... 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 CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL FROM ORDER NO.429 OF 2006 IN NOTICE OF MOTION NO.12282 OF 2006 IN B.C.C.C. L.C. SUIT (L) NO.2180 OF 2006 WITH CIVIL APPLICATION NO.521 OF 2006 Bharat Harji Patel & Anr. ...Appellants Vs. Municipal Corporation of Greater Mumbai & Ors. ...Respondents Mr R.R. Sharma for Appellants in A.O. & C.A. Ms Geeta Joglekar for the Respondent No.1 in A.O. & C.A. Mr R.V. Yadav for the Respondent Nos.2 and 3 in A.O.& C.A. CORAM CORAM CORAM : A.M. KHANWILKAR, J. : A.M. KHANWILKAR, J. : A.M. KHANWILKAR, J. DATE DATE DATE : JUNE 20, 2006. : JUNE 20, 2006. : JUNE 20, 2006. P.C.: P.C.: P.C.: 1. Heard the counsel appearing for the parties. Admit. Mr. R.V. Yadav waives service for the respondent Nos.2 and 3. As short question is raised, heard forthwith by consent. 2. This appeal challenges the Judgment and Order passed by the Trial Court dated 11th May, 2006 on Notice of Motion in L.C. Suit Lodging No.2180 of 2006. By this order Trial Court has refused to grant ad-interim relief. The order as passed by the Trial Court reads thus: ... 2 ... 2180-06 Adv.R.R.Sharma for the plff. is present. Adv. Sardar for the deft.B.M.C. is present. Heard arguments on behalf of the plff. The plff. has challenged the notice under section 351 of the BMC Act dated 3/5/05, the order is passed by the A.M.O. On 3/5/06 wherein it is stated that the documents produced by the plffs. do not prove the existance of the notice structure (loft). In view of the same, I find no reason to entertain this application for urgent reliefs as, according to me the D.P.L. has been followed by the corporation. The plff. is unable to show the court a single document to show that the loft was in existance. Hence, ad-interim relief is refused to the plff. Plff. shall register the N/M. It is made ret. alongwith the Wr/sum before the regular court C.R.No.7 on 12/7/06 ... 3 ... 3. Having considered the pleadings and the documents on record, it is not possible to sustain this order. This is so because the Trial Court proceeds on the assumption that it is a suit for injunction restraining the authorities from taking action in respect of the suit property by following due process of law. In the earlier part of the order the Trial Court has adverted to the decision of the Additional Municipal Commissioner dated 03rd May, 2005 who has rejected the representation preferred by the Appellant in response to the notice under section 351 of the Bombay Municipal Corporation Act. The only reason given by the Trial Court is that the Appellant did not prove the existence of the suit structure (loft). This reason is countered by the counsel for the Appellant on the argument that the documents relied upon by Appellant has not been considered at all, either by the competent authority or by the Trial Court. According to the Appellant he was inducted in the suit premises in January 2000. Since then the suit structure (loft) is already in existence when the premises were let out to the Appellant. According to the Appellant, similar structure (loft) is present in the neighbouring rooms owned by the same owner. For ... 4 ... this reason, it will be safe to accept the stand of the Appellant that the suit structure (loft) already existed when the premises were taken on rent by the Appellant. The other ground mentioned in the suit notice is of change of user from room to residential to shop. It is incomprehensible that such ground can be the basis for invoking action under section 351, of demolition of the structure. Obviously, the arguments of the Appellant that the suit notice has been issued at the behest of the land lord gets strengthened. In my opinion, having regard to the documents on record it was case for grant of ad-interim relief. 4. Hence, the impugned order is set aside and the Appeal is allowed and ad-interim order as prayed by the Appellant is granted to operate till disposal of Notice of Motion. The Trial Court shall finally dispose of Notice of Motion by end of September 2006. This observation is made on assurance given by the parties before this court that the parties will exchange pleadings well in advance on or before 17th July, 2006 so as to facilitate the Trial Court to proceed with the hearing of Notice of Motion. Appeal and Civil Application disposed of in above terms. ... 5 ... 5. It is made clear that the Trial Court will decide the Notice of Motion on its own merits in accordance with law uninfluenced by the observation made in this order which is tentative for the purpose of ad-interim relief. JUDGE JUDGE JUDGE