Bombay High Court
Shahzad H. Bakht Thr.His Constituted … vs Municipal Corporation Of Greater … on 16 April, 2025
2025:BHC-AS:17272
FA-1288-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1288 OF 2023.
1. Shahzad H. Bakht ]
Age: 63 Years, Occ: Business, of Mumbai, ]
Indian Inhabitant, through his ]
Constituted Attorney Mrs. Shahnavaz ]
Aspi Marker, of Mumbai, carrying on ]
business in the Name of M/s. New York ]
Stores & Restaurant, at 44, Dabholkar ]
Building, Ground Floor, N. S. Patkar Marg, ]
Mumbai - 400 007. ] ... Appellant.
Versus
1. Municipal Corporation of Greater ]
Mumbai, having its Office at Mahapalika ]
Bhavan, Mahapalika Marg, Fort, Mumbai ]
- 400 001. ]
2. Satchidanand S. Dabholkar ]
Age- 81 Years, of Mumbai, Indian ]
Inhabitant, Residing at Anand-Kanan, 31, ]
Pandita Ramabai Road, Mumbai 400 007 ]
and also at 44, Dabholkar Building, N. S. ]
Patkar Marg, Mumbai - 400 007. ] ...Respondents.
------------
Mr. Ranjit A. Thorat, Senior Advocate a/w Mr. Pradeep J. Thorat, Ms. Aditi S.
Naikare for the Appellant.
Ms. Pallavi Khale for Respondent-Corporation.
Mr. Satyavan N. Vaishnav, Ms. Nupur J. Mukherjee i/b M/s. N. N. Viashnawa and
Co. for Respondent No. 2.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on: February 11, 2025.
Pronounced on : April 16, 2025. 2025.
JUDGMENT :
Shubham Talle / Patil-SR(ch) 1 of 27
FA-1288-2023.doc
1. The First Appeal impugns the judgment and order dated
29th November, 2023 passed in L.C. Suit No 1508 of 2014 dismissing the
suit filed challenging the notice dated 26th March, 2013 issued under
Section 351 of the Mumbai Municipal Corporation Act, 1888 (“the MMC
Act“) and the orders of Corporation dated 14 th August, 2013 and 4th
June, 2014.
PLEADINGS:
2. The case of the Plaintiff was of continuous tenancy in
respect of Shop Nos 1, 2 and 3 together with mezzanine floor since the
year 1930 continuously. It was pleaded that the Plaintiff was issued
separate municipal trade license for the restaurant business and for
the permit room on mezzanine floor, each admeasuring 125 square
meters. In the year 1977-78, the repair plan of Dabholkar building in
which the suit premises is situated was approved by Corporation under
IOD.No.ED-9545/A-1977-78. Under RTI application dated 4 th June,
2012, the Plaintiff sought the sanctioned plan of Dabholkar building
and he was informed by Corporation that there is no proposal for
development/redevelopment or repairs of the suit building.
3. The suit premises was initially used for storage and
recently the suit premises was cleaned and tenantable repairs were
carried out before being used as permit room along with remaining
portion of mezzanine floor. The notice dated 26 th March, 2013 issued
Shubham Talle / Patil-SR(ch) 2 of 27
FA-1288-2023.docunder Section 351 of MMC Act initially culminated into an order dated
14th August, 2013 against the Plaintiff, which came to be challenged by
filing Writ Petition No. 2119 of 2013 before the High Court. By order
dated 22nd August, 2013 the matter was remanded and upon remand,
the order dated 4th June, 2014 was passed by the Corporation
observing that the building plan IOD.No.ED-9545/A-1977-78 dated 5 th
November, 1997 do not show the suit premises and that the
verification from the ward office shows that the plan furnished by
Defendant No. 2 tallies with the office record. It was also observed
that the report of the medical officer (Health) shows that the area
mentioned in the trade license are not for separate areas and that the
suit premises is not assessed to municipal taxes. As the order of
demolition of suit premises was passed, the suit came to be filed.
4. The Defendant Nos. 1 by its written statement contended thats
upon receipt of complaint from Defendant No 2 of unauthorised
construction of mezzanine floor, the matter was referred to the
medical officer health/ D Ward for their remarks. During site
inspection on 22nd March, 2013, part mezzanine floor admeasuring 8.6
mtr x 2.6 mtr x with height of 2.8 mtr constructed with wooden
planks/acrylic glass material and wooden joists was found in existence.
Notice dated 26th March, 2013 came to be issued under Section 351 of
MMC Act and after hearing, the order dated 14 th August, 2013 was
Shubham Talle / Patil-SR(ch) 3 of 27
FA-1288-2023.doc
passed and pursuant to the remand by the High Court, fresh order
dated 4th June, 2014 of demolition was passed.
