:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL STAMP NO.13273 OF 2008 WITH CIVIL APPLICATION NO.3004 OF 2008 IN F.A.ST. NO.13273 OF 2008 Raju R. Jain and ors. ..Appellants. Vs. The Muicipal Corporation of Greater Mumbai. ..Respondent. Mr.R.A.Thorat i/by Mr. Mr. Bipin Joshi for the Appellants. Mr.J.J.Xavier for the Respondent. CORAM: R.S. MOHITE, J. DATE : 12th June,2008 P.C. P.C. P.C. 1. Heard both sides. 2. Admit. By consent, the matter is taken up for hearing forthwith. 3. This appeal is filed by the original plaintiffs against the judgment and order passed by the City Civil Court on 21.4.2008 in Long Cause Suit No.3334 of 1999. The plaintiffs in the said suit had challenged the notice issued by the Municipal Corporation of Greater Bombay to some of the plaintiffs, purporting to be a notice under Section 314 of the B.P.M.C. Act. On perusing the notice, it is found that the notice mentions that the occupant in question has installed /constructed stall/shed at the described place on :2: Municipal road/drain/land which is in contravention under Section 313(A) of the Act. The said notice directs the concerned occupant to remove the same failing which, action shall be taken at the risk and costs of the occupant. 4. On a prima facie reading of the said notice, it is clear that there is no allegation in the notice regarding violation of Section 312 of the B.P.M.C.Act. Section 314 of the Act reads as under. 314. [Power to remove without notice anything erected, deposited or hawked in contravention of Section 312, 313 or 313A]:- The Commissioner may, without notice, cause to be removed - (a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of sub-section (1) of Section 312, after the same comes into force (in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits Act,1950 (Bom. VII of 1950) [ or in the extended suburbs after the date of the coming into force of the Bombay Municipal (Further extension of Limits and :3: Schedule BBA [Amendment] Act, 1956 (Bom. LVIII of 1956); (b) any stall, chair, bench, box, ladder, bale, board of shelf, or any other thing whatever placed, deposited projected, attached or suspended in, upon, from or to any place in contravention of sub-section (1) of Section 313; (c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A any any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.] (d) any person, unauthorizedly occupying or wrongfully in possession of any public land, from such land together with all the things and material unauthorizedly placed, projected or deposited on such land by such person; Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family etc. 5. On plain reading of the said provision, it is seen :4: that if there is violation of Section 313A then under Section 312(c) the article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of Section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale, can be removed. 6. It appears to be the scheme of Section 314 that any wall, fence, rail, post, step, booth or other structure or fixture is to be removed, then that can be done in case there is violation of Section 312(1). In the present case, notice directs removal of stall/shed of the occupant without alleging violation of Section 312(1). On the other hand the notice does not call for removal of articles like stall, chair,bench, box, ladder, bale, board or shelf or any other thing on which the said article is placed. It is clear that under the scheme of the Act, that for removal of a structure there must be violation of Section 312(1) of the B.P.M.C. Act and only violation of Section 313A is not enough. In my view, therefore, notices have been issued without proper application of mind and this will go to the root of the matter. 7. The counsel appearing on behalf of the B.M.C. states that they will issue fresh and proper notice to the plaintiffs alleging the violation of Section 312A or :5: any other provision applicable. The said notice will offer a hearing and after the occupants are heard, B.M.C. will pass a fresh reasoned order concerning the structures occupied by the occupants. This statement is very fair and is accepted. Appeal is therefore, allowed. The plaintiffs’ suit is decreed in terms of prayer clause (a). However, it is made clear that that the defendant/respondent will be at liberty to issue a fresh notice under section 314 alleging violation of Section 312(1) or violation of any other provisions of law, found applicable. The defendant will be at liberty to take action in pursuance of the said notice after giving a personal hearing as required by law. It is made clear that any observations made in this order will not come in the way of the B.M.C. if and when it takes action in pursuance of any such notice which has been issued. Appeal disposed off in the aforesaid terms. C.C. expedited. Civil Application No.3004 of 2008 1. As the appeal has been allowed, Civil application is disposed off as infructuous. ( R.S. MOHITE, J. )