Bombay High Court
Patricia Farrell Fernandes vs Commissioner Of Mumbai Municipal … on 12 March, 2025
2025:BHC-AS:11564
FA-1086-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1086 OF 2022.
1. Patricia Farrell Fernandes ]
Age 58 Years, Occ. Retired having ]
address at Room No. 1086/4, Oxel Shack, ]
Digitally
signed by
TALLE
Bathseba Grove, Fernandez Wadi, J. P. ]
TALLE SHUBHAM
SHUBHAM ASHOKRAO Road Andheri (West), Mumbai- 400 061. ]
ASHOKRAO Date:
2025.03.12
16:29:09
(Since Deceased through Legal Heirs). ]
+0530
1a. Peter Farrell Antonio Fernandez ]
(Husband of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ]
1b. Farrah Peter Fernandez ]
(Daughter of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ]
1c. Marika Peter Fernandez ]
(Daughter of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ] ... Appellants.
Versus
1. Commissioner of Mumbai Municipal ]
Corporation of Greater Mumbai, Having ]
Its main office at Mahanagar Palika ]
Marg) Mumbai - 400 001. ]
2. M/s. B. R. Developers ]
A Partnership firm registered under The ]
Indian Partnership Act, 1932 having ]
office at "Sea Breeze" Shop No. 11, ]
Ground Floor, 81 Mori road, Mahim ]
(West), Mumbai- 400 016. ] ...Respondents.
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Mr. Sunny Singh, Mr. Pradip Shukla and Mr. Divakar N. Dhadhich i/by Pradip
Shukla & Co., for the Appellant.
Ms. Vidya Vyavhare for the Respondent No. 1-Corporation.
Mr. P. J. Thorat i/by Ms. Aditi S. Naikare, for the Respondent No. 2.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: January 14, 2025.
Pronounced on : March 12, 2025.
JUDGMENT :
1. The First Appeal is at the instance of Original Plaintiff
challenging the Judgment and order dated 5th March, 2020 passed in
S. C. Suit No. 327 of 2008 by the Bombay City Civil Court at Bombay
Borivali Division, Dindoshi(Branch), dismissing the suit filed inter alia
challenging the notice dated 27th December, 2007 issued under Section
351 of the Mumbai Municipal Corporation Act, 1888 (“the MMC Act“).
For sake of convenience the parties are referred to by their status
before the Trial Court.
PLEADINGS:
2. The case of the Plaintiff is that she is the Tenant/Occupant of
suit premises being Room No. 1086 (4) admeasuring approximately 775
to 800 sqr. ft. situated at Andheri, Mumbai for last 25 years. Initially
the suit was filed only against the Corporation and subsequently the
Defendant No 2 who claimed to be the landlord of the property,
applied for impleadedment and was impleaded. It was pleaded in
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FA-1086-2022.docamended plaint, that Defendant No. 2, though claiming to be landlord,
has not issued any letter of attornment to the tenants and has refused
to accept the rent tendered by the Plaintiff. The Defendant No. 2
intending to develop the property has managed to evict all tenants
except the Plaintiff.
3. It was further pleaded that on 27 th December, 2007, the
Municipal Commissioner had issued notice to the Plaintiff under
Section 351 of the MMC Act alleging unauthorized extension to the
existing structure which was replied on 31 st December, 2007. On 13th
February, 2008, she received rejoinder from the Corporation stating
that the documents submitted by her were not enough to deal with the
matter and rejected the request of personal hearing in the matter and
threatened demolition within seven days. It was pleaded that the
Plaintiff has purchased the suit premises from the outgoing tenant
with the consent and permission of the then landlord Shri. Jayantilal M.
Desai who has issued rent receipt in her name. The Defendant No. 2
has filed R. A. E. Suit No. 143 of 2009 in the Small Causes Court which is
pending on ground of arrears of rent, which makes the intention to
evict clear.
4. The Corporation filed its written statement contending that
upon receipt of complaint from Defendant No. 2, the site was visited
on 16th August, 2007 by the Junior Engineer who found unauthorized
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FA-1086-2022.docerection of brick pillars adjacent to the structure approximately 8 ft in
height in progress. As no permission was shown, notice under Section
354-A of the MMC Act was pasted on the suit site and photographs of
the work being commenced were taken by the Officer. Despite the
stop work notice, the construction was continued and on 4 th December,
2007 at 12.30 p.m. the Junior Engineer of the Municipal Corporation
found “unauthorized extension to the existing structure by side B.M.
wall and A.C. sheet roof admeasuring 8′.3″x19′.8″, (ii) 10′.6″x6′.00” and
(iii) 4′.6″x11′.3″ and unauthorized erection of shed abutting structure
upto compound wall admeasuring 5′.0″ x19′.6″ and 30′.0″ x
(10′.0″+5′.00″) average width. No permission was shown to the officer
who took the complete measurement of the unauthorized construction
and shed and prepared his inspection report. On 27 th December, 2007,
show cause notice was issued to the Plaintiff to which reply was
received on 31st December, 2007 denying the contents. The Plaintiff
failed to prove the authorisation or existence of the notice structure
before the datum line. It was contended that the original structure as
shown in the rough sketch to the 351 notice is not in dispute but the
dispute is regarding the extensions carried out by the Plaintiff along
with erection of shed within the compound of the said structure. The
documents produced by the Plaintiff pertain to the original structure
and not for the unauthorized construction. The Plaintiff has
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extension of original structure without permission of the Corporation
and therefore the order dated 13th February, 2008 has been rightly
passed.
5. The Defendant No. 2 filed its written statement contending that
they are the owners of the immovable property bearing Survey No.