5. The Defendant No 2 filed his written statement contending that
the suit premises was illegally constructed in or around February, 2013.
In 1976, the Plaintiff desired to start permit room and put up plan for
obtaining permission from Corporation for one W.C. and the plan
clearly shows the position prevailing in the year 1977. In the year 2011,
the Plaintiff by communication dated 9th December, 2011 sought
Defendant No 2’s permission for renovation and the plan annexed to
the letter shows half mezzanine floor and other half open to ceiling.
The Plaintiff illegally extended the mezzanine floor and constructed
two toilets on the mezzanine floor. There are no sanctioned plans
available and under RTI, the Defendant No 2 had obtained documents
of File no EB/9545/A which were submitted by the Plaintiff’s father in
the year 1977.
EVIDENCE:
6. The Plaintiff examined himself and deposed as to the
contents of the plaint. In cross examination by Corporation, PW-1 has
given the following admissions:
(a) the notice structure is made of different material from rest of
mezzanine floor.
Shubham Talle / Patil-SR(ch) 4 of 27
FA-1288-2023.doc
(b) IOD NO EB/9545/A of 1977-78-Exhibit 21 mentions the name of this
father alongwith the Architect and was approved by Corporation and
that he has not produced the plan alongwith IOD.
(c) He has not produced permission in respect of the notice structure.
He is not required to assess the notice structure and therefore it is not
assessed.
7. PW-1 has given the following admissions in cross
examination by Defendant No 2:
(a) IOD-Exhibit 21 is addressed to his father’s Architect and there is
possibility that the plan was referred with the document
(b) IOD was applied for washroom and prior to the year 1977, there
was no washroom in the premises.
(c) Letter dated 9th December, 2011-Exhibit 39 was written by him to
his landlord before making tenantable repairs and along with letter he
had furnished copy of floor plan of the suit premises.
(d) The plan dated 5th November, 1977 may be the plan sent by this
father to the Architect
(e) He has no document to show that the mezzanine floor was in
existence prior to 1961-62 and was legally authorized by the
Corporation and no assessment record.
8. On behalf of the Corporation, the Sub Engineer was
examined as DW-1 , who deposed that after receiving remarks from
Shubham Talle / Patil-SR(ch) 5 of 27
FA-1288-2023.doc
the medical officer health D-Ward in respect of mezzanine floor , the
site was inspected by concerned Junior Engineer on 22 nd March, 2013
when part mezzanine floor was found in existence. He has deposed
that during hearing, the Defendant No. 2 had submitted copy of the
toilet block plan which was verified with the building proposal
department and remarks were obtained stating that plans were
available with the Assistant Engineer (Building Proposal) City 3 and the
same tallies with their office records. He has further deposed that
remarks of assessment department were already obtained and the said
notice work is not assessed and thereafter the order of demolition has
been passed.
9. In cross examination by Defendant No 2, DW-1 was
confronted with the copy of entire file of IOD.No.ED-9545/A-1977-7
obtained under RTI containing 71 pages which was admitted by DW-1
and came to be marked as Exhibit – 49. Upon being confronted with
plan at page 34 of the file, DW-1 has admitted that portion of
mezzanine floor shown in the notice exhibit-22 is shown in the copy of
the plan encircled in red pen. The encircled portion in red pen came to
be marked as Exhibit 50.
10. DW-1 was extensively cross examined by the Plaintiff on
Exhibit-49 which was the file of IOD.No.ED-9545/A-1977-78.
11. The following documentary evidence was produced:
Shubham Talle / Patil-SR(ch) 6 of 27
FA-1288-2023.doc
By PW-1:
1. Exh. 15 Sr. No. 1 (a to h) rent receipts.
2. Exh. 16 registration certificate
3. Exh.17 and 18 licenses issued by health department of defendant
No. 1
4. Exh. 19 license,
5. Exh. 20 Shops and Establishment Certificates,
6. Exh. 21 I.O.D. relating to the suit property.
7. Exh. 22 Notice
8. Exh.23 letter issued by the defendant corporation
9. Exh. 24 office copy of reply issued by the advocate for plaintiff
10. Exh. 25 letter issued by the defendant corporation
11. Exh. 26 office copy of reply issued by the advocate for plaintiff
and bearing acknowledgment by defendant
12. Exh. 27 letter issued by corporation
13. Exh. 28 order dated 14/08/2013 passed by the corporation
14. Exh. 29 order passed in W. P. (L) No. 2079 of 2013, WP. No.
2119/2013
15. Exh. 30 order dated 04/06/2014 passed by the defendant
corporation.
