1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 543 OF 2010 ALONG WITH CIVIL APPLICATION NO. 1259 OF 2010 Ashokkumar Shantilal Gupta ... Appellant v/s Municipal Corpn. Of Gr. Mumbai ... Respondent Mr.Jagdish N. Jayale for the appellant. Mr.J.J.Xavier for the respondent Corporation. CORAM: SMT.NISHITA MHATRE, J. DATED: 21ST APRIL, 2010 P.C.: 1. Appeal admitted. By consent, heard finally forthwith. 2. This appeal has been preferred against the order passed by the Trial Court on 26.2.2010 granting liberty to take action pursuant to the suit notice issued to the appellant. The Trial Court has mentioned that the suit notice is against “the first floor, situated on Shantilal chawl, C.T.S. No.1053, Juhu Road, Santacruz (West), Mumbai-400 054.” While doing so, the Trial Court has observed that the appellant has played a fraud on the Court by not disclosing certain vital facts and documents to the Court. 2 3. It appears that a suit bearing No.3102 of 2006 was filed by the appellant before the Trial Court seeking an injunction against the Corporation from demolishing the suit structure mentioned in that plaint, without following due process of law. That suit was filed on 2.7.2006. Thereafter, an application for ad-interim relief was moved by the appellant on 6.7.2006 when it was refused. The appellant therefore preferred Appeal from Order (St.) No.15290 of 2006 before this Court when this Court directed parties to maintain status-quo by the order dated 10.7.2006. Admittedly, the present notice which is challenged in the suit, which has been issued under Section 354-A of the Mumbai Municipal Corporation Act, was issued on 7.7.2006. Apparently, that fact was not disclosed to this Court when the order dated 10.7.2006 was passed. The present suit was lodged on 9.7.2007, which fact again apparently was not disclosed to this Court while obtaining the order of status-quo on 10.7.2006. The order granted by this Court in the Appeal from Order continued upto 27.9.2006. It appears that the appeal from order and the suit from which it has arisen was not pursued by the appellant and therefore the Appeal from Order was dismissed. 4. This caused the Trial Court to take note of the non- disclosure of the fact that 354-A notice had been issued and 3 received by the appellant before the order of status-quo was passed by this Court. It is obvious that a litigant is required to disclose to the Court any material facts which may, in any way, reflect on the order which could be passed by the Court. It is obvious that the appellant had obtained the ad-interim relief from this Court without disclosing that a notice under Section 354-A had already been issued i.e. the Corporation had initiated action by following due process of law. The Trial Court has rightly taken umbrage at the conduct of the appellant and castigated him. 5. The notice under Section 354-A has been issued for the unlawful “construction of room with AC shed and BM Wall. 3 Nos.” This notice, in my view, does not indicate with any clarity the real nature of the unauthorized construction. Mr. Xavier, the learned advocate for the Corporation tried to explain the notice by stating that there were three rooms which had been illegally constructed by the appellant, each having AC shed and BM walls. From a perusal of this notice, in my view, it is difficult to comprehend as to whether there was an unauthorized construction of only one room or three as stated by Mr.Xavier, or that there was an illegal construction of one room by using an existing wall and putting up three unauthorized BM walls with an AC shed. Moreover, this notice does not indicate whether the room or 4 rooms are situated on the ground floor or the first floor. The evidence led by the Corporation indicates that the notice has been issued in respect of an unauthorized construction of the first floor. 6. The interpretation placed by the Trial Court on this notice is that, it is in respect of a first floor therein, whereas the notice by itself does not reflect this fact. In my view, the impugned order of the Trial Court must be set aside as the notice issued under Section 354-A is vague. It would, therefore, be difficult for the noticee to reply a vague notice. 7. In these circumstances, the judgment and order of the Trial Court is set aside. The impugned notice is also quashed. 8. The appeal is, therefore, allowed. No order as to costs. 9. The Corporation is at liberty to take such action as is permissible in law in respect of the structure if it is found to be unauthorized. 10. In view of disposal of the first appeal, the civil application does not survive and stands dismissed. .....