1086 under registered deed of conveyance dated 12 th September,
2006. CTS 1086/4 is one of the rooms admeasuring 17.6 sqr. Mtrs. The
city survey plan shows that there is open unbuilt space adjacent and
around Room no. 1086/4 whereas at site it can be found that the
Plaintiff has encroached upon the open space right up to the
compound wall. Since the year 2003 and 2004 the Plaintiff had tried to
encroach by putting up tarpauline sheets, cement sheets for few days
and gradually enclosing the portion so covered by constructing low
B.M. Walls and installing T. W. Posts and corrugated Iron Sheets Roofs.
In January 2007, she had got substantial illegal encroachment
construction in place for which complaint was lodged on 12 th January,
2007 with BMC and thereafter again on 22nd February, 2007 which were
ignored and thereafter complaints were again filed on 20 th July 2007
and 24th July 2007. On 16th August, 2007 the junior officer visited who
found the work in progress and issued notice under Section 354-A and
subsequently on 27th December, 2007, considering the extensive illegal
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construction, notice came to be issued under Section 351 of MMC Act.
EVIDENCE:
PW-1:
6. Plaintiff examined herself and deposed as to the contents of the
plaint. In her deposition she produced the Section 351 notice dated
27th December, 2007-Exhibit 25, her reply dated 31 st December 2007-
Exhibit 26, order of BMC dated 13 th February 2008- Exhibit 27, original
rent receipt dated 1st June 1984- Exhibit 28, correspondence between
the Plaintiff and Defendant No 2 regarding tender of rent Exhibit 29 to
31, copy of Application to Corporation seeking copy of sanctioned plan
dated 16th February, 2008- Exhibit 32, NC complaint dated 23 rd October
2008- Exhibit 33, letters addressed to Corporation Exhibit 34 and 35,
NC dated 31st October 2008- Exhibit 36, letter dated 31 st October 2008
to BMC – Exhibit 37, RAE Suit filed by Defendant No 2- Exhibit 38,
photographs of BMC Officer pasting Section 354-A notice on Plaintiff’s
structure Exhibit 39. .
7. In the cross-examination, she has maintained that her tenement
is consisting of hall, kitchen and bathroom approximately 750 sqr. ft.
She has admitted that there is no agreement executed between her
and the landlord before taking the tenement on rent and that there is
about 6 ft distance between her tenement and compound wall. She
has stated that she is tenant in the premises since 1 st June 1984 and
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she is not aware as to whether 750 sqr. ft. is constructed portion plus
open space or it is only constructed portion. She has admitted that she
has not filed any documents to show that the area of structure was 750
sqr. ft. in the year 1984 when she was inducted as tenant. She has
further admitted that she has not obtained copy of city survey record
in respect of disputed construction.
DW-1:
8. The Defendant No. 2-Landlord was examined as DW-1 who
deposed as to the contents of his written statement. He produced
copy of Resolution dated 5th February, 2018-Exhibit 52, registered deed
of confirmation dated 17th May, 2005 along with agreement for sale
dated 30th December 1996-Exhibit 53, copy of deed of conveyance
dated 12th May 2006-Exhibit 54, certified copy of Rule card of CTS No.
1086/4-Exhibit 55, certified copy of city survey plan dated 13 th January
2006-Exhibit 56, letter dated 23rd January, 2009 issued by city survey
office-Exhibit 57, certified copy of city survey plan dated 23 rd January,
2009 Exhibit 58, letter of attornment dated 12 th May 2006-Exhibit 59,
office copy of complaints dated 12th January 2007, 22nd February 2007,
20th July 2007, 24th July 2007- Exhibit 60 to 63, Application dated 6 th
November 2013 and reply under RTI-Exhibit 64 to 66, copy of Section
351 notice dated 27th December 2007-Exhibit 67, letter dated 2nd
October, 2009 addressed by neighboring society-Exhibit 68, and copy
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of order dated 7th October, 2008 passed in AO No. 490 of 2008-Exhibit
69.
9. In cross examination, he has admitted that when he purchased
the property, the Plaintiff was already in possession of the suit
premises/disputed premises as tenant. He has deposed that he is not
aware about the exact area which was handed over to the Plaintiff by
the previous landlord. He has admitted that there is only one tenant
i.e. plaintiff at present and all others have vacated and that eviction
suit is pending against the Plaintiff before the Court of Small Causes.
He has admitted that as no notice was issued to the Plaintiff by the
previous landlord for addition and alteration he has not annexed any
such notice. He has deposed that the addition and alteration was made
in the year 2006. He has deposed that he has taken photographs in the
year 2006 after conveyance but he has not filed this photographs.
DW_-2:
10. On behalf of the Defendant No. 1-Corporation, Junior Officer
Shailesh Gaud was examined as DW-2, who deposed as to the contents
of the written statement. An additional examination-in-chief was filed
by DW-2 and he produced the copy of the notice dated 16 th August,
2007 issued under section 354-A of the MMC Act-Exhibit 70, copy of
Panchanama dated 16th August, 2007-Exhibit 71, inspection report
dated 4th December 2007-Exhibit 72, copy of notice dated 27 th
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December, 2007 issued under Section 351 of the MMC Act-Exhibit 73
and copy of order dated 13th February, 2008 issued under Section 351
of the MMC Act- Exhibit 74.
11. In the cross examination he has stated that the procedure
followed is that after receiving complaint of illegal construction, the
engineer visits the site and asks for permission of construction and if
no permission is shown measurement of unauthorized work is taken,
photographs are taken, and stop work notice is issued. He has admitted
that he has not annexed the complaint made by Defendant No. 2 to his
evidence affidavit. He has admitted that at the time of his visit there
were two pillars constructed which were not touching the Plaintiff’s
premises. He has stated that he asked the labourers the name of the
person constructing the pillars and they have given the name of the
Plaintiff. He has admitted that the name of labourers is not recorded in
panchnama and name of Plaintiff is not written in the impugned notice.
He has admitted that he was arrested by anti corruption bureau in
connection with bribery case.
