Mr. Bharat Amrutlal Nandu And Anr. vs Municipal Corporation Of Gr. Mumbai

CNR No : HCBM010158862019


3-CAF-1284-2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
MOHAMMAD
AREEB MOHD
AKBAR
Date:
2026.10.28
19:22:44
+0530
MOHAMMAD
AREEB
MOHD
AKBAR
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.627 OF 2019
WITH
CIVIL APPLICATION NO. 1284 OF 2019
WITH
INTERIM APPLICATION NO. 799 OF 2026
IN
FIRST APPEAL NO.627 OF 2019
Bharat Amrutlal Nandu & Anr. … Appellants
Versus
Municipal Corporation of Greater Mumbai
… Respondent
_______
Mr. Aseem Naphade, a/w. Mr. Rohit Upadhyay i/b. Jamshed Ansari for the
Appellants.
Mr. Joel Carlos a/w. Mr. Pradeep M. Patil, i/b. Ms. Komal Punjabi for the
Respondent MCGM.
_______
CORAM : ARIF S. DOCTOR, J.
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RESERVED ON : 16 OCTOBER 2026
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PRONOUNCED ON : 23 OCTOBER 2026
JUDGEMENT :


1. The captioned Interim Application has been filed by the Appellants under
CPC
Order XLI Rule 27 of the Code of Civil Procedure, 1908 (“ ”), seeking
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permission to produce on record, a Notice dated 15 January 1962.
Although the Appellants contend that the said Notice has a direct bearing
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on the merits of the present Appeal, the Interim Application cannot be
allowed, as the Appellants have failed to satisfy the requirements of Order
XLI Rule 27 of the CPC, for production of additional evidence at the
appellate stage. The Respondent has filed a Reply Affidavit, opposing the
Interim Application and has contended that the Application neither sets out
any reason for the Appellants’ failure in producing the document as
evidence before the Trial Court nor clarifies in whose possession the said
document was.
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2. The Appellants contend that the Notice dated 15 January 1962, issued by
the Respondent Authority to one Mr. Vitthal Kamble, establishes that, as
early as January 1962, a structure existed between Shop Nos. 6 and 8.
According to the Appellants, this establishes that the structure against
which the impugned Notice came to be subsequently issued was in
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existence prior to the datum line, i.e., 1 April 1962. The Appellants
therefore contend that the structure cannot be treated as an unauthorised
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structure, since it pre-dated 1 April 1962.
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3. In my opinion, the Appellants have failed to make out a case for permitting
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the Notice dated 15 January 1962 to be produced on record in the present
Appeal. The Appellants have failed to demonstrate the exercise of due
diligence contemplated under Order XLI Rule 27 of the CPC. The
captioned Interim Application is therefore dismissed.
nd

4. The present First Appeal impugns a Judgment and Order dated 22
February 2019 (“ the impugned order ”) passed by the City Civil Court at
Bombay in S.C. Suit No. 1330 of 2012 by which the Trial Court has
dismissed the said Suit filed by the Appellants inter alia seeking a
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declaration that the Notice dated 28 the impugned
January 2011 (“
Notice ”), issued by the Respondent Municipal Corporation under Section
53 of the Maharashtra Regional and Town Planning Act, 1966 (“ MRTP
Act ”), was void.
Submissions on behalf of the Appellants:

5. Mr. Naphade, learned Counsel appearing on behalf of the Appellants,
submitted that the Appellants and his family members had been tenants in
respect of Garage Nos. 5, 6, 7 and 8 in Prem Court Building, Plot No. 119,
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December
Backbay Reclamation Scheme, Mumbai – 400 020, since 27
1999. In support of his contention, he pointed out that the Appellants had
placed reliance upon various documents, including the (i) rent agreement
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dated 17 December 1999 entered into between the landlady and the
Appellants, (ii) rent receipts issued by the landlady, (iii) electricity bills in
respect of Shop Nos. 5, 6, 7 and 8, and (iv) Shops and Establishment
Registration Certificate issued by the Respondent Corporation.

6. Mr. Naphade submitted that the impugned Notice described the structure
in question, as the open space between Garage Nos. 6 and 8 covered with
the said Structure
an RCC (“ ”), as unauthorised and called upon the
Appellants to remove the structure within one month from the date of
receipt of the Notice on the basis that the said Structure was in
contravention of the sanctioned plan of the Respondent, which was dated
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30 April 1987.