16. Exh. 31 to 36 photographs
17. Exh. 39 (colly) copy of floor plan.
By DW-1 in deposition and cross examination:
1. Exh. 46 copy of complaint dt. 06/03/2013
2. Exh. 47 copy of complaint of Shri Dabholkar dtd.03/04/2014 to
the Asst. Engineer ( B and F) D Ward,
3. Exh. 49 (colly) file containing71 pages
4. Exh. 50 Red circled portion
5. Exh. 50A left hand side sketch of ground floor
6. Exh. 50B Right hand side sketch is in respect of mezzanine floor
7. Exh. 51 report of Medical Officer (Health).
Shubham Talle / Patil-SR(ch) 7 of 27
FA-1288-2023.doc
12. The issues framed and answered by the Trial Court are as
under:
Sr. Issues Findings
No
1 Whether the plaintiff proves that Notice In the negative.
bearing No. D/BLDG/JE/215/1319/BF dt. 26th
March, 2013 issued under Section 351 of MMC
Act and orders bearing No. D/BLDG/JE-
215/1319/BF dtd. 14th August, 2013 & bearing
No. OACD/511/B dt. 4th June, 2014 passed by
the Assistant Engineer, Building & Factories
Department & Designated Officer, D/Ward are
illegal and bad in law ?
2 Whether the plaintiff proves that the In the negative.
mezzanine floor was in existence even prior to
1st Apri, 1962 ?
3 Whether the defendant No. 2 proves that the In the affirmative
plaintiff together with defendant No. 1 had with reference to
illegally and unauthorisedly the mezzanine the Plaintiff only
floor and constructed two toilets in the
Restaurant without the knowledge and
permission of the defendants ?
4 Whether the plaintiff is entitled for the reliefs In the negative
as claimed ?
FINDINGS BY TRIAL COURT:
13. The Trial Court noted the admissions of PW-1 and the
specific admission that PW-1 has no document to prove that the
mezzanine floor was in existence prior to 1961-62 and does not have
assessment record.
14. The Trial Court further noted the deposition of DW-1 that
Shubham Talle / Patil-SR(ch) 8 of 27
FA-1288-2023.docthe plan submitted by Defendant No 2 during hearing was verified with
the relevant department and remarks of assessment department was
that the notice work is not assessed to municipal taxes. The Trial Court
held that the Plaintiff has failed to prove existence of notice structure
prior to datum line and dismissed the suit.
SUBMISSIONS:
15. Mr. Thorat, learned Senior Advocate appearing for the
Appellant would submit that by the remand order, though the High
Court directed the Corporation to carry out detailed inquiry, the
designated officer has mainly relied upon the plan dated 5 th November,
1977 prepared by the Appellant’s Architect for construction of toilet
on ground floor and the same is neither approved nor sanctioned. He
submits that the impugned order records that the plan bearing
IOD.No.ED-9545/A-1977-78 dated 5th November, 1977 tallies with the
documents available in their office and as per the said approved plan it
is revealed that the notice work is not approved, without specifying the
documents as admittedly no record in respect of the suit building was
available with the Respondent-Corporation. He submits that in the
cross examination, DW-1 has admitted that the order under Section
351 is passed by relying on the IOD of the year 1977. He submits that
the Designated Officer does not accept that separate licenses are
issued for eating house and permit room without specifying any reason
Shubham Talle / Patil-SR(ch) 9 of 27
FA-1288-2023.docfor dual payment. He points out from the municipal trade licenses that
the license for the eating house and the permit room bear two
different numbers and are for different areas and fees charged are
also separate. He submits that though it is not stated in the license
that the permit room is on mezzanine floor they cannot be two trade
licenses for the same premises.
16. He submits that the plan dated 5th November, 1977 was
produced by Defendant No2 during the hearing on 3 rd April, 2014,
cannot be relied upon as it was not for mezzanine floor but for
construction of toilet on ground floor. He submits that during cross
examination of DW-1, he was confronted with the file containing 71
pages which was marked as Exhibit-49, though objection was raised.
He submits that the DW-1 has admitted that the original file is not
available with the BMC and that the entire file Exhibit-49 is pertaining
to proposal for construction of toilet on the ground floor. He submits
that DW-1 has also admitted that plan Exhibit-50 is not the approved
plan and that there is variance in the hand writing and approval stamps
on the various plans contained in Exhibit-49. He submits that the
documents could not have been produced by the Defendant No 2
during cross examination of DW-1 as the same is contrary to the
provisions of Order-VIII Rule 1-A and Order-XIII Rule (1)(3) of CPC and
thus inadmissible in evidence. He would submit that the documents are
Shubham Talle / Patil-SR(ch) 10 of 27
FA-1288-2023.doc
photo copies and no foundation for leading secondary evidence has
been led. He would further submit that mere exhibition of the
document does not amount to proof and no evidence has been led by
Defendant No 2 to prove Exhibit 49. He submits that there was no
material before the Corporation to conclude that portion of the
mezzanine floor is unauthorized and not in existence prior to datum
line. He submits that there is no evidence that the rateable value of
suit premises has increased due to increase in area of mezzanine floor
and infact the report of the assessment department shows that there
is no change in rateable value. He submits that the burden was upon
the MCGM to show that the notice structure is unauthorized and is
constructed contrary to the sanctioned building plan. In support he
relies on the following decision.
