Rasraj Restaurant, Mumbai And Others v. Municipal Corporation Of Gr. Mumbai And Others

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4] This appeal takes an exception to the order dated 22^nd April, 2014, passed by the City Civil Court, Dindoshi, Borivali Division, Mumbai, thereby dismissing the Notice of Motion No.362 of 2014 filed in L.C. Suit No.337 of 2014.

5] The said Notice of Motion was taken out by the appellant, seeking the relief of interim injunction, restraining the respondent Municipal Corporation from taking any action, much less that of demolition of the suit structure, in pursuance of the Notice dated 5.10.2013, and the order dated 30.01.2014, passed under Section 351 of the Mumbai Municipal Corporation Act, 1888, (for short, called as,

"MMC Act").

6] The case of the appellants is that they are in possession of the ground floor premises of the building known as "Bharat Bhavan", situated at K.D. Road, Ville Pargel, Mumbai. Mr. Bharat Vyas was the original owner and respondent Nos.3 and 4 are the present owners- landlords of the suit premises. Initially these premises, consisting of five shops with open space in front thereof, were let out to M/s Patel Syndicate. The total area thereof is admeasuring 269.84 sq meters. M/s Patel Syndicate was using the said premises for running

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restaurant in the name and style as, "Rasraj".

7] Since June, 1966, one Mr. N. Muddu Shetty became the tenant of the said restaurant, after taking over the same from its earlier tenant M/s Patel Syndicate. In the year 1972 Mr. M. Muddu Shetty became the joint owner of this Rasraj Restaurant. The then landlord, that is Shyamsundar Bharat Vyas had accepted him as tenant in respect of the suit premises. The rent bill and the electricity bill of the said restaurant, however, continued in the name of M/s Patel Syndicate till they were transferred in the name of Rasraj Restaurant, in the year 2002. At present M/s Rasraj Restaurant is a partnership firm of which appellant Nos. 2 and 3 are the partners and are in lawful possession thereof as tenant. The certificate under Shop and Establishment Act, trade permissions and other requisite licenses are standing in the name of appellant No.1. Thus, as per case of appellants, they are in lawful possession of the suit premises.

8] It is further case of the appellants that they had made the representation to the respondent Municipal Corporation for assessment of the temporary shed, which was constructed in the open space in front of the restaurant. It was granted by the Municipal Corporation vide it's letter dated 18.01.1985, on payment of assessment charges from 1.4.1962 to 31.3.1965. It was also informed

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to the appellants that since the shed is assessed to the Municipal Taxes from 1.4.1965, hence, the appellant should clear the outstandings from 1.4.1962 to 31.3.1965 only. It was further informed that on appellant's compliance of payment of assessment charges for the period from 1.4.1962 to 31.3.1965, the matter will be processed further.

9] Thereafter by the letter dated 13.3.1985, the appellants were directed to pay the assessment charges and penalty thereon for the period from 1.4.11962 to 31.3.1984 for regularization of the front shed admeasuring 114.5 Sq. meters. Accordingly appellants have deposited those charges on 15.3.1985. It is also their case that prior thereto, by the earlier resolution dated 19.10.1976 the permission for repair of the said shed was also granted, it being prior to the merger.

10] Subsequent thereto, in the year 1989 appellants' had filed an application for carrying out repairs such as, "replacing broken A.C. sheet of roof and roof members by new ones and repairs and repairing of the existing flooring with tiles, plastering to existing BM walls and replacing false ceiling", At that time as the landlord of the said premises Mr. Shayamsundar Bharat Vyas objected to the grant of repair permission, the matter was referred to the then Municipal Commissioner, who has on 17.2.1990, after perusing the previous record of the suit premises, by his written note, directed the

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concerned Officer of respondent No.1 to give repair permission of the suit premises along with repair of the shed. Under the said note, the then Municipal Commissioner was also pleased to observe that the suit premises is fully protected and legalized, since they are in existence prior to1962 and earlier also permission for repair was granted in the year 1984.