7. Mr. Naphade invited my attention to Exhibit “J” to the Plaint to point out
that the Appellants had responded to the impugned Notice vide their
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advocate's letter dated 16 March 2011 and had specifically disputed the
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existence of the sanctioned plan relied upon by the MCGM and called upon
the Respondent to produce the same. He submitted that, despite this, the
Respondent did not produce the said sanctioned plan and hence failed to
justify the very basis on which the impugned Notice had been issued.

8. Mr. Naphade further submitted that, despite the Appellants having replied
to the impugned Notice, the Respondent did not grant them an opportunity
of hearing, nor was any speaking order passed by the Respondent. Instead,
officers of the Respondent continued to threaten demolition, which
constrained the Appellants to institute S.C. Suit No. 1330 of 2012. He
submitted that the Appellants were thereafter protected by the Order dated
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11 March 2016 passed by the learned Trial Court on their Notice of
Motion, whereby the Respondent was restrained from demolishing the said
Structure during the pendency of the Suit.

9. Mr. Naphade submitted that, after considering the rival pleadings, the
learned Trial Court framed the following issues:
1. Whether suit is maintainable in present form?
2. Whether this Court has got jurisdiction to try, entertain and
decide the present suit?
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3. Whether suit is barred by law of limitation?
4. Whether plaintiff proves that notice in question is illegal, bad in
law?
5. Is plaintiff entitled for declaration and injunction as sought for?
6. Whether defendant is entitled for any compensatory cost?
7. What decree and Order?

10. Mr. Naphade submitted that, although the Trial Court had answered Issue
Nos. 1 to 3 in favour of the Appellants, the Suit was dismissed since Issues
Nos. 4 to 6 were answered against the Appellants. It was thus he submitted
that the present Appeal had been filed in which the Appellants were
assailing the impugned order as also the impugned Notice.
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11. Mr. Naphade submitted that, on 10 December 2016, the Appellants had
filed an Additional Affidavit before the Trial Court, seeking to bring on
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record a Letter dated 4 March 1963 issued by the Respondent to one Mr.
Vitthal Kamble, who, according to the Appellants, was then occupying the
said Structure. He submitted that the letter clearly established that the said
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Structure existed prior to the purported sanctioned plan dated 30 April
1987 which was never produced.
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12. Mr. Naphade submitted that the Respondent had led the evidence of its
Engineer, Mr. Vishwas Dhende, who filed his Affidavit of Examination-
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in-Chief on 11 April 2018, and was thereafter cross-examined. He pointed
out that, during cross-examination, Mr. Dhende had, inter alia , admitted
that (i) he was unaware of who had prepared the inspection report dated
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21 February 2011, which formed the basis of the impugned Notice, and
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(ii) was unable to produce the sanctioned plan dated 30 April 1987. Mr.
Naphade therefore submitted that the Respondent had failed to establish
that the said Structure was unauthorised or contrary to the sanctioned plan
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dated 30 April 1987.

13. Mr. Naphade submitted that the Trial Court had dismissed the Suit
primarily on the ground that the Appellants had failed to sufficiently
describe the said Structure. He, however, submitted that what the Trial
Court had failed to consider was that the impugned Notice itself was legally
defective since the sanctioned plan, which formed the very basis of the
impugned Notice, was nowhere to be found. He was also then at pains to
point out that no issue was framed by the Trial Court regarding whether
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the suit property had been sufficiently described by the Appellants and,
therefore, the Trial Court had gravely erred in dismissing the Suit on that
basis.

14. Mr. Naphade further submitted that the impugned Notice had been issued
under Section 53 of the MRTP Act but required the Appellants to comply
with the requisition contained therein “ within one month from the date of
receipt ”. This he submitted was plainly contrary to the provisions of
Section 53(1) of the MRTP Act which requires a notice to provide a period
not less than one month
of “ ”. He therefore submitted that the impugned
Notice was ex facie contrary to the statutory requirements of the very
provision it was issued under and was thus a nullity.

