Judgment:
ORDER
A.M. Khanwilkar, J.
1. This Appeal takes exception to the order passed by the City Civil Court, Bombay dated June 20, 2001 in Notice of Motion No. 450 of 2001 in S.C. Suit No. 3910 of 1996, By this order the trial Court has directed the Appellant-Corporation to reconstruct the second floor and first floor (part) of the suit premises of building Nos. 15 and 16 Patel Mansion situated at Kurla (West), Mumbai 400070, within three weeks from the date of the order. The Corporation was further directed to forthwith return the 287 iron bars to the respondent-plaintiff which were taken by them at the time of demolition, between August 2, 2000 to August 7, 2000; and in the event the same were not available and destroyed by the Corporation then the Corporation was directed to pay compensation for the same to the respondent-plaintiff within three weeks fromthe date of the order. This order is the subject matter of the present Appeal. In so far as the latter direction is concerned, the stand taken on behalf of the Corporation before this Court is that they would return all those materials confiscated by the Corporation during the demolition as specified in the list prepared by the Ward Officer. According to Mr. Walawalkar there is serious dispute with regard to the number of items claimed by the respondent-plaintiff and in the list submitted by the authorities.
2. Briefly stated, the suit structure, being Building Nos. 15 and 16, Patel Mansion, Jivan Jyot, situated at Kurla (West), Mumbai 400070, consisted of ground plus two floors. The respondent had applied for permission to carry out certain repairs, which permission was granted on November 29, 1995 in exercise of powers under Section 354 of the Bombay Municipal Corporations Act (hereinafter referred to as the said Act). While the said repair work was going on, it was noticed by the Officers of the Appellant-Corporation that the respondent was carrying out work in contravention of the permission granted by the Corporation, for which reason stop work notice was given under Section 354-A of the Act. That notice was challenged by the respondent before the City Civil Court, Bombay, by way of Special Civil Suit No. 1430 of 1996. In the said suit the Court directed the parties to maintain status-quo in respect of the suit property. Thereafter on March 19, 1996, the Appellant-Corporation issued notice under Section 351 of the Act calling upon the respondent to remove the structure specified in the said notice which, according to the Corporation, was unauthorized and offending structure. On receipt of the said notice the respondent immediately rushed to the City Civil Court, Bombay by way of suit being Special Civil suit No. 3910 of 1996. In the said suit the respondent took out the Notice of Motion praying for interim injunction during the pendency of the said suit. The City Civil Court on July 12, 1996 granted ad-interim relief which was to enure till July 19, 1996. It is not in dispute that the said ad-interim relief was subsequently continued by order dated October 4, 1996. However, it appears that the tenants of the respondent had reason to believe that the respondent after obtaining ad-interim relief from the trial Court caused to misplace the papers pertaining to the suit filed before the trial Court as well as original file of the Corporation and was taking advantage of the ad-interim relief granted by the trial Court. The said tenant (hereinafter referred to as the Popat family) appears to have made this compliant about the said impropriety committed by the respondent not only to the City Civil Court, Bombay, but also to the Registrar of the High Court of Bombay. It appears that pursuant to the said complaint, the trial Court passed an order on June 9, 2000, which reads thus:
'Her Honour Judge Ms. Laxmi P. Rao : In pursuance of complaint lodged by Smt. Geeta Harshad Popat before the High Court at Bombay and further subsequent enquiries held in the matter regarding thereon availability of papers and proceedings in this suit, it has been brought to the notice of this Court that further action would have to be taken in the matter, for booking culprits who are responsible for removing the papers and proceeding from the Court. Registrar to issue notice to the plaintiffs as well as their advocates to remain present on the date before this Court to show cause as to why action should not be taken against the plaintiffsand on their Advocates for the said pilferage of papers and proceedings in this suit. The said notice be sent by Registered Post Acknowledgement Due (R.P.A.D.) and is made returnable on 10-7-2000. In case there is no other record available with the office regarding the papers and proceedings of this suit, Registrar shall make further inquiries with Advocate Mayuresh A. Sukland and or Smt. Geeta H. Popat the interest/party in the aforesaid suit and at whose instance the complaint regarding missing papers is made to the Honourable High Court. Mrs. Popat informs that the papers and proceedings from legal department of Corporation are also missing, hence making it more complicated to reconstruct, the brief. Upon the Court making enquiry with Mrs. Popat, she informs the Court that the name of the Advocate for the plaintiff is Mr. D.D. Jani and the name of the plaintiff therein is Sushilaben Indrajit Patel.