11] In view of the said note dated 6.2.1990 of the then Municipal Commissioner, permission for repair was granted by the Assistant Engineer "K" West Ward of respondent corporation on

24.2.1990.

12] Being aggrieved thereby, the landlord challenged the repair permission by filing suit in the City Civil Court at Mumbai. In the said suit, affidavit-in-reply to the Notice of Motion was filed by the Assistant Engineer of Municipal Corporation Shri. Madhukar Patil on 6.4.1990, admitting the authorization of the suit premises alongwith suit shed, giving full details as to how the suit premises and the shed stand tolerated and protected under the policy of Municipal Corporation. The Court Commissioner was appointed in the said suit on 30.4.1990, at the behest of the landlord. He has submitted the sketch plan of the suit premises in the Court on 1.5.1990. According to the appellants, there is absolutely no change made in the suit

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premises since then. It is standing exactly in the same position as on today also.

13] Thereafter the matter was settled between the appellants and the then landlord and the then landlord permitted the appellants to carry out repairs to the suit premises from time to time including the permission to renovate/replace flooring, tiles place, plastering of walls, plumbing work, replacement of cement sheets on the roof etc. By his letter dated 4^thMarch, 1991,the then landlord has also withdrawn all the allegations made in the suit. Ultimately the suit filed by the landlord came to be dismissed for default on 4.3.1994.

14] However, in the year 1996, the then landlord again filed R.A.D. suit No.362 of 1996 against the appellant in the Small Causes Court, Mumbai for injunction and other reliefs. The Notice of Motion filed therein, however, came to be dismissed on 21.8.1996. Thereafter respondent Nos.3 and 4 had filed R.A.E. suit No.1423 of 2000, in the Small Causes Court, Bandra for eviction under the provisions of Maharashtra Rent Control Act. During the pendency of that suit, the daughter-in-law of respondent No.3 made complaint to the Respondent Corporation on 17.6.1993, in respect of the construction of the shed in front of the Hotel premises on the ground of it being illegal and unauthorized. In reply thereto, the Assistant Engineer K/West ward, of the Municipal Corporation informed to her that the

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said shed is in existence since long and it is not of recent origin.

15] The grievance of the appellants is that despite all these facts, on 5.10.2013, the show cause notice under Section 351 of the MMC Act, came to be issued to him, informing him that on inspection carried out on the same date, the said shed was found to be illegally and unauthorizedly constructed. The appellants gave reply to the said show cause notice on 10.10.2013, bringing to the notice of respondent the factual position and contending that it is legal and authorized. The appellants also produced various documents before the concerned authority. Even then on 30.1.2014, respondent No.2 passed the order of demolition of the suit shed.

16] The appellants, are therefore, constrained to file this suit before the trial Court, challenging the notice issued under Section 351 of the MMC Act and the order passed thereon by the concerned Officer. Alongwith the suit, the appellants had filed the Notice of Motion, restraining respondent corporation from taking any action in pursuance to the impugned notice and the order.

17] This Notice of Motion came to be resisted by the respondent No.3 and 4 alone, challenging the status of appellants as tenant in the suit premises, however, admitting that M/s Patel Syndicate had started the hotel as per the Leave and Licence

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Agreement dated 11^thAugust, 1962. The said hotel was in the name of Rasraj Restaurant and it was comprising of five shops on the ground floor. It was stated that in the year 1963, the then tenant had put up temporary weather shed in the open land in front of rented premises for sitting accommodation of the customers. It was submitted that this permission is given up subsequently. It was denied that the suit shed was in existence since prior to 1961-62. It was submitted that in January, 1972, the tenant Muddu Shetty was joined as partner in the said business and the request was made to allow them to use and occupy the open space in front of the tenanted premises. Hence, a separate agreement of Leave and Licence dated 1^stJanuary, 1972 was executed between the then owner Bharat Vyas on the one part and Mr.N. Muddu Mohan Shetty and M. Deju Shetty, on the other part.

