1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.792 OF 2009 IN NOTICE OF MOTION (EXHIBIT-2) IN L.C. SUIT NO.2070 OF 2008 Malad Shivaji Nagar Panchvati Co-operative Hsg.Soc.Ltd., ..Appellants V/s Municipal Corporation of Gr. Mumbai & Anr. ..Respondents ---- Mr. G.S.Godbole i/by C.A.Patel for the appellants. Ms.K.K.Soraan for the respondent/BMC. ---- Coram : R.S.MOHITE,J Date : 17th August, 2009. PC 1 This is an appeal filed by the original plaintiffs against an order dismissing their Notice of Motion. The original defendants which is the BMC is intending to lay down a drinking water pipe line which is to pass below the land bearing CTS No.291/A presently occupied by the plaintiffs. The plaintiffs have therefore, filed a suit for injunction. In the plaint there is an averment that they did not receive any notice. Notice of Motion has been dismissed by the Court on two grounds. The first ground is that the plaintiffs are not owners and are occupants and only 29 persons are held to be eligible for alternate accomodation by MHADA and nothing is shown to indicate that these 29 structures will be 2 affected. Before me, it is contended that a point of law has been missed by the trial Court. It is contended that the trial Court ought to have taken into account provisions of sections 226 read with 265 of B.M.C. Act and ought to have dealt with the contention that proper procedure laid down by said section was not followed. Advocate for the BMC states that their exist documents to show that the proposal was sanctioned and procedure was followed. She however, states that these documents are not filed in the trial Court. By consent, the impugned order is set aside and the matter is remanded back to the trial Court and the trial Court will rehear and decide the matter and deal with the contention that procedure as required by sections 265 read with 226 was not complied with. Defendants will have liberty to file a fresh compilation of documents and additional affidavit before the trial Court to indicate that proper procedure was followed. If any such additional affidavit is filed, the plaintiffs will have a right to file a rejoinder. With these directions, Appeal from Order is disposed off. It is however, made clear that ad-interim relief if any, operating during the Motion, will continue to operate. Both parties agree that the matter will appear before the trial Court on 24.8.2009 and since the matter involves public works, City Civil Court is directed to dispose off the Notice of Motion within a period of twelve weeks. (R.S.MOHITE,J) 3