DW-3:
12. One Anil Mohan Patel, occupant of room No. 8, was examined
as DW-3. He has deposed that he is presently working at Shoreline
Hotel Private Ltd and the then partner of Defendant No. 2 was also
Director of Shoreline Hotel Private limited. In or around the year 1996
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and 1997, the Director- Haiderali A. Jiwa Bharwani permitted him to
reside in Room No 1086/5 next to notice structure, without payment of
rent and in return he used to look after the property. He has deposed
that there was always dispute between Plaintiff and him. He has
deposed that the original area of the premises occupied by the Plaintiff
was 17.6 sqr. mtrs and since ending the year 2006 the Plaintiff
gradually started encroaching upon the open unbuilt space/ common
gully adjacent and around the Room No. 1086/4. He submits that in
view of the illegal and unauthorized work of extension done by
Plaintiff by encroaching upon the common gully, the Plaintiff blocked
the drainage line and drainage chamber causing overflow of drainage
water into his room. He has deposed that considering the nuisance, he
shifted to room bearing CTS No. 1086/3 since the year 2007. In the
middle of April-2007 the Plaintiff began to build over the
encroachment done by her in the open unbuilt space and on 14 th April,
2007 he has taken photographs which were produced. He has further
deposed that in the month July-2007 the Plaintiff had carried out
illegal and unauthorized permanent construction and is now
attempting to put up further construction in the common gully behind
room bearing CTS No. 1086/4. He has deposed that he had addressed
letter dated 26th July, 2007 to Assistant Commissioner about the
unauthorized work. He has further deposed that the Plaintiff has
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constructed low wall/ pillar and placed private gate and flower pots
cordoning of the open space behind his room No. 1086/5, which are
photographed by him and were produced. He deposed that further
complaint was made by him to the Assistant Municipal Commissioner
on 14th June, 2008 which was produced on record and the copy of the
letter was also given to the Senior Inspector Versova Police Station.
The photographs produced by him marked as Exhibit-78, and 80
collectively. The letters produced by him were also marked as Exhibits
79 and 81.
13. In the cross examination, he has admitted that he does not have
any document to show that from 1996 to 2012 he was residing in the
structure adjacent to the Plaintiff’s structure. He has further admitted
that he has does not have photographs of original structure prior to
alleged encroachment. He has further admitted that he does not have
documentary proof to show that original area of premises occupied by
the Plaintiff was room admeasuring 17.6 sqr. mtr. He has admitted that
in respect of his complaints the corporation and the police have not
taken any action against the Plaintiff. He has stated that the Plaintiff
and he shared good relation and he used to go to the house of the
Plaintiff and saw the internal structure. He has admitted that the
Defendant No. 2 permitted him to stay in one of the rooms as he did
not have any residential premises.
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14. The Trial Court framed and answered the issues as under:
Sr. Issues Findings Nos
1. Does Plaintiff prove her lawful possession over In the negative.
suit room ?
2. Does plaintiff prove that the defendant no. 1 In the negative.
and 2 are trying to demolish the suit premises
without following due process of law ?
3. Does plaintiff prove that the notice dt. In the negative.
27.12.2007 issued under section 351 of MMC
Act is illegal, bad in law and not binding on
her ?
4. Does plaintiff proves that she is entitled for In the negative.
declaration and permanent injunction ?
5. Does plaintiff proves that suit structure is legal In the negative.
or authorised ?
6. Whether the suit is bad for want of statutory In the negative.
notice as required under section 527 of MMC
Act ?
7. What order and Decree ? As per final
order.
15. The findings of the Trial Court can be broadly summarized as
under:
a) The Plaintiff has not filed any document to show that she acquired
tenancy rights in respect of an area of suit structure admeasuring 775
to 800 sq. ft. in the year 1984.
b) In the registered agreement for sale of 1996, executed between the
erstwhile landlord and Defendant No. 2, the list of tenant includes the
name of the Plaintiff in respect of room no. 33 for an area admeasuring
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FA-1086-2022.doc17.6 sqr. mtr. The registered deed of conveyance and Rule Card
disclosed that the Plaintiff is tenant of CTS No 1086(4) since 1984 and
she acquired area of 17.6 square meters and she is not in possession of
remaining area by way of lawful means.
(c) The documents produced like rent receipt, transfer of tenancy right,
permission given by landlord to cover otla, electricity bill
correspondence are not sufficient to prove authorization of the
structure. The City Survey plan dated 23 rd September, 2009 and the
photographs shows unauthorised construction as an extended
construction abutting the suit premises in red colour.
(d) The Panchanama prepared by the officer of Corporation dated 16 th
August, 2007 clearly shows unauthorized erection of brick pillars.
(e) The Plaintiff has challenged only notice dated 27 th December, 2007
and not order dated 13th February, 2008 and therefore the Plaintiff
cannot get relief only in respect of notice.
Submissions:
16. Mr. Singh, learned Counsel appearing for the Appellant submits
that the dispute is only about the area and not about Plaintiff’s lawful
possession. He submits that the Plaintiff’s case of being in possession
of area admeasuring 775 to 800 sqr. ft. has been admitted by
Defendant No. 2 in his RAE Suit No.143 of 2009 and the allegation is
that the tenancy is only in respect of 188 sqr. ft. He submits that the
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entire area was handed over to the Plaintiff by the earlier tenant with
consent of landlord. He points out the admission of DW-1 that he is not
aware of the exact area handed over to the Appellant by the previous
tenant. He submits that the conveyance with Defendant No. 2 has been
executed on 12th May, 2006 and the admitted position is that the
erstwhile landlord has not taken any steps alleging encroachment and
even after May-2006 no civil proceedings were initiated by the
Defendant No. 2 against the alleged encroachment.
17. He would further submit that the Trial Court has taken into
consideration Defendant No 2’s documents to which Plaintiff is not a
party, while ignoring the letter dated 1st June, 1984 issued by the
erstwhile landlord to the Plaintiff permitting her to close otla upon
payment of Rs. 300/- per year and the letter dated 15 th December, 1984
by which the erstwhile landlord have given permission for repair and
enclosure of the side portion.
