1 Kbp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.284 OF 2009 WITH CIVIL APPLICATION NO.928 OF 2009 M/s.United Industries thorugh its partners Shaikh Mohammed Abzal Shaikh Noor and ors. ..Appellant/Applicant V/s. Pune Municipal Corporation and ors. .. Respondents ..... Mr.A.M.Joshi, for appellants. Mr.A.P.Kulkarni, for Respondent Nos.1 and 2. Mrs.Lalita Panchakshari, for Respondent Nos.3 to 6. ..... CORAM : R.Y. GANOO, J. DATE : 9TH JULY, 2009. P.C. 1] Heard Mr.A.M.Joshi, Advocate for appellant, Mr.A.P.Kulkarni, Advocate for respondent No.1 and 2 and Mr.Lalita Panchakshari, Advocate for respondent Nos. 3 to 6. Learned Advocate Mr.Kulkarni undertakes to file Vakilpatra on behalf of respondent Nos.1 and 2 on or before 14 th August, 2009. Appellant herein 2 received a Notice under Section 260(1) of the Bombay Provincial Municipal Corporation Act in regard to the structure more particularly set out in the Notice. Appellant filed his reply to the said Notice and, thereafter, proceeded to institute Regular Civil Suit No.305 of 2001 in the Court of Civil Judge, Junior Division, Municipal Corporation Court at Pune, so as to challenge the said Notice. Said Judge by his judgment and order dated 25 th April, 2008 dismissed the suit. Against the said judgment and decree appellant herein filed Regular Civil Appeal No.426 of 2008 in the District Court at Pune and the learned District Judge, Pune, by judgment and decree dated 2 nd May, 2009 dismissed the appeal and confirmed the judgment delivered by the trial Court against which this Second Appeal is filed. 2] I have heard learned Advocates appearing for the parties. If a person receives Notice under Section 260 of the Bombay Provincial Municipal Corporation Act, he is required to file his reply and show as to how the structure should not be treated as unauthorised. His reply is to be considered by the competent Officer of the Corporation and a communication is required to be addressed to the person to whom the Notice was given. It is seen on the basis of record that the present appellant filed reply to the said Notice and for the reasons best known to them instituted a suit so as to challenge the said Notice. 3 3] In the normal course, the Judge before whom said suit was instituted ought to have looked in to the matter and noted point involved in the matter. The provisions of law require that the Corporation has to arrive at a decision as to whether the Notice structure is legal or illegal. The Judge proceeded to conduct the trial and find out whether said structure is authorised or not and rendered findings against the appellant and dismissed the suit. In my view, this procedure followed by the learned trial Judge was incorrect. He should have passed an order directing the Corporation to decide the question whether the suit structure is authorised or otherwise on the basis of reply put up by appellant. It is seen that the learned District Judge also missed the said point and dismissed the appeal. 4] In my view, in these circumstances, it will be proper to direct the Corporation to consider the reply and pass an appropriate order and while doing so, the judgment and decree passed by the learned trial Judge and District Judge will have to be set aside so that appellant would be able to challenge the impugned Notice as well as decision which may be arrived at by the Corporation it is against the appellants. Hence order: i. The judgment and order dated 25 th April, 2008 passed by the Civil Judge, Junior Division, Municipal Corporation Court, Pune, in suit No.305 of 2001 which has been 4 confirmed by the District Judge, Pune, in Civil Appeal No. 426 of 2008 on 2 nd May, 2009, is set aside. ii. Respondent Nos.1 and 2 are directed to consider the reply filed by the appellant and pass an appropriate order. If the decision of the Corporation is against the appellant the Corporation shall not demolish the suit structure for a period of three weeks from the date of service of decision upon the appellant. iii. In the facts and circumstances of the case, there shall be no order as to costs. iv. It is clarified that the observation made by both the Courts shall not be used and the Officer of the Corporation shall look in to the merits of the matter based on record placed before them. v. Civil Application No.928 of 2009 is disposed of with no order as to the costs. [ R.Y. GANOO, J.]