18] It was further contended that the total area of the shed as assessed by the Municipal Corporation in the year 1984-85 was only

114.7 sq. meters. According to these respondents the suit shed as it exists today, did not exist prior to the datum line of 1.4.1962. The existence of the said shed is not found reflected in the approved plan dated 29.07.1965 as well as sanctioned plan of the building, for the second floor structure dated 6.1.1967. The shed standing at site at present is also not the weather shed, but it is a fulfledged building

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with B.M. Walls, which is unauthorizedly constructed and the area thereof was extended from time to time. Hence according to these respondents, the Municipal Corporation has rightly issued the impugned notice and taken action under Section 351 of the MMC Act. Therefore, no relief of interim injunction should be granted to the appellants, as it would amount to perpetuating the illegal construction.

19] The appellant No.2 filed his rejoinder affidavit dated 6.3.2014 and denied all the contentions of respondent Nos. 3 & 4.

20] Respondent Nos. 1 and 2, however, failed to file reply to this Notice of Motion.

21] The trial Court has then considered the submissions of the appellants and respondent Nos. 3 and 4, and finding that the appellants had failed to prove the legality and validity of the suit structure, was pleased to dismiss the Notice of Motion.

22] Being aggrieved thereby, the present appeal is preferred by the appellants on 5.5.2014, in which the order of status quo was passed on 13.5.2014. Thereafter, as per the order passed by this Court dated 27^thApril, 2016, respondent No.1 was directed to file its reply and to put up its stand about the legality and validity of the suit structure. Then on 13.4.2015, the Designated Officer of respondent No.1, Mr. Tawade, again visited the suit premises to take full

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inspection thereof. He has prepared his inspection report and on the basis thereof, instructed the Law Officer of respondent No.1 corporation to prepare the reply to be filed in this Court. In this draft submitted by him to the Law Officer, of the respondent Corporation, he admitted the incorrect statement made in the suit notice and further admitted that suit premises is in existence since prior to 1962 and after site inspection, it was found that the measurement of the suit premises is 269.84 sq. meters which is shown in the Health Licence of the suit premises right from the year 1965.

23] In view of this report, on 14.7.2015 appellants filed affidavit in this appeal, putting on record the report of the-Designated Officer Shri. Tawade about his visit and about his remarks sent to the Law Officer. Thereafter, on 3.10.2015, respondent No.1, through it's Designated Officer Akstar Hussein A.R. Shaikh, filed affidavit-in-reply, in this Appeal, admitting the existence of the suit structure since prior to 1962, on the basis of the inspection report submitted by Shri. Tawade.

24] On 05.04.2016, on behalf of respondent No.1, its Senior Counsel, informed to this Court that the affidavit of Shri Akstar Hussain A.R. Shaikh, the Designated Officer, was completely incorrect and hence time may be granted to file fresh affidavit. Similar request was made on 27.04.2016, for filing fresh affidavit

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which was granted and ultimately on 10.8.2016, the additional affidavit, of the Designated Officer Shri. Akstar Hussain A.R. Shaikh, was filed, but it was without denying the correctness of the earlier affidavit. In this affidavit, only the explanation was given about certain statements made in the earlier affidavit.

25] Both the appellants and respondent Nos. 3 & 4 had thereafter filed their affidavits-in-reply and produced various photographs of the suit site alongwith documents.

