: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.947 OF 2009 Barikrao Changdeo Kamble .. Appellant V/s. Municipal Corporation of Gr. Mumbai .. Respondents ..... Mr. P.M. Havnur for the appellant Mr. Vinod Mahadik for the respondents-BMC ..... CORAM : R.Y. GANOO, J. DATE : 10TH JULY, 2009. P.C. : 1. The appellant instituted a suit in the City Civil Court being L.C. Suit No.5215 of 2003 praying therein that Corporation should not demolish the suit structure save and except by due process of law. The said suit was tried by the learned Judge of the City Civil Court and by judgment and decree dated 18th June, 2009 the said suit came to be dismissed, against which this first appeal is filed. : 2 : 2. I have heard learned advocate Mr. P.M. Havnur on behalf of the appellant and Mr. Mahadik on behalf of the Corporation. At the outset, it is required to be mentioned that on three occasions the suit structure came to be demolished and on 4th occasion the suit structure is demolished on 4th December, 2003. The present suit came to be filed on or about November, 2003. The learned Judge has specifically observed that the plaintiff has suppressed material facts as regards the demolition of the suit structure in the past. 3. It was argued before this Court that the Corporation was required to give notice and it was not open for the Officers of the Corporation to administer threats to the appellant. In the first place, it is required to be mentioned that the appellant has suppressed the fact of demolition of suit structure on three occasions. The suit structure came to be demolished on 4th December, 2003 pending suit. However, the said fact is not brought to the notice of the Court. If a particular structure is demolished once, twice or thrice, then it would be difficult to : 3 : accept the contention of the appellant that such a person is entitled for notice under Section 351. The purpose of issuing notice under Section 351 is in respect of a particular structure which is at site and where an opportunity is required to be given to a law abiding person to show-cause as to whether the structure is authorized. If it is made out that the appellant is in the habit of reconstructing the structure after it is demolished by the Corporation, he stands on a different footing and is not entitled to get relief asked for. 4. The suit was filed prior to 4th December, 2003. The Corporation has demolished the structure on 4th December, 2003 and this fact of demolition is not disclosed by the appellant and he continued to prosecute the suit by representing the Court that the suit structure exists. 5. Even on merits, so far as the allegations of threat by the Officer of the Corporation, the said allegations set out in para 5 and the evidence of the appellant is absolutely vague in as much as the appellant has not stated the designation of one person : 4 : by name Mr. Pathan whose name is mentioned in para 5 of the plaint. If the appellant would have given the designation of such person by name Mr. Pathan, it would have been possible for the Corporation to look into the matter. In my view, the final decision taken by the learned trial Judge is right in as much as the appellant seems to be in the habit of constructing the structure after the same is demolished. 6. In my view, no interference is required in the impugned judgment and as such first appeal is required to be dismissed at the stage of admission. Hence, the first appeal dismissed at the stage of admission. 7. In view of the aforesaid order, Civil Application No.2709 of 2009 is dismissed with no order as to costs. (R.Y. Ganoo, J.)