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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       3417      OF     2012              (Arising out of S.L.P. (Civil) No. 11866  of 2012)

(CC No. 20207/2011)

Municipal Corporation of  Greater Mumbai                   .         ...  Appellant(s)

Versus

Thomas Mathew & Ors.             .... Respondent(s)

J     U     D     G     M     E     N     T   

P.     Sathasivam,J.   

1) Delay condoned.

2) Leave granted.

3) This appeal is directed against the final judgment and  

order dated 10.02.2011 passed by the High Court of  

Judicature at Bombay in First Appeal No. 223 of 2009  

whereby the High Court disposed of the appeal filed by the  

appellant herein with certain modifications in the judgment  

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and decree passed by the trial Court in Notice of Motion No.  

4026 of 2003 in L.C. Suit No.539 of 2002.

4) Brief facts:

(a) The appellant-Corporation is a public body duly enacted  

and formed for the benefit of public at large and to regulate  

and control the unauthorized construction carried out in the  

city of Mumbai.  The respondents are the owners of the suit  

premises.

(b) On 17.04.1998, a notice bearing No. KW/036/AEM/OD  

under Section 314 of the Mumbai Municipal Corporation Act,  

1888 (hereinafter referred to as “the MMC Act”) was issued to  

all persons who are in occupation of the Patra structures  

which are constructed on foot paths and streets situated near  

Empire House on Veera Desai Road, Last Bus Stop, Andheri  

(West), Mumbai directing to remove the said Patra Sheds etc.  

together with their belongings within two days.  On failure to  

comply with the said direction, the Corporation demolished  

the unauthorized structures raised by the respondents on  

22.04.1998.  

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(c) Again on 19.12.2001, the Corporation issued notice  

under Section 354A of the MMC Act bearing No.  

KW/BF/354A/2154/JE-V/SEB-II directing the respondents to  

stop the erection of structure/execution of the work forthwith  

failing which the same shall be removed.  

(d) Questioning the said notice, the respondents filed L.C.  

Suit No. 6650 of 2001 before the City Civil Court, Bombay.  By  

order dated 21.12.2001, the Civil Judge restrained the  

Corporation from taking any action in pursuance of the notice  

issued under Section 354A of the MMC Act till filing its reply  

affidavit in the suit.   

(e) On 08.01.2002, the Corporation issued another notice  

under Section 314 of MMC Act being KW/1138/AEM/OD  

directing the respondents to demolish the reconstructed  

structure on the very site which was demolished by the  

Corporation earlier on 22.04.1998.  The respondents replied to  

the above notice through their advocate stating that the said  

notice was illegal and bad in law.   

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(f) After filing of the reply affidavit by the Corporation in L.C.  

Suit No. 6650 of 2001, the Civil Judge by order dated  

19.01.2002 discontinued the injunction order passed earlier.   

(g) Challenging the notice dated 08.01.2002 issued by the  

Corporation under Section 314 of MMC Act, the respondents  

filed Suit No. 539 of 2002.   

(h) On 25.01.2002, Suit No. 6650 of 2001 was dismissed as  

withdrawn.   

(i) On 16.09.2003, the Corporation demolished the  

unauthorized suit structure.   Justifying its action taken in  

public interest, the Corporation filed its written statement and  

additional written statement in Suit No. 539 of 2002 on  

30.06.2004 and 14.03.2005.  By order dated 06.01.2009, the  

Civil Judge partly decreed the suit declaring that notice dated  

08.01.2002 issued by the Corporation under Section 314 of  

the MMC Act was illegal and allowed the respondents to  

reconstruct the said structure as it was prior to the demolition  

at their own cost.   

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(j) Being aggrieved by the aforesaid order, the Corporation  

filed First Appeal being No. 223 of 2009 before the High Court.  

Vide order dated 10.02.2011, the High Court confirmed the  

decree passed by the trial Court with certain modifications.

(k) Being aggrieved by the order passed by the High Court,  

the appellant-Corporation has filed this appeal by way of  

special leave before this Court.

