IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1936 OF 2009 Kalidas Madhavji & Co. ...Petitioner V/s. The Municipal Corporation of Greater Mumbai & Anr. ...Respondents ...... Mr.V.K.Narkar for Petitioner. Mr.M.M.Malwankar for Respondent No.1. Ms.Sukeshi Bhandari for Respondent No.2. ...... CORAM: CORAM: CORAM: A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. FEBRUARY FEBRUARY FEBRUARY 27, 2009. 27, 2009. 27, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Malvankar waives notice for Respondent No.1. Ms.Bhandari waives notice for Respondent No.2. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition under Article 227 of the Constitution of India takes exception to the order passed by the Trial Court dated 15th January 2009 on the application filed by the Petitioner for deletion of issue Nos.2 and 3 and framing other appropriate issues. Counsel for the Petitioner submits that insofar as issue No.2 is concerned, that could be framed only if the Corporation was to file written statement and specifically raise that issue and not otherwise. Insofar as issue No.3 is concerned, it is contended that the suit is simplicitor for declaration that the Defendant cannot demolish the suit shed unless the reply given by the Petitioner to the suit notice issued under Section 351 of the Bombay Municipal Act is decided one way or the other. For that reason, there is no question of any issue requiring the Petitioner to prove that the alleged construction of loft or shed is authorised or otherwise. That is a matter which will be within the domain of the Officer who considers reply given by the Petitioner in response to notice under Section 351 of the Act. As a matter of fact, in my opinion, the concerned Authority of the Corporation is obliged in law to : 3 : decide the reply given to the notice under Section 351 of the Act within a reasonable time. If that is done, the Suit itself will get worked out. In other words, instead of getting embroiled in the technical issues raised in the derivative application filed by the Petitioner, the appropriate course is to call upon the concerned Authority of the Corporation to take decision on the representation filed by the Petitioner in response to the notice under Section 351 of the Act and thereafter communicate the same to the Petitioner, only whereafter, the competent Authority would assume jurisdiction to proceed against the suit structure. 5. Realising this position, Counsel for the Corporation in all fairness submits that the Corporation would decide the pending representation of the Petitioner given in response to the notice under Section 351 of the Act within two weeks from today. That assurance is accepted. 6. As aforesaid, after taking decision on the pending representation, the Authority shall communicate the decision to the Petitioner only : 4 : whereafter, the competent Authority would be entitled to proceed against the suit structure, even if it is found that the same is unauthorised. In this view of the matter, Counsel for the Petitioner submits that nothing would survive for consideration in the Suit filed by the Petitioner before the lower Court. 7. Accordingly, this Petition is disposed of on the above terms on accepting the assurance given on behalf of the Corporation as recorded in the earlier part of this order. 8. The Petitioner shall take steps to withdraw the Suit pending before the Trial Court without prejudice to his rights and contentions in the representation filed before the competent Authority in response to notice under Section 351 of the Act. All questions in that behalf are left open. A.M.KHANWILKAR, J.