26] At this stage, it may also be stated that, in the second affidavit of Designated Officer Shri.Akstar Hussain A.R.Shaikh, filed on 10.8.2016, it was clarified that the earlier affidavit was filed relying upon the affidavit filed by Mr. M.K. Patil, Jr. Engineer, in Notice of Motion No.1580 of 1990 in L.C. Suit No.2143 of 1990 and it was also filed under the bonafide impression that the structure in question has been regularized, as stated in the said affidavit by Shri. M. K.Patil, Junior Engineer. It was also filed under the impression that in the light of the then Municipal Commissioner's observation, the repair permission of the suit shed was granted to the appellants. It was, however, stated in the second affidavit that such permission of the repair granted by the Municipal Commissioner, had not resulted into regularization of the structure, which is subject matter of the Notice under Section 351 of the M.M.C Act and which is found to be

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unauthorized, as there is no evidence on record show that it was regularized in accordance with the provisions of the M.M.C. Act, as well as of the Maharashtra Regional and Town Planning Act. It was further confirmed that the structure, which is standing at present, is not at all regularized or legal and the documents filed by the appellants also do not, in any way, support the case of the appellants that the said structure was regularized. By this affidavit-in-reply, respondent Corporation, thus, has supported the order passed by the trial Court, dismissing the appellant's Notice of Motion and upholding the order passed by the Designated Officer under Section 351 of the MMC Act.

27] In the backdrop of these facts on record, this Court has to consider whether the impugned order passed by the trial Court is just, legal and correct.

28] The impugned notice which is issued to the appellant under Section 351 of the MMC Act, gives description of the suit structure as, "the construction of the structure with B.M. walls and R.C.C./Ladicoba, slab roof in the open space in front of the shop premises on the ground floor and as shown in the map attached thereto". As regards the ground floor structure of five shops, there is no dispute. The only dispute, thus, pertains to the shed constructed in the open space in front of the shop premises.

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29] The detailed and reasoned order passed by the Designated Officer on 30.1.2014, under Section 351 of the MMC Act, shows that in response to the show cause notice issued under said Section, appellants had produced on record various documentary evidence, like the copy of the Health Licence issued in the year 1972, Rent Receipts, letters regarding payment of outstanding Municipal Taxes, Copy of Repair permission for shed and the restaurant, dated 24.2.1990, Receipts of the charges for permission of repair paid by the appellants, copies of earlier litigation, plan for proposed addition, alterations dated 15.9.1998, Court Commissioner's report etc. The order passed by the Designated Officer, reflects that he had taken into consideration each and every document and found that none of these documents prove the existence of the present shed since prior to the datum line dated 1.4.1962. His report further states that the receipt of payment of assessment taxes for the period from 1.1.962 to 31.3.1984 cannot prove authorization of the suit structure, nor does it prove the existence of such structure since prior to 1.4.1962. He has also noticed that even the affidavit of Shri. M.K. Patil, filed in the earlier suit or the relevant order dated 17.02.1990, passed by the Municipal Commissioner, granting permission for repairs, cannot prove that the structure was regularized or authorized.

30] In view thereof, it was held by him that, after verification

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of the approved plans from the Building Proposal Department dated 06.01.1967 and 29.07.1965, it was noticed that there was no such shed shown in front of ground floor shops. It was also found that though the remarks from A.A. & C. K/West were obtained, which showed that though the first date of assessment of the Bharat Bhavan Building is prior to 1961-62, the said first date of assessment pertains to the original structure only, and it is not applicable to the subsequent additions, alteration etc. if any. Thus, it was found that there was not a single document produced by the appellants proving that the suit shed was in existence since prior to datum line 1.4.1962, and it was regularized subsequently, after following due process or it was constructed after obtaining the requisite permission. The Designated Officer, therefore, held the said construction as illegal and accordingly passed the order of demolition.

31] Thus, as regards the due procedure to be followed by the respondent for passing the order of demolition, under Section 351 of the MMC Act, there is no grievance and otherwise also no fault can be found therewith. Section 351 of the MMC Act, empowers the Designated Officer to pass such order of demolition if the construction is carried out in breach of the provisions of Sections 352 or 342 and 347 of the MMC Act, after issuing show cause notice to the person. The Explanation to Section 351 is relevant. It provides

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that the words, "to show sufficient cause", used in this sub section would mean to prove that the work mentioned in the said notice is carried out in accordance with provisions of Section 337 or 342 and 347 of the Act. Sub Section 2 of section 351 of the MMC Act, mandates that if such person fails to show the sufficient cause in the context of the "Explanation", to the satisfaction of the Designated Officer, then the Designated Officer may pass the order of removal of demolition of such structure.

