: 1 : 1791-11-fa=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1791 OF 2011 IN L.C. SUIT NO. 2518 OF 2002 Madarsa Chamne Mustfa Talimul Kuran Welfare Society .. Appellant v/s. The Municipal Corporation of Gr. Mumbai .. Respondents ......... Mr. B.P. Shukla for the appellant Mr. Vinod Mahadik for respondent BMC ......... CORAM : A.V. NIRGUDE, J DATE : 21st NOVEMBER,2011. P.C. : 1. This appeal is challenging the Judgment and Order dated 21st July, 2011 passed by the learned Judge of the City Civil Court, Bombay in L.C. Suit No. 2518 of 2002. The suit was dismissed. The appellant plaintiff had filed the suit challenging legality of Notice under Section 314 of Mumbai Municipal Corporation Act dated 10th May, 2002. The notice alleged that the appellant plaintiff were responsible for erecting the : 2 : 1791-11-fa=.sxw structure unauthorizedly and that they should remove it within 48 hours. It is also common ground that the appellant plaintiff submitted a reply to this notice and that the reply was not yet considered and a speaking order has not been passed. Before such order could be passed, the suit was filed for challenging legality of the notice. The respondent Corporation made several allegations however, they did not deny the fact that on receipt of the written reply to the impugned notice from the appellant plaintiff the concerned Officer did not pass a speaking order. During the course of the cross-examination of the respondent’s witness, he too admitted that the concerned Officer did not pass a speaking order pursuant to the reply submitted by the appellant to the impugned notice. 2. Despite of this, despite of the decision of this Court in the case of J.R. Patel Vs. The Municipal Corporation & Ors. In Appeal from Order No.681 of 2001 (unreported), the learned Judge of the trial Court dismissed the suit holding that the structure did not deserve protection. The learned Judge did not discuss as to why he did not follow the ratio of the above mentioned judgment of this Court. When the appeal was heard on 20th September, 2011, this Court had directed the learned Counsel for the respondent to take instructions to ascertain whether his client would : 3 : 1791-11-fa=.sxw pass an order on the reply submitted by the appellant on the impugned notice despite, time given till today. The learned Counsel appearing for the respondent has not made any statement today. 3. In view of this, it is clear, that his client does not wish to pass such order. In such situation, I will have to allow the appeal directing the respondent to pass necessary order on the impugned notice. ORDER (i) The impugned judgment and order is set aside. The suit is decreed in terms of following order. (ii)The Corporation shall not demolish the suit structure until speaking order is passed on the reply of the appellant and two weeks thereafter. (A.V. NIRGUDE, J.)