1 caf446 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.446 OF 2004 IN FIRST APPEAL NO.222 OF 2004 The Colaba Land & Mills Company Limited ...Applicant vs. The Municipal Corporation of Greater Bombay & Ors. ...Respondents Mr.Firdosh Poonivala i/b Ms Rekha Shukla for the applicant Mr.Vinod Mahadik for the respondent no.1 Mr.Mukesh Subramanium for respondent no.2 Mr.Jitendra Damani for respondent no.3 CORAM : A.S.OKA,J. DATE : AUGUST 25, 2011 P.C.: 1 Heard the learned counsel for the applicant, learned counsel for the first respondent, learned counsel for second respondent as well as learned counsel for the third respondent. Perused the averments made in the application and the order dated 12 th February 2004 passed by this court in the present application. The order dated 12 th February 2004 reads thus : . Counsel appearing for the appellants states that they may not press for any interim relief concerning the part of the premises that has been acquired by the Bombay Municipal Corporation. The contention is that from the map, which is a 2 caf446 part of Exhibit-16 and which was proved through the officer of the Bombay Municipal Corporation, it was clear that the part of the godown was not acquired. A joint survey plan which according to Counsel is a part of Exhibit-16 is annexed to the Civil Application and that does show that some part of the property is not acquired. An offer is made that the part under acquisition will be voluntarily removed if the same is demarted. Advocate for Respondent no.1 seeks 2 weeks time to take instruction. Place the matter after 2 weeks. In the meanwhile, there will be ad- interim relief in terms of prayer clause (b). 2 The affidavit of the Executive Engineer of the first respondent is taken on record. From the sketch annexed to the affidavit, it appears that the acquired portion which is delineated by red colour is virtually the same as shown on the plan at Exh.16 produced before the Trial Court. A copy of the said plan at Exhibit-16 has been annexed as Exh.A to this civil application. Order dated 12 th February 2004 records that the applicant has no objection if the first respondent-Corporation removes the part of the godown falling in the acquired area provided a survey is carried out and acquired area is demarcated. The learned counsel for the second and third respondents submit that the applicant will have to hand over possession to the said respondents. However, this issue cannot be gone into 3 caf446 in the Appeal preferred by the applicant. The applicant is the original plaintiff. The suit was filed by the applicant for injunction restraining the first respondent from taking over possession of the suit premises i.e godown otherwise than by due process of law. Now, the applicant has no objection if the first respondent removes the portion of godown falling on the acquired portion of land. If the second and third respondents have any objection for Corporation taking any steps in the matter, it is for them to adopt appropriate proceedings. 3 Hence, I pass the following order : i) It will be open for the first respondent to remove that part of the godown which forms part of the acquired portion of land. However, the action of removal can be taken only after carrying out proper survey and demarcation on the site. ii)It is obvious that no adjudication has been made as regards alleged rights of second and third respondents and their remedies are kept open. iii)There will be interim relief in terms of prayer clause (b) confined to only that part of the suit godown which is not on the part of the acquired land. iv)It is obvious that the injunction which is granted will not affect any pending proceedings filed by the second or third respondents. v) Application is disposed of on above terms. 4 caf446 JUDGE