18. He submits that before the Trial Court, the validity of the notice
dated 27th December, 2007 was in question and therefore Issue Nos. 1
and 2 could not be framed. He submits that Defendant No. 2 has
averred in his RAE Suit No. 143 of 2009 that the property tax bill issued
by the Assessment Department of MCGM as per the old records is
appearing prior to 1961-1962 and has thus admitted the existence of
the suit premises prior to 1961-1962. He submits that the Defendants
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have not produced any development permission or sanction plans to
indicate when the notice structure was constructed and the
specifications thereof and therefore it will have to be inferred that the
notice structure was in existence prior of the datumline. He submits
that the initial burden is upon the Corporation to prove unauthorized
construction. He submits that the Appellant by letter dated 16 th
February, 2008 applied to the Corporation for providing the
assessment records and the sanction layout which the corporation
failed to provide. He submits that the best evidence was in possession
of the owners and Corporation as regards the development
permission, sanction plans and assessment records, which they had
failed to produce.
19. He submits that considering the complaints addressed by the
Defendant No. 2 from 12th May, 2006 to 24th July, 2007 the notice
structure existed on those dates and no evidence has been produced
of on going construction by Plaintiffs. He submits that the reliance
placed by the Trial Court on the city survey plan, which does not show
any dimensions, to come to finding that the notice structure is
unauthorized is clearly misplaced as the complaints of the Defendant
No. 2 of the year 2006 are prior in time as also the impugned notice
dated 27th December, 2007.
20. He submits that no action was taken pursuant to notice dated
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16th August, 2007 under Section 354-A of the MMC Act and the
Inspection Report dated 4th December, 2007 also mentions that no
notice under Section 354-A of the MMC Act was issued for the notice
structure. He would further submit that the Trial Court has erroneously
relied upon the photograph “Article B” taken on 26 th August, 2007
which was not proved. He submits that the finding of the Trial Court
that there is no challenge to the order dated 13 th February, 2008 is
misplaced as the notice of 27 th December, 2007 itself contemplates
demolition of the notice structure without need to pass any further
order and the communication dated 13th February, 2008 is mere
confirmation of the impugned notice and therefore the failure to
challenge the communication of 13.02.2008 is immaterial. In support
he relies upon the following decisions:
Vadilal Maganlal Trevadia vs. Bombay Municipal Corporation 1
Sunip Kumar Sen vs. The Mumbai Municipal Corporation of
Greater Mumbai. (passed by this Court in (Original Side) Writ
Petition No. 3496 of 2022 dated 14th February 2024)
21. Per contra, Ms. Vyavhare, learned Counsel appearing for the
Respondent-MCGM has taken this Court through Section 351 notice
and would submit that the unauthorized construction is shown as
three rooms on three sides of the original structure. She submits that
1 2021 (1) Mh.L.J. 157
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the site inspection conducted for action under Section 351 of the MMC
Act shows extension and additions to the existing room by giving
specifications. She would further submit that the order of 13 th
February, 2008 has not been challenged. She would further point out
to Section 354-A notice issued on 16th August, 2007 which shows the
ongoing construction of erection of brick walls adjacent to the
structure and would submit that between the period of August-2007 to
the site visit on 4th December, 2007, rooms on the three sides were
constructed. She submits that the burden is on the Plaintiff to show
sufficient cause which burden has not been discharged by the Plaintiff.
She submits that decision relied upon by the Appellant is inapplicable
as the issue therein was of reconstruction. In support, she relies upon
following judgment.
Seema Arshad Zaheer & Ors. vs. Municipal Corporation of
Greater Mumbai & Ors.2
22. Mr. Thorat, learned Counsel appearing for the Defendant No. 2
has taken this Court in detail through the averments in the plaint and
would submit that the Plaintiff came in possession in the year 1984.
Pointing out to the prayers, he submits that that there is no challenge
to the order passed under Section 351 of the MMC Act. He submits
that the action was taken pursuant to the complaint by Defendant No
2 2006 (5) SCC 282
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2 by letter of 12th January, 2007 alleging that she has illegally added to
the said structure and has encroached in the backside gully and also
added height to the premises. He would further point out the
complaint of 20.07.2007 complaining about illegal construction and
addition of entire two rooms and toilet structure and also large portion
of open compound by putting A.C. sheets roofs and T.W. Posts. He
submits that in the written statement the Corporation has specifically
pleaded that on 16th August, 2007, when the officer visited he found
unauthorized erection of brick pillars adjacent to the structure
approximately 8 ft in height. He submits that the Defendants has
proved the specifications of the original structure by producing on
record, the Rule Card and list of tenants annexed to the agreement
executed between the erstwhile landlord and the Defendant No. 2
which showed that the Plaintiff was tenant/occupant of area
admeasuring 17.6 sqr. mtr. He would further submit that two city
survey plans was produced on record and the map of 2006 does not
show any construction in red ink whereas the map of 2009 shows red
ink construction. He submits that the purpose of the city survey plans is
not to show the illegal construction but the variation in the plans of
2006 and 2009.
23. He would further submit that it is admitted by Plaintiff that she
has not filed any document to show that the area of structure was 750
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sqr. ft. in the year 1984 when she was inducted as a tenant and that she
has not obtained a copy of city survey record in respect of the disputed
construction. He would further point the evidence of the Corporation
specifically deposing in respect of unauthorized extension being
carried out and the photographs showing the suit structure. He
submits that it is evident from the material produced on record that
there is unauthorized extension to the original structure. He submits
that DW-3 had filed complaint on 26th July, 2007, that the Plaintiff has
encroached into open space and has constructed three rooms without
any permission. He submits that complaint was also lodged on 16 th
June, 2008 by DW-3 with the Assistant Municipal Commissioner. He
would submit that the photographs on record shows service of notice
under Section 354-A upon the Plaintiff which has been suppressed by
her in the plaint. He submits that no effort was made to seek copy of
the sanctioned plan by the Plaintiff and produce the same and
therefore she has failed to prove that the construction was either
authorized or tolerated. In support, Mr. Thorat, relied upon following
judgments:
Sandesh Sonu Gawalkar vs. Municipal Corporation, Gr. Mumbai
(passed by this Court in Appeal From Order No. 686 of 2022 dated
23rd August 2023).