32] Therefore, in order to show, "sufficient cause" for proving the legality of the suit structure to the satisfaction of the Designated Officer, it was incumbent upon the appellants to show that they had carried out the same in accordance with the provisions of section 337 or 342 and 347 of the MMC Act. Section 337 of the MMC Act, mandates that person who intends to undertake the construction shall give notice to the Commissioner of his intention to do so in the prescribed proforma. In this context, as per Sub Section 2 thereof, the words, "to erect a building" includes, to newly erect a building, to re-erect the building by demolishing the existing building entirely, or to erect a building by removing the roof of the existing ground floor structure and adding one or more upper floors

33] Section 342 mandates that every person who intends to make any addition, alteration or repair to the building, required to

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give such notice to the Municipal Corporation, in the prescribed proforma alongwith requisite details.

34] Section 347 of the MMC Act, then mandates that no person shall commence to erect any building or to execute any such work as is described in Section 342 of the MMC Act, unless he has given notice of his intention to do so and unless he has intimated the respondent Corporation the proposed date of commencement of work.

35] In this case, therefore when appellants were called upon to prove the legality and validity of the suit structure, it was necessary for them to show that they had complied with the provisions of section 337 or 342 and 347 of the MMC Act. The appellants have not done so. Hence, it follows that they have not shown sufficient cause to challenge the Notice issued under Section 351 of the MMC Act.

36] The only contention raised by appellants is that their shed is in existence since prior to the datum line of 1.4.1962 and for that purpose reliance is placed on the assessment extract of the property tax. However, this extract shows that the said assessment was of the original structure. As regards the shed, it is not found reflected in the approved plans of the Bharat Bhavan Building dated 6.1.1967 and 29.07.1965. As per the said plans, there was an open space in front of the ground floor shop premises. Hence this assessment date is also

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not useful to the appellants, to prove the existence of suit structure since prior to the datum line.

37] As a matter of fact the material on record shows that initially, this shed was in the nature of "awning" or "weather shed"

only. According to the appellants, subsequently it was regularized. In this respect, reliance is placed by the appellants on the letter dated 18.1.1985, which was issued by the Municipal Corporation, in response to the representation of the appellants dated 26.12.1984. This representation is produced at page No. 341 and it reads as follows :-

"RASRAJ"

Restaurant (Air Conditioned) Bharat Bhuvan, V.M. Road, Vile Parle (West), Bombay 400 066, Phone Call 56 13 74 ---------------------------------------------------------------------------------

Date: 26.12.1984

The Additional Commissioner of

Municipal Corporation of Greater,

Bombay.

Sub: Shed at Rasraj Restaurant

Vile Parle (West)

Dear Sir,

I am running a restaurant at the above

premises. The building together with the projecting shed was construed some time during the year 1955-56.

However, I did not have a documentary evidence in my

possession to prove that the shed was in existence prior to 1962. In fact Municipality has assessed awning since

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1962. In fact Municipality has assessed the shed prior to 1.4.1964 as can be seen from the enclosed Xerox copy. Since the shed and the building are of permanent type of constructions and are in existence since 1956 and so it would be incorrect to charge additional renewal charges in respect of the shed. Moreover, the Municipal Corporation has categorized the shed under reference as

"Valid" as can be seen from the Standing Committee Resolution No.2099 of 19.10.1976 and Improvements Committee Resolution No.369 of 16.12.1976 vide Sr.No.13(4) at page No.19 Xerox copy of the same is enclosed.

As stated above, the shed is in existence from 1956 or so and hence cannot be categorized as "awning" and hence the question of obtaining permission for renewal of the same does not arise.

