Shri Savji Bhavan Bera and anr. Vs. the Municipal Corporation of Greater Bombay and anr. - Court Judgment

Excerpt:
bombay municipal corporation act, 1888 - section 351 - removal of unauthorized construction - notice and order by bombay municipal corporation - unauthorized structure - no proof that the structure was in existence prior to datum line - no proof of authorized construction - notice and order valid.; resort to the datum line is a residuary 'catch all' and 'protect all' to which recourse is taken when proof is not forthcoming in the form of documentary evidence to show the authorisation of a construction. authorisation for or the legitimacy of a structure is sought to be established not with reference to a specific permission or document of sanction issued by the municipal corporation but by establishing the vintage of the structure. the municipal policy of protecting structures which were constructed prior to what is called, the 'datum line', in this case 1.4.1962 is pressed, in aid of the submission that though there is no specific authorisation for the construction, authorisation must be deemed or assumed by virtue of the date on which the structure was constructed. courts, however, must be alert not to allow the resort to municipal policy to degenerate into a device for legitimising unauthorised reconstructions or progressive extensions to old structures. hence, even if in a given case a structure was demonstrated to be in existence prior to the datum line, this should not he utilized as a garb for reconstruction subsequently, either in the facade of repairs or otherwise. else, unscrupulous practices in the area of construction would enable the conversion of a hut or a shed prior to the datum line into a multistoreyed construction. to permit the utilisation of the concept of the datum line in such a manner would strike at the very root of urban planning and compound the woes of a metropolis where unauthorised constructions are threatening to occupy every nook and cranny. the court as the guardian of public interest must be firm in declining deciding an effort to utilise the datum to lend judicial protection for unauthorised constructions.;in the present case, there is abundant material on record to show that the notice under section 351 issued by the municipal corporation and the order of the competent authority are valid and correct and the challenge preferred by the appellants is without any basis. - - 1999 passed by the trial court in chamber summons 191 of 1999. the amendment was effected after the plaintiffs, the appellants herein had unsuccessfully sought to pursue a claim for ad-interim relief before the trial court and, thereafter, in an appeal from order before this court. 8. written submissions were field before the trial court both by the municipal corporation in support of its decision to demolish the structure in the occupation of the appellants as well as by the second respondent which supported the action of the municipal corporation. both the municipal corporation as well as the co-operative housing society have submitted that the appellant has converted what was a garage for parking vehicles into a much larger commercial construction in which there is today a ground floor and a mezzanine floor which together comprise of an area admeasuring 1300 sq. 14. in reply to these submissions, both the learned counsel appearing on behalf of the municipal corporation as well as the counsel for the cooperative housing society were heard. 15. the learned counsel appearing on behalf of the co-operative housing society further stressed that the evidence tendered on behalf of the appellants was clearly false in that, while a statement was made in the plaint that the documents relating to the structure were given to appellant no. 9 inches as well as the open space of 5 ft. 18. the appellants were issued a notice under section 351 of the bombay municipal corporation act, 1888 on 7th march, 1998 in which the unauthorised construction has been clearly adverted to. ' that the occupation of the garage and the open space dated prior to the formation of the co-operative society and that a business in hardware paints and building materials was carried out prior to 1981. the garage, it was alleged, was existing prior to 1961-62. there was no disclosure whatsoever by the appellants of the fact that they had acquired an interest in the premises as recently then as on 25th february, 1998 when they claim to have purchased the premises from nagori along with the tenancy rights in respect of the open space (para 7 of the plaint). this omission is not an isolated instance of a failure to disclose material particulars. 1 would clearly show that he is a witness who has little regard for the truth and who was taken several liberties with the truth in his effort to build up a false case. the letter clearly shows that permission was granted for the enclosure of an open type garage purely on a temporary basis for a period of one year. the sanctioned plan which has also been admitted in the evidence clearly show that the area of the garage was 20 ft x 10 ft. 22. the documentary material and the oral evidence on the record of the present case would thus clearly show that what was a garage in the first instance, and a garage in the sense of tan area ear marked for the parking of cars, has been constructed upon unauthorisedly without any permission of the municipal corporation and in violation of the development control regulations. 24. the documentary and the oral evidence on the record have already been evaluated earlier .at the outset, it must be noted that the appellants have failed to prove that the structure in their occupation was assessed by the municipal corporation prior to 1.4.1962. the assessment bill has not been proved in the evidence and the learned counsel appearing on behalf of the appellants has conceded to this position, fairly. the co- operative housing society has repeatedly complained to the authorities of the unauthorised construction that has been put up.dr. d.y. chandrachud, j.1. the appellants, who are the original plaintiffs in a suit instituted before the city civil court, impugned in the suit a notice dated 7th march, 1998 issued under section 351 of the bombay municipal corporation act, 1888 and an order dated 25th june, 1998, passed by the deputy municipal commissioner. besides praying for a declaration that the notice and the order of the deputy municipal commissioner are contrary to the law, the appellants sought an injunction restraining the respondents from enforcing the notice and the order in or upon the suit premises described as consisting of 'garage and the so-called open space approximately 680 sq.ft., area, made up of b. m. walls and a.c. sheet roof together with the loft:.2. briefly stated, the appellants case is that from 25th february, 1988, they are carrying on business as partners in an unregistered firm from the premises in question, which consist of garage no. 1 situated in the precincts of a plot belonging to the kalamandir (khar) co-operative housing society limited, situated at 635, p.o. hinduja marg, mumbai 400052. the plot of land in question is final plot no. 635 of town planning scheme iii, bandra and admeasures 618. 