1 12 caf.145.09 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 145 OF 2009 IN FIRST APPEAL NO. 1650 OF 2008 Mohd. Hanif Abdul Rehman and others. ... Appellants Versus The Municipal Corporation of Gr. Mumbai. ... Respondent ----- Mr. Anil Singh i/b M.O. Pathak and Associates for the Applicants. Mr. A.Y.Sakhare, Senior Counsel, a/w Mr. Vinod Mahadik i/b Mr.V.K.Khatu and R.A.Malandkar for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 27 th July, 2011. P.C. 1 Heard the learned counsel appearing for the Applicants and the learned senior counsel appearing for the Respondent. The learned senior counsel appearing for the Respondent seeks time to file additional reply. 2 On 24 th June, 2011, on the request made by the 2 12 caf.145.09 Respondent, time was granted till 4 th July, 2011 with a rider that no further adjournment will be granted. However, on 4 th July, 2011, 12 th July, 2011 and 20 th July, 2011 adjournments were granted. Hence, today further time cannot be granted. 3 Reliance has been placed on order dated 3 rd October, 2008 in Civil Application No.4279 of 2008 passed by this Court. In paragraph Nos.4 and 5 of the said order, this Court has observed thus: “4. Despite the order of injunction granted by this court, the respondent municipal corporation demolished the suit structure on 7 th August 2008. In the affidavit in reply, the respondent has admitted that the suit structure has been demolished on 7 th August 2008. Action has been initiated by the appellant separately for contempt of the court for breach of that order. This application is made for restoration of the structure which has been demolished by the respondent municipal corporation in breach of the order of injunction. 5. That action of the respondent clearly amounts to breach of order passed by this court on 6 th August. The respondent ought not to have been demolished the suit structure in view of the order of injunction granted by this court. In such situation this court is not powerless to issue direction to restore its suit premises to its original state. This order is necessary to preserve the sanctity of the 3 12 caf.145.09 orders passed by this court.” In paragraph Nos.7 and 8 of the said order, this Court has observed thus: “7. Suffice it to say that despite the interim order passed by this court the respondent has demolished the structure in breach of the order. In my view, therefore, order needs to be passed to restore the suit premises to its original state. 8. Civil Application is accordingly allowed. Respondent municipal corporation is directed to restore the suit structure/s demolished by it on 7 th August 2008 in breach of the order passed by this court on 6 th August 2008. Reconstruction shall be made within four weeks. In the event of failure to comply with this order, apart from any other action the applicant may initiate for breach of this order, the applicant shall be entitled to reconstruct as to restore the suit premises as they existed prior to the suit and recover the costs from the respondent.” (Emphasis added) 4 The aforesaid order has become final as of today. In the present civil application, the contention is that the order of this Court passed on 3 rd October, 2008 has not been properly implemented by the Respondent – Municipal Corporation. In paragraph No.8 of this application, the Applicants have stated thus: 4 12 caf.145.09 “8. Appellant says that appellant visited the suit site and found that the structures put up by respondents are in totally damaged condition, the floor of all the structures are broken, side tin sheet wall are also broken, there are no shutters in some of the structures and if there are shutters in some of the structures, they are in broken condition and are not in condonation to roll out and to close the shop. Appellant written a letter to the respondent asking them to comply the order of this Hon'ble Court by reconstructing the suit structures in its original conditions or atleast repair the damaged suit structures so that the same can be used by the appellants. Hereto annexed and marked Exhibit '5' is the copy of the said letter dated 1.12.2008. Appellant says that inspite of that letter the respondents have failed and neglected to reconstruct the suit structures or at least to repair the damaged suit Structures to its original condition and hence the respondents have failed and neglected to comply the order of this Hon'ble Court dated 3.10.2008, and for that the appellants are taking out the present civil application for the appropriate relief as prayed herein under.” (Emphasis added) 5 There are photographs annexed to this application. There is a reply filed by the Assistant Engineer of the Municipal Corporation in which it is stated that a contempt petition has been preferred by the Applicants alleging breach of order dated 3 rd October, 2008. In response to paragraph No.8 of this application, in 5 12 caf.145.09 paragraph No.16 of the reply, it is contended that it is possible that the Applicants have themselves damaged the suit structures as they wanted to have a new construction made. 6 It is not necessary to go into the aspect whether the Respondent has committed breach of the order dated 3 rd October, 2008 inasmuch as a contempt petition is pending in this Court. Perusal of the letter dated 1 st December, 2008 sent by the Applicants to the Assistant Commissioner of the Municipal Corporation shows that a specific grievance was made that there were no rolling shutters to the stalls and there was no flooring in the the stalls. Perusal of the photographs annexed to the application show that there is some substance in the allegations made in paragraph No.8 of this application. By passing the order dated 3 rd October, 2008, this Court intended to restore status-quo ante. The order of this Court has been confirmed by the Apex Court. Whether there is any deliberate breach of the order on the part of the 6 12 caf.145.09 Respondent, is a matter to be decided in the contempt petition. The status quo ante has to be restored in its true spirit so that the stalls can be used by the Applicants. Therefore, suffice it to say that the Applicants deserve to be granted permission to carry out necessary repairs to the stalls for the purposes of restoration of the status-quo ante. For the time being, repairs can be carried out at the costs of the Applicants. It is obvious that the action of carrying out repairs will be subject to final outcome of the appeal. The repairs shall be confined to repairs to flooring, tin sheets and rolling shutters. 7 The learned counsel appearing for the Applicants pointed out that notices under Section 351 of the Mumbai Municipal Corporation Act, 1988 have been issued on 15 th December, 2009 in respect of the said structures. The legality and validity of the said notices cannot be gone into this application. Even if repairs are carried out by the Applicants, the same will not affect the merits of the notices issued under Section 351 of the said Act. The repairs 7 12 caf.145.09 will be subject to final outcome of the Appeal. The Applicants will not be entitled to claim any equity on the ground that they have been permitted to carry out repairs. 8 Hence, the application is disposed of by passing the following order: i. It will be open for the Applicants to carry out repairs to the suit structures in terms of paragraph No.6 above at their own costs ; ii. The permission granted to the Applicants to carry out repairs will not create any equity in their favour and it will not affect the merits of the notices issued under Section 351 of the Mumbai Municipal Corporation Act, 1988 ; iii. Within a period of 15 days from today, it will be open for the concerned officers of the Respondent – Corporation to visit the suit structures and to take out photographs of the suit structures in presence of the Applicants; 8 12 caf.145.09 iv. The repairs shall be carried out by the Applicants only after expiry period of 15 days from today ; v. After the repairs are carried out, the Applicants will take photographs of the repaired structures and shall place the said photographs on record of this appeal alongwith their respective affidavits ; vi. It is made clear that all the contentions of the parties in the pending contempt petition are kept open ; and vii. All the contentions of the parties as regards merits of the notices issued under Section 351 of the Mumbai Municipal Corporation Act, 1988 are kept open. [ A.S.OKA, J ]