Ganpat Shankar Chougule v. The Municipal Corporation of Greater Mumbai

16. In order to circumvent the said notice, the said Saibaba Mitra Mandal once again filed a third Suit namely LC Suit No.2232 of 2001 for setting aside the 349 notice of the MMC Act dated 06.01.1999 and order dated 17.04.2001 rejecting regularization and the fresh notice dated 27.04.2001 of demolition. Thereafter from the year 2001 to 2012, the notice structures namely 27 members of Saibaba Mitra Mandal enjoyed the interim relief but after a full-fledged trial, the third LC Suit No.2232 of 2001 was also finally dismissed on merits by judgment and decree dated 18.10.2012. Plaintiff - Saibaba Mitra Mandal thereafter filed First Appeal No.1584 of 2012 in this Court wherein by order dated 06.06.2017 the Suit was remanded back to the Trial Court by framing additional issues as to whether the Plaintiffs 17 of 27 AO.226.2025 with Group.doc prove that they were entitled to erect, locate and to situate their 27 stalls / structures on the land belonging to the Society and whether the location of the Plaintiffs’ stalls was ever authorized by the Corporation Authorities. With this remand order, this Court directed the Trial Court to decide the Suit in a time bound manner. Once again both the parties were heard on the additional issues framed by this Court and once again on merits the Suit was dismissed by judgment dated 05.12.2017. It is seen that said Saibaba Mitra Mandal thereafter filed a fresh First Appeal No.553 of 2018 and obtained interim protection which was extended from time to time thereafter. This Court in First Appeal by judgment dated 05.08.2024 upheld and confirmed the judgment and decree of the Trial Court passed in LC Suit No.2232 of 2001 returning a finding that the Trial Court had rightly dismissed the Suit. Said Saibaba Mitra Mandal thereafter challenged the judgment dated 05.08.2024 before the Supreme Court in Special Leave to Appeal SLP

(c) No.22201 of 2024 which was dismissed by order dated 30.09.2024.

17. After the aforesaid dismissal by the Supreme Court apprehending that their structures will be demolished, 8 out of the 27 members of Saibaba Mitra Mandal who still have their structures / stalls filed 8 separate Suits in the City Civil Court in October 2024. What is shocking the conscience of this Court is the fact that is none of the said 8 Suits disclosed the aforesaid previous proceedings and clearly suppressed all such facts and took advantage of the due process 18 of 27 AO.226.2025 with Group.doc of law.

18. The argument of Mr. Thorat is that the 6 Appellants / Plaintiffs whom he represents were never part of the previous round of litigation cannot be countenanced either. He would vehemently argue that the address shown with respect to the previous 27 structures of the members of Saibaba Mitra Mandal and the address of the Plaintiffs in the present Suit proceedings is different. He would submit that in the previous round of litigation the structures of Saibaba Mitra Mandal were shown to be abutting on Vasant Lalji Road, Kandivali (west) whereas the present structures of the six Appellants/ Plaintiffs whom he represents are on Bajaj Road, Kandivali (west) and both are at different locations. On this count also the learned Advocate is clearly wrong. Vasant Lalji Road is the road which leads from Kandivali Station on which the property of the Society is existing. In so far as Bajaj Road is concerned, there is a Bajaj BMC School across the road and the said Bajaj cross road is perpendicular to Vasant Lalji Road as can be seen from the location plan before me. Both roads are one and the same, rather the road is known by two names as per the addresses on the documents of the Appellants. That apart, the exact location of the structure of the 6 Plaintiffs represented by Mr. Thorat is absolutely identical to the structures which were depicted on the Court Commissioner’s Report appended to the proceedings which are also placed on record. 19 of 27

19. With the able assistance of the learned Advocate for the Corporation and the Society, I have also perused not only the location map of the structures, but also compared the addresses on the Electricity Bill and the alleged Census receipt relied upon by the Appellants / Plaintiffs. It is seen that Bajaj Cross Road / Bajaj Road and Vasant Lalji (VL) Road is used in the alternate while describing the addresses and therefore this argument of Mr. Thorat that the 6 Plaintiffs before me were not part of the previous proceedings and their structures are located on a completely different road stands defeated on the face of record. It cannot be accepted by the Court at all even on prima facie consideration.

20. Mr. Thorat’s has referred to and relied upon the decision of the Supreme Court in the case of Krishna Ram Mahale (Dead) by LRs. Vs. Shobha Venkat Rao[1] and the decision of this Court in the case of Abdul Hasan Shaikh Mansuri Vs. Municipal Corporation of Mumbai and Ors.[2] but those decisions cannot apply in the facts of the present case which are so glaring and malafide as pleaded by his clients.