5) Heard Mr. R.P. Bhatt, learned senior counsel for the  

appellant and Mr. Thomas Mathew, respondent No.1, who  

appeared in person.   

6) Though learned senior counsel for the appellant insisted  

that in view of the fact that the suit structure (shops) situate  

on the road margin which belongs to the appellant-

Corporation, admittedly the said stand was not substantiated  

either before the trial Court or the High Court by placing any  

documentary evidence.  In fact, the trial Judge, in his  

judgment, in para 21, pointed that in the year 1996, when the  

affidavit in reply filed in the earlier suit not to take action  

without following due process of law, the defendants  

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(Municipal Corporation) have never stated that the suit  

premises is falling on the road and also denied that they have  

ever demolished the suit premises.  It was further pointed out  

that the question arise as to why and how they have allegedly  

issued the notice under Section 314 of the MMC Act and  

demolished the suit premises.  The finding is that the  

defendants have not issued any notice under Section 314 of  

the MMC Act.  Even before the High Court, the appellant-

Corporation was not in a position to place any material in  

support of its claim.  As a matter of fact, before the High  

Court, it was pointed out by the 1st respondent, who appeared  

in person about the amendment of the plaint directing the  

appellant to provide an alternative site or land in similar  

locality so that the respondents can reconstruct their  

structure.  The appellant-Corporation and their counsel failed  

to take note of the amendments made in the original plaint.  

Even in this Court, the appellant has not placed the amended  

copy of the plaint and the entire claim of the respondents as  

projected before the Courts below.  As a matter of fact, Mr.  

Thomas Mathew, the first respondent appearing in person on  

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behalf of the respondents, took us through various pages and  

pointed out that the appellant-Corporation has deliberately  

omitted certain paragraphs.  On going through the same, we  

agree with the claim of the first respondent that the relevant  

portions have not been correctly filed before us.  No doubt,  

learned senior counsel for the appellant by filing certain  

documents as additional evidence wants to project that the  

property in dispute belongs to the appellant-Corporation and  

the structure put up by the respondents is unauthorized,  we  

asked a pertinent question why those materials have not been  

placed either before the trial Court or at least before the High  

Court for which Assistant Commissioner K/West Ward of  

Mumbai has filed an affidavit stating as follows:

“I state that Petitioner Corporation could not produce the  ownership documents of set back land before City Civil  Court/High Court.  If the Petitioner Corporation had  produced the documents of ownership of set back land, the  Hon’ble Court would not have passed the orders in favour of  respondents.  I, therefore, say and submit that the  petitioners being aggrieved by the Hon’ble High Court’s order  dated 10.02.2011 for reconstruction of the suit structure has  filed the present Special Leave Petition in this Hon’ble Court  which is in the interest of public at large.”

We are unable to accept the lame excuse set up by the  

appellant-Corporation.  It is not the case of the appellant that  

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they are unaware of the procedure and how to contest their  

case when they are contesting thousands of cases on behalf of  

the Municipal Corporation.  Inasmuch as the relevant  

materials have not been placed by the appellant either before  

the trial Court or before the High Court, considering the  

alternative direction issued by the High Court in the impugned  

order which is quite reasonable, we are not inclined to go into  

those materials at this juncture.   

7) If the appellant wants to keep the site open, in public  

interest, we are of the view that they are bound to comply with  

the direction No.2 in the impugned judgment.  For compliance  

of the above direction of the High Court, the appellant is  

granted six months time from today failing which the  

respondents are free to execute the modified judgment of the  

High Court at once.  We are constrained to arrive at such a  

conclusion only because of the inaction on the part of the  

officers of the appellant-Corporation before the Courts below.   

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8) In the light of the above discussion, the appeal fails and  

the same is dismissed.  Inasmuch as the first respondent i.e.  

Mr. Thomas Mathew, who is fighting the case on behalf of all  

the respondents by appearing in person in this Court, we  

award a cost of Rs. 25,000/- to him payable by the appellant-

Municipal Corporation within a period of eight weeks from  

today.              

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (J. CHELAMESWAR)                                   

NEW DELHI; APRIL 9, 2012.

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