1 SA 272.1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 272 OF 1990 Mohd. Nasir S/o Mohd. Sharif (Died ) Through his L.Rs. .... APPELLANTS V E R S U S Municipal Corporation,Aurangabad Through its Administrator. ..... RESPONDENT Mr.P.F.Patni,Advocate for the appellants. Mr. S.N.Pagare, Advocate for respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 10/03/2011 ORAL ORDER : 1. Heard the learned counsel for the respective parties. 2. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for perpetual injunction restraining the defendant – Municipal Corporation from giving effect to the impugned notice. The defendant had served notice on the plaintiff/present appellant dated 20/11/1984 purportedly under Sections 226,229 and 231 of the Bombay Provincial Municipal 2 SA 272.1990 Corporation Act [ For short, ‘ said Act ’ ]. The notice was issued on the count that the construction is on the encroached area. The defendant filed Written Statement interalia contending that the erection of tin shed and tapari is without permission and illegal. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The lower appellate Court also dismissed Appeal. Though it came to the conclusion that different story is pleaded in the Written Statement by the defendant than contended in the notice, but still dismissed the Appeal. The plaintiff being aggrieved by the same, has filed the present Second Appeal. 3. This Court has admitted the Second Appeal on following substantial question of law “ non consideration of preponding circumstances of basic document, partition deed Exh. 36 ”. 4. During the course of arguments it transpired that the following substantial question of law also arises : (i) Whether the impugned notice is sustainable when the defendant has pleaded altogether different case in the Written Statement ? 3 SA 272.1990 5. Mr. Patni, the learned counsel for the appellant/plaintiff submits that when the notice is issued on the ground that the plaintiff has encroached upon public road and in the Written Statement the defendant has gone on altogether different premise, interalia contending that the construction is without permission itself proves that the notice is issued under wrong provisions and on different facts which the defendant could not substantiate. According to the learned counsel, the ownership of the plaintiff is proved by the partition deed Exh. 36 and it is nowhere shown by the respondent that the construction in question is on an encroached portion over the Govt. land as is claimed nor any evidence is led to that effect by the defendant. 6. Per contra, Mr. S.N.Pagare, the learned counsel for the respondent submits that as the construction is without permission, the defendant has every authority to issue notice and demolish the said construction. The defendant Corporation is entrusted with the work to see that the constructions are as per the bye-laws and the sanction plan and if the construction is unauthorized then it has every power to ask the party to remove the same and in default, the Corporation can remove the same. 7. With the assistance of the learned counsel for the parties, I 4 SA 272.1990 have gone through the pleading and the Judgments delivered by the Courts below. 8. It is a trite law that whenever the statute requires a particular thing to be done in a particular manner, it has to be done in that manner, otherwise not to be done at all. The notice is issued by the respondent – Corporation on the premise that the construction is made on the Govt. land over an encroached area and as such notice was given to remove the same. But, in the Written Statement, in stead of substantiating the contents of the notice, the defendant has taken altogether different plea in as much as it came with the case that the construction is without permission and hence the notice was issued. The provisions authorizing the Corporation to issue notice on account of unauthorized construction without permission are altogether different. The fact that the defendant has not contended in the Written Statement that the construction is on the Govt. land, itself proves that the provisions invoked for issuing notice were erroneous. At the time when the notice was issued, the Corporation had never thought that the said construction is without permission. There was no impediment for the Corporation to issue notice under the provisions dealing with unauthorized construction, but the Corporation in its wisdom has issued notice under the provisions meant for removal of encroachments. The said fact is not 5 SA 272.1990 substantiated. The Corporation could not prove that the construction is on encroached area. As such, the notice issued is erroneous. 9. In the result, the Second Appeal is allowed. The Judgment and decree passed by the Court below is set aside. The respondent is restrained from giving effect to the notice impugned in the Suit. However, the decree passed in the present Suit would not be an impediment for the respondent Corporation to take resort to the due process of law available to it under the statute for any further action. No costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 272.1990