: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.68 OF 2010 IN APPEAL FROM ORDER NO.28 OF 2010 Rajaram Sukhnandan Yadav .. Applicant V/s. The Municipal Corporation of Greater Mumbai & Anr. .. Respondents Mr. A.A. Kumbhakoni i/b. Mr. J.N. Jayale for the Applicant. Mr. A.Y. Sakhare, Sr. Advocate, with Smt. K.K. Soraan for Respondent No.1. Mr. Pankaj Kowli i/b. Mr. Deepak Lad for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 20 TH JANUARY, 2010. P.C.: 1. The present Civil Application has been filed by the applicant contending that the suit structure has been demolished by the respondent No.1- Municipal Corporation on 13th January, 2010, despite the fact that the Appeal from Order was on board for admission on that day. It appears that the Notice of Motion against which the Appeal from Order has been filed was dismissed on 14th December, 2009 by the trial Court. The ad-interim order : 2 : passed by the trial Court was continued by it for a period of four weeks to enable the appellant to prefer an Appeal. The appellant preferred an Appeal from Order on 5th January, 2010. A copy of the Memo of Appeal and Civil Application for stay was served on the respondents on 6th January, 2010. Thereafter on 12th January, 2010, the Advocate for the appellant moved this Court for production of papers for extension of the stay granted by the trial Court. However, the matter was directed to be listed on board on the next day i.e. on 13th January, 2010. The appellant’s Advocate informed the respondent No.1-Municipal Corporation on 12th January, 2010, that the Appeal from Order would be listed at 11 a.m. for admission on the next day. It appears that on 13th January, 2010, when the matter was called out, the Advocate for the appellant could not reach the Court in time and, therefore, the matter was kept back. The Advocate for the respondent No.1-Municipal Corporation was present at that point of time. The matter was then called out at 3 p.m., when the Advocate for respondent No. 2 informed the Court that the suit structure had : 3 : been demolished. Therefore, by an order passed on that day, the respondent No.1-Municipal Corporation was directed to file an affidavit of the officers responsible for the demolition of the suit structure. Accordingly, an affidavit has been filed. 2. The affidavit has been filed by Mr. Rupesh Diwakar Nayak, Junior Engineer in the office of the Assistant Commissioner, H/East Ward, of the respondent No.1-Municipal Corporation. He has stated that the Assistant Law Officer, Legal Department of the respondent No.1-Municipal Corporation had informed his Department on 15th December, 2009, that action may be taken in accordance with law after four weeks in respect of the suit structure. He claims that he had no information about the fact that the Appeal Memo and compilation of documents was served on the Legal Department. He has admitted that it was because of the persistence of respondent No.2 that the unauthorized construction was demolished on 13th January, 2010 at 1:30 p.m. : 4 : 3. The explanation sought to be given by the affiant for his unusually prompt action is unacceptable, to say the least. When the respondent No.1-Municipal Corporation was served with a copy of the Appeal Memo and the annexures thereto on 12th January, 2010, with a covering letter indicating that the matter was fixed for admission on the next day, it was expected from the respondent No.1- Municipal Corporation and its officers that they would not take any precipitate action in respect of the suit structure. It appears that the suit structure has been demolished by the respondent No. 1-Municipal Corporation through Mr. Rupesh Diwakar Nayak, Junior Engineer, only with a view to over reach the orders of this Court. It appears that the affiant in his zeal to oblige respondent No.2 has demolished the suit structure at 1:30 p.m. on 13th January, 2010. Significantly when the matter was called out on 13th January, 2010, at 11 a.m., neither the appellant’s Advocate, nor the Advocate for respondent No.2 were present. However, the Advocate for the respondent No.1-Municipal : 5 : Corporation was present at the relevant time. Obviously, therefore, it must be deemed that the officers of the respondents-Municipal Corporation would be aware that the matter had been kept back by the Court at 3 p.m. Therefore, it was necessary for them to hold their hands till orders were passed by the Court. This high handed action of the affiant must be deprecated in the strongest possible terms. The officers of the respondents- Municipal Corporation are expected to act without bias while dealing with the property of two private persons. Undoubtedly, the suit structure was not on the public land or on the public road or street. In such a scenario, the unholy haste demonstrated by the affiant in demolishing the suit structure is condemnable. 4. The Civil Application is therefore allowed in terms of prayer clause (a) except the bracketed portion. 5. In the circumstances, the affiant Mr. Rupesh Diwakar Nayak, Junior Engineer in the office of the : 6 : Assistant Commissioner, H/East Ward, of the respondent No.1-Municipal Corporation, shall pay costs of Rs.10,000/- to the appellant personally within a period of four weeks from today. 6. List the Appeal from Order on Board for admission on 9th February, 2010. ........