1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.455 OF 2010 WITH CIVIL APPLICATION NO.598 OF 2010 Kalimuddin M. Sayed ...Appellant. v. The B.M.C. ...Respondents. Mr.Omar K. Shaikh,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant filed suit challenging the impugned notice dated 29.5.2009 under Section 351 in respect of structure admeasuring 17 ft. X 15 ft. X18 ft. high situated at CTS No.526 Juhu Lane, Andheri (West). According to him, said property comes within the road line and as per the affidavit filed on behalf of Municipal Corporation in Writ Petition No.215/09 by Mahadev B. Shinde Assistant Engineer of the Municipal Corporation, 14 structures were found within the road line. The Municipal Corporation has made statement that said structures could be removed by the MMRDA and not by the Municipal Corporation. According to the appellant, his structure is one of those 14 2 structures. He has placed the list from the Municipal Corporation pertaining to the structures in Juhu Lane. Name of the plaintiff Sayed Kalimuddin is shown at Sr.No.425. He also points out that MMRDA had issued a letter dated 25.10.2005 to the present plaintiff in respect of his structure which comes within the road line but that structure was indicated as Sparc No.73. According to the plaintiff, said structure shown as Sparc no.73 and the structure on the city survey no.526 Juhu lane as per the impugned notice are the same. If they are same, in view of the earlier stand taken by the Municipal Corporation in the writ petition no. 215/09, authority to demolish is the MMRDA and not the Municipal Corporation. If it is so, notice under Section 351 may be without authority. However, if the structures are different, said affidavit and the letter issued by the MMRDA will have no relevance and the Municipal Corporation may be entitled to take action as per law. Therefore, it will be necessary to ascertain whether both the structures are same or different. 3 In view of the above controversy, in my considered opinion, following order will meet the ends of justice: 1. Plaintiff shall implead MMRDA as defendant in the suit. Impugned order stands set aside. Notice of motion is remanded 3 back to the trial Court for hearing and decision afresh after impleading the MMRDA, in the light of above observations on its own merits. Till the decision of the notice of motion, impugned notice shall not be acted upon. The trial Court shall expedite the hearing of the notice of motion and pass the appropriate order as early as possible. 4 Appeal stands disposed off accordingly. Civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 4 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.456 OF 2010 WITH CIVIL APPLICATION NO.599 OF 2010 Mrs.Nafees I. Shaikh & Anr. ...Appellants. v. The B.M.C. ...Respondents. Mr.Omar K. Shaikh,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant filed suit challenging the impugned notice dated 29.5.2009 under Section 351 in respect of structure admeasuring 7 ft. X 15 ft. X 7 ft. high situated at C.T.S.No. 526 Juhu Lane, Andheri (West). According to him, said property comes within the road line and as per the affidavit filed on behalf of Municipal Corporation in Writ Petition No.215/09 by Mahadev B. Shinde Assistant Engineer of the Municipal Corporation, 14 structures were found within the road line. The Municipal Corporation has made statement that said structures could be removed by the MMRDA and not by the Municipal 5 Corporation. According to the appellant, his structure is one of those 14 structures. He has placed the list from the Municipal Corporation pertaining to the structures in Juhu Lane. Name of the plaintiff Nafees and Ismail Shaikh is shown at Sr.No.428. He also points out that MMRDA had issued a letter dated 25.10.2005 to the present plaintiff in respect of his structure which comes within the road line but that structure was indicated as Sparc No.76. According to the plaintiff, said structure shown as Sparc no.76 and the structure on the city survey no. 526 Juhu lane as per the impugned notice are the same. If they are same in view of the earlier stand taken by the Municipal Corporation in the writ petition no.215/09, authority to demolish is the MMRDA and not the Municipal Corporation. If it is so, notice under Section 351 may be without authority. However, if the structures are different, said affidavit and the letter issued by the MMRDA will have no relevance and the Municipal Corporation may be entitled to take action as per law. Therefore, it will be necessary to ascertain whether both the structures are same or different. 3 In view of the above controversy, in my considered opinion, following order will meet the ends of justice: i Plaintiff shall implead MMRDA as defendant in the suit. 6 Impugned order stands set aside. Notice of motion is remanded back to the trial Court for hearing and decision afresh after impleading the MMRDA in the light of above observations on its own merits. Till the decision of the notice of motion, impugned notice shall not be acted upon. The trial Court shall expedite the hearing of the notice of motion and pass the appropriate order as early as possible. 