70 sq.mlrs. the original owner of the plot was one u. krishna rao anant shenoy and the averment in para 2 of the plaint is that he had constructed thereon about 38 years ago a building consisting of ground and two upper floors and two garages. shenoy died on 3rd january, 1982. according to the appellants one yusuf allaudin nagori was inducted as a tenant by shenoy in respect of one garage and an open space in front of it on a monthly rent of rs. 125/- in respect of the open space. according to the plaintiffs shenoy had duringhis life time granted permission to nagori to build a structure abutting the garage and 'the total area of the structure including the garage and the so-called open space was approximately 680 sq.ft.' in para 3 of the plaint, the plaintiffs describe the suit premises as consisting of 'said area made up of b.m. walls and a.c. sheet roof together with the loft'.3. by an agreement of sale, dated 16th october, 1992 which was followed by a registered deed of conveyance, dated 17th june, 1993, the heirs of the land owner conveyed the entire area of the plot of land to the second defendant which is a registered co-operative housing society formed by the occupants of the building constructed on the plot of land. in the agreement to sell, dated 16th october, 1992 (exh. a lo the plaint) there is a list of tenants appended in annexure 'a' to the agreement. the list of tenants together with the premises in their occupation shows that there are two garages. the rent of both the garages is rs. 90.60 per month. in addition, insofar as the garage which was let out to yusuf allaudin nagori was concerned, annexure 'a' provides that he is also a tenant of the open space in front of the garage on rental basis at a rent of rs. 125/-per month. the registered deed of conveyance dated 17thjune, 1993 provides that the structure which was the subject matter of the conveyance, consists of ground and two upper floors, a small structure on the terrace and two garages standing at the site. what is thus conveyed to the second respondent was a plot of land bearing final plot no. 635, admeasuring 618.70 sq. meters together with a building consisting of a ground floor and two upper floors, a small structure on the terrace and two garages as also other structures. the plaintiffs, the appellants herein claim to have purchased the premises which form the subject matter of the suit from yusuf allaudin nagori along with the tenancy rights in respect of the open space.4. in the suit which was instituted by the appellants before the trial court, it was averred that nagori, who had been in possession of the premises prior to the formation of the society had been assessed to municipal taxes and was in possession of a shops and establishment licence at the material time.5. on 7th march, 1998, a notice under section 351 was issued by the deputy municipal commissioner. zone iii of the municipal corporation of greater bombay to the appellants. the notice contains a schedule of the work which according to the municipal corporation had been unauthorizedly carried out by the appellants. the schedule to the notice describes the unauthorised construction as follows:'unauthorised construction of structure in the compulsory open space on the south side of the building with brick masonry walls, ladi coba flooring, a.c. sheet roof and lowering of plinth by 3 feet admeasuring size of structure. (1) 7 + 13 x 57.9'; and (2) 4 + 6 x 28.'on 21st march, 1988, a reply to the notice under section 351 was furnished on behalf of appellant no. 1 acting as a constituted attorney of yusuf allaudin nagori. significantly, the transaction by which the appellants claim to have purchased the premises from nagori as not disclosed in the reply. there is no reference in the reply to the alleged transaction of 25th february, 1988 under which the appellants now claim to haveacquired an interest in the premises. on the contrary, what was sought to be contended in the reply was as follows:'my client states that he is a businessman carrying on his business from the garage which is the subject matter of your notice since over a couple of decades, it is pertinent to note that my client are in use and occupation of the said garage with the open space as members of the society since prior to the formation of the society and thereafter as its member.....my client state that from the aforesaid documents it is clear that the said garage is existing since prior to 1961-62 and that my client has been carrying on business from the said premises since 1981.'the substance of the reply was thus that the garage was in existence prior to 1961-62 and the relevance of the said claim lies in the fact that the policy of the municipal corporation is to tolerate commercial structures which were in existence prior to the 'datum line' of 1.4.1962. on the basis of the shops and establishment licence, rent receipts and assessment bill among other documents, the appellants claimed that the structure in their occupation was thus in existence prior to 1961-62.6. on 25.6.1988 an order was passed by the deputy municipal commissioner, by which he came to the conclusion that none of the documents which had been submitted by the appellants proved the existence of the structure prior to the datum line of 1.4.1962. the deputy municipal commissioner consequently came to the conclusion that the work which had been carried out by the appellants was unauthorised and, was liable to be removed or demolished. the deputy municipal commissioner considered each on of the documents submitted on behalf