18 May 2121

The Municipal Corporation of any area can construct public toilets in open space for the benefit of the slum dwellers with the due process of law - Bombay High Court

Case : Ramesh R. Pandey and Ors. v. Municipal Corporation of Greater Mumbai Appeal from Order (ST.) No. 4532 of 2021 with Interim Application (St.) No. 4533 of 2021

Court : Bombay High Court

Bench : Justice Milind N. Jadhav

Decided on : 18 May 2121

Relevant Statutes

Section 38 of Specific Relief Act, 1963

Section 351 of Mumbai Municipal Corporation Act, 1888

Procedural History and Brief Facts

1. Plaintiffs are the owner of the structures bearing Census No. RXC -85-1/1, RXC-84-1/1 and RXC-18-1/1A, Ganpat Patil Nagar, Kandar Pada, near I.C. Colony Dahisar (West) Mumbai – 400068. There was an open space vacant in front of these structures which is next to Dahisar Link road. In this case, Plaintiff filed a plaint and stated that plaintiffs are in use, Occupation and possession of the open space in front of suit structures and this open space belongs to the plaintiff. Plaintiff filed a suit under Section 38 of the Specific Relief Act, 1963. 

2. In the Plaint, It was stated that the Corporation had initiated an action against the plaintiff‘s structure under Section 351 of Mumbai Municipal Corporation Act,1888 in which the plaintiff succeeded in setting aside the notice under Section 351 of Mumbai Municipal Corporation Act 1888. Plaintiff stated that they have been using open space for the last several years for the purpose of parking their vehicles for loading and unloading goods from the suit structure as they are in exclusive possession of the Plaintiffs. Plaintiff No.1 and Plaintiff No.2 are levied to N.A tax for the open space along with suit structure and they are paying N.A tax to the authority.

3. The Defendant Corporation wanted to construct a Public Toilet in some area of the open space which was initiated by the Public Notice dated 28.01.2005  and this was also pasted on suit structure of the plaintiff  The Corporation has followed the due process of the law i.e. under “Swachh Bharat Mission Scheme”. The Corporation is carrying out this construction at Galli No.14 to control the spread of contagious disease in the said area. 

4. The Corporation has obtained the remarks from the Maharashtra Coastal Zone Management Authority for the construction of a public toilet. Also, the Ministry of Urban  Development said, there is no need for NOC for the construction of public toilets and as per the revenue records, the possession is on which the construction is being made belongs to Mr. Dyanesh Kamlakar Samant which further shows that there is no reference of names of any plaintiff here.

5. Afterwards, Plaintiff approached the court by filing an original suit and states that the construction of public toilets by the corporation is without due process of law on various grounds. The trial considered the Notice of Motion filed by Plaintiff seeking a temporary injunction to restrain the corporation for construction in the open n space which the trial court dismissed by order dated 10.02.2001. Plaintiff filed an appeal against the above order and also filed an Interim Application for seeking an injunction against the defendant 

The Issue of the Case

Whether the Plaintiff is conferred with any right, title or interest in respect of the open space next to the structure?

The Observations of the Court

1. The Honourable Bombay High Court interpreted that the Plaintiffs are not the owners of the suit structures or the open space by application of any principle of law. The Honourable High Court observed that the N.A order dated 26.01.2005 does not give any entitlement of right or title to the plaintiff in the suit's open space and this open space belongs to one Dyanesh Kamlakar Samant according to the revenue record. 

2. The Honourable Bombay High court observed that there is no documentary evidence of title, so there is no right, title or interest conferred on the plaintiff in respect of the open land. The Honourable High Court observed that, whether it is in Galli No. 14 or near the entrance of Galli No. 14, is a suitable place for a toilet block and this will be beneficial to the slum dwellers residing at Galli No.14. The Honourable High Court held that there should be no change in the precise location of the construction of the public toilet block.

3. The Honourable Bombay High Court observed that the photographs pertaining to the construction of the public toilet block shows that the toilet block is not covering an entirely open space which is between the Plaintiff’s Structure and the link road and also there is adequate open space which is left. 

4. The Honourable High court observed that Plaintiff has been levied N.A tax and the penalty for using the land which does not belong to them. Plaintiff has not filed any suit for declaration of title and has only filed for an injunction. 

The Decision Held by the Court

The Appeal from Order (ST.) No. 4532 of 2021 and the Interim Application (St.) No. 4533 of 2021 is dismissed and disposed of.

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