1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.132 OF 2009 WITH CIVIL APPLICATION NO. 152 OF 2009 Bank of Baroda Employees Co-operative Housing Society Ltd. : Appellants versus Municipal Corporation of Greater Mumbai : Respondents. Shri D S Sakhalkar i/by Shri Anil R Mishra for the Appellants. Shri J J Xavier for the Respondents-BMC CORAM : R.M.SAVANT, J. DATED : FEBRUARY 25, 2009 P.C. 1. This Appeal takes exception to the order dated 23rd January 2009 passed by the learned Judge, City Civil Court, Dindoshi, Mumbai, by which order, the ad-interim reliefs have been refused to the Appellants/Plaintiffs. 2. The Plaintiffs have filed S C Suit No.154 of 2009 2 impugning the notice issued by the Respondent-Corporation under Section 299 of the Mumbai Municipal Corporation Act (hereinafter referred to as the MMC Act). By the said notice the Plaintiffs were called upon to surrender the land coming within the road line fixed under Section 297 of the MMC Act. It is the case of the Plaintiffs that earlier in the year 1991, a notice was issued under Section 299 and pursuant to the said notice the Plaintiffs property to the extent of 214.25 sq.mtrs was taken which was coming within the road line. According to the Plaintiffs, the construction of the road has already been completed. Therefore, fresh notice under Section 299 of the MMC Act dated 14/1/2009 was illegal, arbitrary and without following the procedure. 3. Though the Defendant-Corporation has not filed its reply in the said Notice of Motion filed by the Plaintiffs, it is the case of the Defendant-Corporation that the work of improvement of 60 ft. wide M C Chagla road is undertaken by the Defendant in public interest. The said road is an arterial road leading to the Mumbai International Airport. It is the case of the Defendant-Corporation that only open 3 space inside the compound wall of the Plaintiffs-Society which is coming within the road line is required for the purpose of improvement of the said 60 ft. wide M C Chagla Road. 4. The trial Court, considering the provisions of Section 299 of the MMC Act and also considering the powers vested with the Municipal Commissioner held that the Commissioner is vested with the powers to take the possession of the open land or structure which come within the sweep of Section 299 and which is required for the purpose of improvement of the 60 ft wide M C Chagla road. Since part of the Plaintiffs property is coming within the road line, the trial Court refused the ad-interim reliefs. However, the Notice of Motion was made returnable on 5th February 2009, which is I am informed, is as yet pending. 5. In so far as fixation of the road line under Section 297(1)(a) of the MMC Act is concerned, the same was notified on 26th April 1980 by the Respondent-Corporation. Thereafter on 13/11/1991 the notice was issued to the Plaintiffs under Section 299 of the MMC Act 4 for handing over the possession of the part of the property which was coming within the road line. The Plaintiff filed Writ Petition No.3086 of 1991 in this Court which was dismissed by a learned Single Judge of this Court. The Plaintiffs, thereafter, carried the matter in Appeal by way of Appeal No.979 of 1991 which was also dismissed by the Division Bench of this Court by order dated 13/11/1991. It appears that the matter was carried to the Apex Court by way of Special Leave Petition No.15979 of 1992, which the learned counsel for the Appellants fairly conceded, was also dismissed. In view thereof, the road line notified on 26/4/1980 has achieved finality and the Corporation is entitled to take over the properties coming within the road line. 6. The Respondent-Corporation has filed an affidavit in the present Appeal stating that 60 ft. wide road was not earlier constructed to its full width and, therefore, some part of the Plaintiffs property is remained to be taken possession of. It is the case of the Respondent-Corporation that the Plaintiffs have constructed the compound wall in the year 1992 after the road line was fixed and the 5 said compouned wall falls within the road line. The compound wall is shown by a line drawn by pencil on the road line plan maintained by the Respondent-Corporation. 7. At the prima facie stage, therefore, the order of the trial Court in the conspectus of the aforesaid facts cannot be faulted with. In that view of the matter, no case for interference with the order refusing the grant of the ad-interim reliefs is made out. The above Appeal from order is accordingly dismissed. 8. However, since the Appellants/Plaintiffs are a co-operative society, they are granted three months time to remove the compound wall and make the area available for construction of the 60 ft. wide M C Chagla Road, this would be without prejudice to their rights and contentions in the Suit and the Notice of Motion. The hearing of the Notice of Motion is expedited and is directed to be disposed of within a period of ten weeks from date. The Respondent-Corporation to file its affidavit in reply within three weeks and rejoinder, if any, to be filed by the Appellants within two weeks thereafter. 6 9. In view of the dismissal of the above Appeal from order, the Civil Application No.152 of 2009 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]