: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 769 OF 2009 Salim Mohamed Shaikh .. Appellant V/s. The Municipal Corporation of Gr. Mumbai .. Respondent ..... Mr. M.L. Palan i/by Ms. J.P. Thakkar for the appellant Mr. J. Xavier for the respondent-BMC ..... CORAM : R.Y. GANOO, J. DATE : 7TH JULY, 2009. P.C. : 1. The Corporation herein issued notice to the appellant under Section 354-A of the Corporation Act alleging therein that the appellant is in the midst of construction of a structure. The said notice was replied to by the appellant and ultimately the appellant instituted L.C.Suit No.953 of 2006 in the City Civil Court at Bombay so as to challenge the : 2 : validity of the said notice dated 10 th February, 2006. The appellant also sought appropriate interim reliefs. The learned Judge of the City Civil Court undertook the trial and came to the conclusion that the suit is required to be dismissed and accordingly by judgment and order dated 31 st March, 2000, learned Judge of the City Civil Court dismissed the said suit against which this first appeal is filed by the appellant. 2. I have with the assistance of learned advocates on both sides considered the entire record including the evidence given by the Engineer of the Corporation by name Mr.Rawat in the matter where notice under Section 354-A is issued by the Corporation. The Corporation had to make out the case that the structure in regard to which the Notice under Section 354-A was issued was under construction at the time when the notice under Section 354-A was issued. It was necessary for the Corporation to prove before the trial Court that the concerned officer of the Corporation had observed that the structure was under construction and that the Corporation has not been able to discharge burden namely to show that the structure was under construction when the said notice under Section 354-A : 3 : was issued. If this is be so, in the normal Course, I was inclined to admit the first appeal as the appellant had been able to show that the notice issued under Section 354-A was not in accordance with the provision of law namely complying with minimum requirements before issuing notice under Section 354-A of the Corporation Act. 3. On hearing this observation, learned advocate Mr. Xavier upon instructions made a statement that the Corporation will now proceed against the appellant in accordance with the provisions of the Corporation Act or under the Maharashtra Regional Town Planning Act to deal with the structure in regard to which suit notice dated 10 th February, 2006 was issued. If this is the statement being made by the learned advocate Mr. Xavier, I am inclined to observe that the interest of the appellant is adequately protected. Needless to mention if the Corporation proceeds against the appellant in accordance with any of the aforesaid laws, due procedure shall be followed. I am inclined to dispose of this first appeal by passing following order. : 4 : ORDER . The record shows that the Corporation has not been able to show that the structure in regard to which notice under Section 354-A was issued was under construction while at the time when the notice under Section 354-A was issued. Statement made by the learned advocate Mr. Xavier that the Corporation shall take action against the appellant in regard to the structure in respect of notice under Section 354-A is issued in accordance with the provisions of the Corporation Act and / or the Maharashtra Regional Town Planning Act is noted. It will be open for the Corporation to take steps accordingly. If at all the Corporation wants to demolish the said structure, the Corporation shall follow due process of law. . With the aforesaid observations, the first appeal is disposed of. There shall be no order as to costs. . In view of the above order, civil application No. 2140 of 2004 does not survive and is disposed of with no order as to costs. (R.Y. Ganoo, J.)