Registrar to act on this order forthwith.
Sd/- x.x.x.'
3. In terms of the above order the Registrar of the trial Court issued notices to Advocate on record for the respondent-plaintiff to furnish the address of the plaintiff and to comply with the direction given by the Court in its order. In response to the said notice, respondent's Advocate Shri Jani informed the Registrar on June 27, 2000 that he does not have any paper pertaining to this matter as, according to him, all the papers were taken away by the respondent-plaintiff. In this backdrop, once again the Court passed the following order, on July 10, 2000, which reads thus :
'Her Honour Judge Dr. Laxmi Rao : Advocate Joshi for the Corporation.None for the plaintiffs. Later on Advocate Jani for the plaintiffs ispresent. Advocate D.D. Jani is present in Court and submits that theplaintiff has taken away the papers of this suit from him. Therefore, forfurther action kept back at 2.45 p.m. along with 2133/99
After Recess:--
Again called out.
Advocate Joshi for the Corporation.
Mrs. Popat applicant is present.
The plaintiff is also absent.
This matter is referred by the High Court for inquiry upon a complaint asspecifically, stated on the last occasion i.e. 9-6-2000. Advocate Jani whowas earlier appearing for the plaintiff reported to this Court that the partyhas withdrawn the brief from him.
As the papers and proceedings are not traced yet, there is no alternativebut to dismiss the suit by which ad interim, ad-interim orders if passedearlier come to an end.
Defendants' Advocate shall inform the concerned Ward Officer aboutthe vacating of the said orders through the Chief law Officer and see thatmischief in this matter ought to be done by misplacing the papers isbrought to light. Compliance of this order to be reported to this Courtwithin two weeks from today by the Corporation to enable this Court toreport to High Court.
By this action the suit and all the interim reliefs passed therein come toan end and stand vacated.
Registrar to report this matter and orders passed thereon to the Hon'bleHigh Court within two weeks from today.
Sd/- x.x.x.'
4. From the pleadings on record it would however appear that, the respondent in its affidavit has clearly conceded the position that the power of attorney of the respondent Mr. Jitendra Indrajit Patel, who is the son of the respondent, was personally present in the Court on 10th July 2000 when the Court had made the abovesaid order and had taken notice thereof. The explanation, however, offered is that he was present in the Court room in relation to some other matter being Suit No. 2133 of 1999 which was filed by Mrs. Popat against the daughter in law of plaintiff and against the Corporation wherein said Mrs. Popat had taken out Chamber Summons. We are not concerned with said proceedings. However, the fact remains that the respondent's son was personally present in the Court when the abovesaid order was passed and had also taken notice of said order. This position is conceded in the affidavit filed before the trial Court. It is also not in dispute that the said Mr. Jitendra Indrajit Patel was looking after all the litigations of the respondent and was fully aware about the progress of the matters. On affidavit it is also conceded that he immediately apprised the respondent about the nature of the order passed by the trial Court on July 10, 2000. Be that as it may, the fact remains that the respondent did not take any steps thereafter till August 1, 2000. On the other hand, on July 11, 2000 the Advocate appearing on behalf of the Appellant-Corporation, in compliance with the directions issued by the trial Court, informed the Ward Officer 'L' Ward, Kurla (west) by sending written letter and also asked the Ward Officer to take steps on the basis of the said letter. The contents of this letter would be relevant for examining the controversy that arises before this Court for which reason the same is reproduced in its entirety which reads thus :
'11th July 2000
Ref: B.C.C.C. Suit No. 3910 of 1996
Sushilaben Patel v. M.C.G.M.
Sub : 351 notice bearing No. BL/JEDL/939/SR dated 19-3-1996 inrespect of unauthorized construction of P.M. Walls with M.S. Angles andladi coba at rear side of first floor and second floor terrace Adam. 23' x16' on first floor & 35.6' x 47' with 9' height on second floor at SurveyNo. 233/239, Patel Mansion, Station Road, Kurla, Mumbai - 400070.
..... Dear Shri Wale,
The plaintiff has filed the present suit challenging the aforesaid 351 notice. In the above matter, in spite of repeated notes and reminders, no action papers are received by this department. In spite of D.O. letter also, no instructions and action papers are received to enable this department to file affidavit-in-reply/written statement.