Kapil Co-op. Hsg. Soc. Ltd. vs. Suniel B. Shukla (passed by this
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2009).
24. In rejoinder, Mr. Singh would submit that in year 2007, the
complaint lodged by the Defendant No. 2 refers to earlier complaints
of 2003-2004 whereas the CTS plan of the year 2006 does not show any
illegal construction.
25. The following points arise for determination:
(1) Whether in light of the reliefs sought in the Plaint, the Trial Court
was right in framing and answering the issue of lawful possession of
Plaintiff over the suit premises?
(2)Whether the notice dated 27 th December, 2007 issued under Section
351 of the MMC Act is illegal, null and void, and, liable to be quashed
and set aside?
(3)Whether in the absence of challenge to the order dated 13 th
February, 2008, the suit must fail?
AS TO POINT NO 1 :
26. The Trial Court has framed an issue of lawful possession of the
Plaintiff over the suit premises, which is described in the plaint as
Room No. 1086(4) admeasuring 775 to 800 square feet. The
substantive relief sought is prayer clause (a) which reads as under :
“[a] That it be declared that the Defendant No. 1 and 2
and their officers, agents and or any person and or
body of persons claiming through them are not legallyShubham Talle 20 of 40
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peaceful, use occupation or possession of the suit
premises any allege unauthorized part thereof as
described in the Exhibit-B and under the said notice
dated:- 27th December 2007 herein above, and more
particularly describe and depicted in the schedule
detailed in Exhibit A to the Plaint and or part thereof
without first adopting the due process of law which is
otherwise legal.”
27. The plaint seeks substantive relief of prohibitory injunction
restraining the Defendants from demolishing or interfering with the
Plaintiff’s possession of the suit premises or alleged unauthorised part
by implementing the notice dated 27 th December, 2007. The prayer
when considered in the context of pleadings in the plaint makes it
evident that the challenge in the suit was to the validity of the notice
dated 27th December, 2007 issued under Section 351 of MMC Act by
the Corporation threatening demolition of the suit premises. The only
issue which therefore arose for consideration, was the validity of
Section 351 notice. What was under determination of the Trial Court
was whether the notice structure was required to be protected and the
issue of Plaintiff’s lawful possession was immaterial for the said
determination.
28. In answering the irrelevant issue of possession, the Trial Court
has transgressed its jurisdiction and has ventured into the tenancy
rights of the Plaintiff over the suit premises admeasuring 775 to 800
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square feet. The Trial Court has rendered a finding that the Plaintiff is
tenant of area admeasuring 17.6 square meters, which rights could not
have been declared by the Civil Court. To arrive at the said finding, the
Trial Court has considered the Plaintiff’s evidence to hold that there is
no document to show that she acquired tenancy right of area of suit
structure of 775 to 800 square feet. The question of tenancy was not
the subject matter of determination and therefore the extent of
Plaintiff’s tenancy was immaterial.
29. The framing of the issue of Plaintiff’s lawful possession would
indicate that the Trial Court lost sight of the subject matter and has
treated the suit as one filed by the landlord for removal of
encroachment or recovery of possession of encroached portion. Even
otherwise, the findings of Trial Court on aspect of possession cannot
be sustained. The Trial Court committed an error in holding that there
is no document to show that the Plaintiff is occupying 800 square feet
of CTS No 1086(4), when the possession of the Plaintiff has been
admitted by the Defendants. The Trial Court failed to appreciate that
considering the subject matter of the suit, there was no question of
deciding whether the possession was by way of lawful means. The
finding on the Plaintiff’s lawful possession is based on adjudication of
the extent of the Plaintiff’s tenancy which was not within the
jurisdiction of Civil Court. The issue of the Plaintiff’s lawful possession
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qua her tenancy rights thus could not be framed and answered by the
Trial Court.
30. Point No (I) is accordingly answered in favour of the Plaintiff.
AS TO POINT NO (2):
31. The impugned notice is issued under Section 351 of MMC Act
which provides that where the erection of any building or execution of
any such work as described in Section 341 is commenced contrary to
the provisions of Section 342 or 347, the Commissioner is required to
issue notice to show cause why such building or work shall not be
removed, altered or pulled down. Whether there is any foundation for
issuance of such notice to the Plaintiff is required to be seen.
32. The case of Plaintiff is that she was inducted in the year 1984 as
tenant of suit premises which admeasured 775 to 800 square feet and
there is no addition/alteration carried out by her. Her testimony has
not been shaken in the cross-examination. Though the Plaintiff has
admitted that she has no document to show that she was put in
possession of the suit premises of area of about 775 square feet in the
year 1984, the induction of Plaintiff as tenant in the year 1984 is
admitted position. It is also admitted by DW-1 Landlord that he is not
aware of the exact area of which the Plaintiff has been put in
possession. He has further admitted that when they purchased the
property, the Plaintiff was already in possession of the suit
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premises/disputed premises as tenant. The admission, when read in the
context of the suit premises/disputed premises described in the plaint
as an area of 775 to 800 square feet, amounts to an admission that the
Plaintiff when inducted in the year 1984 was put in possession of an
area admeasuring 775 to 800 square feet. The testimony of Plaintiff
finds support in the admission of DW-1 landlord.
