:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.8632 OF 2007 PETITION NO.8632 OF 2007 PETITION NO.8632 OF 2007 Municipal Corporation for the City of Kalyan & Dombivali having its office at Kalyan ..Petitioner V/s 1. Smt. Motibai Dinkar Patil 2. Mr. Narayan Dinkar Patil 3. Mrs. Damayanti Rohidar Gudade All residing at Ambivali Tal. Kalyan, Dist. Thane 4. Smt. Mirabai Patil R/o Atali,Tal.Kalyan, Dist. Thane ..Respondents. Mr.A.S. Rao for the petitioner-corporation CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 20TH FEBRUARY, 2008 : 20TH FEBRUARY, 2008 : 20TH FEBRUARY, 2008 P.C. 1. Heard learned Counsel for the petitioner-corporation. 2. This petition takes exception to the order dated 20th July, 2007 passed by the District Judge, Kalyan in Misc. Civil Appeal No.21/2006, whereby the appeal of the petitioner-corporation was dismissed. The appeal was filed against the order dated 19-12-2005 passed by the Jt. Civil Judge, J.D. :2: Kalyan, by which order the application for temporary injunction was granted to the respondent Nos. 1 to 3/org.plaintiffs restraining the petitioner- corporation/ org.defendant No.1 from demolishing construction of structure in Survey No. 16, Hissa No.8. 3. The suit is filed by the Respondent No.1 to 3/orig. Plaintiffs who are the owners of suit property i.e. Survey No.61, Hissa No.8 which admeasures 100 sq. mts, wherein the Application for temporary injunction is taken out. The respondent No.1 to 3/org. Plaintiffs were granted permission for construction in the suit property sometime in the year 1996-97 by the petitioner-corporation, themselves and the construction was carried out by the respondent Nos. 1 to 3/org. plaintiffs. 4. In 2001, the respondent No.4/org. defendant No.2, who is the owner of Survey No.61, Hissa No.7 and Survey No. 62, Hissa No. 19 filed a suit being Reg. Civil Suit No. 559 of 2001 with prayers for declaration, repairs etc. In the said suit, TILR came to be appointed and he has submitted a report, :3: wherein he has stated that the construction by the respondent Nos. 1 to 3/ org. plaintiffs is carried out in Survey No. 61/7 and Survey No. 62/19 instead of Survey No.61/8. 5. Based on this report of TILR and Commissioner’s report, the petitioner-corporation issued notice to the respondent No.s 1 to 3/ org. plaintiffs under section 260 of the BPMC Act on the ground that the construction carried out by them was unauthorised and ordered demolition of the construction carried out by them. 6. Thus the main dispute is whether the construction is carried out by the respondent Nos.1 to 3/org. plaintiffs in Survey No. 61/8 which belongs to them, or the construction is carried out in survey No. 61/7 and 62/17 which belongs to the respondent NO.4/ Org. defendant No.2 and whether the order of demolition has been rightly issued by the petitioner-corporation. 7. I have perused the material on record and the impugned orders. The construction was carried out by :4: the respondent Nos. 1 to 3/ org. plaintiffs sometime in 1996-97. It is not in dispute that the respondent No.1 to 3/ org. Plaintiffs have filed objections to the Report of TILR in the Reg. Civil suit No. 559 of 2001. The trial Court after considering the rival contentions of the parties was pleased to grant relief of injunction to the respondent Nos. 1 to 3 /Org. Plaintiff and the petitioner-corporation were restrained from demolishing the construction and the Appellate Court has confirmed the same. Both the Courts held that prima facie case was made out and balance of convenience was in favour of the respondent Nos. 1 to 3/ org. plaintiffs and irreparable loss would be caused to them if the relief claimed are not granted to them. 8. In my view, looking to the facts and circumstances of the case, interest of justice would be met if the issue whether the construction falls in Survey No. 61/8 or survey Nos. 61/7 and 62/19 is decided in Reg. Civil Suit No. 559 of 2001 before any action for demolition is taken by the Petitioner-Corporation and if liberty is granted to :5: the petitioner-corporation to take appropriate action in the event the Court comes to a conclusion after recording of evidence that any unauthorised construction is carried out by the respondent NO.1 to 3/ org. plaintiffs in Survey No. 61/7 and 62/19. I order accordingly. 9. The petition is dismissed with liberty as mentioned above. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)