15. Mr. Naphade then placed reliance upon the decision of this Court in the
case of Kishor s/o. Ramhbau Telang v. Municipal Commissioner,
1
Nagpur , to point out that this Court had categorically held that where a
notice issued under Section 53 of the MRTP Act provides for a period
shorter than that prescribed by the statute, the notice is a nullity. He

1
2015 MhLJ 836.
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submitted that since the impugned Notice admittedly called upon the
within one month from the date
Appellants to remove the said Structure “
of receipt
” the impugned Notice was a nullity, as held by this Court in
Kishor s/o. Ramhbau Telang v. Municipal Commissioner, Nagpur .
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16. Mr. Naphade reiterated that the sanctioned plan dated 30 April 1987,
which formed the substratum of the impugned Notice, had never been
produced by the Respondent, either prior to the institution of the Suit or
during the Suit proceedings. He submitted that the Appellants had
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specifically called upon the Respondent by their letter dated 16 March
2011, to produce the sanctioned plan referred to in the impugned Notice.
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He also then pointed out that, on 17
October 2018, the Respondent’s
witness had specifically sought time to produce the sanctioned plan on
record, despite which they were never produced.

17. He then placed reliance upon the decision of the Hon’ble Supreme Court
2
in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. to submit that
the Court may draw an adverse inference against a party that withholds a

2
1968 SCC OnLine SC 63.
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document in its possession which is relevant to, and capable of throwing
light on, the issues in the case, even where the burden of proof does not lie
upon such party. In the present case, he submitted that the legality of the
impugned Notice, which was the subject matter of Issue No. 4, depended
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substantially upon the sanctioned plan dated 30 April 1987, which the
Respondent had failed to produce despite being called upon. He therefore
submitted that the Trial Court ought to have drawn an adverse inference
against the Respondents, namely that the sanctioned plan either did not
exist or would not support the Respondent’s case, thereby rendering the
impugned Notice unsustainable.

18. Mr. Naphade further submitted that the Trial Court had failed to consider
the Additional Affidavit filed by the Appellants, whereby the Appellants
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had brought on record a Notice dated 4 March 1963 which had been
issued by the Respondent to one Mr. Vitthal Kamble, who was then
occupying the said Structure. He submitted that this notice clearly
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established that the structure existed prior to the datum line, i.e., 1 April
1962.
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19. He also submitted that the MRTP Act came into force only on 11 January
1967 and that the structure in question had existed since at least 1962.
Consequently, according to him, the provisions of the MRTP Act could not
apply to the said Structure. He submitted that this aspect had also not been
properly considered by the Trial Court and that, therefore, Issue No. 4
ought to have been answered in favour of the Appellants. On this basis, he
submitted that the impugned order deserved to be set aside.
Submissions on behalf of the Respondent:

20. Mr. Carlos, learned Counsel appearing on behalf of the Respondent
MCGM, at the outset submitted that the impugned Notice had been issued
open space bet. Garage
in respect of the structure described therein as “
No. 8 & 6, covered with RCC slab, Prem Court Building, Plot No. 119,
Backbay Reclamation Scheme, Mumbai 400 020 ”.

21. He submitted that the Appellants had not produced even a single document
pertaining to the said Structure. According to him, all the documents relied
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upon by the Appellants, including the rent agreement dated 17 December
1999, electricity bills, rent receipts and Shops and Establishments
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Registration Certificates, pertained to “Shop No. 8”. He submitted that the
Appellants themselves had admitted in the Plaint that their family members
were occupying Shop/Garage Nos. 5, 6, 7 and 8 in Prem Court Building
and had not pleaded any lawful occupation of the space between Garage
Nos. 6 and 8.

22. Mr. Carlos submitted that the Appellants had failed to produce any
document establishing that the said Structure, namely, the space between
Garage Nos. 6 and 8, had been constructed with the requisite permission.

23. He further submitted that no material had been placed before the Trial
Court to establish that the structure against which the impugned Notice had
been issued was in existence prior to 1962. He therefore submitted that the
Trial Court was correct in holding that the Appellants had failed to
sufficiently describe the suit Structure.

24. Mr. Carlos relied upon Order VII Rule 3 of the CPC, which requires a
Plaint concerning immovable property to contain a description sufficient
to identify the property. Mr. Carlos submitted that the learned Trial Court
had therefore correctly dismissed the Suit, particularly since the Appellants
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had been permitted to occupy Garage No. 8, whereas the impugned Notice
concerned the open space between Garage Nos. 6 and 8. According to him,
the Appellants’ entitlement to the said Structure, as well as the legality of
its construction, consequently remained doubtful.