21. I have perused the Affidavit – in – Reply filed by Mr. Abhay Dinkar Jagtap, Designated Officer / Executive Engineer with the able assistance of Ms. Khandeparkar, learned Advocate for MCGM. In the present case, it is prima facie seen that the 8 Appellants / Plaintiffs

20 of 27 AO.226.2025 with Group.doc before me are already taking rather taken undue advantage of the due process of law though it is argued by 6 out of 8 Appellants / Plaintiffs that they were not part of the previous round of proceedings. Such submission stands to be rejected outrightly. It is prima facie proven and evident from the material on record relied upon by Appellants themselves that structures of the 6 Appellants were clearly and undoubtedly part of the earlier round of litigation. Secondly, the Appellants before me have clearly suppressed the earlier litigation without disclosure of any fact or order of Court therein and such conduct deserves to be deprecated by the Court. Land on which these structures are standing belong to the intervenor Society, the Appellants / Plaintiffs have no right whatsoever either in the land or to sustain their structures put up by them on the said land which are illegal and unauthorised. Thirdly these structures of Appellants / Plaintiffs before me enjoyed the benefit of injunction from 1999 to 2024. Fourthly, one of the Appellant Vasant Dhakatu Gopal represented by Mr. Thorat relies upon the Udyam Registration Certificate dated 24.02.2023 which itself mentions the name of Shree Sai Baba Mitra Mandal as the name of the building premises at page No. 81 of his Appeal from Order whereas his Shop and Establishment Premises Certificate as well as the Electricity Bill is in the name of Sunita Sangeeta Chowgule which clearly highlights his dishonest conduct. Therefore submission of Mr. Thorat that his clients had no nexus with the structures in the previous 21 of 27 AO.226.2025 with Group.doc round of litigation deserves to be dismissed with appropriate strictures and exemplary costs. Such an argument is not open to these 6 Appellants before me at all by merely relying on the Census Certificate and Census Receipt which is not good enough to establish their title. These appellants before me are nothing but illegal hawkers and land grabbers which grab any vacant spaces outside Railway Stations which are high density footfall areas for hawking their business. This menace has spread across Mumbai city outside all Suburban Railway Stations like a disease. In this case Appellants have no legal right to occupy the land of the Society which they did for 26 long years from 1999 to 2025 and all this while due process of law as followed by the Courts in regard to their structures right upto the Supreme Court. Time has come to send a strong message to such illegal hawkers and land grabbers that rule of law prevails in this country. These hawkers /Appellants never pay taxes, they inconvenience the general public at large, litter public areas, they occupy land belonging to others forcibly and then approach Courts to seek due process of law to be followed before evicting them. All above attributes are exercised by the 8 Appellants herein in the present case. Common people whose land is grabbed by such persons cannot withstand them due to political patronage and other obvious reasons which are not hidden. But when facts are glaring and unambiguous like in the present case, this Court cannot be a silent spectator. 22 of 27

22. Admittedly the land belongs to the Society and the Appellants / Plaintiffs cannot set up rival entitlement on the basis of the above evidence which has been rejected by the Court rather all Courts in proceedings right up to the Supreme Court. Today before me, both learned Advocates Mr. Naphade and Mr. Thorat have addressed on the cause of action being notice under Section 349 of Mumbai Municipal Corporation, 1888 and argued that it merely pertains to certain derelictions by them which they are ready to correct. Both the learned Advocates have addressed and argued that some of the structures are made of brick masonry walls and therefore the notices deserve to be contested. It needs to be reiterated that the status of the very structures has been taken cognizance of as far back as in the year 2001 in Order dated 20.03.2001 passed in L.C. Suit No.1308 of 1999. Civil Court has taken cognizance of the Commissioner’s Report which stated that rest of the stalls were having no walls and wherever walls were found, it was made with plywood or tin sheets. In the present case itself, Secretary of Shree Sai Baba Mitra Mandal, Mr. Ashok Kasavkar who was admittedly part of the earlier round of proceedings claims to own area admeasuring 630 square feet (35' X 18'). Admittedly, Mr. Kasavkar has attempted to hoodwink this Court by filing fresh plea so as to protect the illegality which was decided by clear suppression which cannot be allowed by this Court once noticed. Next, it is also seen that the Hon’ble City Civil Court in the previous 23 of 27 AO.226.2025 with Group.doc round of litigation in its order has clearly held that occupants of these structures have not proved that the structures are authorized or tolerated by any policy and that was as far back as in 2001 pursuant to which the all occupants of the structures applied for regularization to the Corporation and their regularization applications were comprehensively dismissed.