The above matter is referred by the Hon'ble High Court for enquiry to City Civil Court upon a complaint received by the Hon'ble High Court. The City Civil Court had called for record & proceedings from their office, however, the record and proceedings in the said suit are not traceable in the Court. The matter was on board on 10-7-2000 when the Advocate for The plaintiff intimated to the Court that the plaintiff has withdrawn the brief from him. In view of the said facts, the Hon'ble Court has passed an order on 10-7-2000 dismissing the suit and vacating all interim and ad-interim orders. The Court has further directed the Chief Law Officer to communicate the said order to the Ward Officer and to submit the compliance report to the Court within two weeks from 10-7-2000 to enable the Court to report to Hon'ble High Court.
Pursuant to the order of the Court, you are directed to take necessary action of demolishing the suit premises to which 351 notice dated 19-3-1996 is issued and send the report to this department on or before 18-7-2000. Thereafter this department will submit the compliance report to the Court, on or before 21-7-2000. The copy of the 351 notice and the order passed by the Hon'ble Court is enclosed here within for your ready reference. With regards,
Your Sincerely,
Sd/-
(N.U. Matai)
To,
Shri Wale,
Ward Officer, 'L' Ward,
Kurla.'
5. According to the Appellant-Corporation the officers bona fide believed that in view of the seriousness of the matter the offending structure was to be demolished forthwith and compliance report in that behalf was to be submitted to the trial Court. It appears that the Assistant Engineer, Ward 'L' therefore, issued notice purported to be under Section 488 of the Act calling upon the respondent to forthwith demolish the unauthorized structure on or before August 3, 2000 failing which the Corporation would demolish the same at the costs and consequences of the respondent. It is conceded by the respondent that he received this notice on August 1, 2000 at 11.30 a.m. It appears that on receipt of this notice, the respondent immediately rushed to the City Civil Court on the same day i.e. August 1, 2000 and for the first time made application for obtaining certified copy of the order passed by the trial Court dated July 10, 2000. In the meantime, another notice was issued by the Sub-Engineer, Ward 'L' dated August 1, 2000 clearly mentioning that the earlier notice given by the Assistant Engineer has been superseded to the extent of date for removal of the structure. This notice is undoubtedly issued under Section 488 of the Act calling upon the respondent to remove the structure before August 2, 2000 failing which the Corporation would demolish the same on or after 11.00 a.m. of August 2, 2000 at the cost and consequences of the respondent. It is not in dispute that this second notice was served on the respondent at 3.30 p.m. on August I, 2000. Obviously only after receipt of the abovesaid first notice, respondent started moving in the matter and appears to have taken legal advice and caused to prepare the suit to be presented before the City Civil Court, Bombay for declaration and injunction against the Appellant. The intention of the respondent to file such a suit was made known to the Appellant by Advocate's notice on August 2, 2000 at 11.25 a.m. and the said suit was actually filed in the morning Session before the City Civil Court, which was numbered as Special suit No. 4388 of 2000. The communication sent to the Appellant on behalf of the respondent clearly indicates that the trial Court would be moved for appropriate interim relief at 2.45 p.m. According to the respondent, in spite of this communication the officers of the Appellant commenced the demolition work at 2.00 p.m. itself on August 2, 2000. It is the respondent's case that this was done by the officers of the Appellant only with a view to frustrate the possibility of the respondent obtaining appropriate relief from the Court of law. It also appears from the record that besides filing the said suit the respondent intended to file First Appeal against the order passed by the trial Court dated July 10, 2000 before this Court on the same day. In fact, the said First Appeal was lodged in this Court, being First Appeal Stamp No. 3250 of 2000, at around 3.00 p.m. on August 2, 2000. The notice of the fact of respondent having filed the First Appeal was also given to the Appellant-Corporation at about 4.30 p.m. On August 3, 2000 another notice was given to the Appellant at around 