1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.614 OF 2007 IN NOTICE OF MOTION NO.3927 OF 2006 IN BCCC LONG CAUSE SUIT NO.4458 OF 2006 Oshiwara Garden Inn Co-operative.... Appellant Housing Society, Mumbai Vs. Municipal Corporation of .... Respondent Greater Mumbai. Mr. A.R. Pande, Advocate for Appellant. Mrs. Geeta Joglekar, Advocate for respondent-BMC. Coram : SMT. R.P. SONDURBALDOTA,J Date : 19th September, 2008 P.C. 1. Maharashtra Housing and Area Development Authority (MHADA) is the owner of plots no.911 to 920 situate at Adarsh Nagar, Jogeshwari (West), Mumbai. The said plots have been leased to the appellant-society. The members of the appellant are occupying the structures standing on the plots of land. Respondent-Corporation issued notice dated 16th January, 2006 under Section 299 of Mumbai Municipal Corporation Act, 1888 for acquisition of portions of the land falling within the regular line of a street. This notice came to be challenged by the appellant by filing suit in the Bombay City Civil Court. In that suit, it applied for an interim injunction restraining the respondent from taking possession of the suit land or any portion thereof 2 and or demolishing any construction on the suit plots, pursuant to the impugned notice. That application was dismissed by the impugned order dated 22nd June,2007. The respondent to the appeal is Mumbai Municipal Corporation, the original defendant. 2. The challenge to the impugned notice by the appellant is threefold. Firstly, that no sanction is obtained from the State of Maharashtra before taking action under Section 299 of Mumbai Municipal Corporation Act. Sanction of the government is required since the suit land belongs to Maharashtra Housing & Area Development Authority. Secondly that the respondent has not followed the procedure prescribed under Section 297 of Mumbai Municipal Corporation Act. Thirdly that the Deputy Municipal Commissioner who has signed the impugned notice has no authority to issue the same. 3. As regards the first challenge, Mrs. Joglekar, the learned Advocate for the respondent states that MHADA which is the owner of the suit plots has already consented for the acquisition of the land falling within the regular line of the street. Therefore, prima facie, there is no substance in the first challenge. 4. As regards the second ground of challenge, Mr. Pande, the learned Advocate for the appellant submits that 3 Section 297 of Mumbai Municipal Corporation Act lays down a definite procedure for prescribing the regular line of street. He complains that the respondent has not followed the same. The procedure prescribed under Section 297 is in two parts. The first part under subsection (1)(a) concerns prescribing regular line for the first time and the second part under subsection (1)(b) concerns prescribing fresh line in substitution of any line earlier prescribed. Under subsection (1)(a), the Commissioner can prescribe a line on each side of any public street provided that in case of any public street in suburbs the regular line of public street operating under any law in force, shall be deemed to be the line prescribed by the Commissioner under the clause. Under Subsection (1)(b) for prescribing a fresh line in substitution for any line earlier prescribed, the Corporation is required to issue public notice of the proposal in local newspapers atleast one month before the date of meeting of the Corporation in which the matter is to be decided. A special notice signed by the Commissioner is also required to be put up in the street or part of the street for which such line is proposed to be prescribed. Thereafter the Corporation is required to consider all objections to the proposal made in writing and delivered at the Office of Municipal Secretary not less than three clear days before the date of meeting. Mr. Pande points out that respondent has not issued any public notice calling for objections to the proposal. Therefore, according to him the 4 action of prescribing regular line of the street is bad and the impugned notice subsequently issued under Section 299 of Mumbai Municipal Corporation Act cannot be enforced. Mrs. Joglekar, the learned Advocate for the respondent- Corporation submits in reply that the regular line for the street in the instant case is being prescribed for the first time. This is not a case of prescribing a fresh line in substitution for the line already prescribed. Therefore, the same would be governed by Sub Section (1)(a) of Section 297 under which no elaborate procedure is laid down for prescribing the road line. 5. Mr. Pande points out that which is proposed by the respondent is to increase the width of existing road from 90' to 120'. According to him this amounts to prescribing fresh line in substitution for the old line. The submission of Mr. Pande can be accepted only if there has been regular line of the road prescribed either by the Commissioner at any time in past or under any of the other law mentioned in subsection (1)(a). However, there is nothing to show that the regular line of the street in question had been prescribed under Section 297 (1)(a), at any time earlier. The concerned Office file of Mumbai Municipal Corporation shows the order that the lines have been prescribed for the first time by the order dated 21st June, 2000 by the order passed on 21st June, 2000,, pursuant to which notice under Section 299 of Mumbai Municipal Corporation Act came to be 5 issued to the appellant. Therefore, on a prima facie view, the second contention of the appellant also cannot be accepted. As regards the third contention, Mrs. Joglekar, submits that the Commissioner has issued an order under Section 68 of Mumbai Municipal Corporation Act empowering the Deputy Municipal Commissioner to issue notice under Section 299 of Mumbai Municipal Corporation Act. 6. In all the above circumstances, on prima facie view, no interference is required in the impugned order. Hence, the Appeal from Order is dismissed. 7. Mr. Pande, learned Advocate for the appellant applies that the parties be directed to maintain status quo in respect of the work of road widening for a reasonable period. Since the work is of public interest, the application is rejected. 8. The Civil Application for contempt action is adjourned by two weeks. (SMT. R.P.SONDURBALDOTA,J)