JUDGMENT
R.K. Joshi, J.
1. Plaintiff’s notice of motion restraining the respondent Municipal Corporation of Greater Bombay from enforcing certain notices and removing or demolishing the suit structures having been dismissed by the learned Principal Judge of the City Civil Court, Bombay, he has come in appeal. The few facts giving rise to it, stated briefly, are as follows :
2. The plaintiff-appellant Satyanarayan Atmaram Mishra and his brother Vishwanath who is no longer a party to the present proceedings, claimed to be owners of two pieces of land bearing Survey No. 11 of Hissa Nos. 1 and 2, and Survey No. 23 Hissa No. 10 situate at the village Asalpha, Ghatkopar, within the limits of Greater Bombay.
3. The two conveyances dated 21-1-1971 and 25-2-1971 which trace their title were already a subject matter of a previous litigation in which the property purchased has been described as these two survey numbers admeasuring in the aggregate 5364 1/4 sq. yards in the long drawn conveyances there is the usual recital “All pieces or parcels of land……or premises .” The schedule makes no pointed reference to any structure standing thereon. Similarly in the second conveyance which cover an area of about 4122 sq. yards. I don’t come across any buildings or structures. However, it is the present plaintiff’s case that there are three sheds admeasuring 47.45 meters x 10.90 meters; 9.70 meters x 2.75 meters and 35 meters x 11.20 meters. The purchases were actually negotiated as early as 1961 and since then these three sheds were standing on these two lands. Out of these three sheds one is lavatory block having six lavatories and the other two constitute blocks of 28 and 19 residential tenements each admeasuring 16′ x 10′ with a height of 10′ x 16′. They are constructed of brick masonry walls covered with Mangalore tiles having standard doors and windows; the plaintiff’s stand being that these structures which are apparent in the present form and of which photographs are produced, are there since before 1961.
4. It appears that on 2nd March, 1971 an overseer of the Municipal Corporation found some work in progress on these pieces which according to him was an unauthorised construction. On 3rd March, 1971 the Assistant Engineer of Municipal Corporation served on the plaintiff a notice under section 354-A of the Bombay Municipal Corporation Act, which would be hereinafter referred to as ‘the Act’, calling upon the plaintiff to stop the construction. The Corporation alleged that as the plaintiff failed to comply with this notice, on 20th March, 1971 it served both the brothers with another notice under section 351 of the Act calling upon them to show cause why the construction be not demolished. In their reply dated 26th March, 1971 the brothers denied that the construction was unauthorised. Thereupon on 13th May, 1971 the Municipal Corporation served three notice on the plaintiff under sections 351 and 352-A of the Act to show cause why the structures be not removed or pulled down. The plaintiff replied to the said letters on 14th May, 1971 and within a couple of days rushed to the City Civil Court, Bombay, with an action bearing Civil Suit No. 3752 of 1971 and challenged the validity of these three notices. They asked for appropriate injunctions.
5. A notice of motion was taken out for an injunction restraining the Corporation from demolishing the structures pending the hearing and final disposal of the suit. An ad interim injunction was granted in first instance and on hearing the Corporation the notice of motion was disposed of on 9th August, 1971 making the rule absolute.
6. Against this order the Municipal Corporation preferred Appeal No. 287 of 1971. In the said proceedings, from the record it appears, Pandit Satyanarayan Atmaram mishra (the present plaintiff) arraigned as respondent No. 2 was represented by three learned Advocates M/s. C.K Shah, D.R. Dhanuka and M.P. Matai. Pandit Vishwanath, the other brother who figured as respondent, although served, does not seem to have engaged any Advocate in the proceedings in the said appeal. When the matter came up for hearing before my learned brother Nain, J., he made the following order on the 15th of September, 1971 on setting aside the order passed by the lower Court :
“The Court observes that Mr. Singhavi appearing for the Municipal corporation agrees with the plaintiff that before making an order for demolition under section 351(2) and section 352-A the plaintiffs will be given a personal hearing by Mr. Prabhavalkar, Deputy Municipal Commissioner at Ghatkopar on 24th September, 1971 at 3 p.m. at the Municipal Office at Ghatkopar. If this date is not convenient to the Deputy Municipal Commissioner, he may fix thereafter another date and time of which he shall give at least one week`s notice to the plaintiffs. If after such hearing the Commissioner or the Deputy Municipal Commissioner decides to remove, alter or pull down the construction carried out by the plaintiffs, they shall give to the plaintiffs a fortnight’s notice in writing of their intention to do so before carrying out such work.