12.30 p.m. that the respondent would be moving the High Court for appropriate interim relief on that day at 2.45 p.m. The respondent also requested the officers of the Appellant to refrain from carrying on further demolition which was continued unabated in spite of repeated request and intimation sent by the respondent in that behalf that the respondent was taking necessary steps to obtain interim orders from the Court of competent jurisdiction. In spite of these intimations, the officers went ahead with demolition work for which reason the respondent once again gave notice to the concerned authorities on August 4, 2000 at 1.55 p.m. informing that the hearing of the First Appeal has been fixed at 2.45 p.m. However, at 2.45 p.m. the hearing of the first appeal was adjourned to 4.00 p.m. for production of certified copy of order passed by the trial Court on July 12, 1996 which had granted ad-interim relief to the respondent. The grievance made by the respondent is that in spite of these developments the officers of the Corporation continued with demolition work even till August 6, 2000. It is the respondent's case that thereafter the Appellant issued notice under Section 471 of the Act directing the respondent to remove the debris which was collected due to demolition work. According to the respondent, the demolition work was continued even till 7th August 2000 when the first appeal was heard before this Court. This Court, however, after hearing both the sides was pleased to dispose of the said first appeal by a detailed order at around 1.00 p.m. Admittedly, by that time, the Appellant had already demolished the entire second floor and part of the first floor. Such a statement was made on behalf of the Appellant before this Court which is so recorded in the order disposing of the first appeal. From the aforesaid events, it would appear that the grievance of the respondent is that the officers of the Appellants conducted the demolition work without due process of law with undue haste in spite of repeated intimations given to them that the respondent was taking necessary steps for obtaining appropriate relief from the Court of competent jurisdiction. The subject action was mala fide. To complete the narration of events it may be mentioned that on August 16, 2000 the respondent sent letter to the Appellant calling upon the Appellant to return the iron bars and the building materials which were lying on the site after demolition work was completed. Undisputedly, since the respondent did not remove the debris in spite of notice the same was caused to be removed by the Appellant. According to the Appellant, the materials which could be preserved after demolition have been stocked by the Ward Officer and the list of such materials have been prepared and maintained on record. On the other hand, on September 18, 2000 the Appellant gave notice to the respondent calling upon to pay a sum of Rs. 64,030/- towards demolition expenses. On receipt of this notice the respondent by Advocate's letter called upon the Appellant to furnish the details and break up of the said amount. It is alleged that instead of furnishing the break up, the Appellant by letter dated 20th November 2000 reiterated the demand which was made earlier. In this background the respondent filed the subject Notice of Motion No. 450 of 2001 before the City Civil Court, praying for the following reliefs :
'(a) for mandatory order directing the Corporation to reconstruct the second floor and first floor (part) of the suit premises viz. ground plus two upper floors, situated at Building No. 15 and 16, Station Road, Kurla (West), known by name Jeevan Jyot, as well as Patel Mansion, and bearing Municipal property No. 'L' ward, 1083(1) and 1083(2) more particularly shown in the plan of the Architect dated 4th January, 2001, Exhibit A-6 hereto, which was demolished by the Defendant Corporation, from 2nd August, 2000 till 7th August, 2000 within a period of two weeks;
(b) that the Corporation be directed to return 287 iron bars immediately to the plaintiff, which were taken by the Defendant Corporation at the time to demolition, from 2nd August, 2000, till 7th August 2000; or in the alternative the Corporation be directed to pay compensation for 287 iron bars;
(c) for interim and ad-interim reliefs in terms of prayer (a) & (b) above;
(d) that the Defendant be ordered to pay to the cost of the Notice of Motion;
(e) for such further and other reliefs as the circumstances of the casemay require. Dated this 31st day of January 2001.'
