1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2338 OF 2008 WITH CIVIL APPLICATION NO. 6040 OF 2008 Salim Mohammed Shaikh........Appellant versus Bombay Municipal Corpn. ........ Respondents. Ms. J. P. Thakkar adv. for the Appellant Mr. J.J. Xavier adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 16th FEBRUARY, 2009. P.C.: 1. The appeal is taken up for final hearing by consent of parties. 2. The respondent Bombay Municipal Corporation served a notice on the appellant under section 354-A of the Corporation Act. It is the case of the appellant that the appellant immediately replied the said notice. However the reply was not considered, which prompted the appellant to file the suit for declaration that the notice issued by the respondent under section 354-A is illegal and thus prayed for its setting aside. The trial court framed issues and recorded its finding. Issue no.1 and the finding against the said issue reads thus: Issues. Finding. 2 Does the plaintiff proves that the notice Affirmative under section 354-A issued by the BMC dated 10-2-2006 is illegal, bad in law and liable to be set aside ? Though the finding has been recorded in the affirmative, perusal of the reasons given in para 11 speaks otherwise, atleast at some places. The trial court has observed that: “to my mind there is no illegality in the action of the defendant”. However in the concluding portion of paragraph 11, the following observations are made: “To my mind power of the Municipal Commissioner under section 354-A are quite different than the powers under section 351. So I again respectfully submit that both the authorities are not applicable here. The evidence on record clearly proves that the plaintiff found making unauthorised construction and therefore issuance of notice under section 351 of MMC Act is leagal and proper”. Mention of section 351 in the concluding paragraph creates further conclusion, in as much as the subject matter of the suit is a notice under setion 354-A. Reading of the judgment does not make it clear as to what the trial court wants to convey. Though the issue has been answered in the affirmative, the reasons recorded, go to support the respondent. However, the reasoning is not proper and it is 3 difficult to understand what the trial Judge wants to onvey. Both the learned counsel for the respective parties are in agreement that the impugned judgment and decree be quashed and set aside. In the result, the judgment and decree impugned in the appeal is quashed an set aside. The matter is remanded back to the trial court for affording an oportunity of hearing to the partes afresh and to deliver the judgment touching the issues arleady framed. It is made clear that after the remand, the trial court shall proceed only to hear the arguments and deliver the judgment on the basis of evidence which is already on record. I hope and trust that the trial court shall make an endeavour to dispose of the suit within a period of three moths from today. Parties have agreed to appear before the trial court on 4-3-2009. Hence trial court need not issue fresh notice to the parties. Ad-interim order operating in this appeal to contiue till decision of the suit. There shall be no order as to costs. In view of the disposal of the appeal, civil application does not survive and the same is also disposed of. Parties to act on an auhenticated copy of this order. (A. P. DESHPANDE, J.) 4