In view of the above order and agreement the suit shall not survive and the plaintiff will have the same placed on board of the City Civil Court for withdrawal. The plaintiffs shall pay to the Municipal Corporation the costs of this appeal, notice of motion and the suit. The plaintiffs have given an undertaking to the City Civil Court that they shall not carry out further work of construction pending the hearing and final disposal of the suit. The plaintiffs give undertaking to this Court not to carry out any further construction until the final decision of the Municipal Commissioner or Deputy Municipal Commissioner under sections 351 and 352-A is communicated to the plaintiffs.”
In a nut-shell, the effect of the order was to fix a date for the appearances of both the respondent (original plaintiffs) before Mr. Prabhavalkar, Deputy Municipal Commissioner at Ghatkopar on 24th September, 1971 at 3 p.m. and on giving them a hearing he was supposed to make final orders on reconsidering the entire evidence or documents which would be placed before him. The order further proceeded that if the date fixed viz. 24th September, 1971 was inconvenient to Mr. Prabhavalkar he may suitably fix another date by giving one week’s notice to the plaintiff. If Mr. Prabhavalkar on giving a hearing to the parties felt their contentions merited no substance, then he should give a fortnight’s notice in writing of the Corporation’s intention either to demolish, alter or pull down the structures. In view of these directives given by Mr. Nain, J. and the concessions made at the Bar it was further observed that the suit shall be placed before the City Civil Court for withdrawal. Ultimately the suit was withdrawn.
7. What happens after the withdrawal of the suit is the root cause of the present litigation which is taken out by Satyanarayan alone who was plaintiff No. 2 in the first litigation represented by his three learned Advocates as observed a little earlier. According to the present plaintiff, after the suit was disposed of, the Deputy Municipal Commissioner did not intimate to him the date fixed for hearing. He learnt from his brother Vishwanath that by an order dated 4th January, 1972 passed against Vishwanath, the Deputy Municipal Commissioner decided to proceed with the demolition of these structures. The said decision according to the present plaintiff was taken without giving him a hearing as agreed before the High Court and it is not binding on him. Another grievance made in the plaint is that the Deputy Municipal Commissioner did not apply his mind squarely to all the phases of the litigation but barely concentrated on the question whether the sheds were in existence prior to 17th April, 1964. This date has some bearing on the areas which merged in the Greater Bombay Corporation subsequently. If certain structures were found to be in existence prior to this date, they were to be regularised under the rules and the Corporation could not demolish them. On making this grievance, the plaintiff further alleged that the Deputy Municipal Commissioner should have further riveted his attention on the others aspect to find out whether the construction could be regularised by suitable alterations and could be brought in conformity with the provisions of the said Act particularly in view of section 348. As the Deputy Municipal Commissioner violated both these fundamentals and/or requirements of law, the entire proceedings before him are vitiated and the final order made by him is bad in law and not operative.
8. With these averments, out of the two brothers Satyanarayan alone who seems to be younger to Vishwanath and who forms a joint Hindu family with Vishwanath, again rushed to the City Civil Court with present action in Suit No. 8980 of 1972. Again a notice motion restraining the Corporation was taken out and the Corporation in its affidavit in reply gave out certain particulars which placed the other side of the picture vividly before the Court.