Laxmikant Sinal Lotlekar vs. Raghuvir Sinai Lotlekar 1
Geeta Marine Services Pvt. Ltd. vs. State and Anr.2
Mahendra Gulabchand Kochar vs. Sakharam Ramdas Patil3
Vadilal Maganlal Trevadia vs. Bombay Municipal Corporation 4
17. Ms. Khale, learned Counsel appearing for the Respondent-
Corporation would submit that remarks were obtained from Medical
Officer (Health) D-ward that the licenses are not in respect of different
1 1984 Mah LJ 938
2 2008 SCC Online Bom. 924
3 2009 SCC Online Bom 493
4 2020 SCC Online Bom 702
Shubham Talle / Patil-SR(ch) 11 of 27
FA-1288-2023.doc
areas. She submits that the licenses only mentions the area and does
not show the existence of the notice structure prior to datum line. She
submits that the unauthorised construction of notice structure was
detected during site inspection on 22 nd March, 2013. She submits that
after remand fresh hearing was given and no additional documents
were submitted and the plan submitted by Defendant No 2 was
approved by Executing Engineer (Building Proposal) City-I wherein the
alleged work is not reflected. She submits that the said plan was
verified with the concerned department which offered their remarks
that the plans tallies with their office records. She submits that the
remarks of the assessment department were already obtained that the
notice work is not assessed to municipal taxes and thereafter the
impugned order came to be passed. She submits that the burden was
upon the Plaintiff to show existence of structure prior to datum line
i.e. 1st April, 1962 which the Plaintiff failed to prove. She submits that
as far as mezzanine floor policy is concerned, the policy is applicable
only to mezzanine floor and lofts constructed prior to 15 th August,
1997 in existing authorized building and was therefore not applied in
the present case. She submits that as per the DC Rules 1991 the area of
mezzanine floor which is claimed ot be equivalent to the area of
ground floor cannot be said to be mezzanine floor. She submits that as
there are no documents which have been produced either show
Shubham Talle / Patil-SR(ch) 12 of 27
FA-1288-2023.doc
authorization or to show existence of the structure prior to the datum
line the appropriate orders of demolition has been passed. In support
she relies upon the following decision:
Seema Arshad Zaheer vs. Municipal Corporation of Greater Mumbai5
18. Mr. Satyavan N. Vaishnav, learned Counsel appearing for
the Defendant No 2 submits that prior to 2011 the original mezzanine
floor was open to ceiling as is evident from the communication dated
9th December, 2011 which document has been admitted by PW-1 in his
cross examination. He submits that PW-1 has admitted about the filing
of application with the Corporation for permission to construct W.C. on
the ground floor where the portion now illegally constructed is shown
as open to ceiling. He has taken this Court through the admissions of
PW-1 and would submit that PW-1 has admitted that he has no records
to show either authorisation or existence of notice structure prior to
datum line. He would further submit that DW-1 was confronted with
the IOD file, which was admitted by him and thus marked in evidence
as contents stood proved. He submits that PW-1 had only produced
the copy of IOD and not the plan annexed along with the IOD. He
would further point out the plan submitted for the purpose of
construction of the toilet in the year 1977 and would point out that the
same would show that the area was open to ceiling.
5 (2006) 5 SCC 282
Shubham Talle / Patil-SR(ch) 13 of 27
FA-1288-2023.doc
19. He submits that mere difference in the license number of
ground floor and first floor is immaterial as the area of the disputed
mezzanine floor is 201.24 sqr. ft. He submits that Defendant No 2 was
not required to step into the witness box as all documents were
admitted by DW-1 and admitted facts need not be proved. He submits
that the burden was upon the Plaintiff to establish to prove
authorization or the structure being tolerated which he did not prove
and therefore the onus did not shift. He would further submit that the
circular of mezzanine floor will not apply in the present case as the
unauthorized construction is of the year 2011. In support he relies
upon following judgments:
Seema Arshad Zaheer vs. Municipal Corporation of Greater Mumbai6
Kasam Ali Momin vs. Municipal Corporation of Greater Mumbai7
ANALYSIS AND CONCLUSION:
20. The validity of the notice issued under Section 351 of MMC Act
and the orders of demolition passed therein is the issue arising for
consideration. Whether the notice structure was in existence prior to
the datum line i.e. 1st April, 1962 will have relevant bearing on the
validity of the impugned notice and order.