of the appellants. at the present stage it would be material to note that the order of the deputy municipal commissioner refers to the fact that the licence under section 394 of the bombay municipal corporation act, 1881 records the area as 200 sq.ft. whereas the structure which has been constructed at site admeasured 675 sq.ft. similarly, insofar as the . assessment bill is concerned, the deputy municipal commissioner noted that the structure had been initially assessed from 1.4.1982, but the assessment came to be revised with effect from 1.1.1998. this revision of assessment, as would be noted later, was made by the municipal corporation as a result of the unauthorised work which was carried out by the appellants. the appellants moved the city civil court upon the passing of the order by the deputy municipal commissioner holding the construction to be unauthorised. the suit which was instituted before the city civil court, was based upon an apprehended demolition of the premises on the basis of the order passed by the deputy municipal commissioner.7. the plaint was amended subsequently, in pursuance of an order dated 3rd march. 1999 passed by the trial court in chamber summons 191 of 1999. the amendment was effected after the plaintiffs, the appellants herein had unsuccessfully sought to pursue a claim for ad-interim relief before the trial court and, thereafter, in an appeal from order before this court. upon the amendment, the appellants sought to rely upon several documents which, according to them, would establish that the structure in their occupation was in existence prior to the year 1962 and is, therefore, required to be tolerated under the policy of themunicipal corporation. at the present stage. it would be necessary to note that according to the appellants, additional documents on which they seek to rely had been made available to them by the person from whom they had purchased the premises-yusuf nagori on 22nd january, 1999, prior to which these documents were not in the custody or knowledge of the plaintiffs. the documents which had been sought to be relied upon by the plaintiffs include: (1) a xerox copy of a rent receipt, dated 18.6.1960 issued to nagori (exh. 'k'); (2) a leave and licence agreement, dated 19th march, 1960 executed by nagori (exh.'l'); (3) a conducting agreement dated 11th june 1964 executed by nagori in respect of a shop and open area (exh. 'm'); (4) a municipal trade licence dated 21st january, 1979 (exh. 'n'); (5) an earlier show cause notice dated 7th may, 1991 issued by the municipal corporation under section 351 of the act (exh. 'p'); (6) an assessment extract of the municipal corporation (exh. 'r'); and (7) an application for repair permission made by nagori on 29th sept. 1998 (exh. 's'). it must be reiterated that in several averments contended in amended paragraphs 12-a, 12-b and 12-e of the plaint, the case of the appellant is that the premises were in existence prior to 1962, and were therefore, liable to be tolerated.8. written submissions were field before the trial court both by the municipal corporation in support of its decision to demolish the structure in the occupation of the appellants as well as by the second respondent which supported the action of the municipal corporation. both the municipal corporation as well as the co-operative housing society have submitted that the appellant has converted what was a garage for parking vehicles into a much larger commercial construction in which there is today a ground floor and a mezzanine floor which together comprise of an area admeasuring 1300 sq.ft. according to the respondents the municipal corporation had on 4th may, 1981, granted permission only on a temporary basis for the enclosure of an open type garage subject to conditions, one of them being that the garages shall be utilized only for the parking of cars. the co-operative housing society contends that on 28th february. 1988 it lodged a police complaint with the senior inspector of police, knar police station, complaining that taking advantage of an election day holiday, unauthorised construction work was being carried out at the site in violation of the provisions of the maharashtra regional and town planning act, 1966. in response to a complaint made to it, the municipal corporation had informed the co-operative society that it had adopted necessary action under section 351 of the act against the appellants. the action against the appellants was thus initiated on the ground that in the absence of any permission whatsoever and in violation of the sanctioned plan, a garage for the parking of cars has been converted into a large commercial structure on the suit premises.9. by its judgment and order dated 6th may, 1999, the trial court dismissed the suit. i have perused the judgment of the trial court and the record and proceedings. i have perused the oral and documentary evidence.10. the central issue which arises for consideration in the present first appeal is as to whether the notice issued by the municipal corporation under section 351 of the act and the order dated 25th june, 1988 passedby the deputy municipal commissioner holding the construction described in the notice to be unauthorised are valid and proper.11. on behalf of the appellants the learned counsel submitted that the structure which forms the subject matter of the dispute was in existence prior to 1st april, 1962 which is the datum line prescribed by the municipal corporation for tolerating commercial premises. in support of the submission the learned counsel submitted that the assessment extract of the building (exh. 'f' to the plaint) showed that the building had been constructed prior to 1961-62. the learned counsel submitted that there was no dispute that a structure of 200 sq.ft had been rented out by the original landlord to the earlier tenant nagori, and tenancy was attorned to the society. among the documents which were sought to be relied upon by the learned counsel were the following :1. an agreement dated 19th march, 1960 by which the earlier tenant nagori had granted a licence in respect of the premises in the recitals of which it is stated 'that the licensor is possessed and/or otherwise sufficiently entitled to a piece of land admeasuring 650 sq.ft. with shed/ structure thereon' (exh. 'l' to the plaint.): 2. an agreement of conducting dated 11th june, 1964 in which the earlier tenant had described the area of the premises as 650 sq.ft. and an open space of 1220 sq.ft. (exh. 