I have already enclosed the documentary evidence to prove that the shed is in existence w.e.f. 1.4.1964. However, I do not have other papers for the period prior to 1.4.1964 and hence I request you to condone the period of about two years or so and include the shed area in the Licence issued to me.

Incidentally I have to inform you that my request made for renewal of the permission in respect of the same shed has not been granted for the last two years. Yours faithfully.

Sd/-

DA 2 Xerox copies (M.D. Shetti)

Pro. Of Rasraj Restaurant".

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38] The description of the shed as given in this Representation is, thus, more than sufficient to show that it was only in the nature of a "awning". The dictionary meaning of the word, "awning" indicates that it means "a roof like cover extending over or in front of a place (as over the deck or in front of a door or window) as a shelter". The English Dictionary defines "awning" as "a cloth or plastic cover fastened to a building or structure and supported by a frame that is used to protect someone or something from the sun or rain". Therefore, it follows that this was definitely not a permanent structure, but it was a temporary shed used for the purpose of sitting of the customers. As per the own case of appellants, they had no document to show that it was in existence since prior to

1.4.1962.

39] The above said letter or representation of the appellants refers to the Resolution of the Standing Committee, bearing No.2099 dated 19.10.1976. Copy of the said resolution is produced at page No.553 which shows that the said resolution also refers to this structure as "awning/weather shed" which was erected without the permission. In the remark column, it

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was stated that the permission was granted as, "the case being prior to merger". Now this merger refers to the merger of other areas of the Mumbai City, in the Corporation areas and not at all to the datum line. Moreover, this permission, even if accepted, it only pertains to "awning or weather shed", but not to a "permanent shed" which is at present standing at the site. Therefore, this permission referred in the Resolution, which was for "awning" cannot be of any help to the appellants to prove the legality of the present structure.

40] Now reverting back to letter dated 18.1.1985, by which, respondent corporation informed to the appellants that their request for tolerating the shed will be considered. The

"shed" referred in this letter is required to be understood as

"awning or temporary weather shed", and not a "permanent shed" as stated by appellants themselves in their letter dated 26^thDecember, 1984. This letter dated 18.1.1995, issued by the Municipal Corporation to the appellants states that in view of the documentary evidence produced by the appellants, their request "for tolerating the shed will be considered" on payment of assessment charges from 1.4.1962 to 31.3.1965. To ensure that the shed is assessed to the Municipal Taxes from 1.4.1962,

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the appellants were requested to see that the outstandings, if any, are cleared till date. It was informed that on their compliance "the matter will be processed further". Therefore, by this letter, the shed, in whichever form it was standing, was not regularized or tolerated as such. It was merely informed that only on their compliance, "the matter will be processed further".

41] The letter dated 13.3.1985 issued by respondent and on which appellants have placed reliance, again refers to their letter dated 26.12.1984, and informs them to pay assessment charges and penalty for the period from 1.4.1962 to 31.3.1984 for regularistion of the front shed admeasuring about 114.5 sq. mtrs. It was further informed to them that on their payment of the charges, "matter will be dealt with further" and the appellants were requested to take note thereof. Therefore, this letter produced at Page No.549 also does not speak about regularization of front shed. It only states that on the payment of charges, "the matter will be processed further". Therefore, there is no such order of regularizing the shed. As stated above, the shed which was existing then, was according to appellants also, only "the weather shed or awning". The measurement of the shed was given therein is also required to be noted and it is

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114.5 sq. meters and not 269. sq meters, as contended by the appellants at present.

42] Therefore, none of these documents, on which appellants have relied heavily, are of any help to the appellants to prove that the construction of the shed was regularized. Conversely, these documents clearly show that according to appellants themselves, it was a "weather shed or awning" and not the permanent shed, in which form, it is standing at present. At that time, it was admeasuring 114.5 sq. meters only.