33. The case of the Plaintiff further gets strengthened by the fact
that despite being in possession of best possible evidence, the
Defendants have not failed to produce the same. DW-1 has deposed
that the three main structures which included CTS No 1086(4) are
assessed individually by the Defendant No 1 Corporation in their
Assessment records and has given their assessment numbers. Further
in his RAE suit he has admitted that the property is existing prior to the
year 1961-1962. The Plaintiff being a tenant would not be in
possession of relevant property documents to substantiate her case of
position of suit structure in the year 1984 when she was inducted as
tenant. DW-1 landlord was in possession of best evidence in form of
sanctioned plans and assessment records which would have
substantiated the position at site at the inception of Plaintiff’s tenancy
but failed to produce the same.
34. In Gopal Krishnaji Ketkar vs Mohamed Haji Latif 3 the Apex
3 AIR 1968 SC 1413
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Court observed as under:
“Even if the burden of proof does not lie on a party the
Court may draw an adverse inference if he withholds
important documents in his possession which can
throw light on the facts at issue. It is not, in our
opinion, a sound practice for those desiring to rely
upon a certain state of facts to withhold from the
Court the best evidence which is in their possession
which could throw light upon the issues in controversy
and to rely upon the abstract doctrine of onus of
proof. In Murugesam Pillai v. Manichavasaka Pandara
Lord Shaw observed as follows:
“A practice has grown up in Indian procedure of those
in possession of important documents or information
lying by, trusting to the abstract doctrine of the onus
of proof, and failing, accordingly, to furnish to, the,
Courts the best material for its decision. With regard
to third parties, this may be right enough-they have no
responsibility for the conduct of the suit; but with
regard to the parties to the suit it is, in their Lordships’
opinion an inversion of sound practice for those
desiring to rely upon a certain state of facts to
withhold from the Court the written evidence in their
possession which would throw light upon the
proposition.”
This passage was cited with approval by this Court in a
recent decision–Biltu Ram & Ors. v. Jainandan Prasad
& Ors.(1). In that case, reliance was placed on behalf of
the defendants upon the following passage from the
decision of the Judicial Committee in Bilas Kunwar v.
Desrai Ranjit Singh & OrS.(2) “But it is open to a
litigant to refrain from producing any documents that
he considers irrelevant; if the other litigant is
dissatisfied it is for him to apply for an affidavit of
documents and he can obtain inspection and
production of all that appears to him in such affidavit
to be relevant and proper. If he fails so to do, neither
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he nor the Court at his suggestion is entitled to draw
any inference as to the contents of any such
documents.” But Shah, J., speaking for the Court,
stated:
” The observations of the Judicial Committee do not
support the proposition that unless a party is called
upon expressly to make an affidavit of documents and
inspection and production of documents is demanded,
the Court cannot raise an adverse inference against a
party withholding evidence in his possession. Such a
rule is inconsistent with illustration(g) of s. 114 of the
Evidence Act, and also an impressive body of
authority.”
35. It is therefore no answer to say that the burden of proof was
upon the Plaintiff when DW-1 was in possession of best evidence and
has withheld the same from the Court.
36. The pre-requisite for issuance of Section 351 notice to the
Plaintiff is that the work of erection or execution of any work should
have been commenced or carried out by the Plaintiff contrary to
Section 342 or 347 of MMC Act. To assert the position that the Plaintiff
carried out unauthorised construction in the year 2006-2007, DW-1 has
deposed that the Plaintiff was gradually encroaching into the property.
What is surprising that instead of adopting civil proceedings for
injunction or for removal of encroachment, DW-1 has indulged in
addressing complaints to the Corporation without taking any effective
steps to put a stop to the alleged encroachment. It is unacceptable
that the landlord would wait for the unauthorised construction to be
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completed, instead of taking steps to protect his property.
37. Though the evidence of DW-3 has been led to establish the
unauthorised construction at the hands of the Plaintiff, the evidence of
DW-3 does not inspire confidence as he has admitted that he has no
proof to show his residence in the adjacent structure for the period
2006 to 2012 or to show that the original premises was admeasuring
188 square feet coupled with the admission that he is employed by
Defendant No 2 landlord. It is also surprising to note that when the
alleged construction was being carried out by Plaintiff in the year
2006 , instead of bringing it to the notice of Defendant No 2 landlord,
he was addressing complaints to Corporation.
38. Coming to the evidence of DW-2, Junior Engineer of
Corporation, the inspection report for action under Section 351 of
MMC Act has been produced by him. The Inspection Report Exhibit 72
records that on 4th December, 2007 at around 12.30 p.m. the Junior
Engineer inspected the premises and found extensions and additions
to the existing structure and records the measurements of the
unauthorized construction. Pertinently Column 9 pertaining to the
details whether the structure was detected while under construction
and whether notice under Section 354-A has been issued and served,
the Inspecting Officer i.e. Junior Engineer has filled the same in the
negative. Based on mere visual inspection carried out on 4 th December,
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2007, the Junior Engineer has noted that there was an original room
existing and there are unauthorized extensions and additions carried
out to the original structure and unauthorised erection of shed upto
compound wall. Admittedly when the site was inspected on 4 th
December, 2007 there was no ongoing construction and in absence of
any record, it was not possible for the Junior Engineer, on mere visual
inspection, to identify the original structure and the unauthorised
extensions/additions.
39. The same Officer in his inspection report has recorded that in
respect of the said construction there was no Section 354-A issued,
whereas in his evidence has deposed that on 16 th August, 2007 he had
visited the site and found unauthorized erection of brick pillars
adjacent to the structure approximately 8 feet in height for which stop
work notice was issued under Section 354-A of the MMC Act. He has
further deposed that despite the stop work notice, the construction
was continued and unauthorized extension to the existing structure
was found which was noted in Inspection Report. As the panchnama or
the notice under Section 354-A is not addressed to the Plaintiff and the
same refers to construction of erection of brick pillars adjacent to the
structure, DW-2’s deposition that the ongoing work of 16 th August,
2007 was continued and unauthorised extension was constructed by
the Plaintiff has no substance.