6. In support of the said Notice of Motion the respondent filed affidavit giving the chronology of events and contended that the entire action of the Appellant of demolition was mala fide and without any valid reason. According to the respondent, the demolition was done in undue haste so as to frustrate the possibility of respondent approaching the Court of law for seeking appropriate interim relief. This was done at the instance of Popat family who were respondent's tenants. This Notice of Motion was opposed by the Appellant by filing detailed affidavit. According to the Appellant, action of demolition was required to be taken in view of the direction given by the trial Court in its order dated July 10, 2000 and as communicated to the officers by the law officer. In substance the stand is that the action taken by the Appellant is bona fide act without any ill-will against the respondent, but done only with a view to comply the directions given by the trial Court. The trial Court on analyzing the relevant materials or record has allowed the Notice of Motion in terms of prayer Clauses (a) and (b) and issued appropriate directions to the Appellant. For taking that view, as can be discerned from the Judgment under challenge, the trial Court has proceeded on the premise that this court while disposing of the first Appeal has directed the trial Court to pass necessary orders relating to reconstruction of the demolished structure. The trial Court then proceeded to examine the Commissioner's Report and found that it indicates that suit structure has been demolished to the extent already conceded by the Appellant before this Court in the first Appeal. The trial Court then observed that since the Corporation was opposing the present application for reconstruction, it was necessary to issue direction against the Corporation. The trial Court then proceeded to examine the illegalities committed by the Appellant which would justify the order of reconstruction. According to the trial Court, the Appellant gave two inconsistent notices on 1st August 2000, coupled with the fact that the Appellant proceeded with demolition work in spite of the communication sent to the officer of the Appellant about the fact that the respondent was taking necessary steps for moving the trial Court as well as the High Court for obtaining interim relief. Besides this, the trial Court has observed that the Appellant has made incorrect and misleading statement on affidavit for opposing the Notice of Motion by stating that the trial Court had directed the Corporation to demolish the suit structure when in fact, there was no such direction given by the trial Court in its order dated 10th July 2000. Besides that the trial Court was influenced by the fact that the suit structure was residential and since the same has been demolished with undue haste, hence it would be necessary to direct reconstruction. The trial Court has further observed that the letters sent by the law officer dated 11th July 2000 to the Ward officer informing about the proceedings before the trial Court were wholly incorrect as no direction to demolish was given by the trial Court in its order dated 10th July 2000, The trial Court has proceeded to rely on the decision of the Supreme Court in : [1995]3SCR964 to hold that since false affidavit was filed on behalf of the Appellant, the Court in such a situation would be justified in directing the Appellant to reconstruct the demolished portion of the structure. The trial Court also relied on an unreported decision of this Court in Appeal From Order No. 513 of 1982, to hold that the fact situation of the present case were similar and, therefore, the relief of reconstruction as prayed for needs to be granted. Besides, taking this view in paragraph 23(e) the trial Court has observed that the Corporation was not resisting the relief for reconstruction. This opinion expressed is, however, inconsistent with its earlier observation in paragraph 8, where it has observed that the Corporation was resisting the relief for reconstruction. The trial Court also rejected the argument on behalf of the Appellant that the Court would grant the relief of reconstruction only if it was satisfied that the suit structure was authorised structure, therefore, entitled for interim protection during the pendency of the suit.
7. The Corporation has challenged the abovesaid directions given by the trial Court. According to Mr. Walawalkar the direction of reconstruction is a mandatory direction and the same be given only in exceptional cases and not as a matter of course. He submits that the fact situation of the present case would not warrant such a mandatory direction. According to him, it cannot be overlooked that the trial Court had dismissed the suit having regard to the conduct of the respondent in that she was found responsible for misplacing the records of the Court as well as the Corporation with ulterior purpose. He submits that, if viewed from that perspective, the Court would then proceed to examine whether the act of the Corporation was a bona fide or mala fide as contended by the respondent. Mr. Walawalkar submits that the officers of the Corporation essentially acted on the basis of the intimation given to them by the Advocate of the Corporation appearing before the trial Court. It is, therefore, contended that in such a situation, it would be inappropriate to proceed on the assumption that act of demolition was mala fide as contended. He further submits that though the Appellant was informed by the respondent about his intention to approach the Court of law and obtain proper relief, but so long as no interim protection was given by any Court of competent jurisdiction, nothing prevented the officers from taking action which was essentially for compliance of the direction given by the trial Court on 10th July 2000. It is argued that the act of the Officers should be presumed to be bona fide act and it cannot be easily questioned unless there is positive evidence to the contrary. Reliance has been placed on Section 527 of the Act which accords protection to the officers acting under the Act. In other words, it is contended that unless the respondent was able to adduce positive evidence to indicate that the act of demolition was mala fide per se it would be impermissible for the Court to assume in that behalf. Reliance is also placed on Section 525 of the Act to contend that mere irregularity in the notice would not entail the notice or an action based on such a notice invalid. It is contended that no doubt two separate notices have been issued, one by the Assistant Engineer and the other by the Sub-Engineer of the Ward, but the latter notice issued by the Sub-Engineer would prevail because it was issued in discharge of official duty by the higher officer. He submits that there is ample material on record as well as the affidavit in support that the action taken by the concerned officers relating to demolition was an informed decision, though it may be under some mistaken belief. He submits that every illegal action cannot visit with mandatory direction. Mr. Walawalkar further argued that the fact whether the impugned action was mala fide or not is a question of fact which ought to be asserted and necessary foundation therefore should be laid. He submits that in the present case necessary material facts and particulars were lacking so as to constitute mala fide. Whereas, the trial Court has merely referred to an unreported decision of this Court, to hold that even in this case the action was mala fide. Mr. Walawalkar further submits that merely because suit has been filed or for that matter the suitor intends to take out application for temporary injunction that by itself would not prevent the Corporation from taking action in accordance with law. It is submitted that even if there was some illegality in the action of demolition that would only remain in the realm of illegality and will not partake the colour of mala fide action. It is contended that unless the respondent succeeds in establishing that the action wasmala fide, the Court would not readily agree to grant mandatory relief of reconstruction as has been done in the present case. The Learned Counsel has placed reliance on the unreported Judgment of this Court in Appeal from Order No. 308 of 1969 decided on December 7, 1969 to contend that the Court could not issue directions which would amount to directing the authorities to act contrary to the mandatory provisions of the Act or in violation of the statutory provisions. Reliance is also placed on the decision reported in : AIR1997Bom74 in the matter of Municipal Corporation v. B. M. Sharma to contend that the trial Court clearly exceeded its jurisdiction in issuing directions of mandatory nature requiring the Corporation to reconstruct the suit property.
