1 ao1210.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1210 OF 2010 WITH CIVIL APLICATION NO. 1500 OF 2010 WITH APPEAL FROM ORDER NO. 1254 OF 2010 WITH CIVIL APPLIATION NO. 1550 OF 2010. Ramesh Bhawarlal Nahar .. Appellant Vs. Dr. Dhaval Dilip Shah and others ... Respondents ...... Mr. Vinod C. Desai for Appellant Mr. G.V. Aimay i/by Amol Doijode for Respondent Nos. 1 to 4 Smt. K.K. Soraan for Respondent No.5 MCGM. ...... CORAM : J.H. BHATIA, J. DATE : 25TH OCTOBER, 2010. P. C. 1. Heard the learned counsel for the parties. The appellant has filed L.C. Suit No. 1850 of 2009 with Notice of Motion No. 1438 of 2009 before the trial Court restraining the defendant Nos.1 to 4, who are the present respondents from changing the use of the property taken by them on rent from the appellant without prior permission of the Municipal 2 ao1210.10.sxw Corporation. Respondent Nos. 1 to 4 had filed L.C. Suit No. 13 of 2010 against the present appellant and Municipal Corporation. They had also taken out Notice of Motion No. 47 of 2010. Their main contention was that the Municipal Corporation had issued Notice under section 351 of BMC Act for demolition of unauthorized additional construction to the tenement. The trial Court after hearing the parties, allowed the Notice of Motion No. 47 of 2010, taken out by respondent Nos. 1 to 4 and rejected the Notice of Motion No.1438 of 2009 taken out by the present appellant. 2. After hearing the parties, it emerges that the present appellant is owner of the building, wherein defendant Nos. 1 to 4 are running Pre- Natal Diagnostic Centre. According to the landlord, they are doing business without obtaining necessary permission from the Municipal Corporation. It means the change of user. The Municipal Corporation also issued notice under section 351 of BMC Act requiring the respondent Nos. 1 to 4 to stop their business, as it is amounted to change of user without permission. It is settled position in the case of Sopan Maruti Thopte and another V. Pune Municipal Corporation and others, AIR 1996 Bom. 304 when notice under section 351 of BMC Act is issued, the concerned party has right of being heard before the notice is actually implemented. At the same time, the landlord cannot be refused an opportunity of hearing, 3 ao1210.10.sxw when such notice is issued to the tenants. In view of these circumstances, with the consent of the learned Counsel for the parties, the appeals and the applications stand disposed of with the following directions. (i) In case, the present appellant or respondent Nos.1 to 4 have not filed reply before the concerned Assistant Municipal Commissioner, they shall do so within 4 weeks from this date. (ii) The Municipal Corporation shall hear the present appellant as well as respondent Nos. 1 to 4 in response to the notice issued under section 351 of BMC Act and take a decision thereof within 12 weeks from this date Till the decision is taken, the Municipal Corporation shall not act upon the notice under section 351 of BMC Act. (iii) Both the parties shall withdraw their respective suits from the trial Court. 3. Both the appeals and applications stand disposed accordingly. J. H. BHATIA, J