1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.523 OF 2011 WITH CIVIL APPLICATION NO.725 OF 2011 Shri Neeraj Sharma ...Appellant. v. The M.C.G.M. ...Respondents. Mr. Milan Desai i/by T.R.Patel ,advs. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : JUNE 9, 2011. P.C. 1 Heard the learned counsel for the parties. According to the plaintiff/appellant, the disputed structure is in existence since prior to 1961-62 or the datum line. On 4.9.2009, notice under section 351 was issued to him to show cause as to why the said structure should not be demolished. According to the plaintiff/appellant immediately he replied through an advocate and the reply was received by the Municipal Corporation on 14.9.2009. In that reply, he had explained how the structure was in existence and he had produced necessary documents in support of his contention. However, the Assistant Commissioner P/North Ward issued an order dated 16.10.2009 requiring him to remove the unauthorised structure described in notice within 7 days. In the said 2 order, the concerned officer had stated that the plaintiff had not submitted report nor he had produced documents to show that the suit structure was in existence prior to 17.4.1964, being the datum line. In view of this order, plaintiff filed suit no.2225 of 2009 and took out notice of motion no.1610 of 2009. That notice of motion for temporary injunction was rejected by the trial Court. 2 On perusal of the notice dated 4.9.2009, reply of the plaintiff and the impugned order dated 16.10.2009, it appears that the reply was submitted by the plaintiff almost immediately after getting the notice under Section 351. Possibly that reply and document produced by him did not come to the notice of the concerned Assistant Commissioner, who issued the order dated 16.10.2009. Thus, it is clear that reply to the notice under Section 351 was not considered by the concerned officer. 3 In view of the above circumstances noted by this Court, the learned counsel for the Municipal Corporation agrees that the concerned officer shall now consider the said reply and the documents and shall pass fresh order ignoring the order dated 16.10.2009. In view of the circumstances and the statement, the learned counsel for the appellant seeks to withdraw the appeal and states that he will also withdraw the suit. 3 4 Appeal and the application stand disposed off as withdrawn. The concerned Assistant Municipal Commissioner shall after giving opportunity of hearing to the plaintiff shall take appropriate decision on the notice under Section 351 and pass fresh order on its own merits. Till then the Municipal Corporation shall not take any action against the disputed structure. (J.H. BHATIA,J.)