1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 307 OF 2009 WITH CIVIL APPLICATION NO. 832 OF 2009 Damodar Lahanu Kedare ........Appellant versus Mun. Corpon. Of Gr. Bombay ........ Respondents. Mr. Mohit P. Jadhav adv. for the Appellant Mr. J.J. Xavier adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 20th MARCH, 2009. P.C.: 1. The appeal is taken up for final hearing by consent of parties. 2. The present appellant instituted a suit challenging a notice issued by the Corporation purportedly under section 314 of the MMC Act. Section 314 of the Act empowers the Corporation to remove any structure if the same is erected on a road or over a drain. Perusal of the impugned notice and after hearing the submissions made by the learned counsel for the Corporation, the notice need to be construed as one having been issued under section 314 on account of raising of a structure on 60 feet D.P. Road known as Industrial Road. It appears that the parties have not addressed themselves to the question as to whether 2 the structure is on 60 feet wide D.P.road or otherwise. No doubt the Court Commissioner had inspected the spot in the year 2002, and had reported that the existing structure is not on the road. However, the learned counsel for the respondent Corporation submits that in the written statement filed by the Corporation subsequent to the report submitted by the Court Commissioner, it is clearly revealed that the structure is on 60 feet wide D.P. Road. The Corporation has not lead any evidence. The trial court has recorded a finding that the structure is on the road. However, having regard to the report of the Court Commissioner, who was assisted by the officer of the Corporation, when he inspected the site, both the learned counsel appearing for the parties, concede that the impugned judgment and decree passed by the trial court dismissing the suit be quashed and set aside and the matter be remanded back for a denovo trial permitting both the parties to lead evidence in support of their respective contentions. 3. After perusing the judgment and the other evidence on record and accepting the request made by both the learned counsel, I deem it appropriate to quash and set aside the judgment and decree impugned in the appeal. Ordered accordingly. The matter is remanded back to the trial court for a denovo trial and decision in accordance with the law. The trial court shall permit both the parties to lead evidence touching the question as to whether the suit structure is on 60 feet wide D.P. Road (Industrial road), in 3 addition to the evidence which is already led by the parties, and after affording an opportunity of hearing to both the parties, shall decide the case afresh. Parties are directed to appear before the trial court on 17-4-009. Parties shall maintain statusquo as of today till decision of the suit. I hope and tust that the trial court shall make an endeavor to decide the suit as expeditiously as possible preferably within a period of six months from today. 4. In the result, the appeal is allowed an disposed of with no order as to costs. 5. In view of the disposal of the appeal, civil application does not survive and the same is also disposed of. (A. P. DESHPANDE, J.)