43] The next reliance of learned counsel for appellants is on the permission for repairs of shed, which they had sought on 24.2.1990 vide their application produced at page No. 555 and it was for "replacing the broken A.C. sheet of roof and roof members by new ones and repairing of existing flooring with tiles, plastering to existing BM walls". It is a matter of record that though the objection was taken by the then landlord to this repair work, the then Municipal Commissioner has passed the order on the application of appellants, on 29.2.1990, as follows :-

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"The structure stands fully protected and legalized since it is there from to 1962. It has since been allowed to be repaired since before in 1984.

Repairs are very minor, which a tenant is authorized to carry out even under the Rent Act. The Lard-lord is receiving rent, we cannot pay heed to the objection.

Repair permission to be given".

44] According to learned counsel for the appellants the remark of the then Municipal Commissioner, thus, clearly goes to prove that the structure of the shed was regularized, on the count that it is existing there since prior to 1962 and on that count only, the repair permission was granted. It is on the basis of this remark of the then Municipal Commissioner, the Junior Engineer, Shri. Madhukar Patil, has filed affidavit-in- reply in the earlier suit and on the basis of that affidavit and this permission, in this appeal also, initially, affidavit was filed by Jr. Engineer Shri. Aksar Hussein A.R. Sheikh, stating that the said shed is in existence since prior to 1962 and it was legalized and regularized. In the subsequent affidavit filed by Jr. Engineer Shri.Aksar Hussein A.R.Shaikh, however, it is clarified

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that the construction of the shed is not legalised or regularized but it was stated so in the earlier affidavit on bonafide impression in view of the repair permission granted by the then Municipal Commissioner.

45] Much hue and cry is made by learned counsel for appellants about these two conflicting affidavits, filed by the Designated Officer of Respondent, by giving emphasis on the earlier order passed by the Municipal Commissioner, holding the structure to be protected and legalized. In respect of changing of stands by the Officer of the Municipal Corporation, in considered opinion of this Court, it has to be held that respondent Corporation cannot be precluded from changing it's stand when it's own action was contrary to the provisions of the law. In this respect, the following observations made by the Apex Court, in the case of M.I. Builders Pvt. Ltd -vs- Radhey Shyam Sahu and others [(1999) 6 SCC], 464, can be relevant:-

"Action of the Mahapalika in agreeing to the construction of underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. No doubt Mahapalika is a continuing body and it will be estopped from changing its stand in the given case. But

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when Mahapalika finds that its action was contrary to the provisions of law by which it was constituted there could certainly be no impediment in its way to change its stand. There cannot be any estoppel operating against the Mahapalika".

46] As rightly submitted by learned counsel for respondent corporation, merely because the Municipal Commissioner says that the shed is regularized or it is in existence prior to 1962, is not sufficient to prove that the construction of the shed is regularized legally. A detail procedure for regularization of the construction, carried without authority is laid down in Section 44 of the Maharashtra Regional and Town Planning Act and Rule 10 of the the Maharashtra Development Plans Rules. Rule 10 reads thus :-

"10. Permission to retain development of land carried out without proper authority - Any person aggrieved by the notice served by the Planning Authority under sub-section (1) of Section 53 and desiring to apply for permission under Section 44 shall write to the Planning Authority giving full details of the development carried out on the land, explaining the reasons for carrying out such development unauthorizedly and applying for permission for retention on the land of any building

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or works or for the continuance of any use of the land, to which the notice relates. Such person shall also submit to the Planning Authority the relevant particulars and documents that would have been required to be submitted under sub-rule (2) of Rule 6, had he applied for permission under Section 44 before the development was carried out".

47] There is absolutely no evidence to show that this procedure was complied with or the documents, as required therein, were submitted and due procedure was followed for regularization of suit shed which was then existing.