6 (2006) 5 SCC 282
7 (2008) 1 SCC 597
Shubham Talle / Patil-SR(ch) 14 of 27
FA-1288-2023.doc
21. The challenge to the impugned notice and orders passed
thereon can be sustained in event the notice structure is either shown
to be authorised as approved by the Corporation or is a tolerated
structure being in existence prior to the datum line.
22. The Plaintiff seeks to protect the notice structure on the ground
that it was in existence prior to the year 1962. In response to the
notice issued under Section 351 of MMC Act, the main documents on
which reliance was placed by the Plaintiff were the two municipal trade
licenses No. 761469093 and 761469097, which according to the
Plaintiff, are issued separately for running the eating house on the
ground floor and for the permit room on the mezzanine floor and IOD
No.ED-9545/A-1977-78 issued by the Corporation approving the plans
submitted for repairs to Dabholkar building.
23. The Designated Officer rejected the Plaintiff’s documents as not
supportive of the existence of the notice structure prior to the datum
line. While ordering demolition, the Designated Officer took into
consideration (a) Remarks obtained from the building proposal
department, which stated that the plan dated 5 th November, 1977
bearing EB/9545/D tallies with their record and the approved plan
reveals that the notice work is not approved by the building proposal
department.
(b) Verification from M.O.H department that the two municipal trade
Shubham Talle / Patil-SR(ch) 15 of 27
FA-1288-2023.doc
licenses are issued for same area of 125 square meter.
(c) Remarks from Assessment department that notice work is not
assessed to municipal taxes.
24. The first and foremost thing to be borne in mind is that the
burden is upon the Plaintiff to prove that the notice structure was in
existence prior to the datum line. Mr. Thorat would question the
reliance placed on the remarks obtained from the building proposal
department as the response to the Plaintiff’s RTI application was that
there is no proposal for development/re-development or repairs
received in relation to Dabholkar building. Apart from the fact that the
deficiencies in the impugned order cannot assist the case of the
Plaintiff, the submission overlooks the fact that it is the Plaintiff’s own
case that in the year 1977-1978, the plans for repair was submitted by
the Plaintiff’s father which was approved under IOD No EB/9545/A of
1977-1978. PW-1 produced the IOD in evidence without the
accompanying plan. As the IOD is the Plaintiff’s own document, it is
now not open to the Plaintiff to question the verification of the repair
plan by the Designated Officer from the building proposal department
based on the RTI response. The production of IOD by PW-1 establishes
that repair plans were submitted in the year 1977-1978 to the
Corporation and the response of the department to the RTI
application is immaterial.
Shubham Talle / Patil-SR(ch) 16 of 27
FA-1288-2023.doc
25. During the hearing of Section 351 notice, the Defendant No 2
produced the copy of the plan approved under IOD bearing no
EB/9545/D dated 5th November, 1977 based on which the Designated
Officer holds that the notice structure is not approved. Though PW-1
produced the copy of IOD, he did not produce the plan approved under
the IOD. DW-1 deposes about the copy of plan submitted by
Defendant No 2 during the hearing before the Assistant Engineer and
produced the copy of the plan submitted by Defendant No 2 during the
hearing.
26. The plan dated 5th November, 1977 approved under the
concerned IOD was first attempted to be introduced in evidence by
the Defendant No 2 through the cross examination of PW-1, who did
not admit the plan to be the same plan submitted by his father to the
Corporation. Another attempt was made by Defendant No 2 through
DW-1 i.e. the Corporation’s witness who was confronted with the entire
file of IOD.No.ED-9545/A-1977-78 containing 71 pages which DW-1
admitted is the same file containing documents filed by the Plaintiff
and permission granted by the Corporation. As DW-1 admitted the
entire file of the IOD, the same was marked as Exhibit 49 and the plan
at page 34 of Exhibit 49 was marked as Exhibit 50.
27. The Trial Court admitted in evidence the entire file of IOD
alongwith the plans as DW-1 admitted the contents of the entire file of
Shubham Talle / Patil-SR(ch) 17 of 27
FA-1288-2023.doc
IOD in cross examination by Defendant No 2. It is upon the complaint
of Defendant No 2 that necessary action was initiated by the
Corporation of demolition of mezzanine floor. In such facts, whether it
was permissible for Defendant No 2 to cross examine the Co-
Defendant deserves consideration. In that context, it will be relevant
to refer to the provisions of Evidence Act. Section 137 and Section 138
of the Evidence Act permits the cross examination of witness by
adverse party. The provisions make it clear that the right of cross
examination is available to an adverse party. The interests of the co-
defendants has to be demonstrated to be adverse to exercise the right
of cross examination of co-defendant. The Defendant No 1 and 2
cannot be said to adversarial parties as there was not conflicting
interest and the cross examination of DW-1 by Defendant No 2 being
impermissible will have to be discarded. In such eventuality, the
Defendant No 2 could not have confronted DW-1 with the file of IOD
and the same could not be admitted in evidence.
