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Namdev Pandurang Panchal vs Mumbai Municipal Corporation Of ... on 16 September, 2005
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JUDGMENT D.G. Deshpande, J.

1. Heard counsel for the appellant and the respondent No.1 and 2.

2. Appellant is the plaintiff. He filed a suit for declaration that notice dated 19.10.2001 Exhibit "L" to the plaint, served upon him, is bad in law, illegal, issued at the instance of the respondent No.2 and not binding on the plaintiff and that action under Section 351 of the BMC Act as per Exhibit 'O" to the plaint and the order dated 14.5.2002 in respect of his suit premises admeasuring about 256 sq. meters are bad in law, void, null, unconstitutional, and for permanent injunction. According to the plaintiff, he was in occupation, possession and enjoyment of the land bearing Survey No. 163(Part) admeasuring 500.5 sq. meters together with a pucca structure admeasuring 256 sq. meters consisting of 4 rooms at Adarsh Nagar, Dhanukarwadi, Kandivali, Mumbai. He purchased the property from one Lallu Bhika under an Agreement dated 26.4.1972 for the valuable consideration, and has been in use and occupation thereof since then, that he has been paying non agricultural tax from 1972. He is shown as Imla Malak in the extract of the Property Register Card and he has number of other documents to show his occupation and use.

7. Mr. Diwan, Counsel appearing for the appellant strenuously urged and contended that if the structure of the plaintiff was there in existence since 1972 then issuing notice under Section 351 in 2001, though do not barred by limitation, was improper exercise of jurisdiction vested in the BMC under the Act. He also contended that there was no rational in fixing the datum line of 1964 i.e. construction prior to 1964 and construction after 1964. He also contended that exercising powers under Section 351 in 2001 in respect of the constructions admittedly in existence since before 1972, was, firstly, improper exercise of jurisdiction or it was exercise of power beyond jurisdiction.