1 ao170-171-11,j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.170 OF 2011 ALONGWITH CIVIL APPLICATION NO.255 OF 2011 AND CIVIL APPLICATION NO.343 OF 2011 Sameer Datta Kadam .. Appellant V/s. Municipal Corporation of Greater Bombay .. Respondent WITH APPEAL FROM ORDER NO. 171 OF 2011 ALONGWITH CIVIL APPLICATION NO. 253 OF 2011 AND CIVIL APPLICATION NO.379 OF 2011 M/s. Kadamb Hotels Pvt. Ltd. .. Appellant V/s. Municipal Corporation of Greater Bombay .. Respondent ..... Mr. Anil Singh i/b. Mr. D. C. Shah for the appellants. Mr. N. V. Walawalkar, Senior Counsel with Mr. J. J. Xavier for respondent – BMC. ..... CORAM : A. S. OKA, J. DATE : MARCH 21, 2011. 2 ao170-171-11,j. ORAL JUDGMENT :- Since these Appeals take exception to ad-interim orders, the Appeals are taken up for final disposal at admission stage. 2. The appellants are the plaintiffs in the suit. The suits have been filed for perpetual injunction. The prayer for ad-interim injunction has been refused by the trial Court by the impugned order on the ground that the suit property is a part of the Government land which was given on the basis of lease of 30 years by an agreement dated 4th February, 1980. It was observed that the lease period is over on 4th February, 2010. Lastly, it was observed that the pleadings show that the respondent-Municipal Corporation desires to widen the road which is a public project for civil amenities on the land of State Government. 3. On 17th February, 2011, this Court passed an ad-interim order directing the parties to maintain status-quo as of that date in respect of the disputed structures. Civil Application No.343 of 2011 and Civil Application No.379 of 2011 have been filed by the appellants in 3 ao170-171-11,j. which it is alleged that though order of status-quo was communicated to the respondents, on 26th February, 2011 the demolition squad came on the site and notwithstanding the fact that the order of status-quo was shown by the appellants to the demolition squad, it proceeded to demolition a part of the suit structures. Certain photographs have been annexed to the Civil Applications. The contention is that work of demolition has been carried out in breach of order of status-quo passed by this Court. Therefore, there is a prayer made for reconstruction of the demolished portion of the structure. Initially there was a reply filed on 5th March, 2011 by one Shri Ravindra Rajkishor Tripathi, Sub- Engineer (Building & Factor) H/W ward officer, Bandra, Mumbai. In the said reply, it is contended that what is demolished by the respondent-Corporation is not the structures subject matter of the suits but structures situated in compulsory open space touching to the compound wall in front of shop Nos.14 and 15 admeasuring 10 meters X 2 meters. It was contended that a letter dated 14th February, 2011 was written by the Assistant Commissioner of the Respondent- Corporation calling upon the appellants to remove the structure in compulsory open space and there is no breach committed of the 4 ao170-171-11,j. order of status-quo. Today, there are separate affidavits filed by Mr. Mahendra Sawant Assistant Engineer (Building & Factory) H/W Ward of the respondent Corporation. In the affidavit, the said officer has tendered unconditional apology to this Court. In paragraph Nos. 5 and 6 of the affidavit, it is stated that when demolition order was signed, due to communication gap, the Assistant Commissioner and the said officer were not aware of the said order of status-quo. The paragraph Nos. 7 and 8 of the said affidavit read thus : “7. I say that as the demolition was carried out on 26.2.2011 which should not have carried out as there was a status quo order. This has same was happened inadvertently, unintentionally and by mistake as well as the communication gap and the staff of the corporation being on census duty. 8. I further say and submit that as the structure was demolished unintentionally, this Hon'ble Court may permit if the Appellants permitted to restore the structure to its original position, to abide by to such other and further orders as this Hon'ble Court may deem fit and proper in the facts of this case.” 4. The Appeals arise out of an order declining to grant ad-interim injunction pending final decision in the Notice of Motion. The order of this Court was an ad-interim order. The dispute as to what is the suit property described in the suit will have to be agitated and 5 ao170-171-11,j. decided while deciding the pending Notice of Motion. As far as this Court is concerned, the concerned officer of the Municipal Corporation has clearly accepted that the demolition should not have been carried out in view of the said status-quo order. The reason stated for carrying out demolition is that the said officer as well as the concerned Assistant Commissioner were not made aware of the order of status-quo due to a communication gap. There is no reason to disbelieve the explanation in the affidavit that the concerned Assistant Commissioner and the said Mr. Mahendra Sawant were not aware of the order of status-quo when the demolition was ordered. In paragraph No.8 of the affidavit, it is stated that this Court may permit the Appellant to restore the structure to its original position subject to further orders which may be passed in the Notice of Motion. 