23. These Appellants before me, were given a reprieve by this Court in the First Appeal proceedings by Order dated 06.06.2017 by framing two additional issues as to whether they proved that they were entitled to erect, locate and situate the 27 stalls / structures at the subject land and whether the location of the said stalls was authorised or permitted by the Corporation. Upon remand to the City Civil Court, both the aforesaid additional issues were tried, evidence was led and they were decided against Appellants. In further First Appeal thereafter the findings were reaffirmed by this Court by Order dated 05.08.2024 and by the Supreme Court by Order dated 30.09.2024.

24. In the above background, the same issue is sought to be now re-agitated by some of the stall owners individually. The Appellant / Plaintiffs before me have no semblance of any right or legality to occupy the structures as they are blatantly illegal and unauthorised. The existence of these structures is nothing but a sheer abuse of the due process of law. Appellants are not entitled to any relief 24 of 27 AO.226.2025 with Group.doc whatsoever. The order passed by the City Civil Court in the 8 Suit proceedings have been correctly passed and in the above background and no infirmity whatsoever can be found in the passing of the impugned orders. All orders impugned in the 8 Appeal From Orders are confirmed and upheld. Resultantly all Appeal from Orders fail. In the facts and circumstances of the present case alluded to hereinabove considering the conduct of the Appellants before me of clear suppression and non- disclosure of previous proceedings in the suit plaint, taking a false plea that they were not part of the previous proceedings by 6 out of the 8 Appellants before me, invoking jurisdiction of this Court on a false plea for following the due process of law despite enjoying interim protection from 1999 to 2024 for the same cause of action and contemplating following due process of law once again, I am inclined to levy exemplary costs on the Appellants.

25. For such above conduct of the Appellants / Plaintiffs before me, I am inclined to levy exemplary costs Appellants / Plaintiffs in the

8 Appeal from Orders. Two Appellants represented by Mr. Naphade in Appeal From Order Nos.247 of 2025 and 248 of 2025 are directed to pay costs of Rs.25,000/- each to the Kirtikar Law Library, High Court, Mumbai since they have admitted the fact that they were part of the previous suit proceedings. Six Appellants represented by Mr. Thorat in Appeal From Order Nos.226 of 2025 and 227 of 2025; Appeal From Order (St.) Nos.12987 of 2025; 12989 of 2025; 12992 of 2025 and 25 of 27 12996 of 2025 are directed to pay costs of Rs.50,000/- each to the Kirtikar Law Library, High Court, Mumbai for the reasons stated in this order since they have argued that they were never part ofhte previous proceedings. All 8 Appellants are directed to deposit the aforementioned costs / amounts as directed within a period of two weeks from today failing which the same shall be recovered by the Collector Mumbai Suburban District from the Appellants / Plaintiffs as arrears of land revenue and deposited with the Kirtikar Law Library, High Court, Mumbai.

26. In view of the above observations and findings all 8 Appeal from Orders stand dismissed. 8 Intervention Applications filed by Intervenor Society in all Appeal from Orders are disposed including the

27. Appeals From Orders are dismissed and disposed of in the aforementioned terms. [ MILIND N. JADHAV, J. ]

28. After the above judgment is pronounced, Mr. Naphade, learned Advocate appearing on behalf of two Appellants whom he represents and Mr. Yadav, learned Advocate representing and espousing cause of remaining six Appellants (who were represented by Mr. Thorat) persuade the Court to stay the effect of this judgment and 26 of 27 AO.226.2025 with Group.doc continuation of interim relief in order to test the validity and legality of this judgment in the Superior Court.

29. Mr. Tamboly, learned Advocate appearing on behalf of Society (Intervenor) opposes continuation of interim relief in view of the order passed by the Division Bench of this Court previously in respect of the same cause of action, inter alia, pertaining to the suit structures belonging to Appellants and the Society having suffered for the past 26 years.

30. I have considered the request made by Mr. Naphade and Mr. Yadav both.

31. In the facts and circumstances of the present case where Appellants before me have enjoyed interim protection for a humongous period of 26 years from 1999 to 2025 (till passing of this judgment) and for the findings which are returned in the aforesaid judgment, I am not inclined to accept the request made by Mr. Naphade and Mr. Yadav to stay the effect of this judgment and continue the interim order any further. Said request is rejected. [ MILIND N. JADHAV, J. ] Ajay 27 of 27 TRAMBAK UGALMUGALE