28. The matter would have rested here by discarding Exhibit 49.
However, the Advocate for Plaintiff went a step further and conducted
extensive cross examination of DW-1 on Exhibit 49. It would be useful
to reproduce the relevant portion of cross examination of DW-1 by the
Learned Advocate for the Plaintiff:
Shubham Talle / Patil-SR(ch) 18 of 27
FA-1288-2023.doc
“4. It is true to say that the entire file in Exhibit 49 is pertaining to
the proposal for construction of toilet(w.c) on the ground floor. It
is true to say that at page 12 of Exh 49 there is NOC issued by the
owner of the said building. It is true to say that page no 34 of Exh
49 there is a plan in which w.c. is to be constructed. It is true to
say that in the plan Exh. 50, two sketches are shown. It is true to
say that left hand side sketch is in respect of ground floor. (On
the request of Ld. Adv. For Plaintiff the left hand sketch of
ground floor is separately mark as Exhibit 50-A. It is true to say
that right hand side sketch is in respect of the mezzanine floor.
(On the request of Ld. Adv. For Plaintiff the left hand sketch of
ground floor is separately mark as Exhibit 50-B.) It is true to say
that on the plans at page no 34, 35, 37 and 48, there is no
approval stamp of the Assistant Engineer Building and Proposal.
It is true to say that handwriting in the approval stamp at page
no 69 is different as compared to the handwriting in the approval
stamp at page no 70 and 71 plan. It is true to say that at plan at
Page 18 below Exh 47 is submitted in the Court by the BMC. It is
true to say that the handwriting in the approval stamp in the
plan at page 18 below Exh 47 is not tallied with the handwriting
in the approval stamp in the plan at page 69 of Exh. 49.”
29. The cross examination of DW-1 on Exhibit 49 shows that the case
of the Plaintiff put to DW-1 is that the file Exhibit 49 is the same file
which was submitted by the Plaintiff’s father to the Corporation for
obtaining permission for construction of toilet on ground floor. The
cross examination not only accepts that Exhibit 49 is the proposal
submitted by the Plaintiff’s father but goes a step further and seeks
exhibiting of plan Exhibit 50 as Exhibit 50A and Exhibit 50B. It further
admits that Exhibit 50 is submitted plan and that plan at Page 18 below
Exhibit 47 , which was the tendered in evidence by DW-1, which was
copy of the plan submitted by the Defendant No 2 during the hearing,
is the approved plan.
30. By putting up the Plaintiff’s case in the cross examination of DW-
Shubham Talle / Patil-SR(ch) 19 of 27
FA-1288-2023.doc
1 on Exhibit 49, the admission is that said file is the proposal
submitted by the Plaintiff’s father for construction of toilet on ground
floor and the plan at page no 69 below Exhibit 49 is approved plan.
Though the discrepancy in the handwriting in the approval stamps in
the plan below Exhibit 49 and below Exhibit 47 were sought to be
brought out in the cross examination, the Plaintiff has admitted that
plan below Exhibit 49 was the approved plan. Irrespective of the fact
whether the plans were approved or sanctioned, the plans were
submitted by the Plaintiff which cannot now be disowned by the
Plaintiff. The cross examination of DW-1 by the Plaintiff proves the
contents of Exhibit 49 and there was no further need for Exhibit 49 to
be proved by any party by stepping into witness box as Section 58 of
Evidence Act provides that admitted facts need not be proved.
31. Even if we ignore the sketches, which at the instance of Learned
Advocate for Plaintiff came to be marked as Exhibit 50A and 50B as
Exhibit 50 did not contain the approval stamp, the Plaintiff’s case is
that plan at Page no 69 below Exhibit 49 is the approved plan. The said
plan bears the same number as that of IOD of 1977-1978 and has been
submitted by Architect V.D. Joglekar and Company. PW-1 has admitted
that the said Architects are his father’s architects. The evidence on
record establishes the probability that the plan below Exhibit 49 is the
same plan which was approved under the IOD produced by PW-1.
