bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION 1. APPEAL APPEAL APPEAL FROM ORDER (ST) NO. 18550 OF 2007 FROM ORDER (ST) NO. 18550 OF 2007 FROM ORDER (ST) NO. 18550 OF 2007 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 1475 OF 2007 OF MOTION NO. 1475 OF 2007 OF MOTION NO. 1475 OF 2007 IN IN IN B.C.C.C.SUIT B.C.C.C.SUIT B.C.C.C.SUIT NO. 1600 OF 2007 NO. 1600 OF 2007 NO. 1600 OF 2007 Municipal Corporation of Gr. Mumbai ... Appellant v/s 1. Kaushal Kumar R. Mourya 2. Kamlesh R. Mourya 3. Gulabidevi R. Mourya ... Respondents ALONGWITH 2. APPEAL APPEAL APPEAL FROM ORDER NO. 126 OF 2002 FROM ORDER NO. 126 OF 2002 FROM ORDER NO. 126 OF 2002 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 4571 OF 2001 OF MOTION NO. 4571 OF 2001 OF MOTION NO. 4571 OF 2001 IN IN IN L.C.SUIT L.C.SUIT L.C.SUIT NO. 3882 OF 2001 NO. 3882 OF 2001 NO. 3882 OF 2001 Maharashtra Housing & Area Development Authority ... Appellant v/s 1. Smt.Niranjan Rawat 2. The Municipal Corpn. of Gr. Mumbai ... Respondents ALONGWITH 3. APPEAL APPEAL APPEAL FROM ORDER NO. 102 OF 2002 FROM ORDER NO. 102 OF 2002 FROM ORDER NO. 102 OF 2002 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 4574 OF 2001 OF MOTION NO. 4574 OF 2001 OF MOTION NO. 4574 OF 2001 IN IN IN L.C.SUIT L.C.SUIT L.C.SUIT NO. 3885 OF 2001 NO. 3885 OF 2001 NO. 3885 OF 2001 Maharashtra Housing & Area Development Authority ... Appellant v/s 1. Smt.Gulabidevi Ramadhar 2. The Municipal Corpn. of Gr. Mumbai ... Respondents ALONGWITH 4. APPEAL APPEAL APPEAL FROM ORDER NO. 113 OF 2002 FROM ORDER NO. 113 OF 2002 FROM ORDER NO. 113 OF 2002 2 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 4573 OF 2001 OF MOTION NO. 4573 OF 2001 OF MOTION NO. 4573 OF 2001 IN IN IN L.C.SUIT L.C.SUIT L.C.SUIT NO. 3884 OF 2001 NO. 3884 OF 2001 NO. 3884 OF 2001 Maharashtra Housing & Area Development Authority ... Appellant v/s 1. Kamlesh Kumar R. Mourya 2. The Municipal Corpn. of Gr. Mumbai ... Respondents Mr.S.G.Surana for the appellant MHADA in A.O.Nos.126 of 2002, 113 of2002 and 102 of 2002. Mrs.Geeta Joglekar for the Municipal Corporation. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 21ST JULY, 2008 21ST JULY, 2008 21ST JULY, 2008 P.C. P.C. P.C.: 1. The Appeal from Order (St.) No.18850 has been filed by the Municipal Corporation of Greater Mumbai against the order dated 22.4.2007 passed by the Trial Court in L.C.Suit No.1600 of 2007 pending before the City Civil Court, Mumbai. The other Appeals from Orders have been filed by the Maharashtra Housing & Area Development Authority (in short MHADA) contending that the Corporation has not complied with the orders passed by this Court on 3.3.2003 in Civil Application No.148 of 2002 in A.O.No.126 of 2002. 2. By the order dated 3.3.2003, this Court had passed 3 the following order: "Heard advocate for the petitioners. It is the case of the appellant that the respondents have illegally carried out the construction on the said D.P.Road without any authority. Various facts disclosed from the record that not being controverted by the respondents and the photographs produced for the perusal of the Court disclose the sheds having been constructed right on the road, being so prima facie case is made out for grant of reliefs prayed for in the absence of any right being shown for the erection of such sheds on the road. The question of balance of convenience having in favour of the respondent does not arise at all. In absence of any right being disclosed to erect the structure on the road the removal thereof cannot result in irreperable loss to the respondents. Hence, the applications for interim reliefs are allowed in terms of prayer clauses (b), (c) and (d). Application stands disposed of." Thus, the Corporation, which was respondent No.2 in the appeal from order, was directed to demolish all 4 constructions erected on the D.P.Road near Building Nos.10A and 10B at Survey No.2, Kopari Powai, Mumbai - 400 072. 3. On 27.3.2007, a further order was passed by this Court in A.O.No.126 of 2002 wherein the Municipal Corporation was directed to comply with the above order passed by this Court on 3.3.2003. After these orders were passed, the Municipal Corporation, it appears, has not complied with these orders and hence the respondent filed the aforesaid suit on 21.4.2007. Significantly, this was filed by the persons who are respondents to the appeals filed by the MHADA and against whom the aforesaid orders have been passed. In the suit, the respondents sought to challenge the letter dated 19.4.2007 issued by the Corporation for demolishing their structures pursuant to the orders passed by this Court. In fact, on 9.4.2007, the advocate for the Corporation had sought an adjournment for two weeks in order to comply with the earlier orders and hence the matter was to appear on board again after two weeks. 4. The Trial Court, it appears has passed an order on 22.4.2007 staying notice dated 19.4.2007 for demolition. Thereafter, though the Corporation moved the Trial Court for vacating the stay granted, the matter kept getting 5 adjourned and hence the Corporation was constrained to file the present appeal. 5. In my view, the orders passed by the Trial Court can have no sanctity in view of the fact that this Court has passed an order on 3.3.2003 granting interim relief to the MHADA by directing the Corporation to demolish the structures on the D.P.Road near Building Nos.10A and 10B. 6. In my opinion, in view of the fact that such an order has been passed on 3.3.2003, the Trial Court could not have stayed the notice issued to the respondents. Admittedly, their structures are near Building Nos.10A and 10B and, therefore, these structures would be covered by the orders passed by this Court. Apart from this, the respondents have not disclosed these facts in the Trial Court and, in my opinion, have wrongly snatched the order from the Trial Court on a holiday, without notice to the Corporation. Had the Corporation been given notice, in all probability, they would have been able to point out to the Trial Court that such an order could not be passed in view of the specific directions of this Court for demolition of the structures. 6 7. In my view, therefore, the Appeal from Order (St.) No.18550 of 2007 must be allowed. The order impugned in this appeal is set aside and quashed. 8. Since this Appeal from Order (St.) No.18550 of 2007 has been allowed, the other appeals filed by the MHADA can be disposed of in terms of the order passed on 3.3.2003. The Corporation shall immediately take steps to demolish the structures which are a hindrance on the D.P.Road and comply with the earlier orders passed by this Court. 9. The learned advocate appearing for the Corporation submits that the demolition will be carried out as early as possible and with the help of the Police. 10. Appeals from orders disposed of accordingly.