-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 405 OF 2009 APPEAL FROM ORDER NO. 405 OF 2009 APPEAL FROM ORDER NO. 405 OF 2009 ALONGWITH ALONGWITH ALONGWITH CIVIL APPLICATION NO. 487 OF 2009 CIVIL APPLICATION NO. 487 OF 2009 CIVIL APPLICATION NO. 487 OF 2009 IN A.O. NO. 405/2009 Atul Kumar Nagendra Dey .. Appellant. (Org.Plaintiff) V/s. Municipal Corporation of Gr. Mumbai .. Respondent. (Org.Defendant) --- Mr. Sakhardande i/by Ms.Geeta Bhoir for the Appellant. Ms. K.K. Soraan for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 DATED : 08th APRIL, 2009 P.C. : P.C. : P.C. : 1. Heard Mr. Sakhardande, learned counsel for the Appellant and Mrs. K.K.Soraan, learned counsel for the Respondent Corporation. 2. By the order impugned in this A.O., the Appellant’s application at Exh. ‘C’ filed in L.C.Suit No.587/2009 was rejected. 3. Notice under section 351 was issued by the respondent -: 2 :- corporation to the appellant on 11.02.2008 for removal of unauthorised construction in question. The appellant failed to reply the notice and hence, the Assistant Commissioner, P/North Ward, by the order dated 10.10.2008, directed the appellant to remove the unauthorised structure described in the notice within seven days from its receipt. The appellant thereafter filed the present suit and challenged the notice issued under section 351 as well as above said order of the Assistant Commissioner. The said application at Exh. ‘C’ was filed for temporary injunction, restraining the BMC from demolishing the suit structure, however, as stated above, the same was rejected by the impugned order. 4. Mr. Sakhardande, learned counsel appearing for the appellant submitted that though the documentary evidence was available in favour of the appellant, it could not be produced before the Assistant Commissioner nor the reply to section 351 notice was given. He further submitted that an opportunity may be given to the appellant to give reply and to produce documentary evidence and thereafter, the Assistant Commissioner be directed to decide the matter afresh. He also undertakes to withdraw the suit, viz. L.C. Suit No. 587 of 2009. 5. The learned counsel appearing for the respondent has -: 3 :- no objection if the aforesaid opportunity is given to the appellant. In the facts mentioned above, I dispose of this Appeal from Order by passing following order. ORDER ORDER ORDER i. The statement of Mr. Sakhardande, learned counsel for the appellant that the appellant will withdraw L.C. Suit No. 587 of 2009 within a period of five weeks from today is accepted. ii. The appellant is at liberty to file reply to the notice dated 11.02.2008 issued under section 351. He is further at liberty to produce documentary evidence before the Assistant Commissioner, P/North Ward within the period of seven weeks from today. iii. If such reply along with the documents is filed by the Appellant within a period of seven weeks, the Assistant Commissioner, P/North Ward, shall take fresh decision regarding the notice structure within the period of four weeks thereafter. iv. For the period of sixteen weeks from today, the parties to the Appeal shall maintain status-quo regarding notice structure. -: 4 :- v. The Appeal from Order is disposed of in the above terms. vi. In view of disposal of the A.O., the Civil Application does not survive and the same also stands disposed off. (R.V.MORE,J.)