1 22.fa738-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.738 OF 2010 Mr.Vijay Rajaram Hiramal. ..Appellant. Versus Municipal Corporation of Greater Bombay & 4 Ors. ..Respondents. .... Mr.Satish Mishra, Advocate i/b. Mr.Ashok M. Saraogi, Advocate for the Appellant. Mr.Vinod Mahadik, Advocate for respondent No.1. Ms.Radhika Samant, Advocate for Respondent No.2. Ms.Priya Ranade, Advocate i/b. N. R. Gandhi, Advocate for respondent Nos.3 to 5. .... CORAM : A. P. BHANGALE, J. DATED : 27TH SEPTEMBER, 2010 P.C. 1. Appeal is taken up for final hearing at the stage of admission. Heard the rival submissions of both sides. 2. Appeal is directed against the judgment and order dated 3.5.2010 whereby L.C. Suit No.1404 of 2002 was dismissed by the learned Judge of the Bombay City Civil Court at Dindoshi (Borivali Division). The suit structure is described as ground- floor of the building known as "Narottam Niwas" admeasuring about 10' X 4' sq.ft., situated at ground floor, Sadanand Road PPD 2 22.fa738-10 Junction, Nehru Road, Vile Parle (E), Mumbai. According to the plaintiff the building by name "Narottam Niwas" was sought to be developed except his shop premises which remained in the campus of "Narottam Niwas" building as an independent structure while the new building came to be constructed behind the suit shop. The plaintiff had sought to rely upon the number of documents, such as, assessment bill, copy of correspondence between him and the Municipal Corporation and also copy of an order dated 22.3.2002 passed by the Judge of the Bombay City Civil Court (H. H. J. Shri Kamdi). 3. The trial Court upon evidence led, found that the suit structure, which is infact situated on foot-path, was in the nature of pan-bidi Bakada (a temporary movable wooden structure) was without any licence issued from the Municipal Authority which was infact demolished on 26.10.2002, which plaintiff had again re-erected and it was again demolished on 28.11.2002. Thereafter also, notice was issued under Section 314 of the Bombay Municipal Corporation Act on 3.4.2007 and the suit structure was demolished with photographs taken in respect thereof (Exhibit-25 & Exhibit-26 collectively before the trial 3 22.fa738-10 Court). Under these circumstances, it is contended on behalf of the Municipal Corporation that due process of law in the case has already been followed even after issuance of notice under Section 314 of the Bombay Municipal Corporation Act to demolish/remove the suit structure. It is also contended that the description of the suit stall was vague in the plaint and it was not part of "Narottam Niwas" building, Sadanand Road Junction, Nehru Road, Vile Parle (E), Mumbai but a temporary structure. Under these circumstances, trial Court found that the plaintiff is not able to prove that the structure in question was legal or authorized. Consequently it was held that action of demolition carried out by the Mumbai Municipal Corporation cannot be termed as illegal or contrary to law. 4. I have perused the judgment and order impugned in the appeal in the light of the submissions at the bar. The sketch which is brought to my attention in respect of the suit structure along with notice issued from Bombay Municipal Corporation also indicate that pan-bidi shop was independent of the "Narottam Niwas" building shown on the side of Sadanand Road Junction, Nehru Road, Vile Parle (E), Mumbai which according 4 22.fa738-10 to the Municipal Corporation is demolished consequent to notice under Section 314 of the Act and the fact was proved to the satisfaction of the learned trial Judge. 5. Learned Advocate for the appellant contended that on 22.3.2002, the Judge of the Bombay City Civil Court had passed an order in Notice of Motion No.1056 of 2002 along with L.C. Suit No.1404 of 2002 in which both the parties were directed to maintain status-quo till 28th March, 2002. According to learned Advocate for the appellant, the Bombay Municipal Corporation should not have, therefore, demolished the suit structure pursuant to notice dated 3.4.2007 under Section 314 of the Bombay Municipal Corporation Act. This argument cannot be accepted as status quo was operative till 28.3.2002. It is not pointed out as to whether said order was continued. Even otherwise, when the parties are directed to maintain status quo simplicitor, it is for the party interested to establish as to what was the position of the suit structure as on the date when such status quo was directed to be maintained. Be that as it may be, in the present case it appears that notice under Section 314 of the Bombay Municipal Corporation Act dated 3.4.2007 was 5 22.fa738-10 issued and due process of law has been followed qua temporary suit structure known as "Bakada". Admittedly it appears that the plaintiff had, in the course of his evidence, stated in the trial Court before the learned trial Judge that his stall was an independent structure and it was wooden tin-shed which is necessarily was independent of "Narottam Niwas" building. My attention is also invited to the copy of the correspondence between the parties. It appears that one Janardhan P. Kotian Advocate by notice dated 4.3.2002 on behalf of Vijay Rajaram Hiramal (plaintiff/appellant) contended in para-7 of the notice as : "My client states that some time in the year 1973, the said Narottam Nivas has been developed by the Developer by constructing building thereon, with shops on the ground floor, but unfortunately the Developers of the said Narrottam Nivas, left out my client's shop without providing any permanent alternate shop premises." 6. Under these circumstances, no infirmity is found in the impugned judgment and order particularly when it appears that due process of law has already been followed qua the suit 6 22.fa738-10 structure which was temporary in the nature of a "Bakada". No ground is made out in the Appeal. The learned trial Judge appears to have understood the controversy on the basis of evidence led before him and arrived at findings which were consistent with the facts and law. Hence, appeal stands dismissed. 7. Learned Advocate for the appellant prayed for protection for the suit structure. Said structure is temporary in the nature of a "Bakada" it could not have been protected, particularly when due process of law is followed. Hence, prayer for protection of the suit structure or stay to the judgment and order is rejected. Civil Application No.1975 of 2010 also stands dismissed. (A. P. BHANGALE, J.)