5. After having read the said affidavit, it is not possible to come to a conclusion that the order of status-quo has been intentionally or deliberately violated and, therefore, the apology tendered by the said affidavits deserves to be accepted. 6 ao170-171-11,j. 6. It follows from the statements made in paragraph No. 8 of the affidavit that the appellants will have to be permitted to restore the status-quo ante as it is existed on 26th February, 2011 before the demolition was carried out. It is obvious that even if status-quo ante is restored by the appellants, it will not create any equity in favour of the appellants and when the Notice of Motion is decided, the Court will have to consider the question whether the structure as existed on the date of the suit was legal or illegal. The issue of prima facie case will have to be considered in this context. The reconstruction carried out by the appellants will be subject to the final order passed in the Notice of Motion. 7. This Court has already observed in the earlier part of the order that whether the structure which was demolished was subject matter of the suit or not is an issue which will be gone into by the trial Court at the time of hearing of the Notice of Motion. 8. When the appellants carry out the necessary work for restoration of status-quo ante, it is necessary that an appropriate officer of the respondent-Corporation remains present and the work 7 ao170-171-11,j. is carried out in his presence. The learned senior counsel appearing for the respondent stated that Mr. Ravindra Rajkishor Tripathi, Sub Engineer (Building & Factory)H/W Ward, Bandra (W), Mumbai will remain present at that time. 9. In view of the controversy involved and in view of the findings recorded by the trial Court, it is necessary to grant a limited ad- interim relief pending the final disposal of the Notices of Motion. I am not recording detailed reasons as the same may affect the merits of Notice of Motion. The interests of justice require that the Notice of Motion should be heard expeditiously. 10. Hence, Appeals are disposed of by passing following order : :: O R D E R :: i. The statements made in the affidavits filed by Mr.Mahenddra Sawant, Assistant Engineer of respondent-Corporation are accepted. The apology tendered by the said officer is accepted and no further action is called for in the matter. 8 ao170-171-11,j. ii. It will be open for the appellants to restore status-quo ante prevailing as on 26th February, 2011 by carrying out necessary work. The work shall be carried out in presence of Mr. Ravindra Rajkishor Tripathi, Sub Engineer (Building and Factory), H/W Ward Bandra (West), Mumbai of the respondent- Corporation. Before commencing work, 48 hours advance notice shall be given by the appellants to Mr.Ravindra Rajkishor Tripathi to enable him to remain present at the time of carrying out the work of restoration of the status-quo ante. The work shall be carried out at the cost of the appellants. iii. It is made clear that merely because appellants are permitted to carry out the work, it will not create any equity in favour of the appellants. The work of reconstruction shall be subject to further orders which may be passed in the pending Notice of Motion. Moreover, the issue whether the suit structures in existence on the date of institution of suit were legal is 9 ao170-171-11,j. expressly kept open. The issue whether the structures which are demolished by the respondent on 26th February, 2011 were a part of the suit property is also kept open to be decided by the trial Court at the time of hearing of the Notice of Motion. iii. Till the disposal of the Notice of Motion, status- quo as prevailing on 26th February, 2011 before demolition was carried out shall be maintained by both the parties. The impugned orders are modified accordingly. iv. The Notices of Motion shall be decided as expeditiously as possible and preferably before the end of April, 2011. iv. It is made clear that all contentions of the parties on merits of the Notice of Motion are kept open. v. The Notice of Motion shall be decided without being influenced by the impugned order as well as grant of relief by this Court. 10 ao170-171-11,j. vi. Reply to the Notice of Motion shall be filed on or before 15th April, 2011. vii. The issue regarding entitlement of the appellant to recover the costs of work carried out for restoration of status-quo ante will be decided by the trial Court at appropriate stage. viii. The Appeals are disposed of on the above terms. ix. Civil Applications are disposed of on the above terms. JUDGE