8. On the other hand, the Counsel for the respondent has adopted the reasons given by the trial Court to justify that this was a fit case where mandatory direction for reconstruction ought to be ordered. He further submits that in view of the fact that though repeated intimations were given to the Appellant and its officers from time to time and even though the officers were fully aware that the respondent was moving the Court of law for appropriate interim relief and that the Appellant was represented not only before the trial Court but also before this Court, there can be no doubt that the impugned action of demolition was only with a view to frustrate the remedy and protection which otherwise could have been granted to the respondent. He has strongly relied on the unreported decision of this Court in Appeal from Order No. 503 of 1982 decided on December 9, 1982 to contend that even in that case immediately after receipt of notice under Section 351 of the Act, the owner of the property apprised the concerned authority that he will take steps for obtaining appropriate interim relief from the Court of law, but before he could obtain necessary orders, the structure was demolished and this Court found that in such a situation the action will have to be treated as mala fide and warranting consequential directions for reconstruction of the property. Reliance is also placed on the decision of Division Bench of this Court in 1996(1) Mh.L.J. 963 : 1996(2) All.M.R. 383, Sopan Maruti Thopate v. Pune Municipal Corporation to contend that this Court has prescribed procedure to be followed before resorting to demolition. It is contended that the procedure has not been followed and instead the said authorities unilaterally proceeded to demolish the structure on the specious ground that they were carrying out the directions given by the trial Court dated 10th July, 2000. In the circumstances, it is contended that no interference is warranted with the direction so issued by the trial Court.
9. Before I proceed to examine the rival submissions, I would think it appropriate to advert to the settled legal position. There can be no doubt that the Court possesses ample power to grant injunction in the mandatory form during the pendency of the suit, which could also be in the nature of requiring the authority to reconstruct the property which has been demolished. But, such relief is not an ordinary relief and is not granted as a matter of course. It is only in exceptional and rare cases that the Court would exercise its discretionary power in granting relief in the mandatory form. The quintessence for invoking such discretionary power of the Court would be, inter alia, that the act of demolition undertaken by the officials has not been done bona fide and in good faith, but has been done with ulterior purpose including to defeat the rights of any party or settled peaceful possession. In other words, mere illegality would not visit with such a drastic order but when it is established that the action was mala fide and done with ulterior purpose to defeat the suitors claim that the Court would consider exercise of this discretion. Moreover, merely because the proposed action of the authority was intended to be challenged by way of suit or such other proceedings and suitor would pray for interim relief, however, in the absence of any injunction or restrain order before the prescribed time, the authority will not be precluded from carrying out its proposed action in accordance with law. And if the authority proceeds to execute its proposed action that cannot be termed as mala fide or actuated with ulterior motive or for that matter not bona fide or not done in good faith. But, to seek the mandatory relief of this nature, the suitor will have to adduce positive evidence to indicate that the action was mala fide and actuated with ulterior purpose. This settled legal position is noted in the decision of this Court reported in : AIR1997Bom74 , Municipal Corporation of Greater Bombay v. Bishandas Motilal Sharma
10. Reverting to the decision of this Court in Appeal from order No. 513 of 1982, to my mind, the same can be distinguished on facts. In the present case demolition is carried out not only on the basis of notice under Section 351 of the Act but essentially in purported compliance of the direction of the Court's order dated July 10, 2000. Whereas, in that case the authorities rushed to demolish the structure specified in notice under Section 351 without giving opportunity to the suitor to approach the Civil Court for interim relief. In that context this Court proceeded to hold that the action of demolition was not bona fide nor done in good faith. It is, therefore, not possible to generalize that when the suitor informs the authority that he was taking recourse for interim relief before the Court of competent jurisdiction, the authorities should stay of their hands and refrain from taking action albeit in accordance with law. The above decision has been explained by this court in decision reported in : AIR1997Bom74 . On plain reading of para 8 of this reported decision it appears that only when the plaintiff seeks to directly challenge notice under Section 351 of the Act by way of suit and makes his intention known to the authorities then the authorities should offer some reasonable time instead of demolishing the structure. Whereas, in the above cited reported case, after issuance of notice under Section 351 the party was heard by the authority and demolition order was passed taking the view that no satisfactory explanation was offered by that person. The Court, therefore, observed that there is difference between action taken on the basis of notice under Section 351 and the one taken after affording hearing to the person and the authority having rejected the explanation and passed demolition order. In the circumstances, this Court held that in the latter case it will have to be assumed that the authorities acted in accordance with the law and in compliance of due process of law; and in such a case, they cannot be painted of mala fide.
