AJN 01-AS-WP3997.11 : 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.297 OF 2011 IN WRIT PETITION NO.2405 OF 2001 Dr. Mehta Sarosh M. ... Petitioner Vs. G.M. Central Railway & Ors. ... Respondents And Imtiyaz Ahmed Shaukatali ... Applicant Mr. J.K. Mistry i/b Sanjay Udeshi & Co. for the petitioners. Mr. Suresh Kumar for respondent 2. Mr. C.K. Tripathi for the applicant. CORAM: SMT. RANJANA DESAI, & RANJIT MORE, JJ. DATED : 1ST JULY, 2011. P.C.:- 1. This notice of motion is taken out by one Imtiyaz Ahmed Shaukatali in Writ Petition No.2405 of 2001, which was disposed of by a Division Bench of this court vide AJN 01-AS-WP3997.11 : 2 : order dated 22/2/2006. By order dated 6/10/2004 passed in the said writ petition, this court gave certain directions to the Railways. Direction (x) and the remark of the Central Railways could be quoted. “(x) The Railways undertake that in order to prevent accidents, a boundary wall on both sides of the track wherever possible would be erected and existing walls be repaired.” Remarks: “Construction of boundary wall and repairs of existing boundary wall is in progress and substantial progress will be made by the end of the year.” 2. It appears that the applicant had filed S.C. Suit No.17 of 2006 in the City Civil Court at Mumbai, inter alia, for a direction that the defendants – Western Railways have no rights or powers to close the only access to his shop premises by putting a permanent cement concrete wall of 10' without maintaining present access. By judgment and order dated 7/1/2011, the City Civil Court dismissed the suit, inter alia, observing that except the oral evidence, no AJN 01-AS-WP3997.11 : 3 : document is produced on record by the applicant - Imtiyaz Ahmed Shaukatali that the Western Railways erected the compound wall of the height of 10' closing the access. Being aggrieved by the said judgment and order, the applicant has filed First Appeal No.142 of 2011. That first appeal is admitted. In the first appeal, the applicant took out Civil Application No.248 of 2011 for interim relief. By order dated 25/3/2011, learned single judge noted that during the pendency of the suit, there was no relief granted to the plaintiff. Learned single judge further noted that the Railways have started construction of a compound wall in terms of the direction given in the order in instant writ petition. Learned single judge further noted the contention of the applicant's counsel that this court had issued direction to the Railways to construct a compound wall on both the sides of the track wherever it is possible and, therefore, the said direction is not applicable to the present case as that there is a public road in front of the applicant's shop premises. Learned single judge further noted that as the applicant was never AJN 01-AS-WP3997.11 : 4 : protected during the pendency of the suit and as the suit is dismissed, no case is made out for grant of interim relief. However, it will be open to the applicant to make a representation to the Railways so as to ensure that his business is not affected. Learned single judge further observed that it will be open to the applicant to seek appropriate clarification from the Division Bench as it is sought to be contended that the wall is required to be constructed as per the directions of the Division Bench. The ad-interim relief of status-quo was granted for six weeks to enable the applicant to file appropriate proceedings. Pursuant to this order, the present notice of motion is taken out. 3. We have heard learned counsel for the applicant, learned counsel for the respondents and learned counsel for the petitioner. Learned counsel are agreed that the present case is not covered by the directions given by the Division Bench in the instant petition. In the circumstances, there is no question of this court passing AJN 01-AS-WP3997.11 : 5 : any order or giving any interim relief to the applicant. Needless to say that it will be open to the applicant either to approach learned single judge again or as observed by learned single judge to make a representation to the Railways, for appropriate relief. Notice of motion is disposed of. 4. Interim relief is continued qua the applicant-plaintiff for two weeks i.e. till 15/7/2011. [SMT. RANJANA DESAI, J.] [RANJIT MORE, J.]