: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.972 OF 2009 WITH CIVIL APPLICATION NO.2782 OF 2009 Kapil Co-op. Hsg. Soc. Ltd. .. Appellants V/s. Suniel B. Shukla & Ors. .. Respondents Mr. P.P. Surve for the Appellant. Mr. Manoj Mhatre for the Respondent. ALONGWITH FIRST APPEAL NO.1355 OF 2009 WITH CIVIL APPLICATION NO.2608 OF 2009 Municipal Corporation of Greater Bombay, Mumbai .. Appellants V/s. Suniel B. Shukla & Ors. .. Respondents Mr. J.J. Xavier for the Appellant. Mr. Manoj Mhatre for Respondent Nos.1 and 2. Mr. P.P. Surve for Respondent No.3. CORAM : SMT. NISHITA MHATRE, J. DATED : 15 TH SEPTEMBER, 2009. P.C.: 1. Both these First Appeals are taken up for hearing together since the decree challenged in both the First Appeals is the same and has been passed by the City Civil Court at Dindoshi, Goregaon, Mumbai, on 19th March, 2009 in L.C. Suit : 2 : No.243 of 2007. The plaintiffs before the City Civil Court had filed the suit against the Municipal Corporation as well as the Kapil Co- operative Housing Society Ltd. in which they possess Flat No.B/9, for an injunction against both the defendants. It was contended by the plaintiffs that the notices issued under Sections 351 and 488 of the Mumbai Municipal Corporation Act (for short “the MMC Act”) were illegal and, therefore, should be quashed. The plaintiffs had also prayed that the defendant-Municipal Corporation should be restrained from acting on the aforesaid notices. 2. First Appeal No.972 of 2009 has been filed by the Kapil Co-operative Housing Society Ltd. in which the plaintiffs are in possession of Flat No.B/9. According to the Society, no hearing was given to it by the Assistant Commissioner of the Municipal Corporation after the notice under Section 351 of the MMC Act was issued on 25th October, 2007. It is therefore submitted that, had the Assistant Commissioner granted a hearing to the Society, the Society would have been able to point : 3 : out to the Assistant Commissioner that the offending structure mentioned in the notice under Section 351 of the MMC Act was not authorized and was not constructed in accordance with the approved plans. 3. First Appeal No.1355 of 2009 has been filed by the Municipal Corporation of Greater Bombay. It is submitted on behalf of the Municipal Corporation that the notice under Section 351 of the MMC Act has been set aside by the Court on extraneous and irrelevant grounds. It is submitted that the plaintiffs had not produced any documents to prove that the aforesaid structure was in existence or authorized by the Municipal Corporation. It is also submitted that the lay-out plan which was approved by the Corporation had been produced before the Court and it did not show the offending structure. 4. Both the First Appeals are, therefore, admitted. The learned Advocates for the respondents waive service. The First Appeals are taken up for final hearing forthwith by consent. : 4 : 5. In my opinion, the trial court has erred in decreeing the suit. It appears from the impugned judgment that the trial court has erroneously cast the burden on the Municipal Corporation to prove that notice issued under Section 351 of the MMC Act was correctly issued and that the offending structure was unauthorized. When a notice under Section 351 of the MMC Act is challenged by the noticee by filing a suit, it is for him to prove that the structure for which the notice has been issued is authorized, and not the other way round. It is for the plaintiff to prove his case that the offending structure has been authorized by the Municipal Corporation or is a tolerated structure since it was in existence prior to the datum line. In any event, it appears that the Society has not been heard by the Municipal Corporation before taking any action against the plaintiffs. 6. In my opinion, it would therefore be appropriate to set aside the decree and direct the parties to appear before the Assistant Commissioner. The Assistant Commissioner will then : 5 : hear the parties and pass appropriate orders on the notice issued under Section 351 of the MMC Act on 25th October, 2007. 7. Accordingly, the First Appeals are allowed with the following directions : (a).The impugned judgment and decree passed by the City Civil Court at Dindoshi, Goregaon, Mumbai, on 19th March, 2009 in L.C. Suit No.243 of 2007 is set aside. (b).The Municipal Corporation shall issue a letter to both the plaintiffs as well as the Kapil Co- operative Society informing them of the date on which the Assistant Commissioner, “K” West Ward will give them a hearing in respect of the notice issued under Section 351 on 25th October, 2007 to the plaintiffs. : 6 : (c).The Assistant Commissioner shall permit the plaintiffs as well as the Kapil Co-operative Society to produce such documents and other material on record as may be necessary, within a period of two weeks. (d).The Assistant Commissioner will hear the parties and pass appropriate orders on the notice issued under Section 351 of the MMC Act within a period of four weeks after completion of the hearing. (e).The Assistant Commissioner shall intimate the order to the parties immediately thereafter. (f).In the event any order, adverse to the plaintiffs is passed, it will not be acted upon for a period of : 7 : two weeks from the date of communication of the order to the plaintiffs. (g).The offending structure shall not be demolished during the pendency of the hearing before the Assistant Commissioner. The plaintiffs will not carry out any further construction, alteration in the suit property till then. 8. In view of the above, the Civil Application No.2782 of 2009 in First Appeal No.972 of 2009 and Civil Application No.2608 of 2009 in First Appeal No.1355 of 2009 do not survive and the same stand disposed of accordingly. 9. Parties to act on authenticated copy of this order. .......