48] In view thereof, merely because the Commissioner has said that it is regularized or legal and merely because Junior Engineer files an affidavit stating that it is a legal or authorized structure, it cannot become legal or authorized. Even the Commissioner saying that the shed has been there since 1962, is not helpful without the documents to that effect being produced on record.

49] Thus in this context, though the Bharat Bhavan Building may be in existence since prior to 1.4.1962 as observed by the Designated Officer, in his order under Section 351 of the MMC Act, but so far as the shed is concerned, which was initially also in the nature of "awning or weather shed", there is absolutely no evidence to show

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that it was constructed prior to 1962. Moreover, if it was in existence since prior to 1962, then there was no necessity for the appellants to apply for its "regularization" as it would have been regularized automatically being in existence since prior to the datum line. Appellants had to apply for its regularization, as it was not in existence since prior to the datum line. For regularization of the construction, the procedure laid down under the Maharashtra Regional and Town Planning Act and the Maharashtra Development Plans Rules, has to be followed. No such procedure is apparently followed in this case. Hence, having regard to the fact that there is no compliance of the statutory provisions for regularization of the said structure, this structure of the shed cannot be called as legal and authorized.

50] In that respect, as rightly pointed out by learned counsel for respondent Nos. 3 and 4, the Leave and Licence Agreements of the premises dated 11.6.1966, between the then landlord Bharat Vyas and the tenant Muddhu Shetty also goes to show that in the year 1966 no such shed was in existence, but it was an open space. Clause No.5 of the said agreement specifically provided that the tenant shall not carry out or make any construction or structure in the open space. The agreement of Leave and Licence dated 1.1.1972, between the then landlord Bharat Vyas and the present appellant also goes to

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show that what was in existence at that time, was only a temporary cover in the open space and what was permitted was only the cover which was not to be of any permanent nature. Clause Nos. 6, 7 and 8 of the said agreement read thus :-

"6. The said licensees shall use the said open space for the purpose of sitting accommodation of the customers and for no other purposes in the course of their business.

7. The said Licensees if they shall choose may at their cost have a shed or cover not of a permanent nature on the side of the kitchen for production from heat and rain for the purpose of the business and no other use.

8.The said Licensees as a protection from Rain and heat will be at liberty to have a temporary cover in the open space only and the same will be removed when not necessary."

51] Even in the deed of Dissolution of Partnership firm of the appellant dated 13.1.1973, the description of the suit premises shown is, as "an open space, in front of the shop premises" and not of the shed.

52] Thus, the documents produced by the appellants themselves go to show that this shed was not in the original plan, which was sanctioned for construction of the building and

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subsequently also, it was merely an "awning" or a temporary weather shed; whereas now the structure which is standing at the site is of ground plus first floor. Hence, it follows that such construction of the suit shed is illegal and unauthorized as no permission for the same is produced and nor it is regularized by following due procedure, complying the statutory mandates.

53] In view thereof, no fault can be found in the impugned order issued by the Respondent Municipal Corporation under Section 351 of the MMC Act for demolition of such unauthorized shed.

54] The trial Court, has therefore, rightly dismissed the Notice of Motion. In the Appeal from such discretionary order, no interference is warranted.

55] The Appeal, therefore, being without merits stands dismissed.

56] In view of dismissal of Appeal, pending Civil Applications therein, no more survive and the same are disposed off accordingly.

57] At this state learned counsel for the appellants seeks extension of the ad-interim order, passed by the trial Court and which was extended during the course of this Appeal, in order to enable the appellants, to approach the Hon'ble Supreme Court, against the order passed by this Court.

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58] Learned counsel for the respondent Municipal Corporation strongly resists this prayer.

59] In my considered opinion, as the order of ad-interim relief of stay is in existence since the year 2014, in order to enable the appellants to approach higher court, the ad-interim relief is extended only for a period of two weeks from today, with no further extension.

60] Needless to state that the said order will come to an end automatically after expiry of two weeks that is by 12.10.2018. [DR.SHALINI PHANSALKAR-JOSHI, J.]