'm' to the plaint): 3. the shops and establishment registration certificate under the bombay shops and establishment act issued on 11th march, 1978 (exh. 'q' to the plaint): 4. the earlier notice issued under section 351 of the bombay municipal corporation act, 1888 which showed that there was an unauthorised shed admeasuring 10ft x 12ft and the raising of the height of the compound wall (exh. 'p' to the plaint); 5. inspection extract of the municipal corporation (exh. 'p') which contains the remarks 'assessed 1960' and that the 'unauthorised shed' was to be demolished; and 6. an agreement, dated 16th october, 1992 by which the original owner of the property had conveyed the property to the co-operative housing society (exh. 'a' to the plaint) in which the list of tenants included the name of yusuf allaudin nagori. 12. insofar as the evidence recorded before the trial court is concerned, the learned counsel stressed the following aspects from the examination of the witness for the municipal corporation. dw2, a.s. pol, who was a sub-engineer in the municipal corporation:(i) the sanctioned plan of 4th may, 1981, was not on the record of the municipal corporation (page 252): (ii) there was no mention of the existence of any mezzanine floor in the notice under section 351 (page 254); (iii) the deputy municipal commissioner had not considered the sanctioned plan of 1981 before passing the order since it was not before him. 13. on the basis of the aforesaid documentary material and the evidence on record, the following submissions were formulated on behalf of the appellants: 1. there was a non-application of mind on the part of the municipal corporation in 'issuing the notice under section 351 on 7th march, 1998, for the following reasons: (i) two structures which do not form part of the structure belonging to the appellants have been shown as unauthorised: (ii) while issuing the notice under section 351 in 1998 the municipal corporation did not examine its record, to find out whether the entire structure was unauthorised or only a part thereof was authorised: (iii) the appellant was not called upon to show cause in respect of the extension of the unauthorised structure; (iv) the absence of reference of a mezzanine floor in the show cause notice indicates that the notice itself was issued without ascertaining facts; and (v) the order of the deputy municipal commissioner proceeds on the basis that the entire structure is liable to be demolished. 2. the notice dated 7th may, 1991, which was exh. 29 in the evidence was not referred to by the trial court in its judgment. 3. the earlier notice of 1991 which had been issued under section 351 would support the case of the appellants in that only an area admeasuring 12 ft. x 10 ft had been found to be unauthorised in the entire construction: 4. the inspection report of the municipal corporation would show that the building itself had been an authorised structure which was assessed since 1960; 5. the learned counsel also relied upon a repair permission dated 25th august, 1994 issued by the municipal corporation to the erstwhile tenant and this repair permission was sought to be adduced as and by way of additional evidence in the first appeal. 14. in reply to these submissions, both the learned counsel appearing on behalf of the municipal corporation as well as the counsel for the cooperative housing society were heard. the learned counsel appearing on behalf of the co-operative housing society submitted that in the present case while the sanctioned plan provided for two motor garages, each of the dimensions of 20 ft. x 10 ft., there was a brazen extension of the structure. a parking space for motor cars had been converted into commercial premises admeasuring 650 sq.ft. on the ground and approximately the same additional area on the mezzanine floor in violation of building regulations. in support of this submissions, the learned counsel relied on the following documents, which, according to him would establish that the structure was completely unauthorised.1. exh. 16 in the evidence which was the sanctioned plan together with the covering letter, dated 4th may 1981, of the executive engineer, building proposals (west suburbs, h & k wards) which showed the dimensions of the garage as 20 ft x 10 ft only and that the permission was for a temporary enclosing of an open type garage to be used only for the packing of cars; 2. exh. 19 : the society's letter dated 28th march, 1994 to the erstwhile tenant, nagori, stating that the open space in front of the garage had been rented out only for storing building materials: 3. exh. 20 : the complaint lodged by the co-operative housing society on 23rd february, 1998 with the senior inspector of police of khar police station, complaining that an unauthorised construction had been carried out: 4. exh. 21; the letter by the erstwhile ward officer (h west ward) on 27th april, 1998, to the secretary of the co-operative housing society stating that the municipal corporation had initiated action under section 351 of the act in respect of the unauthorised structure; 5. exh. 23 : the letter, dated 29th june, 1998 of the executive engineer, building proposal to the advocate of the co-operative housing society stating that though two garages had been permitted by his office in 1981 for the purpose of car parking, they had been found to be misused and that the size and height of one of the garages had been found to be increased beyond the approved plan. the structure being totally legal, the society was directed to contact the ward officer to take necessary action; 6. exh. 24 : the letter of the assessor and collector, dated 29th june, 1998 stating that a detailed assessment report in respect of the garage in question had been submitted to the ward officer regarding 'revision of assessment on account of renovation, alteration, extension and additions,' and that the society should pursue the matter with the ward officer for demolition of the unauthorised construction; and 7. exh. 28: a letter of the earlier tenant dated 2nd june, 1996 by which be sought the no objection of the society to transfer shop no. 7-a which was occupied by him. 15. the learned counsel appearing on behalf of the co-operative housing society further stressed that the evidence tendered on behalf of the appellants was