1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO 595 OF 2010 IN NOTICE OF MOTION NO. OF 2010 IN L.C. SUIT NO. 972 OF 2010 ALONGWITH CIVIL APPLICATION NO. 772 OF 2010 Municipal Corporation of Greater .. Appellants Mumbai & Anr. (Org. Defendants) V/s. Wildlife Wanderers Nature .. Respondents Foundation & Anr. ( Org. Plaintiffs) .... Mr. S. U. Kamdar, Senior Counsel with Mr. J. J. Xavier & Mrs. K. K. Soraan for the Appellants. Mr. K. R. Tiwari for the Respondents. .... CORAM : R. C. CHAVAN, J. DATE : JUNE 29, 2010. P.C. This Appeal is directed against the order passed by the learned Judge, City Civil Court, Mumbai on Notice of Motion in Long Cause Suit No. 972 of 2010 before him, whereby he allowed the Notice of Motion and restrained the applicant corporation from acting upon the notice issued against the respondents under 2 section 314 of the Mumbai Municipal Corporation Act (hereinafter referred to as “the said Act”). 2. I have heard the learned counsel for the parties at more than adequate length. The learned counsel for the corporation submitted that there was no lease agreement executed in favour of the respondents/plaintiffs by the corporation and therefore even if it is presumed that respondents were in possession of the premises they would only be licencees. The corporation wanted the site for development of an Olympic standard swimming pool as had been provided for in the reservation of the land for the said purpose in the Development Plan. The learned counsel submitted that the notice was issued after hearing the parties, Assistant Municipal Commissioner passed an order under section 314 (d) of the said Act and thus all the requirements of the law have been complied with. Thus, the appellants seek to remove the respondents by following due process of law. 3. The learned counsel for the appellant submitted that corporation could not be restrained from exercising its powers 3 under the statute, particularly provisions of section 314 of the said Act, which has been amended to take care of such a situation. He submitted that the corporation could not be made to suffer respondents indefinitely simply because the corporation's attempt in the past was unsuccessful. 4. I have carefully considered these submissions which go on the footing that the respondents are on the property as mere licencees. First, it has to be noted that appellant had attempted to throw out the respondents in the past in a high-handed manner, which resulted in filing of Writ Petition No. 1471 of 1989 which had been allowed by a Division Bench of this Court, wherein, amongst other things, this Court ordered the corporation to continue the petitioners therein, i.e. the respondents in these proceedings, to remain in possession of the leased premises. An injunction was granted not to obstruct the petitioners from enjoying the premises. This injunction came to be granted in the light of observations of this Court in paragraph 10 of the Judgment which read as under : “ Thereafter inspite of several adjournments it became clear that the officers of the Corporation were not desirous of executing the lease or 4 handing over possession. We expressed surprise at the conduct of the Corporation, and then ultimately lease was executed on July 28, 1992. Inspite of execution of the lease, both Parekh and Khairnar were not willing to hand over possession to the Petitioners.” 5. The learned counsel for the respondent pointed out that on 7th July, 1993 and 17th November, 1992 the ward officer 'G/North' wrote to the respondents referring to the lease agreement dated 13th August, 1992. Thus, it is not that the respondent's officers were unaware of any lease agreement. They have referred to the lease agreement in their own letters. The existence of the lease agreement cannot be denied by the appellants since it is referred to in paragraph 10 of the Judgment of this Court. The learned counsel for the appellants submitted that the lease agreement referred to in paragraph 10 of the Judgment is supposed to bear the date of 28th July, 1992 whereas the date of such agreement in the letters dated 7th July, 1993 and 17th November, 1992 is 13th August, 1992. This discrepancy is not material. It may be noted that around the time when the matter was going on this Court i.e. July-August of the year 1992, a lease was executed. Now, if the respondents cannot produce this lease agreement, they could not be blamed and on this ground 5 could not be non-suited. After the corporation had acknowledged that there is such a lease and it is referred to in the judgment of this Court, existence of such lease agreement cannot be denied. 6. The corporation has also charged Rs. 100/- per month from the respondents for all these years. The learned counsel for the corporation submitted that this amount was received towards deposit and not as a rent. How does the corporation adjust the amount in its books cannot determine the nature of payment. It is not open to the appellants' to now deny that there was a lease agreement. Once it was so stated before this Court and this Court so recorded, the corporation now cannot turn back and say that there is no lease agreement. In any case this is an issue which can be gone into at the trial. Therefore recourse to the provisions of section 314(d) of the said Act would not help the appellant corporation in branding the occupation of the respondents as un- authorised. 7. In view of the above, it cannot be said that the learned Judge, City Civil Court, Mumbai erred in restraining the appellant corporation from proceeding against the respondents till the 6 disposal of the suit. The Appeal is, therefore, dismissed. 8. The learned counsel for the appellants submits that the learned Judge, City Civil Court, Mumbai, be directed to hear the suit expeditiously. Considering the public importance of the matter, the learned trial Judge shall expeditiously hear the suit and, if possible, may dispose it of before 31st December, 2010. 9. In view of the dismissal of the Appeal, Civil Application No.772 of 2010 does not survive and is, accordingly, disposed of. [ R. C. CHAVAN, J. ]