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40. In the cross examination, DW-2, Corporation officer, has
deposed that as per the procedure after receiving complaint of illegal
construction the site is visited and permission is asked for and if no
permission is shown measurement of unauthorized work is taken and
stop work notice is issued. As the site was visited on 16 th August, 2007
pursuant to the complaint by Defendant No 2, if we look at the
complaints, Defendant No 2 had addressed various complaints to the
Corporation dated 12th January, 2007 Exhibit-60, 22nd February, 2007-
Exhibit-61, 20th July, 2007 Exhibit-62 and 24th July, 2007 Exhibit 63. The
complaint dated 12th January, 2007-Exhibit-60 makes reference to the
past complaints dated 11th September 2003, 19th November 2003, 16th
September, 2004 and 28th September, 2004 which were all enclosed to
the said complaints but are not produced on record at least before this
Court. The complaint of 12th January, 2007 states that the Plaintiff has
illegally added to the structure and extended the same beyond legal
limits. It further states that she has illegally added height to the
premises and illegally encroached in backside gully using permanent
material like brick, stone and A. C. roof.
41. In the complaint dated 20 th July, 2007- Exhibit 62, the
Defendant No. 2 has stated that illegal construction and addition of
entire two rooms and toilet structure and also large portion of open
compound is done by putting A.C. sheet roof and T.W. Posts. The
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complaints when perused makes it evident that it is Defendant No 2’s
complaint that on 20th July, 2007, the entire two rooms and toilet
structure as well as the large portion of the open compound had been
already constructed by putting AC sheet roof and T.W. Posts.
Surprisingly, the Corporation’s officer during his visit on 16 th August,
2007 does not notice the already completed additions of rooms and
enclosure of the open compound and only noticed the construction of
two pillars adjacent to the structure. This very officer, when visits on 4 th
December, 2007 notices the alleged extensions/additions/alterations,
without any record being produced by any person and puts up
inspection remark for issuance of Section 351 notice. It is thus evident
that Section 354-A was issued in order to pave way for issuing further
notice under Section 351 of the MMC Act. When the complaint itself
discloses that the entire construction was over in July-2007 there is no
question of any ongoing work on 16 th August, 2007 for which notice
under Section 354-A could be issued. The very foundation for issuance
of Section 351 notice is doubtful.
42. The notice structure is described as “unauthorized extension to
existing structure by side BM walls & AC sheet roof admeasuring
8.3×19.50, 10.6″x6.0″and 4.6″x11.3″ and unauthorized erection of shed
abutting structure upto compound wall admeasuring 5.00″x19.6″ and
30.00″ x (10.00″+5.00”) average width. The notice under Section 351
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proceeds on the basis of rough sketch annexed to the inspection report
without calling for the sanctioned plan or any assessment remarks to
verify whether the structure is in existence prior to the datum line or is
authorised. What is interesting to note is the sketch on the right hand
side of the notice which shows the shaded portion as an extension
while retaining the unshaded portion as the original room, is based on
the inspection remark of the Junior Engineer, which is itself
unacceptable.
43. The Plaintiff who is a tenant would not be in possession of
relevant property documents and the Defendants have failed to
produce the best evidence of sanctioned plans and assessment
remarks which are in their possession. The production of sanctioned
plans and assessment records would have lend credence to the Section
351 notice and deliberate withholding of the evidence by the
Defendants creates a doubt about the very foundation of the
impugned notice that the Plaintiff had carried out unauthorised
addition/alteration in the year 2006-2007. An adverse inference is
required to be drawn that the sanctioned plans and/or the assessment
remarks would show either authorisation or existence of the structure
prior to datum line.
44. The Trial Court, while dismissing the suit, has relied upon the
city survey plan to arrive at a finding that there was unauthorised
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construction carried out by the Plaintiff. There are two City Survey
Maps produced by DW-1 landlord first is of the year 2006 based on
measurements carried out on 13th January, 2006 and the second is of
the year 2009 based on measurements carried out on 1st January, 2009.
The City Survey Map of the year 2006 does not show any construction
in red ink, whereas the map of 2009 shows additional construction in
red ink. The Trial Court has relied heavily on the map of the year 2009-
Exh 58 to arrive at a finding that there is extended construction
abutting the suit premises shown in red ink on the map. The fallacy of
the said finding is that it is the Plaintiff’s case that she was inducted as
tenant in the suit premises admeasuring 775 to 800 square feet in the
year 1984 and the suit premises is in the same position. Therefore the
map of 2009 showing additional construction cannot support the
finding that the additions were not in existence when the Plaintiff was
put in possession in the year 1984.
45. To salvage the finding of Trial Court, Mr. Thorat would submit
that the city survey maps of the year 2006 and 2009 when compared
would show the variation. This argument, when tested by considering
the various documents produced on record fails. DW-1 has produced
Rule Card , Agreement for Sale dated 30th April, 1996 and the Deed of
Conveyance dated 12th May, 2006. To the Deed of Conveyance is
annexed copy of City Survey Map furnished to the Defendant No 2 on
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25th April, 2006 extract from the revision record no 28. The copy of the
map, which has been scanned by this Court for ease of reference,
contains the following remark and note:
46. The stamped remark of the City Survey Office, when translated
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in English, reads that the copy denotes the situation at site at time of
revision and the copy has been furnished as per the revision map and
the map does not show the updated position at site and for updated
position it is necessary to carry out measurements. Interestingly below
the sketch, the note reads that the map for CTS No 1086/1086/1 to 8
does not show the construction in red ink. The note does not state that
there is no red ink construction but states that red ink construction is
not shown and there the distinction lies. Comparing this map with the
Map at Exhibit 56, both maps are pertaining to the year 2006. The copy
of first map was given to the Defendant No 2 on 25th April, 2006. The
question is, if the measurements were carried out on 13 th January,
2006 as per Exhibit 56 and did not show unauthorised construction,
there was no necessity of the remark and note in the copy supplied in
April, 2006 that the updated position at site is not shown and that the
construction in red ink is not shown.