clearly false in that, while a statement was made in the plaint that the documents relating to the structure were given to appellant no. 1 only in 1999. it was subsequently admitted that he had knowledge of the notice under section 351 which had been issued in 1991 even prior to the purchase of the premises. the learned counsel stressed that there are two companion garages in the building in respect of which the same rent was payable since the inception, since they were of obviously the same area when constructed. while the companion garage continued to be of the same dimensions as earlier, it was the garage which was in the occupation of the appellant which was unauthorised constructed upon.16. on behalf of the municipal corporation it was submitted that (1) there was absolutely no material to show the existence of the garage prior to 1.4.1962: (2) the approved plan shows the construction was carried out after 1981; (3) what has been constructed upon is far beyond even the sanctioned plan of 1981 which was exhibited in evidence. (4) the municipal corporation while demolishing the unauthorised structure will ensure that the structure to be retained will extend only to the limited extent of 200 sq.ft. the learned counsel stressed that the diagram appended to the notice issued by the municipal corporation on 7th march, 1998, includes the total length of the structure as being 57 ft. 9 inches as well as the open space of 5 ft. which has been encroached upon. the learned counsel for the municipal corporation thus submitted that theaction of the corporation was proper since what it sought 'idols follow due process of the law to demolish that part of the structure in excess of 200 sq.ft which was unauthorised.17. while evaluating the substance of the contention which have been urged on behalf on the appellant, it would be necessary at the outset to refer to the agreement dated 16th october, 1993 and the conveyance dated 17th june, 1999 executed by the owners of the plot of land bearing final plot no. 635 of town planning scheme iii of bandra, to the cooperative housing society which is the second respondent in the present case. the agreement dated 16th october, 1992, contains a list of tenants as an annexure thereto. serial numbers 9 and 10 are the two tenants in respect of two garages which were stated to have been constructed on the property. yusuf allaudin nagori through whom the appellants claim is shown to be the tenant of one garage and the open space in front of the garage. the monthly rent of each of the two garages which were in the occupation of nagori and another tenant, respectively, is rs. 90.60. the rental in respect of the open space in respect of the tenanted space of nagori is rs. 125/- per month. the monthly rent of the two garages was thus the same, namely, rs. 90.60 per month and nagori also had an open space in front. this would furnish some indication of the fact that the area and dimension of the two garages would at least broadly be the same. as will be pointed out later, this is borne out by other documentary material on the record. as the learned counsel appearing on behalf of the co-operative housing society pointed out, the other garage which is not the subject matter of the dispute in the present case continues to have the same dimensions as reflected in the sanctioned plan, whereas the garage which is in occupation of the appellants has been constructed upon so as to increased the area from the original area of 200 sq.ft. to the area of approximately 1280 sq.ft. the submissions which has been urged on behalf of the society would, of course, be evaluated in the course of this judgment. but, at the present stage, it would be material to note that there were two garages which were shown in the occupations of tenants in the list of tenants appended to the agreement of 16th october, 1992 and in respect of both the tenancies of the garages, the monthly rent was the same, namely, rs. 90.60. the list of tenants contains a description of the shops, commercial premises and residential premises in the building. the reference to the two garages would show that at least until 1992, the garage which was in the occupation of nagori, was still treated and regarded as a garage for the purposes of conveyance of the property. in the subsequent, deed of conveyance dated 17th june, 1993, the property is described as consisting of a building of ground and two upper floors, a small structure on the terrace and two garages standing thereon. it would be reasonable to conclude that the reference to two garages was a reference to two garages as construed in the ordinary or common sense parlance.18. the appellants were issued a notice under section 351 of the bombay municipal corporation act, 1888 on 7th march, 1998 in which the unauthorised construction has been clearly adverted to. the unauthorised construction is referred to as having been made in the compulsory open space on the south side of the building with brickmasonary walls, ladi coba flooring, a.c. sheet roof and lowering of plinth. a sketch of the unauthorised construction has been appended to the notice. the conduct of the appellants would be apparent upon perusing the reply to the show cause notice which was submitted on 21st march. 1988. the reply was submitted on behalf of appellant no. 1, who claimed to be the constituted attorney no. 1, who claimed to be the constituted attorney of nagori, who as stated earlier was the original tenant, in the reply there is absolutely no disclosure of the transaction by which the appellants had acquired an interest in the premises. on the contrary, what was sought to be alleged was that the person on whose behalf the reply was addressed 'was carrying on business from the garage for 'over a couple of the decades.' that the occupation of the garage and the open space dated prior to the formation of the co-operative society and that a business in hardware paints and building materials was carried out prior to 1981. the garage, it was alleged, was existing prior to 1961-62. there was no disclosure whatsoever by the appellants of the fact that they had acquired an interest in the premises as recently then as on 25th february, 1998 when they claim to have purchased the premises from nagori along with the tenancy rights in respect of the open space (para 7 of the plaint). this omission is not an isolated instance of a failure to disclose