Shubham Talle / Patil-SR(ch) 20 of 27
FA-1288-2023.doc
32. The plan below Exhibit 49 shows the ground floor portion, the
service area, partition, kitchen, storage etc and the mezzanine floor
which is partly constructed shows the existing family rooms, cabin and
the portion which is subject matter of Section 351 notice is open to the
ceiling. Even if the plan was for the purpose of seeking permission of
construction of toilet, the plan has admittedly been submitted by the
Plaintiff’s father through his Architect and there is no explanation as to
why only the notice structure is missing from the repair plan when the
plan reflects all existing works in the ground floor and mezzanine floor
portion. The only conclusion which could be arrived at by perusing the
repair plan is that the notice structure was not in existence in the year
1977-1978 when the repair plan came to be submitted. As the issue
revolves around the existence of the notice structure prior to the
datum line of the year 1962, the repair plan plays an important role to
determine that the notice structure was not in existence in the year
1977-1978 when the plans came to be submitted for approval.
33. Though it is sought to be contended by Mr. Thorat that the IOD
file Exhibit-49 could not have been marked in evidence, the document
has been used in cross examination of DW-1 by the Plaintiff. The Full
Bench of this Court in Hemendra Rasiklal Ghia vs Subodh Mody (2008
SCC Online Bom 1017) has held in paragraph 81 as under:
Shubham Talle / Patil-SR(ch) 21 of 27
FA-1288-2023.doc
“81. If the objection to the proof of document is not decided and
the document is taken on record giving tentative exhibit, then the
right of the cross examiner is seriously prejudiced. Once the
document is used in cross examination, then the document gets
proved and can be read in evidence as held by the Supreme Court
in case of Ram Janki Devi vs Juggilal Kamlapat 1971 (1) SC 477. If
the cross examiner decided not to cross examine based on
unexhibited document and ultimately, at the fag end of the trail,
the document is held to be admissible and proved, then, the cross
examiner as a rule of fair play would be entitled to further
opportunity to cross examine based on that document resulting in
delayed trial defeating the very object and purpose of
amendment to the Civil Procedure Code.”
34. In Geeta Marine Services Pvt Ltd and Anr vs State and another
(supra), this Court has held in paragraph 21 as under:
“22. The submissions have been made by pointing out a
consistent practice followed in the Courts in Maharashtra that
when a document is referred to during the cross examination
of a witness, the said document is marked as exhibit though it
is not earlier marked as an exhibit. This is nothing but a
practice of convenience. The practice of the marking a
document referred to in the cross examination is only for
purposes of locating and identifying the said document.
Marking a document as exhibit by such process based on
consistent practice followed in Court of Law does not dispense
with the requirement of proof of the execution, contents and
genuineness of the document in accordance with law of
evidence unless the witness concerned admits the execution
and genuineness of the document. Therefore marking a
document in cross examination in this manner will not
dispense with the proof of the document in accordance with
law of evidence.” (Emphasis supplied).
35. DW-1 has admitted that the entire file Exhibit 49 pertained to
the proposal for construction of W.C. on ground floor. He has also
admitted the plans contained in the file. The Learned Advocate for
Plaintiff has not only extensively cross examined DW-1 on Exhibit 49
but by putting up the Plaintiff’s case to DW-1, has virtually admitted
Shubham Talle / Patil-SR(ch) 22 of 27
FA-1288-2023.doc
that proposal was submitted by the Plaintiff’s pre-decessor for
approval of the plans submitted with the proposal contained in Exhibit
49 and plan at Page 69 was approved. The proposal and the plans in
Exhibit 49 could thus be read in evidence.
36. The plan at Page 69 in Exhibit-49 constitute an admission about
the existing position on site at the time when the proposal was
submitted for the purpose of construction of W.C. on the ground floor.
The glaring feature as far as the mezzanine floor is concerned is that
the part of the mezzanine floor is admitted to the constructed of RCC
and wood whereas the notice structure is constructed of wooden
planks and acrylic glass materials and wooden joists, for which could be
no explanation apart from that the notice structure was a subsequent
addition.
37. In cross examination of DW-1, he has admitted that the
documents submitted by the noticee at Sr No 2 and 3 (a) and (b) i.e. the
municipal trade licenses, reply to RTI application and IOD referred to in
the order dated 14th August, 2013 pertained to other department and
separate remarks were not called from those departments. Pertinently,
after remand, fresh hearing was given and the order dated 4 th June,
2014 records that the plan submitted by the Defendant No 2 was
verified from the concerned department and remarks were obtained.
The order further records that remarks were obtained from M.O.H
Shubham Talle / Patil-SR(ch) 23 of 27
FA-1288-2023.doc
stating that said licenses for eating house and permit room are not
issued for two different areas and both licenses are issued for same
area of 125 square feet. The Designated Officer before passing the
impugned order has conducted the necessary enquiry by calling for
remarks on the plan submitted by Defendant no 2, the remarks of the
assessment department and the remarks from M.O.H on the municipal
trade licenses.
