1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION A.O. NO. 474 OF 2003 Shri Dayabhai S.Gala ... Appellant VS. Municipal Corporation of Gr. Mumbai ... Respondent Mr. P. S. Dani for appellant. Mrs. Geeta Joglekar for the respondent. CORAM: D. G. KARNIK J. DATE: 15th September, 2006 P.C.: 1. Heard learned counsel for the parties. 2. The appellant is in possession of the suit shop admeasuring 390 sq. fts. It is the case of the appellant that the respondent Municipal Corporation illegally removed the rolling shutter and also demolished front portion of his shop to the extent of 100 sq. ft. The appellant therefore filed a suit bearing Suit NO. 2885 of 2002 in the City Civil Court at Bombay for a mandatory injunction directing the respondent to restore the suit shop to its original condition by constructing the side walls of the demolished portion of the suit shop of 110 sq. ft. 2 and putting up the rolling shutter in front the portion. He also prayed for a declaration that the the respondent had carried out wrongful demolition and a permanent injunction restraining the respondent from further demolishing the shop. In the said suit the appellant took out a motion for a mandatory injunction. By an order dated 17th February 2003 the City Civil Court dismissed the motion. That order is impugned in this appeal. 3. The respondent had previously issued a notice under section 354 A of the Bombay Municipal Corporation Act. That notice was impugned by the appellant by filing writ petition No. 2600 of 2001 in this court. In that petition this court passed the following order: “ Date: 5th November 2001 P.C. 1. Heard Mr. Shah for the petitioners. Ms. Karia appears for respondent nos. 1 and 2 and Mr. Joshi appears for respondent nos. 3 to 7. 2. The grievance in this petition is about the Municipal Notice dated 19.5.2001 issued under section 354­A of the BMC Act. It is submitted that the earlier weather shed was permitted. There is no execution of any additional work and inspite of that, certain demolition has taken place in 3 pursuance of that Notice. 3. We have noted from the petition that the shop was supposed to be of 390 sq. ft. on the ground floor. The Municipal Corporation will, therefore , be entitled to remove every thing outside that 390 sq. ft. encroaching upon the adjoining open space. The grievance of the petitioners is that this entire action is initiated at the instance of the adjoining shop owner i.e. respondent no.4. The Municipal Corporation will be at liberty to remove all the protrusions made by the adjoining shop owner also. In fact, they are expected to do that, along with whatever action they take against the petitioners. The action will, of course, be as per the building plan. In view of the above, the petition is dismissed. 4. Authenticated copy of this order be made available to the parties.” 4. A perusal of the order would show that the Division Bench of this court had noted that the shop of the appellant was 390 sq. ft. , on the ground floor. Permission was given to the respondent to remove the structures made by the appellant as well as adjoining shopkeepers beyond their shop line. The respondent Corporation was thus entitled to remove the 4 structures outside the shop line. There was no order for demolition of the shop admeasuring 390 s. ft. It prima facie appears that the petitioner was in possession of the admeasuring 390 sq. ft. If at all any part of that structure of 390 sq. feet the respondent ought to have issued notice to the appellant and after granting an opportunity to the appellant ought to have passed appropriate orders. That was not done. 5. When the appeal came up for admission before this court on 21st July 2003 this court (Coram Radhakrishnan J. ) permitted the appellant to fix the rolling shutter in front of the shop in such a way that the area of the shop would not exceed 390 sq. ft. The order passed by this court is quoted below: “DATED : 21.7.2003. P.C. : ­ 1. Heard the learned counsel for the appellant and the respondent Corporation. Inspite of the matter being adjourned repeatedly, the respondent Corporation is not keen in instructing it ' s counsel. The Appeal from Order is admitted. The learned counsel for for the respondent Corporation waives service. Hearing expedited. 2. Place the Appeal from Order for final hearing 5 during the week commencing from 1.12.2003. Pending further orders, the appellant is entitled to fix a rolling shutter in front of shop, in such a way that the area of the shop will not exceed 390 sq. ft. It is made clear that in the event even the appellant extends beyond 390 sq. ft., the respondent Corporation is entitled to demolish the same. 3. Parties to act on an ordinary copy of tis order, duly authenticated by the Associate / Shirestedar of this Court.” 6. Learned counsel for the appellant states that in pursuance of this order the appellant had already constructed rolling shutter in front of the shop ensuring that the total area of the shop does not exceed 390 sq. ft. In view of this it is not necessary to grant any further mandatory injunction directing the respondent to re­construct the shop. The question of recovery of expenses which the appellant was required to incur in re­constructing the shop and fixing the rolling shutter can be considered by the trial court at the stage of hearing of the suit subject to the appellant making necessary amendments in the pleadings and adducing evidence in support thereof. At this stage it would be appropriate only to restrain the respondent from demolishing the suit shop and 6 the rolling shutter which was erected in pursuance of the order of this court dated 21st July 2003. 7. For the reasons stated above the appeal is allowed in part. In view of the interim order dated 21st July 2003 passed by this court the rolling shutter fixed in pursuance of that order it is directed that the respondent shall not demolish the said rolling shutter nor the shop to the extent of 390 sq. ft., till disposal of the suit. The respondent shall pay costs of this appeal to the appellant. (D.G. KARNIK J.)