material particulars. the plaint, as stated earlier, was amended upon an order passed in an application for amendment in a chamber summons. in paragraph 12-a what was sought to be stated was that the plaintiffs were producing additional documents which had been made available to them on 22nd january, 1999 by nagori from whom the appellants had purchased the premises. in fact, there is a categorical averment in paragraph 12-a that prior to 22nd january, 1999 the documents which were sought to be disclosed by the appellants were not in the custody or within the knowledge of the appellants and as such could not be disclosed in the body of the plaint earlier. the same averment is repeated in paragraph 12-b of the plaint. the first appellant, who tendered evidence on behalf of the appellants was cross-examined in this regard. in the course of his cross-examination the first appellant admitted that nagori had given to him the earlier notice under section 351, the shops and establishment licence, two agreements, one of leave and the licence and other of conducting and that these documents were furnished to the plaintiffs prior to the purchase of the premises. in fact, the originals of the documents are stated to have been given to appellant no. 1. despite being in possession of the documents, the appellants made a false statement on oath in paragraphs 12-a and 12-b of the plaint that the documents were not within their knowledge or custody prior to 12th january, 1999. this conduct of the plaintiffs leaves much to be desired end some thing which must weigh with the court in assessing the credibility of the first appellant as the only witness on behalf of the appellants to the case.19. apart from the aforesaid aspects of the evidence of the first appellant, it would be necessary to note certain aspects which emerge upon an evaluation of his evidence. the first appellant deposed as follows:(i) the earlier tenant nagori had been accepted as a tenant of the open space in front of the garage and the open space was being used bynagori for the purpose of the storage of sand (paragraphs 8 and 17 of the evidence). (ii) admittedly, the other garage in the premises admeasures approximately 180 to 200 sq.ft. (paragraph 13); (iii) though the plaint mentions the existence of aloft in the premises, appellant no. 1 in the evidence sought to change the version by contending that there is a mezzanine floor therein. he attempted to explain the difference by saying that a mezzanine floor is a bigger space having a height of at least 6 ft. from the floor to the ceiling. he stated that there is now a mezzanine floor and not a loft (paragraph 15). (iv) the appellants took actual possession of the garage on 25th february, 1988 for a period of two months thereafter were they carrying out repairs. neither the co-operative housing society nor the municipal corporation were informed about the repair work nor was any permission taken for the repairs (paragraph 16): (v) the case that nagori had possessed a garage only of 200 sq.ft and that due to the additions and alterations carried out by the appellants, the corporation charged additional rateable value was expressly put to the witness (paragraph 18). (vi) to the question as to whether the corporation had sanctioned a plan for a garage admeasuring only 200 sq.ft the witness answered stating that he was unable to answer the question because he had not seen the plan. (paragraph 18); (vii) the attention of the witness was drawn (paragraph 21) to the fact that the rent for the other garage was also rs. 90.60, but he could not say whether the same rent was charged because the area of the two garages was the same. (viii) the attention of the witness was drawn to the report of the court commissioner, who was appointed for a site visit in march, 1988. the commissioner had found that there was a new construction with fresh plaster, new paint and welding equipment. the report of the commissioner is an admitted document which is annexed as exh. '1' to the plaint and was taken on record in the evidence of appellant no. 1 by consent (paragraph 11 page 215). the first appellant sought to explain away the report stating that the gas cylinder and welding machines were kept in the premises by the mason but did not pertain to any work carried out in the premises. (ix) the first appellant feigned ignorance of the stop work notice issued by the municipal corporation on 20th february, 1998. initially in paragraph 1 of his evidence recorded on 6th april, 1999, he purported to state that he had not received any such notice from the municipal corporation. when a copy of the notice which bore his signature was shown to the witness he stated that he did not remember whether he had received the notice. the attention of the witness was drawn to the affidavit filed by him in the co-operative court. in which it was stated that he is conversant with the development control rules and accordingly the size of a garage should be 180 sq.ft to 200 sq.ft in response to the said question the witness stated that he had stated so at the instance of nagori and what he had said in the affidavit before the co-operative court was not correct. 20. in my view, the aforesaid analysis of the evidence of appellant no. 1 would clearly show that he is a witness who has little regard for the truth and who was taken several liberties with the truth in his effort to build up a false case. from time to time he has altered his stand, and has deposed to circumstances which are false to his own knowledge. the first appellant is an untrustworthy witness who has shifted his stance and attempted to improve upon the case. the cross-examination of the witness discloses the transparent and brazen illegalities in the construction which has been carried out by the appellants. the witness, who deposed on behalf of the co-operative society, v.p. kamte produced the sanctioned plan of 1981 which has been marked as exh. 16 in the evidence. the sanctioned plan was produced by the witness together with the covering letter, dated 4th may, 1981 of the executive engineer, building proposals of the municipal corporation. the letter clearly shows that permission was granted for the enclosure of an open type garage purely on a temporary basis for a period of one year. condition no. 2 of the letter stipulated that the garages shall be used only for the parking of cars. the sanctioned plan which