9. Stated in brief, the contentions of the Corporation were three-fold. In the first instance he submitted that by the very order made by the Hon’ble Justice Nain, the date of hearing before Mr. Prabhavalkar was fixed as 24th September, 1971 at 3 p.m. The order quoted above gave an option to Mr. Prabhavalkar to change the date if it was not convenient to the Deputy Municipal Commissioner and he was to give one week’s notice. According to these directives Mr. Prabhavalkar agreed to give a personal hearing on 24th September, 1971 as appointed by the High Court. Further, on the eve of this enquiry viz., 23rd September, 1971 a letter was received from T.V. Singh Advocate purporting to be on behalf of the plaintiff’s brother Vishwanath that 24th September, 1971 was not suitable to him and the matter be postponed by two weeks, but the present plaintiff Satyanarayan cared little for these proceedings nor did he convey to the Deputy Municipal Commissioner his request for an adjournment, not took any steps to see him personally or through his Advocate. As there was a notice from Vishwanath’s Advocate, an intimation fixing the date 5th October, 1971 was issued and served on Vishwanath. On some pretext or the other, or to accommodate the plaintiff, the mater was adjourned from time to time and ultimately it came up for hearing before Mr. Prabhavalkar on 16th October, 1971. May it be noted that in this long spell of 25 days Satyanarayan remained supremely indifferent, but now he is capitalising the presumed omission on the part of the Corporation that a separate notice was not served on him and to this aspect I will have an occasion to advert again. Be that as it may, on the 16th of October, 1971 the plaintiff’s brother Vishwanath with Mr. Rampyare Shukla appeared before the Deputy Municipal Commissioner who gave him a full hearing. The documentary evidence which according to the plaintiffs supported their case, was also placed before Mr. Prabhavalkar, but on going through the entire record and on giving a full hearing he was of the opinion that the structures or the sheds in question were unauthorized construction built under the nose of the Corporation without referring to the procedure prescribed in the Act. The brothers did not stop at that, but to circumvent and cover their misdeeds they made a show of getting an order from the Deputy Collector to the effect that the land was converted into non-agricultural land long ago and N.A. assessment was paid. The Corporation further alleged that the entire conduct of plaintiff’s brother Vishwanath in the said proceedings clearly indicated that he was not only representing his brother Satyanarayan but the property also. On refuting the various accusations levelled against the Corporation authorities it further submitted that the alternative whether the sheds could be regularized or with a little alteration and addition they could be brought in conformity with the provisions of the Act was also considered by Mr. Prabhavalkar, but when he found that the entire act on the part of the plaintiffs was in derogation of the provisions of the Act and the sheds were constructed without any permission and as there was no scope to regularise, he made the final order of demolishing, subject of course to a fortnight’s notice as directed by the High Court in the last litigation.
10. Mr. Paranjape appearing for the appellant has mainly raised two points. In the first instances he urged that there was no notice to Satyanarayan, therefore the entire proceedings are vitiated. The second point pressed into service was that there was no application of mind by Mr. Prabhavalkar to the various aspects of this case and by concentrating only on one sided issue as to whether the structures had shot up either before or after 1961 and on finding against the plaintiff on this issue he made the order which is impugned. In reply it was submitted by Mr. Kothari appearing for the Corporation that the very directives given by Mr. Justice Nain were a sufficient notice to both the parties and it was the bounden duty of the brothers to appear before the officer concerned is good time and/or on the appointed subsequent dates and to place their case before him. The brothers being joint, and having fought tooth and nail the last litigation, were fully conscious of the orders made against them and they cannot now make a capital of the omission of a formal notice to Satyanarayan, the present plaintiff. Notice to Vishwanath by itself, apart from the notice contained in the order of the High Court, would be a valid notice in the eyes of law. Vishwanath who had remained absent in the last litigation at the appellate stage, or had not appeared through an Advocate, takes very step to appear before the Corporation conveniently keeping Satyanarayan behind. This was nothing but a ruse and a time-killer game. These consideration apart, all these notices are meant to give a fair chance to the litigants to appear before the officer and to make their submissions. Ultimately what is of considerable importance is the knowledge of the proceedings and not the darkness thereof.
