1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1335 OF 2008 WITH CIVIL APPLICATION NO.1647 OF 2008 Shri Shirish Dinkar Kulkarni & Anr. : Appellants versus The Municipal Corporation of Greater Mumbai : Respondents. Shri P.V.Dhopatkar i/by Shri Shailesh Shukla for the Appellant. Smt.K.K.Soraan for the Respondents-BMC. CORAM : R.M.SAVANT, J. DATED : JANUARY 28, 2009 P.C. 1. This Appeal takes exception to the order dated 4th Dcember 2008 passed by the learned Judge, City Civil Court, Mumbai by which order the ad-interim reliefs were refused to the Appellants/Plaintiffs. 2. The Appellants, who are the original Plaintiffs, have filed L.C.Suit No.2938 of 2008 taking exception to the Notice dated 21st August 2008 issued by the Respondent No.1-Corporation under 2 Section 354(A) of the Bombay Municipal Corporation Act, 1888. In the said suit, the Appellants/Plaintiffs had filed a Notice of Motion for ad-interim reliefs and by the impugned order, the ad-interim reliefs were refused. 3. A perusal of the Notice dated 21st August 2008 issued under Section 354(A) discloses that there is an allegation against the Appellants/Plaintiffs that they were carrying out construction of wall and mezzanine floor at the address mentioned in the said Notice. It appears that immediately on receipt of the said Notice, the Appellants/Plaintiffs sent reply to the said Notice by their advocate's letter dated 25th August 2008. Since no response was received from the Respondent No.1 Corporation, the Appellants/Plaintiffs have filed the said suit. 4. It is contended on behalf of the Appellants/Plaintiffs, relying upon the order dated 2nd December 2002 passed by a learned Single Judge of this Court in A.O. 998 of 2002 that the competent authority of the Respondent No.1 is obliged to decide the said reply given by 3 the Appellants/Plaintiffs and thereafter to take precipitative action if any. The relevant portion of the said order date 2nd December 2002 is reproduced herein under :- “This appeal challenges the order passed by the City Civil Court, Bombay, dated October 31, 2002 in Notice of Motion No.6224 of 1999. The corporation issued a stop work Notice to the Appellants under Section 354 (A) of the Bombay Municipal Corporation Act, which was served on the Appellants on the site on December 9, 1999. Immediately after the service of notice, on December 10, 1999, which is within 24 hours of the service of notice, appellants through his Advocate filed reply and made representation contending that the structure was authorized. It is not in dispute that nor it is possible to point out from the record that the concerned authority decided the reply filed by the appellants. On the other hand, the fact that the Appellants had filed reply to the show-cause notice, has been conceded in the written statement in para 6 at page 86. In such a situation, as per the Circular issued by the Bombay Municipal Corporation dated 11th August 2000 in terms of paragraph No.4 thereof, the competent authority is obliged to decide the said reply in first place and only thereafter proceed to take precipitative action with regard to the disputed 4 structure.” 5. As can be seen from the said order, the learned Single Judge of this Court relied upon the Circular issued by the Respondent No.1 Corporation dated 11th August 2000 which provides that the said course of action should be followed. 6. The learned counsel for the Respondent No.1 Corporation, draws my attention to the documents annexed to the paper book of the Appeal and submits that there is no iota of evidence on record to show that the mezzanine floor and the wall was existing prior to datum line and, therefore, no reliefs can be granted to the Appellants/Plaintiffs. 7. In my view, considering the order dated 2nd December 2002 passed by the learned Single of this Court, which as mentioned herein above refers to the circular issued by the Respondent No.1 Corporation in the matter of taking action under Section 354 (A) it 5 would be just and proper to direct the competent authority of the Respondent No.1 Corporation to consider the case made out by the Appellants/Plaintiffs in their reply dated 25th August 2008 and pass appropriate orders thereon in accordance with law within a period of four weeks from date. 8. In view of the instant order, the learned counsel for the Appellants/Plaintiffs fairly states that nothing survives in the suit and that the Appellants/Plaintiffs would take step to withdraw the same. 9. It is made clear that this Court has not expressed any opinion with regard to the merits of the stand taken by the Appellant/Plaintiffs or the Respondents. All the contentions of the parties are kept open. 10. The above Appeal from Order is disposed of. 11. In view of the disposal of the above Appeal from Order, the 6 Civil Application NO.1647 of 2008 does not survive and the same is accordingly disposed of. 12. All the conterned parties to act upon an ordinary copy of this order duly authenticated by the Court Sheristedar. [R.M.SAVANT, J]