10A. Applying the said principles to the fact situation of the present case, it will have to be examined as to whether such mandatory direction was apposite. No doubt, the trial Court has granted that relief but, in my view, the test applied by the trial Court is wholly inappropriate. The trial Court is primarily impressed by the fact that the subject structure has been demolished, as is established from the report submitted by the Commissioner. Besides, the trial Court found that the demolition was illegal. For recording this opinion, the trial Court has essentially relied on four facts. Firstly, that the Appellant-Corporation had issued inconsistent notices on 1st August 2000. Secondly, it was the duty of the Corporation to point out to the trial Court on 10th July 2000 that they would reconstruct the entire proceedings instead of permitting the trial Court to dismiss the suit. Thirdly, that the Appellants filed affidavit contending incorrect and misleading statements, for no direction was issued by the Court on 10th July 2000 to demolish the suit structure. Lastly, that in spite of repeated notices given to the officers of the Appellant, the officers proceeded with the demolition work only with a view to frustrate the remedy which was resorted to by the respondent. To my mind, however, the conduct of the officers will have to be examined in the context of the events that preceded the demolition. Undisputedly, after the Court had passed order on July 10, 2000 dismissing the suit with observations, the Corporation's Advocate communicated the proceedings vide letter dated 11th July 2000 to the concerned officer. The Officer, who received the said letter had no reason to doubt the correctness of the intimation given by the Law Officer. It is seen that the said letter dated July 11, 2000 unequivocally records that the Court has directed the Chief Law Officer to communicate the said order to the Ward Officer and to submit its compliance report to the Court within two weeks from 10th July 2000. The said letter further records that pursuant to the order of the Court, concerned officer is directed to take necessary action of demolition of the suit premises to which notice dated 19th March 1996 under Section 351 is issued and send the report to the Department on or before July 18, 2000. In the circumstances, the stand taken on behalf of the Appellant-Corporation that the officers were under bona fide belief that the Court has directed demolition of the subject structure, and, therefore, they were obliged to comply with the said direction is a plausible defence. I find force in the submission that therefore, it is not possible to proceed on the assumption as has been done by the Court below in the present case, that the action taken by the officers of the Appellant was mala fide as such. On the other hand, the Court would be obliged to test the correctness of the stand on the basis of the evidence and all the attending circumstances, adduced before it. There can be no reason to straightaway investigate the matter on the assumption that the act of demolition which commenced on 2nd August 2000 and continued till 7th August 2000 was mala fide; And especially when the officers were made to believe that the Court has directed them to demolish the structure and report compliance within two weeks from July 10, 2000. This impression entertained by the officers of the Appellant will have to be examined also in the backdrop of the events that culminated in requiring the trial Court to pass order dated 10th July 2000. No doubt it is argued that the said order of 10th July 2000 was eventually set aside by this Court, but for examining the question as to whether the act of demolition was mala fide, the fact that the order dated July 10, 2000 has been set aside by this Court in subsequent point of time would be of no avail. The Court will have to place itself in the position which obtained between the 2nd of August 2000 and 7th of 2000. During this period the order passed by the trial Court dated July 10, 2000 was operating. Notably, that order was not stayed by any Court of competent jurisdiction during the abovesaid period and particularly when the demolition was carried out. It is, therefore, also not possible to assume that the demolition was carried out in undue haste. On the other hand, if the authorities had failed to carry out demolition they would have made themselves liable for having failed to comply with the order dated July 10, 2000.
