1 65 fa.1458.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 1458 OF 2011 Gopal S. Dubey. ... Appellant Versus 1. The Municipal Corporation of Greater Bombay. 2. Vijay Boja Shetty. ... Respondents ----- Mr. P.G.Lad for the Appellant. Mr. Vinod Mahadik for Respondent No.1 / BMC. Mr. Vivek B. Pandey for Respondent No.2. ----- CORAM : A.S.OKA, J. DATE : 03 rd October, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 The Appellant is the original Plaintiff. The Appellant filed a suit for declaration that notice dated 2 nd May, 2005 issued under Section 314 of the Mumbai Municipal Corporation Act, 1888 and the order dated 12 th May, 2005 passed on the basis of the said notice are bad in law and illegal. The suit has been dismissed. 2 65 fa.1458.11 3 The learned counsel appearing for Respondent No.1 – Corporation on instructions states that Respondent No.1 shall withdraw the order dated 12 th May, 2005 and an Officer who has been duly authorized, shall pass a fresh order on the basis of the notice dated 2 nd May, 2005. 4 In view of this statement, it is obvious that now no action can be taken by Respondent No.1 – Corporation on the basis of the notice dated 2 nd May, 2005 unless a proper order is passed and is served upon the Appellant. 5 Hence, the suit itself may not survive. The learned counsel appearing for the Appellant prays that he may be permitted to file additional reply to the notice and produce documents. However, the said request will have to be made to the concerned authorized Officer of Respondent No.1 – Corporation who is empowered to pass the order on the notice dated 2 nd May, 2005. 6 In the event, the order passed is adverse to the Appellant, 3 65 fa.1458.11 a limited protection will have to be granted to the Appellant. 7 Hence, I pass the following order: i. In view of the aforesaid statement made by the learned counsel appearing for Respondent No.1 – Corporation, the impugned judgment and decree dated 6 th May, 2011 is set aside ; ii. The suit stands disposed of as the same does not survive in view of the aforesaid statement ; iii. It is obvious that no action of demolition can be taken by Respondent No.1 – Corporation on the basis of the notice dated 2 nd May, 2005 unless the concerned Officer passes a fresh order on the basis of the notice dated 2 nd May, 2005 after considering the reply of the Appellant ; iv. It will be open for the Appellant to apply to the concerned Officer for seeking permission to file additional reply and additional documents ; v. The order shall be passed as expeditiously as possible ; 4 65 fa.1458.11 vi. The order shall be communicated to the Appellant. If the said order is adverse to the Appellant, the order shall not be implemented for a period of four weeks from the date on which the same is communicated to the Appellant ; vii. All contentions of the parties on merits are kept open ; viii. The appeal is partly allowed on above terms with no order as to costs ; and ix. Civil Application No.2423 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]