: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.50 OF 2010 ALONGWITH CIVIL APPLICATION NO.87 OF 2010 Harold F. Albuquerque .. Appellant V/s. Municipal Corporation of Greater Mumbai .. Respondents Mr. Satish Mishra i/b. Mr. A.M. Saraogi for the Appellant. Smt. K.K. Soraan for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 3 RD MARCH, 2010. P.C.: 1. The Appeal from Order has been filed against the order dated 18th January, 2010, passed in Draft Notice of Motion in Suit No.109 of 2010 by the City Civil Court, Mumbai, refusing ad-interim relief to the appellant. The appellant contends that a notice under Section 354-A of the Mumbai Municipal Corporation Act, (for short “the Act”), has been issued in respect of the construction of second floor of the structure. The notice mentions that there is an unauthorized construction on the second : 2 : floor with brick masonry walls and A.C. Sheets admeasuring 40 ft. x 20 ft. It appears that this notice was issued on 15th January, 2010 and immediately on the same day, a reply was sent by the Advocate for the appellant contending that the structure is not unauthorized. It has been received by the respondent-Municipal Corporation. 2. Apprehending demolition of the structure, the appellant instituted the present Suit before the City Civil Court, Mumbai. The trial Court has refused him injunction by way of ad-interim relief. It has observed that the plaintiff has committed a breach of the order of status-quo passed by the trial Court by raising the construction on the second floor. 3. Admittedly, an earlier notice was issued by the respondent-Municipal Corporation with respect to certain unauthorized constructions. This notice was issued to the appellant on 28th April, 2009 under Section 354-A of the Act. That notice has been challenged by the appellant by filing a separate : 3 : Suit being Suit No.1032 of 2009, which is pending for adjudication before the trial Court. It appears that the trial Court has directed the parties to maintain status-quo in that Suit. Therefore, in the present impugned order, the trial Court has observed that since the notice issued is with respect to second floor premises, it obviously would mean that the appellant had breached the order of status-quo. 4. The learned Advocate for the appellant submits that the respondent-Municipal Corporation cannot take action in respect of the notice issued under Section 354-A of the Act without considering the reply filed by the appellant. He submits that in view of the fact that a reply has already been filed, the respondent-Municipal Corporation is duty bound to consider the same before passing orders on the notice issued under Section 354-A of the Act. 5. Smt. Soraan appearing for the respondent- Municipal Corporation, on instructions from Mr. Prashant Harishchandra Tawade, (Junior : 4 : Engineer), Building and Factory Department, “G” South Ward of the respondent-Municipal Corporation, states that in the event the respondent-Municipal Corporation wants to pursue the notice issued under Section 354-A of the Act, the respondent-Municipal Corporation will pass orders on the same only after considering the reply of the appellant, which is already on record. She further states, on instructions, that the respondent-Municipal Corporation will issue a notice under Section 351 of the Act against the appellant, since the structure is already completed, though it has been demolished twice earlier. 6. In view of these statements made by Smt. Soraan for the respondent-Municipal Corporation, which are accepted by this Court, the Appeal from Order is dismissed. 7. In the circumstances, the appellant will, therefore, withdraw the Suit pending before the trial Court. : 5 : 8. In view of the above, Civil Application No.87 of 2010 pending in the Appeal from Order does not survive and the same is dismissed as infructuous.