: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1306 2009 Shree ram Ramkishor Pal ... Appellant V/s. The State of Maharashtra & anr. ... Respondents Mr.R.A. Thorat for Appellant Ms.V.S. Mhaispurkar, AGP, for Respondent No.1 Mr.J.J. Xavier for Resp. No.2 CORAM: SMT.NISHITA MHATRE, J. DATED: 09.09.2009 P.C.: 1. The appeal has been filed against the judgment and order dated 27.7.2009 by the City Civil Court, Mumbai. The appellant had filed the suit on 24.1.2005 seeking the following reliefs: a) it be declared that the suit premises i.e. the structure admeasuring 10’X15’ height 12 feet constructed of tin sheet roof and used as Sai Auto Garage situate at C.T.S. No.108 (part) of Village: Dindoshi, locally located Behind Shyam Mandir, Opp. MHADA Complex, Dindoshi, General Arunkumar Vaidya Marg, Malad (East), Mumbai-400097 is protected structure; b) the Defendants, either of them and all of them and their respective servants and agents and the person or persons claiming through them or either of them be permanently restrained by an order and injunction of this Hon’ble Court from dispossessing and demolishing the suit premises or any part thereof i.e. the land admeasuring 10’ X 15’ height 12 feet with garage business thereon situate at C.T.S. No.18 of Villge : Dindoshi locally known as Dindoshi, General Arunkumar Vaidya Marg, Malad (East), Mumbai-400097 in the mass demolition programme of the Defendants or either of them and : 2 : otherwise than due process of law; 2. It is a common ground that no interim orders were passed during the pendency of this Suit. The structure was demolished in the demolition drive conducted by defendant No.1 i.e. the State Government between 22.1.2005 and 26.1.2005. The structure is a tarpolene shed of 10’X15’. 3. According to Mr.Thorat, appearing for the appellant, in view of the judgment of this Court in the case of Abdul Hasan Shaikh Mansuri v/s. Municipal Corporation of Mumbai & Ors., 2007(2) Bom.C.R. 804, it was incumbent on the Mumbai Municipal Corporation to issue a notice u/s 351 of the Mumbai Municipal Corporation Act prior to demolition of the suit structure. He submits that all that the Corporation was required to do was to demolish it after taking recourse to due process of law. According to him, the aforesaid judgment indicates that no authority can be permitted to take unilateral action even if the structure is unauthorised except by following due process of law. 4. There can be no quarrel with this proposition of law. However, in the present case, when the suit was tried the structure itself was not in existence. Therefore, in my view, the question of issuing a notice u/s 351 at this stage would not arise. It is only if there were some interim orders passed and the Court had directed that due process of law must be following before the demolishing the suit structure that it could be said that the Corporation had violated or committed a breach of the provisions of the Mumbai Municipal Corporation Act. Admittedly, the structure was demolished in a mass demolition drive undertaken by Respondent No.1 and therefore in my opinion, the judgment of the trial Court cannot be faulted. 5. Appeal dismissed.