1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.174 OF 2009 WITH CIVIL APPLICATION NO.210 OF 2009 Sayyed Momin Hussain ..Appellant V/s Municipal Corporation of Greater Bombay ..Respondent Mr.Anil C. Singh i/b.Mr.D.B.Shah, Advocate, for the appellant Mr.J. Xavier with Smt.K.K.Soraan, Advocate, for the respondent CORAM : R.M.SAVANT, J. DATE : 9TH FEBRUARY, 2009 P.C. . Admit. Heard finally. 2. The appellant, who is the original plainiff in L.C.Suit No.887 of 2008 has filed the above appeal challenging the Order dated 13th January, 2009, passed in Notice of Motion No.1347 of 2008 by which order the Notice of Motion filed by the plainiff in the said suit, seeking temporary injunction restraining the defendants from demolishing the suit structure came to be rejected. 2 3. The appellant had filed an application with the respondent -Corporation bearing No.28266 dated 8th January, 2008, seeeking repair permission. The said application was replied by the Assistant Commissioner, H/W Ward I/c.vide a letter dated 6th May, 2008, by which letter it was communicated to the appellant that the documents submitted alongwith the letter dated 8th January, 2008 are not sufficient to prove authorization of the structure under reference i.e.existence of the structure prior to the year 1995. The said letter, therefore, directed the appellant to remove the said structure within 24 hours or else the same would be demolished by the said Respondent - MCGM at his risk and cost. 4. The plainiffs faced with the said communication filed the said suit and Notice of Motion for temporary injunction for the reliefs as mentioned herein above. The learned Judge rejected the same on the ground that the plainiff has not made out any ground for grant of temporary reliefs as the documents in question which were submitted along with the said application do not create any right of the plaintiff. 3 5. The question that arises is that if the respondent - Corporation had found the documents to be inadequate to prove the authorization of the structure as existing prior to 1995. The respondent – Corporation ought to have given the plaintiff notice under Section 351 or 314 of the BMC Act depending upon where the structure is situated. It was not open for the respondent - Corporation to straight a way direct the plaintiff to remove the structure or inform him that the same would be demolished at his risk and cost. 6. In my view, therefore, the respondent - Corporation ought to have followed the procedure prior to threatening the plaintiff with demolition of the structure. The impugned order, passed by the City Civil Court therefore, would have to be set aside and the respondent - Corporation would have to be directed to follow the procedure either by issuing notice under Section 351 or under Section 314 of the BMC Act. 7. The fact that the impugned order has been set aside would not mean that the structure is authorised or the right of the plainiff has 4 been recognized by this Court. The said order has been set aside only to facilitate the procedure being followed by the respondent - Corporation. The appeal is accordingly allowed to the aforesaid extent. The learned counsel for the respondent-Corporation states that appropriate action would be taken in the mattter of issuance of notice within a period of four weeks from date. 8. In view of the disposal of the appeal, Civil Application does not survive and the same is accordingly disposed of. 9. The appeal is accordingly disposed of. Pending the said procedure being followed the parties to maintain status quo. However, the same would not preclude the respondent-Corporation to proceed in accordance with law. (R.M.SAVANT, J.)