4 Appeal stands disposed off accordingly. Civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 7 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.457 OF 2010 WITH CIVIL APPLICATION NO.600 OF 2010 Salimuddin M. Sayed ...Appellant. v. The B.M.C. ...Respondents. Mr.Omar K. Shaikh,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant filed suit challenging the impugned notice dated 29.5.2009 under Section 351 in respect of structure admeasuring 9 ft. X 15 ft. X 6 ft. high situated at CTS No. 526 Juhu Lane, Andheri (West). According to him, said property comes within the road line and as per the affidavit filed on behalf of Municipal Corporation in Writ Petition No.215/09 by Mahadev B. Shinde Assistant Engineer of the Municipal Corporation, 14 structures were found within the road line. The Municipal Corporation has made statement that said structures could be removed by the MMRDA and not by the Municipal 8 Corporation. According to the appellant, his structure is one of those 14 structures. He has placed the list from the Municipal Corporation pertaining to the structures in Juhu Lane. Name of the plaintiff Sayed Kalimuddin is shown at Sr.No.425. He also points out that MMRDA had issued a letter dated 11.5.2006 to the present plaintiff in respect of his structure which comes within the road line but that structure was indicated as Sparc No.74. According to the plaintiff, said structure shown as Sparc no.74 and the structure on the city survey no.526 Juhu lane as per the impugned notice are the same. If they are same, in view of the earlier stand taken by the Municipal Corporation in the writ petition no. 215/09, authority to demolish is the MMRDA and not the Municipal Corporation. If it is so, notice under Section 351 may be without authority. However, if the structures are different, said affidavit and the letter issued by the MMRDA will have no relevance and the Municipal Corporation may be entitled to take action as per law. Therefore, it will be necessary to ascertain whether both the structures are same or different. 3 In view of the above controversy, in my considered opinion, following order will meet the ends of justice: i Plaintiff shall implead MMRDA as defendant in the suit. 9 Impugned order stands set aside. Notice of motion is remanded back to the trial Court for hearing and decision afresh after impleading the MMRDA in the light of above observations on its own merits. Till the decision of the notice of motion, impugned notice shall not be acted upon. The trial Court shall expedite the hearing of the notice of motion and pass the appropriate order as early as possible. 4 Appeal stands disposed off accordingly. Civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.458 OF 2010 WITH CIVIL APPLICATION NO.601 OF 2010 Taslim K. Sayed ...Appellant. v. The B.M.C. ...Respondents. Mr.Omar K. Shaikh,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Plaintiff/appellant filed suit challenging the impugned notice dated 29.5.2009 under Section 351 in respect of structure admeasuring 5 ft. X 15 ft. X 6 ft. high situated at CTS No.526 Juhu Lane, Andheri (West). According to him, said property comes within the road line and as per the affidavit filed on behalf of Municipal Corporation in Writ Petition No.215/09 by Mahadev B. Shinde Assistant Engineer of the Municipal Corporation, 14 structures were found within the road line. The Municipal Corporation has made statement that said structures could be removed by the MMRDA and not by the Municipal Corporation. According to the appellant, his structure is one of those 14 11 structures. He has placed the list from the Municipal Corporation pertaining to the structures in Juhu Lane. Name of the plaintiff Sayed Taslim is shown at Sr.No.425. He also points out that MMRDA had issued a letter dated 25.10.2005 to the present plaintiff in respect of his structure which comes within the road line but that structure was indicated as Sparc No.75. According to the plaintiff, said structure shown as Sparc no.75 and the structure on the city survey no.526 Juhu lane as per the impugned notice are the same. If they are same, in view of the earlier stand taken by the Municipal Corporation in the writ petition no. 215/09, authority to demolish is the MMRDA and not the Municipal Corporation. If it is so, notice under Section 351 may be without authority. However, if the structures are different, said affidavit and the letter issued by the MMRDA will have no relevance and the Municipal Corporation may be entitled to take action as per law. Therefore, it will be necessary to ascertain whether both the structures are same or different. 3 In view of the above controversy, in my considered opinion, following order will meet the ends of justice: i Plaintiff shall implead MMRDA as defendant in the suit. Impugned order stands set aside. Notice of motion is remanded back to 12 the trial Court for hearing and decision afresh after impleading the MMRDA, in the light of above observations on its own merits. Till the decision of the notice of motion, impugned notice shall not be acted upon. The trial Court shall expedite the hearing of the notice of motion and pass the appropriate order as early as possible. 4 Appeal stands disposed off accordingly. Civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 13 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.459 OF 2010 WITH CIVIL APPLICATION NO.602 OF 2010 Mrs. Nilofer R. Shaikh ...Appellant. v. The B.M.C. ...Respondents. Mr.Omar K. Shaikh,adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 The learned counsel seeks to withdraw the appeal as well as the suit and to file fresh suit on the same ground by all the legal heirs of Sayed Mobinuddin against whom notice was issued. 2 Appeal stands disposed off accordingly. Civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.) 14