( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.159 OF 2009 FIRST APPEAL NO.159 OF 2009 FIRST APPEAL NO.159 OF 2009 Mr.Deepak Sakharam Kamble and Ors. ..Appellants V/s. The Bombay Municipal Corporation ..Respondents ...... Mr.Anil C.Singh i/by Devendra Sharma for the appellants Mr.J.Xavier for the respondents-BMC ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 16th April, 2009 DATED : 16th April, 2009 DATED : 16th April, 2009 P.C.: P.C.: P.C.: 1. The respondents granted permission to the appellants to carry out repairs to the garage known as Rex Garage. That permission is dated 15th October, 2001. According to the appellants, certain work in terms of the repair permission was carried out. According to the respondents, the repair permission has not been obeyed and some excess work has been ( 2 ) carried out and that is why respondents issued notice dated 12th March, 2003 mentioning therein various breaches of the repair permission and asked the appellants to remove the irregularities within 48 hours from the receipt of the said notice failing which respondents were to demolish the said garage. To this, the appellants sent reply dated 13th March, 2003. It appears that no documents were annexed to the said reply and before respondents could take any further action, the appellants instituted the suit challenging the letter dated 12th March, 2003 and that is how the suit proceeded. 2. The suit came to be dismissed by impugned judgment passed by learned Judge of the City Civil Court by his order dated 19th December, 2008. 3. Before this Court, learned advocate Mr.Anil Singh submitted that the Corporation has not considered the reply dated 13th March,2003 sent by the appellants and the appellants were concerned about the suit structure and had no alternative but to rush to the court. 4. After having heard Counsel on both the sides, it is clear that the say of the appellants as regards the alleged violation of the repair permission has not ( 3 ) been considered by the appropriate authority of the Corporation. It is difficult to accept the stand of the respondents that the respondents could demolish the structure without considering the say of the appellants as regards the impugned notice dated 12th March, 2003. If this is be so, I am inclined to observe that institution of the suit by the appellants itself was premature and, therefore, today the appellants are required to give chance to put up appropriate representation alongwith the relevant documents so that the respondents can decide whether a repair permission is violated or otherwise and then appropriate order can be passed. 5. Keeping in view the aforesaid, the first appeal is disposed of at the stage of admission by passing following order. ORDER ORDER ORDER . The impugned judgment dated 19th December, 2008 passed by the learned Judge of the City Civil Court is set aside. . Within three weeks from today, the appellant shall submit their reply / representation alongwith documents if any to ( 4 ) the impugned notice dated 12th March, 2003. . The said representation shall be served upon the Assistant Commissioner H West ward. Upon receipt of the said representation, the Assistant Commissioner H West ward shall consider the impugned notice as well as the said representation and decide whether the appellants have committed breaches of the repair permission. If the said Assistant Commissioner records the finding that the breaches have been committed in respect of repair permission, he will pass an appropriate order. If found necessary, he will offer personal hearing to the appellants. No views are expressed on merits of the matter. . Till passing of the order by the Assistant Commissioner and three weeks thereafter, the impugned structure would not be demolished by the Corporation if an order is passed against the interest of the appellants. There shall be no order as to costs. In view of the above, Civil Application does not survive and is disposed of accordingly. ( 5 ) . If there is any other repair permission which was secured by the appellants and if according to the respondents the said repair permission has been violated the procedure mentioned so far as the letter dated 12th March, 2003 concerning the repair permission dated 15th October, 2001 shall also be followed by the respondents. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)