11. No doubt it appears from the notice Ex. B finding place at page 48 of the compilation that it was addressed to Pandit Vishwanath Atmaram Mishra, the elder brother, who had appeared through an Advocate before Mr. Justice Nain. Similar notice has not been served or issued to Satyanarayan. To this extent Mr. Paranjpe is right so far as the facts are concerned. But he is conveniently ignoring the subsequent developments and the role played by Vishwanath as well as the obligation cast by the order of the High Court upon Satyanarayan himself. The very order imposed an obligation upon Satyanarayan to appeal before the Deputy Municipal Commissioner on 24th September, 1971 at 3 p.m. And what was his conduct? It was nothing but supreme indifference. As I read the order, no separate notice was necessary. A date was already fixed, notice was given to both the parties who were before Mr. Justice Nain. It may be that Satyanarayan preferred not to engage an Advocate, but he cannot take advantage of his own laches or lapses. It is idle to contend that both the brothers being joint and the property being owned jointly, Satyanarayan was ignorant throughout of the proceedings at the other end or of the steps his brother Vishwanath was taking. Vishwanath, as is apparent from the proceedings in the last case, and in particular at the appellate stage, was bearing the brunt and he had moved the Deputy Municipal Commissioner for adjournment on various grounds, and on one occasion his Advocate Mr. Singh seems to have placed certain documents which failed to impress the Deputy Municipal Commissioner. Under such circumstances, appearance of Vishwanath was by itself a sufficient compliance of the directive issued by Mr. Justice Nain. No separate order was necessary to Satyanarayan and even if it be held otherwise, it is Satyanarayan who has invited all these troubles by his own absence or indifference to the entire proceedings. He is making a fetish or the technicalities and the absence of so-called similar notice. It does not stand to reason that when the matter is hanging fire for the last six years, Satyanarayan could ill-afford to remain in the bliss of ignorance. After all which is the object of a notice in such proceedings? It is to give a chance to the litigants to place their say. No form of notice is prescribed by the Act. No manner of service is exhibited. The idea is to apprise the litigants of the steps that are being taken against them and that object has been amply achieved not only by the High Court’s order but by the proceedings which took place before Mr. Prabhavalkar. Therefore, I find no substance whatsoever in the first ground urged by Mr. Paranjpe that for want of notice the entire proceedings are vitiated and the very fundamentals of natural justice are violated.
12. Now, adverting to the second aspect that Mr. Prabhavalkar has not applied his mind to the various aspect of the case, I may point out that this argument is devoid of any substance. The documents on record which I have perused, point out unmistakably that the property purchases was nothing but a vacant land. In 1961-62 if there were certain structures standing, it was not difficult for Vishwanath or his brother to adduce some sort of evidence, but they have not. Instead, what they have endeavoured is to approach the revenue authorities by a back door and to get certain matters regularised. It is the levy of non-assessment and that order is equally interesting. When these proceedings were pending in the City Civil Court, when the parties were fully aware of the odds in their way, what they have done is to make an application to the Deputy Collector, Bombay Suburban District, somewhere in July 1971. They represented to him that these two survey numbers were used for non-agricultural purposes for construction of residential structures since August 1961 and that both the brothers were in possession of the said lands. They do not even for a moment suggest that the construction was already in existence or that the plans were ever prepared and submitted to the competent authorities. But what they refer to is the plan of the site prepared by the surveyor for the levy of non-agricultural assessment. According to them the land was from Ex-Khoti Village to which the Land Revenue Exemption Abolition Act was made applicable in March 1952. Therefore, they prayed for the levy of non-agricultural assessment and seem to have obtained an order from the Deputy Collector. This conduct speaks a good deal against the bona fides of the brothers. As a reasonable man acting in good faith, if he had any case it was not difficult for him to convince the Corporation that he was already possessed of certain documents which showed the existence of such or similar sheds prior to 1961 to 1964, the material date referred to above. No other document or record is produced to substantiate their case on merits. My attention was drawn to certain photographs, but it is not known when they were taken. A look at them may convince that they are nothing but recent construction having modern gloss and not the wear and tear of the construction erected in 1961. The obstructive tactics adopted by the present plaintiff coupled with their conduct throughout the entire proceedings in both the litigations leave very little margin for finding out any equitable ground to give them this relief in their favour. The grant of interim injunction is a discretionary relief and the only two questions that are invariably required to be taken into account are whether there is any substantial question to be investigated into and secondly, in whose favour the balance of convenience tilts. To both these aspect the learned trial Judge directed his attention although he has not expressed himself in so many clear-cut terms; but this makes no difference. I have gone through the entire record and I am convinced that the hands of the present plaintiff are not at all clean. He is trying to play the game of hide and seek and he is taking shelter in the clouds of his own ignorance which no doubt on occasions proves to be a bliss, but in the instant caste it has proved to be a miss in the mine. I find no equity in favour of the plaintiff and the notice of motion has been rightly thrown out.
13. In the result the appeal is dismissed. The appellant to pay the costs of the respondent. Corporation.