25. Mr. Carlos submitted that the Appellants’ contention with regard to the
impugned Notice not being in conformity with Section 53 of the MRTP
Act was a red herring. He then pointed out that the impugned Notice was
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issued on 28 January 2011, whereas the Appellants instituted the Suit only
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on 16 May 2012, which was well after the expiry of the nearly 475 days.
He therefore submitted that no conceivable prejudice could have been
caused to the Appellants, in view of the fact that the impugned Notice
prescribed a period shorter than that contemplated under Section 53 of the
MRTP Act as it then stood.

26. Mr. Carlos submitted that the Trial Court was correct in holding that the
Appellants had failed to establish that the said Structure was authorised and
had therefore failed to make out any case challenging the legality of the
impugned Notice. He accordingly submitted that the impugned order did
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not warrant interference in appellate jurisdiction and that the present First
Appeal ought to be dismissed with costs.
Reasons and Conclusions:

27. After having heard the learned counsel for the parties and having perused
the record and the case law upon which reliance has been placed, I find that
the following points arise for consideration in this present First Appeal viz.

i. Whether the Learned Trial Court was justified in dismissing the Suit
on the ground that the suit structure was not sufficiently described,
when no issue to that effect was framed;

ii. Whether an adverse inference ought to have been drawn against the
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Respondent for failing to produce the Sanctioned Plan dated 30
April 1987; and

iii. Whether the impugned Notice was contrary to the provisions of
Section 53(1) of the MRTP Act and whether the said Structure pre-
dates the MRTP Act and the datum line of 1962.
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A. First , a bare reading of the impugned order makes it clear that the Suit
was dismissed principally on the ground that the Appellants had failed
to sufficiently describe the suit property. Crucially, however, this was
despite the fact that no issue in this regard was framed by the Trial
Court. The Appellants were therefore not afforded an opportunity to
lead evidence on this aspect or even otherwise address the same. Thus,
the Trial Court dismissed the Suit on a ground which the Appellants
were never called upon to meet.

B. Secondly , the contention that the Plaint does not sufficiently describe
the said Structure is, in my view, equally untenable. The description of
the said Structure in the Plaint corresponds with that in the impugned
Notice and therefore adequately identifies the subject matter of the
dispute. Even otherwise, the stand taken by the Respondent is inherently
inconsistent. The Respondent, on the one hand, has issued the impugned
Notice to the Appellants in respect of the said Structure, while on the
other hand, contended that the Appellants have failed to show their
interest in the said Structure. The fact that the impugned Notice is
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addressed to the Appellants makes implicit that the Respondent has
recognised, at the very least, the Appellants’ interest therein.

C. Third , the impugned Notice proceeds entirely on the basis that the said
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Structure is contrary to the sanctioned plan dated 30 April 1987. This
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Appellants have, in the reply dated 16 March 2011, specifically
disputed the existence of any such plan and called upon the Respondent
to produce the same. The Respondent has, despite seeking time to
produce the said plan, which was admittedly not done. Thus, the
Respondent has failed to justify the very basis for issuing the impugned
Notice.

D. Fourth , the least expected of the Respondent was to produce the very
plan on which its impending action was based, especially given that the
Appellants had specifically denied it. The record reflects that, despite
having been afforded repeated opportunities, the Respondent has
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neither produced the sanctioned plan dated 30 April 1987 nor offered
any satisfactory explanation for its non-production. In these facts, there
is much merit in the Appellants’ reliance on the decision of the Hon’ble
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Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and
Ors .
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E. The Appellants have also relied upon a letter dated 4 March 1963
addressed by the Respondent to one Vitthal Kamble, who was then
occupying a shed situated between Garage Nos. 6 and 8. The
Respondent has not disputed the authenticity of this letter, which
emanates from the Respondent’s records. Hence, the letter at least,
prima facie establishes that the structure existed at the said location as
early as 1963 and the Respondent was aware of it and had permitted the
structure to remain for over 48 years. This assumes significance since
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the MRTP Act itself came into force on 11 January 1967.
28. For the reasons mentioned hereinabove, I pass the following Order:
(i) The captioned First Appeal is allowed, and the impugned Order dated
nd
22 February 2019 is set aside.
(ii) Needless to state that the Respondents are at liberty to issue a fresh
notice in accordance with law and the MRTP Act.
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(iii) In view of the above, the pending Applications, viz. the Interim
Application No.799 of 2026 and Civil Application No.1284 of 2019, do
not survive and are accordingly disposed of.
(iv) There shall be no orders as to costs.


[ARIF S. DOCTOR, J.]


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