1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.325 OF 2009 WITH CIVIL APPLICATION NO.392 OF 2009 Mohd. Ayub Moharam Ali ..Appellant V/s The Municipal Corporation of Greater Mumbai ..Respondent WITH APPEAL FROM ORDER NO.326 OF 2009 WITH CIVIL APPLICATION NO.393 OF 2009 Shriniwasan Madhavan ..Appellant V/s The Municipal Corporation of Greater Mumbai ..Respondent Mr.B.P.Shukla, Advocate, for the appellant Smt.K.K.Soraan, Advocate, for the respondent - MCGM CORAM : R.M.SAVANT, J. DATE : 24TH MARCH, 2009 2 P.C. . These appeals take exception to orders both dated 10th February, 2009, passed by the learned Judge of the City Civil Court, Greater Bombay by which order the Notice of Motions being 3429 of 2006 and 3428 of 2006 came to be rejected. 2. The appellants/plaintiffs have filed Long Cause Suit Nos.3968 of 2006 and 3967 of 2006 impugning the notices issued under Section 314 of the Mumbai Municipal Corporation Act, 1988 and the consequential order passed on the said notices by the Assistant Engineer(Maintenance II)M/East Ward dated 14th August, 2006. In the said suits, the plaintiffs had filed the above Notice of Motions which came to be rejected by the impugned order. 3. The plaintiffs were issued notices under Section 314 of the Mumbai Municipal Corporation Act, 1988 on the ground that they have reconstructed the structures. In so far as the plaintiff in Appeal from Order No.325 of 2009 is concerned, it is alleged that he has re- constructed the shed admeasuring 6.50 x 4.60 meters on the 3 Municipal road at the same place. In so far as the plaintiff in Appeal from Order No.326 of 2009 is concerned, it is alleged that he has re- constructed the shed admeasuring 4.75 x 4.60 meter on Municipal land. The plaintiffs were by the said notices called upon to submit the documents showing that the sheds constructed by them were authorized. The plaintiffs in both the Appeal submitted their reply dated 8th March, 2006, to the notice along with the documentary evidence through their advocate. The Assistant Engineer (Maintenance II)M/East Ward of the respondent – Corporation considered the said reply filed by the plaintiffs and also each of the documents on which reliance was placed by the plaintiff. The Assistant Engineer came to a conclusion that the said documents do not prove the existence of the structure of the plaintiffs prior to 1st January, 1995. The Assistant Engineer, by his Order dated 14th August, 2006, called upon the plaintiffs to remove the unauthorized structure or otherwise the respondent – Corporation would remove the same at the plaintiffs' risk and costs. 4. As indicated above, aggrieved by the said notice dated 4th 4 May, 2006 and the order dated 14th August, 2006, the plaintiffs filed the said suits challenging the said notice and in the said suits, filed Notice of Motions for temporary injunction restraining the respondent – Corporation from demolishing the suit structures. 5. The Notice of Motions filed by the plaintiffs were rejected by the learned Judge of the City Civil Court by the impugned Orders both dated 10th February, 2009. Reading of the said orders disclose that the learned Judge has merely relied upon the order passed by the Assistant Engineer (Maintenance II)M/East Ward without considering the case made out by the plaintiffs on the basis of the said documents. The learned Judge by merely observing that the Corporation in passing the said order has followed the due process of law has rejected the Notice of Motions. The learned Judge, in my view, ought to have considered whether the plaintiffs were entitled to the grant of discretionary relief of injunction on the touchstone of the three settled principles namely prima facie case, balance of convenience and irrepairable loss. The learned Judge has not even adverted to any of the said documents and by merely observing that 5 the Corporation has followed the due process of law by a cryptic order has rejected the said Notice of Motions. In my view, therefore, the orders passed in both the Motions dated 10th February, 2009, would have to be set aside and the matter would have to be remanded back to the Trial Court for a consideration afresh. On remand, the Trial Court to consider the case of the plaintiffs on the touchstone of the three settled principles as mentioned hereinabove and thereafter, to arrive at a conclusion as to whether the plaintiffs have made out a case for the grant of the discretionary relief of injunction. The above Appeals are accordingly allowed. The impugned orders dated 10th February, 2009, are set aside and the Notice of Motions are remanded back to the Trial Court for a decision afresh. 6. The learned counsel for the respondent - Corporation submits that the respondent - Corporation may be allowed to file an additional Affidavit-in-reply to the Notice of Motions. The respondent – Corporation may do so within a period of four weeks from date. On remand, the Notice of Motions be disposed of expeditiously and within a period of three months from date. Pending disposal of the Notice of 6 Motions, ad-interim relief granted by the Trial Court earlier to continue. (R.M.SAVANT, J.)