MUNICIPAL CORPORATION OF GREATER BOMBAY Vs. PANDIT VISHWANATH ATMARAM MISHRA

JUDGEMENT

(1.) THIS is an appeal by the Municipal Corporation of Greater Bombay (hereinafter called 'the Municipal Corporation') against the order dated August 9, 1971 passed by a Judge of the Bombay City Civil Court on a notice of motion, issuing an injunction against the appellants restraining them pending the hearing and final disposal of the suit from demolishing certain structures belonging to the respondents. The appellants are the original defendants in the suit. The respondents are the plaintiffs in the said suit.

(2.) A few facts leading to this litigation may be briefly stated. The plaintiffs claim to be the owners of two pieces of land bearing survey No. 11 Hissa Nos. 1 and 2 and survey No. 23 Hissa No. 10 situated in village Asalphe, Ghatkopar, within Greater Bombay (hereinafter referred to as 'the said land'). It appears that on March 2, 1971 an overseer of the Municipal Corporation found some work in progress on the said land which, according to him, was unauthorised construction. On March 3, 1971 the Assistant Engineer of the Municipal Corporation served on the plaintiffs notice under Section 354A of the Bombay Municipal Corporation Act, III of 1888 (hereinafter referred to as 'the Municipal Act'), calling upon the plaintiffs to stop the construction. The Municipal Corporation alleges that the plaintiffs failed to comply with this notice. On March 20, 1971 the Municipal Corporation served on the plaintiffs another notice under Section 351 of the Municipal Act calling upon the plaintiffs to show cause why the construction should not be demolished. The plaintiffs sent a reply on March 26, 1971 denying that the construction was unauthorised. Thereafter on May 13, 1971 the Municipal Corporation served three notices on the plaintiffs under Sections 351 and 352A of the Municipal Act calling upon the plaintiffs to show cause why the structures on the said land should not be demolished. The plaintiffs replied to the said letters on May 14, 1971. On May 17, 1971 the plaintiffs filed the suit from which the present appeal arises for a permanent injunction restraining the Municipal Corporation from demolishing the structures on the said land and from enforcing the said three notices issued under Sections 351 and 352A of the Municipal Act. The said suit is pending. The plaintiffs took out a notice of motion for interim injunction pending the hearing and final disposal of the suit. An ad interim injunction was granted. The notice of motion was disposed of on August 9, 1971 and an interim injunction was granted. It is against the said order that the present appeal has been filed.

(3.) IT appears to me that the learned Judge of the City Civil Court has misconstrued the judgment of my learned brother Vaidya J. To bring out this, it becomes necessary to refer to a few provisions of the Municipal Act. I might perhaps mention here that my brother Vaidya J. was concerned in the matter before him with Section 304 of the Municipal Act and not with Section 351. The reference to Section 351 is by way of discussion, for the purpose of construction of Section 304.