38. As far as the separate municipal trade licenses are concerned,
the cross examination of DW-1 shows that report of Medical Officer,
Health was tendered and marked Exhibit 51. However, the same has
not been produced before this Court. Exhibit 17 and Exhibit 18 are the
two trade municipal licenses issued. These licenses are issued under
Section 394 of MMC Act and pertain to the period from 1 st January,
2013 to 31st December, 2013. For eating house and permit room, the
Corporation issues separate licenses, however the issuance of separate
licenses cannot establish that the area of the eating house and permit
room are separate areas. That apart, the municipal trade licenses of
the year 2013 cannot establish that the notice structure was in
existence prior to the year 1962. There are no assessment bills
produced to show that the notice structure was assessed to municipal
taxes prior to the year 1962. On the contrary PW-1 has admitted that
the notice structure is not assessed to municipal taxes which supports
Shubham Talle / Patil-SR(ch) 24 of 27
FA-1288-2023.doc
the observation in the impugned order that M.O.H has stated that
licenses are not issued for two different areas.
39. In cross examination by Defendant No 2, PW-1 was
confronted with letter dated 9th December, 2011 which was
accompanied by floor plan, and was admitted by the PW-1 and came to
be marked as Exhibit 39. In his written statement, Defendant No 2 has
pleaded about the letter dated 9th December, 2011 and the
accompanying plan. The cross examination of DW-1 on Exhibit 49 by
the Learned Advocate for the Plaintiff resulted in proving the contents
of Exhibit 49, which is not the case with Exhibit 39.
40. Mr. Thorat is right in relying upon Laxmikant Sinal Lotlekar vs
Raghuvir Sinai Lotlkear (supra), where it was held that the only
documents which can be produced in cross-examination are those
which are outside the case of each of the parties and those meant to
refresh witness memory. It has further held that the amendment of
1976 introducing Sub Clause 2 of Rule 2 of Order 13 is to remove the
mischief that documents covered by Rule 2 should not find their way in
the evidence by way of cross-examination circumventing the
provisions of law. The Defendant No 2 could not have introduced the
letter dated 9th November, 2011 and the plan which was relied upon by
him the written statement by way of confronting PW-1 with the
documents. Exhibit 39 thus cannot be read in evidence.
Shubham Talle / Patil-SR(ch) 25 of 27
FA-1288-2023.doc
41. Assuming arguendo that the file of IOD Exhibit 49 could not be
read in evidence, even if Exhibit 49 is ignored, the burden was upon the
Plaintiff to show existence of the notice structure prior to the datum
line and not vice versa. The Defendants were not required to discharge
the burden of proving the negative, though Defendant No 2 brought
the repair plan on record to support the impugned order of demolition.
The decision of Vadilal Maganlal Trevadia vs Bombay Municipal
Corporation and others (supra) was rendered in different factual
situation of re-construction of premises and is inapplicable in present
case.
42. PW-1 has admitted that he cannot produce any document that
the mezzanine floor was in existence prior to 1961-62 and was
authorized by the Corporation and that he does not have any
assessment record in respect of the approval of the Corporation to the
mezzanine floor. To show existence of notice structure prior to datum
line, only IOD was produced, which cannot constitute proof of
existence of notice structure prior to datum line. The issuance of two
separate municipal trade licenses only establishes that the Plaintiff
was issued licenses for eating house and permit room, however the
same cannot establish that the notice structure was in existence prior
to the datum line. The Plaintiff has not produced a single document
which would establish the existence of notice structure prior to 1 st
Shubham Talle / Patil-SR(ch) 26 of 27
FA-1288-2023.doc
April, 1962. The evidence on record does not prove that the notice
structure i.e. portion of mezzanine floor was tolerated structure which
is required to be protected. The Trial Court has rightly considered the
evidence on record to come to a conclusion that the existence of notice
structure prior to datum line has not been proved.
43. In light of the above discussion, the challenge to the impugned
notice issued under Section 351 of MMC Act and the impugned orders
passed thereon fails. Resultantly, First Appeal fails and stands
dismissed.
44. In view of the dismissal of the First Appeal, the interim
applications, if any, does not survive for consideration and stands
disposed.
[Sharmila U. Deshmukh, J.]
45. At this stage, the request is made for continuation of the interim
relief for a period of 12 weeks. The said request is opposed by learned
Counsel appearing for the Respondent No. 2. considering that the
interim relief was operating during the pendency of the Trial Court
proceedings, the same is extended for a period of 12 weeks from
today.
[Sharmila U. Deshmukh, J.]
Shubham Talle / Patil-SR(ch) 27 of 27
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 16/04/2025 20:05:35
[ad_1]
Source link