IN THE COURT OF JUDGE, CITY CIVIL COURT AT BOMBAY S.C. ...

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28SC Suit No. 2572 of 2005unless it is done, it is improper for defendant/BMC to takeaction against suit structure. No doubt, defendant/BMC iscompetent to take action against any offending structure whichdoes not comply or violate provisions of Section 342 and 347 ofthe MMC Act or under M.R.P.T. Act and D. C. Rules, but in theinstant case, the structure is standing since long and the orderrevoking the permission granted by the Government for changeof user and covering of open spaces which is the subject matterof this Suit also has been challenged by the present plaintiffbefore the Konkan Commissioner and it is pending. It is alsoadmitted position on record that the stay is granted to the orderof theCollector Mumbai revoking the permission. Hence,under these circumstances, I find that the action of thedefendant u/sec. 351 of MMC Act is premature, illegal and void.The right course open for the defendant is to wait till theproceedings before the Revenue Authority are completed andthen if law permits, take action against the plaintiff. Similarly,on going through the order it clearly appears that the order hasbeen passed without application of mind and without givingadequate reasons for not relying on the orders passed in thepast by the Court in favour of plaintiff. The notice or the orderdoes not bear any reference to the previous notices and thewitness also made statement that he has no knowledge aboutthe same. This fact itself makes it clear that the notice too hasbeen issued without the application of mind, which is soul ofany quasijudicial order. The order of demolition is in the name
29SC Suit No. 2572 of 2005of quasijudicial order and hence, adequate reasoning is sinequanonfor such orders. As stated above, I do not find that theAssistant Municipal Commissioner has taken care to giveadequate reasons to counter the detailed reply given by theplaintiff. Hence, I find the impugned notice and and impugnedorder passed are illegal, void and not enforceable against theplaintiff. I therefore, record my findings according in theaffirmative in respect of issue no.1.32. AS TO ISSUE NO.2: The issue about the maintainability ofsuit for want of notice u/sec. 527 of MMC Act is no more acontroversy in the light of decision of Hon'ble High Courtreported in 2005(3) ALL MR 869, Motilal MahadevSharma(deceased through LRs) Vs. The MunicipalCorporation of Greater Bombay dated 01.4.2005. The relevantratio is :“(A) Bombay Municipal Corporation Act (1888), S.527 Suit for declaration Statutory notice u/sec. 527Eviction proceedings against plaintiff Plaintiff filingsuit for declaration and also for consequential relief ofinjunction against Corporation – When the plaintiffwants to seek immediate relief from the Court in theform of injunction, it is not necessary for him to issuestatutory notice or wait till the statutory notice isserved and the period prescribed under S. 527 of theAct is over.”In the instant case, the plaintiff was asked to remove the suit
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IN THE COURT OF JUDGE, CITY CIVIL COURT AT BOMBAY S.C. ...

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