Appeal is partly allowed.
(ii) The unnumbered second and third paragraph of the
impugned judgment are quashed and set aside.
(iii) The Plaintiffs are permitted to reconstruct the demolished
structure admeasuring 15′ x 10′ height 9′ at Kokari Agar, Antop
Hill, Wadala, Mumbai – 37 with patra walls and patra roofs at
Plot No. 8 as per the plan annexed to the order dated 29 th March,
1994 and subject to the same terms and conditions as mentioned
in the order of 29th March, 1994 at Plaintiff’s own cost.
(iv) Decree be drawn up accordingly.
42. In view of above, nothing survives for consideration in pending
Interim/Civil Applications, if any, not decided by the present judgment,
and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
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