11. The fact remains that the order passed by the trial Court on 10th July 2000 was in the wake of allegations that the respondent - plaintiff had caused misplacement and/or disappearance of the Court record as well as the record in the office of the Corporation. Even the Advocate for the respondent appearing before the trial Court confirmed the position that even his papers have been taken away by the respondent - plaintiff. Moreover, going by the stand taken by the respondent on affidavit it is seen that her son, who is her power of attorney and has been looking after the litigation, was present in court on 10th July 2000 and had complete knowledge about the order passed by the trial Court and that he had informed the respondent about the said order, but nevertheless no steps were taken by the respondent or the said power of attorney to take corrective and remedial measures until the Appellant intended to take action on the basis of that order. On the other hand, the respondent waited till 1st August 2000 when the Corporation issued notice under Section 488 of the Act on the premise that the City Civil Court had directed the officers to forthwith demolish the suit structure and report compliance. Understood thus, it is not possible to infer mala fide against the officers merely because the demolition was done in spite of the intimation given about the plaintiffs intention of moving the Civil Court for interim relief. All these aspects will have to be borne in mind while examining whether the act of demolition of the subject structure was mala fide or otherwise.
12. To my mind, in such a situation the respondent-plaintiff will be obliged to adduce positive evidence so as to pursuade the Court to take a view that the act of demolition was mala fide as contended. The Court will not readily accept that the demolition was mala fide as contended. I say so because the legal presumption by virtue of Section 527 of the Act is that the action of the officers of the Appellant taken under the Act is bona fide. To dispel this statutory presumption, positive evidence will have to be adduced to show that the act was actuated by mala fide intention. Only then the Court would come to the rescue of the litigant to issue mandatory order of directing reconstruction of the demolished structure and restoring status-quo ante.
13. On going through the Judgment of the trial Court it is obvious that the trial Court has not examined the matter in this perspective. But, the trial Court has merely referred to an unreported decision of this Court in Appeal From Order No. 5123 of 1982 to grant relief in favour of the respondent, which decision, has no application to the fact situation of the present case. This Court could have had examined all these aspects in this Appeal, but, in my view, it would be appropriate to give an opportunity to the parties to adduce further evidence as may be advised in support of their respective stand. It is only after adduction of relevant evidence that the Court would be able to record its clear opinion on the question of mala fide or otherwise.
14. Assuming that the trial court records that the case would warrant passing of mandatory relief, even in that case the trial Court will have to address itself to the nature of relief and direction to be passed. If the Court is convincedthat action of demolition was mala fide, but that by itself will not justify an order of the Court to restore the status-quo ante. However, the Court will have to be prima-facie satisfied that the structure which would be restored will be in conformity with the statutory requirements. This will have to be done since no Court can be a party to action or act whereby the litigant will reconstruct the premises which will not be permissible under the extant rules. The trial Court however, need not undertake the exercise of going into the merits of the contentions, but nevertheless the Court will have to record a prima-facie opinion that the structure which is to be restored would be in conformity with statutory provisions. This requirement flows from the observations of this Court's order dated December 7, 1970 in Appeal From Order No. 308 of 1969. The principle underlying the said decision is that the Court shall not grant injunction or relief which would permit or cause violation of any statutory requirement. Understood thus, after the Court records satisfaction that the act of demolition was mala fide, then the Court would examine the extent of mandatory direction so as to restore so much of the structure which would be permissible by the extant rules.
15. In the circumstances, the impugned order is set aside and the Notice of Motion No. 450 of 2001 is restored to the file of the trial Court for reconsideration in the light of observations in this decision. Needless to mention that it will be open to the parties to adduce such further evidence or materials as would be advised in the matter. The trial Court shall examine all the contentions in accordance with law on its own merits. The Notice of Motion to be disposed of as expeditiously as possible.
16. At this stage, Mr. Godge for the respondent states that till the proceedings are decided by the trial Court, the respondent be permitted to restore the suit structure to make it habitable to the extent possible at her own costs and without claiming any equity. It will be open to the respondent to apply to the trial Court for that relief which will be considered by the trial Court in accordance with law.
17. In view of the above order, Civil Application No. 695 of 2001 filed inthis Appeal does not survive and is disposed of accordingly.
Certified copy expedited.