Bombay HC Sets Aside Dismissal Of Garage Tenants’ Demolition Challenge After MCGM Fails To Produce 1987 Plan

The appellants challenged a notice issued by the Municipal Corporation under Section 53 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), requiring removal of an RCC-covered space between Garage Nos. 6 and 8.

They contended that the notice was unsupported by the sanctioned plan it relied upon and that the structure pre-dated the applicable 1962 datum line; the notice required compliance within one month of receipt.

The trial court dismissed their suit, principally for insufficient description of the structure, although it had not framed an issue on that question.

On appeal, the appellants also sought to introduce a notice dated 15 January 1962 under Order XLI Rule 27 CPC; the Court held that they had not established the required due diligence.

Section 53(1) of the MRTP Act requires a notice to allow a period of not less than one month; the appellants relied on Kishor s/o Ramhbau Telang v. Municipal Commissioner, Nagpur, which treated a shorter period as invalid.

Under Gopal Krishnaji Ketkar v. Mohamed Haji Latif, a court may draw an adverse inference where a party withholds a relevant document in its possession, even if the burden of proof does not rest on that party.

Order VII Rule 3 CPC requires a plaint concerning immovable property to describe it sufficiently for identification; the Court found the description adequate in this case.

Order XLI Rule 27 CPC governs additional evidence on appeal, and the appellants’ application failed for want of demonstrated due diligence.

The trial court dismissed the suit on a ground that had not been framed as an issue, depriving the appellants of an opportunity to address it; moreover, the plaint’s description corresponded to the description in the impugned notice and adequately identified the disputed structure.

The Corporation relied on the 1987 sanctioned plan but failed to produce it despite being called upon to do so and having sought time to produce it. The Court considered an adverse inference warranted under Gopal Krishnaji Ketkar.

The Corporation’s own undisputed 4 March 1963 letter concerning a shed at the location prima facie established that a structure existed there by 1963, before the MRTP Act came into force in 1967.

Although the one-month notice period was raised as a statutory objection, the Court did not separately set out a determination of that contention in its reasons.

It left the Corporation at liberty to issue a fresh notice in accordance with law and the MRTP Act, made no order as to costs, and disposed of the pending applications.