47. Similarly, to the Agreement for Sale of the year 1996 which was
appended to the Deed of Confirmation, there is copy of city survey
map furnished to the Defendant No 2 upon his application dated 21 st
June, 1995 and the copy was provided in the year 1995. The copy of the
plan provided by the City Survey Office, scanned and reproduced
below contains a note:
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48. The note, which is in marathi, when translated, reads that in the
plan of CTS No 1086, the construction in red ink has not been shown.
This means that even in the year 1995 also there was additional
construction, however the plan does not show the red ink construction.
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49. The City Survey Map of 2006- Exhibit 56 appended to the Deed
of Conveyance shows the construction identical to the construction in
the map of 1995, but the map of 1995 contains a note that the red ink
construction is not shown in the map, which is missing in map of 2006.
50. It is only in the city survey map of the year 2009 Exhibit 58 that
the red ink construction is shown. Pertinently, the City Survey Officer
was not examined and the maps were admitted in evidence as there
was no objection raised by the Plaintiff. In event the City Survey Officer
would have been examined, his evidence would have clarified the
position. Upon considering the various City Survey Maps which are on
record and discussed above, it is difficult to place reliance on Exhibit 56
and Exhibit 58 maps to arrive at a finding that the additional
construction was carried out between 2006 and 2009.
51. The Trial Court has based its findings on map of 2009 to co-
relate it with the the panchanama of 16th August, 2007. The Trial Court
fell in error in not noticing that various complaints of Defendant No 2
stating that in July, 2007 itself the construction was complete. The Trial
Court also failed to notice that the notice under Section 354-A was not
issued to the Plaintiff and the admission in the Corporation’s witness
that the pillar was not touching the structure.
52. Although the burden was upon the Plaintiff to prove that the
structure was tolerated or authorised, as evidence was led by all the
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parties, the issue of burden of proof pales in significance. Upon
cumulative appreciation of evidence on record, on pre-ponderance of
probabilities, it can be held that there was no construction carried out
by the Plaintiff in the year 2006-2007 for which notice under Section
351 could be issued to the Plaintiff. Thus there was no foundation for
issuance of notice under Section 351 of MMC Act.
53. The Defendant No 2 has taken advantage of the Property Card
showing the area of 1086(4) and the list of tenants annexed to the
agreement executed by the Defendant No. 2 with the erstwhile
landlord to put up a case that the premises in respect of which the
Plaintiff was tenant was admeasuring 17.8 sqr. Mtrs and attempted to
show construction in the year 2006-2007 by lodging various complaints
after the execution of Conveyance Deed in his favour in the year 2006.
Pertinently he failed to adopt civil proceedings to stop the alleged
construction in the year 2006-2007.
54. The primary requirement is that the noticee should have erected
such building and executed such work or must be carrying out the work
or such erection or construction. Though there is notice issued under
Section 354-A the complaint which was filed by the Defendant No. 2
more than sufficiently establishes that in the January 2007 itself the
alleged unauthorized additions of three rooms was complete and
therefore the notice of Section 354-A which refers to erection of brick
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pillars does not establish that there was any work which was being
constructed by the Plaintiff.
55. In the facts of the present case, where the Plaintiff is admittedly
a tenant and claims to have been put in possession of the suit premises
in the year 1984, the inquiry to be conducted by the Trial Court was
whether the Plaintiff had commenced or carried out any work of the
nature described in Section 351 notice. In each case the validity of
Section 351 notice cannot be tested only on the ground whether the
noticee proves that the notice structure is authorised or tolerated. It is
also required to be seen whether there is any foundation for issuance
of Section 351 notice if the noticee has not been shown to have carried
out any addition/alteration. When tested, the notice under Section 351
is unsustainable and is liable to be quashed and set aside.
56. Point No (2) is accordingly answered in favour of the Plaintiff.
AS TO POINT NO (3):
57. The Trial Court has held that the Plaintiff has challenged only
the notice dated 27th December, 2007 and has not challenged the order
dated 13th February, 2008 and therefore the Plaintiff is not entitled to
grant of discretionary relief of injunction. Section 351 notice calls upon
the Plaintiff to show cause as to why the notice structure should not be
demolished. In response to the documents submitted by the Plaintiff,
an order in form of communication dated 13th February, 2008 is
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addressed to the Plaintiff rejecting her documents and explanation.
The communication itself states that the notice structure is liable to be
demolished within seven days of receipt of the letter. There is
sufficient pleading by the Plaintiff to grant the relief of injunction
without specific prayer challenging the order/communication of 13 th
February, 2008. In case of Bhagirath vs Ramprasad (2010) 6 Mah LJ
169, this Court has considered the power of Court to mould relief
under Section 151 of CPC and held as under:
“The Court has power to mould relief which can be
granted on the basis of pleadings and evidence before
it. Section 151 of Code of Civil Procedure lays down
the power of the Court to make such orders as may be
necessary to meet the ends of justice. This also
includes power to give appropriate relief in order to
avoid multiplicity of litigations….”
58. Irrespective of whether there is a specific challenge to the
communication/order of 13th February, 2008, the natural consequence
of grant of prayer clause (a) would render the communication/order
dated 13th February, 2008 sterile.
59. Point No (3) is accordingly answered.
60. In light of the above, following order is passed:
::ORDER::
(a) First Appeal stands allowed.
(b) The impugned judgment and order dated 5 th March, 2020
passed in L.C Suit No 327 of 2008 is quashed and set aside.
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(c) L. C. Suit No. 327 of 2008 is decreed in terms of prayer
clauses (a), (b) and (c).
[Sharmila U. Deshmukh, J.]
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