:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1083 OF 2008 WITH CIVIL APPLICATION NO.2856 OF 2008 Mr.Tribhuvan M. Kahar. .. Appellant. Vs. The Municipal Corpn. of Gr. Mumbai and anr. .. Respondents. Mr. Bipin Joshi for the Appellant. Mr.J.J.Xavier for the Respondent BMC. CORAM: R.S. MOHITE, J. DATE : 25th June,2008 P.C. P.C. P.C. 1. Since the point involved in the appeal is short, I am inclined to dispose of this appeal finally at the stage of admission. 2. Heard both sides. 3. Admit. By consent, matter is heard forthwith. 4. This is a first appeal filed by the original appellant impugning a judgment and order passed by the City Civil Court on 3.4.2008 dismissing the plaintiff’s suit with costs. 5. The plaintiff had filed a suit for declaration that the notice issued by the B.M.C. on 5.5.2000 under Section 351 of the B.P.M.C. Act was bad in law, malafide and without any cause. It appears :2: from the record that the said notice dated 5.5.2000 was served upon the plaintiff on 5.5.2000 and thereafter on 8.5.2000 the plaintiff filed reply to the show cause notice contending that he was in use, occupation and possession of the premises since last 30 years. The reply further contended that the premises had been let out by the owners/landlords M/s. Bhaweshwar Construction Company and the landlords are trying to evict him from the suit premises by threatening him with dire consequences. It was further stated that in the year 1995, the landlords forcibly tried to evict the plaintiff from the suit premises and therefore, he was constrained to file complaint in the police station. A prayer was made for grant of personal hearing to explain the facts. The record indicates that thereafter without giving any personal hearing order dated 10.7.2000 directing the plaintiff to remove the unauthorised work came to be passed. It is significant to note that though there was reply given to the show cause notice, the same was not taken into consideration. This indicates complete non application of mind. It appears that the notice was not served upon the owners. It was not the case of the plaintiff that he had constructed the structure which was said to be unauthorised. In my view, the notice ought to have been given to the person who constructed the unauthorised :3: construction. However, If the structure is indeed unauthorised then B.M.C. should be given an opportunity for taking appropriate action according to law. Appeal is therefore, allowed and the impugned judgment and order is set aside. The B.M.C. will be at liberty to give fresh notice which will be served upon the plaintiff and the person who has erected the structure. The B.M.C. will be at liberty to give fresh hearing to all the parties to whom the notice will be given and dispose of the matter according to law. Appeal is accordingly allowed and the impugned notice dated 5.5.2000 issued by the B.M.C. is quashed and set aside. Civil Application No.2856 of 2008 1. As the first appeal has been disposed of by speaking order, civil application does not survive and the same is also disposed off. (R.S. MOHITE, J.)