has also been admitted in the evidence clearly show that the area of the garage was 20 ft x 10 ft. the witness deposed to the fact that the garage was initially with the landlord, who gave it to nagori in 1988. on 28th february, 1988 a police complaint was lodged by the co-operative housing society complaining that an illegal construction had been carried out in violation of the provisions of the maharashtra regional and town planning act, 1966. the witness deposed to the fact that the unauthorised construction had been erected just by the side of the building on the open space. the open space had been given on rent to nagori for the storage of material. the witness was duly cross-examined on exh. 16 which was the letter of the executive engineer (building proposal) granting temporary permission for the enclosure of the garage for parking of motor cars, and on other aspects.21. the evidence of the witness for the co-operative housing society has been only supported by what has been deposed to by dw 2 on behalf of the municipal corporation, dw 2 being a sub-engineer, h ward (west), dw2 stated that there is no open space on the south side of the structure as it has been covered up by the unauthorised construction.22. the documentary material and the oral evidence on the record of the present case would thus clearly show that what was a garage in the first instance, and a garage in the sense of tan area ear marked for the parking of cars, has been constructed upon unauthorisedly without any permission of the municipal corporation and in violation of the development control regulations. the agreement to sell dated 16th october, 1992 and the conveyance of 17th june, 1993 which is a registered document show the existence of two garages at that time, the same rent of rs. 90.60 per month for the two garages would be indicative of an equivalence of area in respect of the two garages. the earlier tenant nagori was a tenant of the garage and of the open space abutting it which was rented out to him for the storage of building material. the open space as encroached upon by making a construction thereon, unauthorizedly and without any permission of the municipal corporation. much emphasis was sought to be placed upon the fact that an earlier show cause noticehad been issued on 7th may, 1991. in which the unauthorised shed was depicted as consisting of 12 ft x 10 ft. the submission was that the show cause notice implied thereby that the rest of the structure as found at present is authorised. in my view, the show cause notice of 7th may, 1991, would show that al that stage what had taken place was the construction of an unauthorised shed admeasuring 10 ft x 12 ft and the raising of the height of a compound wall as shown in the sketch appended to the notice. the show cause notice of 1991 thus dealt with such unauthorised construction as was in existence at that stage. by the time, the second show cause notice came to be issued on 7th may, 1998, the nature of the construction had radically altered. in view of the construction which was found in the course of the inspection by the municipal officials in february 1998, a fresh show cause notice thus came to be issued by the municipal corporation on 7th may, 1998. the show cause notice which was issued on 7th march, 1998, was duly replied to on 21st march, 1998, and an order was passed thereon by the deputy municipal commissioner on 25th june, 1998. having given my careful consideration to the order passed by the deputy municipal commissioner, and the impugned order of the trial court. i am of the view that neither the order passed by the deputy municipal commissioner nor the judgment of the trial court in the present case, suffer from any infirmity.23. an effort has been made on the part of the appellants to demonstrate that the structure which the municipal corporation has found tobe unauthorised was in existence prior to the datum line of 1.4.1962.resort to the datum line is a residuary 'catch all' and 'protect all' to whichrecourse is taken when proof is not forthcoming in the form ofdocumentary evidence to show the authorisation of a construction.authorisation for or the legitimacy of a structure is sought to beestablished not with reference to a specific permission or document ofsanction issued by the municipal corporation but by establishing thevintage of the structure. the municipal policy of protecting structureswhich were constructed prior to what is called the 'datum line'. in thiscase 1.4.1962 is pressed in aid of the submission that though there is no specific authorisation for the construction, authorisation must bedeemed or assumed by virtue of the date on which the structure wasconstructed. courts, however, must be alert not to allow the resort tomunicipal policy to degenerate into a device for legitimising unauthorisedreconstructions or progressive extensions to old structures. hence, even if in a given case a structure was demonstrated to be in existence priorto the datum line, this should not be utilized as a garb for reconstructionsubsequently, either in the facade of repairs or otherwise. else,unscrupulous practices in the area of construction would enable theconversion of a hut crashed prior to the datum line into a multistoreyedconstruction. to permit the utilisation of the concept of the datum line in such a manner would strike at the very root of urban planning andcompound the woes of a metropolis where unauthorised constructionsare threatening to occupy every nook and cranny. the court as theguardian of public interest must be firm in declining deciding an effort toutilise the datum to lend judicial protection for unauthorised constructions.24. the documentary and the oral evidence on the record have already been evaluated earlier . at the outset, it must be noted that the appellants have failed to prove that the structure in their occupation was assessed by the municipal corporation prior to 1.4.1962. the assessment bill has not been proved in the evidence and the learned counsel appearing on behalf of the appellants has conceded to this position, fairly. neither the agreement of licence dated 19th march, 1960 executed by nagori in favour of a third party nor the agreement of conducting dated 11th june, 1964 (exhibit l and m to the plaint) advance the case of the appellants. the recitals of the two agreements are contradictory : whereas those of the licence agreement speak