1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1341 OF 2008 WITH CIVIL APPLICATION NO.1653 OF 2008 Shri Khalik Hussein Liyakat Khan & Anr. : Appellants versus Municipal Corporation of Greater Mumbai : Respondents. Shri. D.R.Singh for the Appellants. Smt.K.K.Soraan for the Respondents. CORAM : R.M.SAVANT, J. DATED : JANUARY 05, 2009 P.C. 1. The above Appeal is directed against the order dated 5th December 2008 passed by the 3rd Ad-hoc Addl.Sessions Judge, Borivali Division, Dindoshi, Bombay by which order, the Notice of Motions; one for mandatory injunction directing the Bombay Municipal Corporation to re-construct the suit structure and second for injunction restraining the Defendants-BMC from dispossessing the Plaintiffs from the suit structure, were dismissed. 2 2. The subject matter of the suit is the structure of the Plaintiffs allegedly admeasuring 8 x 70 sq.ft and having height of 9 ft. constructed with brick and patra walls and cement sheet roof . The said structure, according to the Defendant-BMC is situated in the common passage in the Laxmi Nagar Slum. The Notice dated 25/2/2008 under Section 314 of the MMC Act was, therefore, issued to the Plaintiffs calling upon the Plaintiffs to remove the said structure within 24 hours from the receipt of the said Notice. It appears that pursuant thereto, the suit structure came to be demolished on 29/5/2008. The Plaintiffs, therefore, filed the above Notices of Motion for mandatory injunction directing the Defendant-BMC to re-construct the suit structure as also for an injunction restraining the Defendants BMC from dispossessing the Plaintiffs. 3. It is the case of the Plaintiffs that the suit structure is in private property and, therefore, the provisions of Section 314 of the MMC Act are not applicable. Whereas it is the case of the Defendant- BMC that the said structure is in the common passage of Laxmi Nagar Slum and, therefore, if the reliefs sought for in the Motion are 3 granted, it would cause great hardship and inconvenience to the public at large. 4. The Defendant-BMC has relied upon the record showing that the Plaintiffs construction was earlier demolished on 28/10/1992 pursuant to which the Plaintiffs had also sought compensation for their articles. The record also discloses that the structure has been demolished from time to time, but the Plaintiffs have re-erected the structure and, thereafter filed suits and tried to protect the same. 5. The trial Court considering the material produced by the Plaintiffs came to a conclusion that the Plaintiffs had not made out prima facie case and that there was contradiction in the case of the Plaintiffs. Whereas the Plaintiffs claimed that the area of the suit structure is 8 ft. x 70 ft. But as per the NA order on which reliance was placed by the plaintiffs, the area of the suit structure covered is only 24 sq.mtrs. The trial Court also recorded a finding that whether the suit structure was situated in a private property or not is an issue which would be decided in the suit. 4 6. Prima facie the record indicates that the structure was in the common passage of the said slum. In my view, considering the reasons cited by the trial Court for rejecting the motions, no case for interference in the appellate jurisdiction of this Court is made out. The above Appeal is accordingly dismissed. 6. In view of dismissal of the above Appeal, the Civil Application does not survive and is disposed of as such. 7. Needless to say that the suit filed by the Plaintiffs would be decided on its own merits and in accordance with law uninfluenced by any observations made in the instant order. [R.M.SAVANT, J]