1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO.3331 OF 2008 IN SUIT NO.3156 OF 1999 I.C.I.C.I Bank Ltd. ...Plaintiff Vs. Mafatlal Engineering Ind. Ltd. & 8 Ors. ...Defendants And New Shivajinagar Rajarshree Shahu Cooperative Hsng. Society ...Applicants Mr.Sandeep Parekh i/. A&M & S.A.Shroff & Co. for Plaintiff Mr.G.W.Matooss AGP for State Ms. A.S.Pai for Off. Liquidator Mrs.Shrivastava, 2nd Asstt.,to Court Receiver Mr. Ashish Kamat i/b. V. Deshpande & Co., for Defendant No.10 Mr.S.M. Oak i/b. S.A. Joshi for Applicant CORAM: SMT.ROSHAN DALVI, J. DATED: 29 TH JANUARY, 2009 P.C. 1. The Court Receiver has been appointed in this Suit. The suit lands have been directed to be acquired of all encroachments. Thane Municipal Corporation has, as per previous orders removed all the encroachments on the suit land and made their report to the Court Receiver. It shows all the encroachments removed by 12 th November 2003. 2 Thane Municipal Corporation claimed to be paid expenses for the removal. 2. It was contended on behalf of the Plaintiff as well as Defendant No.10 that the Thane Municipal Corporation was also to construct a wall enclosing the suit land to prevent further encroachment. The Thane Municipal Corporation failed to construct the entire wall and hence, further encroachments came up. The Thane Municipal Corporation was directed to remove those encroachments also. 3. This Notice of Motion is taken out by the Applicant Society, who claims to be having structures on the suit land. The Applicant Society is, therefore, one of the encroachers. The property has been custodialegis. The encroachments have to be removed under provisions of Order XXXX Rule 1 of the C.P.C as per directions previously passed. 4. It is contended on behalf of the Applicants that since Thane Municipal Corporation has been directed to remove the encroachments they must follow the provisions of Section 267 of the Bombay Provincial Municipal Corporation Act, 1949 and after following due legal process they may remove the encroachments. It is correctly contended on behalf of the Plaintiff as well as Defendant No.10 that the 3 provisions of the Act could be attracted, if Thane Municipal Corporation itself independently removed any encroachment. The suit property has been considered in the Plaintiff's application for appointment of the Court Receiver. Upon the Court Receiver being appointed, the directions that are required to be passed by the Civil Court are required to be complied by Thane Municipal Corporation without recourse to other legislations. 5. The Plaintiff has drawn my attention to an order passed in Company Application No.638/2001 in Company Petition No.743/1990 dated 7th October 2003 in which also the Thane Municipal Corporation has been directed to forthwith remove all the encroachments on the suit land within 4 weeks of that date and the State Government was directed to provided necessary police protection at the time of removal. That order, has not been complied, if the Applicant still continues to have any structure on the suit land. In fact in view of the application of the Thane Municipal Corporation for payment of expenses for removal of encroachments which have all been stated to be removed, the Applicant has not even made out a case of the encroachment being on the suit land even prima facie at the date of the Notice of Motion. 6. No relief in this Notice of Motion can be granted. 4 7. Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)