of the licensor being possessed of and entitled to a piece of land admeasuring 650 sq.ft. with a shed /structure thereon, the conducting agreement which is of 1964 (and therefore after the datum line) speaks of shop premises of 650 sq.ft and an open area of 120 sq.feet. the agreement of 19.3.1960 is completely vague about the nature of the shed or structure. there is absolutely no material to show that the construction which the municipal corporation has found to be unauthorised in 1998 was the shed, if any, in existence in 1960. the agreements relating to the conveyance of the property which are dated 16th october 1992 and 17th june, 1993 furnish intrinsic evidence to show that there were two garages in existence then. the monthly rent of the two garages was the same rs. 90.60 and it would defy credibility to accept that while one of the garages was 200 sq. feet in area, the other was a large commercial construction of a ground and mezzanine floor with an area of 1280 sq.feet. the only inference possible from the evidence on the record is that the structure in dispute in the present first appeal has been reconstructed subsequently so as to radically alter its original dimensions. nagori, the original tenant had the tenancy of an open space in front of the garage. the open space was used for storing building material. this open space has now been encroached upon. the co- operative housing society has repeatedly complained to the authorities of the unauthorised construction that has been put up. the co-operative society of the existing occupants was legitimately concerned with the unauthorised construction put up in the area of the appellants.25. the sanctioned plan of 1981 together with the covering letter of the executive engineer (building proposals) have been duty proved and exhibited in evidence. these documents negative the claim of the appellants and demonstrate that what the corporation had permitted was the enclosing of 'open type' parking garages on the condition that these shall be utilized only for the parking of cars. the sanctioned plan similarly establishes that the dimensions of the structure in existence have been enhanced in violation of the plan. however, having regard to the objections of the appellants especially with reference to the admissions elicited in the course of the cross-examination of the municipal witness, i have considered the present case de hors the sanctioned plan also. i am of the view that even if the sanctioned plan and the letter of the executive engineer (building proposals) are excluded from consider on, the same result must follow. the documentary and oral evidence on the record are sufficient, independently of the sanctioned plan, to support this conclusion and to uphold the action of the municipal corporation.26. finally, it may be noted that an application has been moved on behalf of the appellants to produce additional evidence. the learned counsel for the appellants has taken me through the documents relied upon in the civil application and in the interests of fairness. i have duly considered them. reliance was sought to be placed particularly upon an alleged permission granted to the erstwhile tenant y.a. nagori, to repair the premises, on 25.8.1994. reliance is also sought to be placed on the alleged agreement of tenancy dated 26.9.1956 by the original owner of the premises, k. krishna rao in favour of nagori. at the outset it has to be noted that no regent explanation is forthcoming as to why these documents were not produced before the trial court either initially or even after the amendment to the plaint was allowed during the pendency of the suit. the explanation that nagori has not handed over the documents earlier cannot be believed as indeed, a similar explanation advanced at the stage of amendment, in the amended paragraphs of the plaint has been found to be falsified by the deposition of appellant no. 1. that apart, none of the documents provide an explanation of how a garage admeasuring 200 sq.feet for the parking of cars was converted into a commercial construction of a ground floor admeasuring 650 sq.feet and a mezzanine floor of 630 sq.ft. occupying the open space in front. the area of the entire plot. f.p. no. 635 is 6660 sq.ft. (or. 617.80 sq.meters). the structure now in the occupation of the appellants admeasures 680 sq.ft. or 10.21% of the plot area. none of the documents provides an explanation or justification of any permission having been granted by the corporation to construct such a structure in the first place. the alleged agreement of tenancy dated 26.9.1956does not show the existence of any such structure. even the alleged municipal document of 25.8.1994 does not establish any valid permission granted for putting up the structure. the documents which have been sought to be produced in the course of the first appeal do not advance the case of the appellants. besides, as stated earlier, the explanation as to why they have surfaced at this stage and were not produced during the course of the trial cannot be accepted. the case of appellants that the structure existed prior to 1.4.1962 is false. there has been a brazen violation of building regulations.27. as land values increase and the scarcity of accommodation becomes even more acute, builders and property owners have attempted to make use of the open spaces by constructing unauthorised structures in areas which serve as amenities for residents of the existing buildings. unauthorised constructions come in all shapes and sizes and pose a grave danger to the due implementation of urban planning. in the present case, there is abundant material on record to show that the notice under section 351 issued by the municipal corporation and the order of the competent authority are valid and correct and the challenge preferred by the appellants is without any basis.28. the learned counsel appearing on behalf of the municipal corporation has upon enquiry by the court fairly stated that the municipal corporation has no objection to the retention of a garage admeasuring 20 ft. x 10 ft and this would be done subject to the supervision of the concerned deputy municipal commissioner. insofar as the challengein the present first appeal is concerned, it must in my view, fall in the circumstances of the present case. the first appeal is accordingly dismissed. there shall in the circumstances of he case be no order as to costs.