- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 621 OF 2009 WITH CIVIL APPLICATION No. 779 OF 2009 Sageer Bashir Manihar ... Appellant Vs. The Municipal Corporation of Gr. Mumbai & Ors.... Respondents Mr. R. A. Thorat i/b Mr. M. R. Yadav, for appellant. Mrs. K. K. Soraan, for respondent No.1. Mr. G. S. Walia for respondent Nos. 2 to 23. CORAM : R. V. MORE, J. DATE : JUNE 29, 2009. PC :- 1. Heard the learned counsel for the appellant, respondent No. 1 and respondent Nos. 2 to 23. Appellant is original plaintiff whereas the respondents are original respondents in the Suit No. 2308 of 208, which was filed for permanent injunction, restraining the respondent No.1, otherwise than due process of law, from demolishing the suit premises, namely one residential structure, admeasuring 20 x 15 Sq. ft., more particularly described in paragraph 1 of the suit. The appellant also filed Notice of Motion at Exhibit 2 for temporary injunction during pendency of the suit in terms of permanent injunction. By the impugned order dated 10th June 2009 said Notice of Motion was dismissed, and - 2 - therefore, the present appeal. 2. The appellant was refused interim injunction on the ground that the premises, admeasuring 38 x 15 sq. ft. was already demolished after following due process of law, and now relief is claimed in respect of the very same construction. Trial Court recorded the finding that there is no structure on the site and therefore, concluded that appellant failed to prove prima-facie case as well as balance of convenience and consequently passed the impugned order. 3. Learned counsel for the appellant invited my attention to the reply filed in the said Notice of Motion by one Pavan Kumar, constituted attorney of respondent Nos. 2 to 23, ad-interim order passed by the trial Court and also letter of said Pavan Kumar addressed to the Additional Chief Secretary, Home Department, Mantralaya Mumbai, and pointed out that finding of the trial Court that suit structure is not in existence, is factually not correct. He also relied upon decision of the Division Bench of this Court in the case of – Sopan Maruti Thopte & anr. Vs. Pune Municipal Corporation and anr. [1996(1) Mh.L.J.963] and the decision of Single Bench of this Court in the case of – Abdul Hasan Shaikh Mansuri Vs. Mun. Corpn. of Mumbai & Ors. [2007(2) Bom.C.R. 804] and submitted that appeal be allowed and respondent be directed to the follow due process of law. 4. Learned counsel for the respondents supported the impugned order in the appeal. - 3 - 5. Having heard the learned counsel for the respective parties and having gone through the ratio of above decisions, I find merit in the appeal. The only ground on which appellant’s Notice of Motion rejected, is that the construction was not in existence at the time of filing the suit. However, I find that this finding cannot be sustained, in view of reply of respondent Nos. 2 to 23 to the Notice of Motion. In paragraph 7 of the reply the constituted attorney of the respondent Nos. 2 to 23 has made following statement- “I say and submit that with the illegal suit structure has been constructed by the Plaintiff. My rights and benefits, which are legally due to me have been violated by the illegal structure and has seriously affected my rights to deal with and enjoy the subject property. Moreover, the illegal structure which is the subject matter of the suit has impeded and practically blocked the way and approach to my property.” In paragraph 14, the constituted attorney of defendant Nos. 2 to 23 has stated as follows- “Moreover, the suit structure has been constructed illegally on the D.P. Road, which is not permissible under the law and cannot acquire the status of protected structure in any form or in any circumstances.” In paragraph 15 again the constituted attorney of defendant Nos. 2 to 23 has stated as under- - 4 - “In fact there was no such residential premises existing after the whole premises was demolished on 30.6.2008. It is submitted that after obtaining the order of status quo from this Hon’ble Court on 18.12.2008, the plaintiff has illegally and unauthorisedly reconstructed some structure with a view to take advantage of status quo order.” If reply of respondent Nos. 2 to 23 is considered in proper perspective, then it is clear that they have admitted existence of structure on the date of suit. 6. The appellant not only relied upon the admission of respondent Nos. 2 to 23 in their reply to the Notice of Motion, but also relied on the letter dated 12-8-2008, of constituted attorney of respondent Nos. 2 to 23 addressed to the Additional Chief- Secretary, Home Department, Mantralaya, Mumbai. In this letter it is categorically stated that earlier construction of the appellant is demolished on 30th June, 2009 and thereafter he again constructed tin-shed. 7. Even at the time of passing an ad-interim order, the learned trial Court prima-facie held that there is structure in existence. Suit is filed on 18th December 2008. Aforesaid letter dated 12th August 2008 of constituted attorney of respondent Nos. 2 to 23 shows that construction was there prior to filing of the suit. Existence of structure is admitted by the respondent No.1 by filing the reply to the Notice of Motion. In the above facts and - 5 - circumstances, in my view, the finding of the trial Court about existence of structure cannot be sustained. Once it is held that structure is in existence on the date of the suit, then it is obligatory on the Corporation to follow due process of law before taking any action against the appellant. 8. The Division Bench of this Court in the case of Sopan Maruti Thopte (Supra) discussed the provisions of section 260 of the Bombay Municipal Corporation Act and laid down guidelines regarding the procedure to be followed by the Corporation. Clause (iv) of the guidelines is relevant, which reads as follows- “In case where the Municipal Corporation has followed due process of law and demolished the unauthorized structure and/or extension, if the same is reconstructed without valid permission within a period one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours.” Learned Single Judge of this Court in case of Abdul Hasan Shaikh Mansuri (supra) in paragraph 8 of this Court held that- “ While parting with this judgment I may observe that in proceedings such as the present one, where the plaintiff approaches the Court for a limited relief that the authority be directed to follow due process of law, there is very little or no defence available to the authority. It would be a different matter if the authority - 6 - was to assert that the subject matter of the suit (suit premises) were not in existence at all on the date of institution of the suit or that the due process of law has already been followed in respect of the suit structure in the suit, in which case the question o granting relief in such suit would not arise. However, in any other situation where existence of some structure is not disputed or indisputed, relief such as prayed in the present suit, will have to be granted for asking, as to authority can be permitted to take unilateral action, even if the structure is unauthorized – except by following due process of law. Therefore, all the Corporations and the Municipal Authorities may be well advised to consider issuance of appropriate directions to all its officers concerned with the subject that in a suit of this kind a statement be made on the first date of hearing of the suit before the Court on bhalf of the authority that they will follow the due process of law on which the sit can be disposed of. That will assuage the apprehension of the plaintiff in relation to the suit property. Besides, that would not only result in conserving avoidable Court time but also public exchequer in requiring to undergo the rigmarole of a full fledged trial.” The above decisions of the Division Bench and Single Bench of this Court makes it obligatory on respondent No.1 to follow due procedure even assuming that such premises are demolished earlier - 7 - and the appellants reconstructed within the period of one year. The respondent No.1 is therefore, restrained from demolishing the suit premises, more appropriately described in paragraph 1 of the plaint, without following due process of law, as laid down by the Division Bench in the case of Sopan Maruti Thopte (supra). 9. In the aforesaid facts and circumstances, the impugned order is quashed and set aside. Appeal is allowed. The petitioner’s Notice of Motion is made absolute in terms of prayer Clause (a). 10. Learned counsel for the appellant submits that in view of this order, nothing survives in the suit and therefore, he undertakes to withdraw the same. 11. In view of disposal of present appeal, Civil Application No. 779 of 2009 does not survive for consideration and the same is accordingly disposed of. Sd/- [ R. V. MORE, J.]