Judgment :-

Ganguly, J.

1. Leave granted.

2. The Appellant impugns the judgment and order dated 23.11.2006 passed by a learned Single Judge of the High Court of Bombay in an appeal from Order No. 688 of 2006 of City Civil Court, Mumbai whereby the learned Judge rejected the application for injunction after a detailed judgment dated 23.8.2006.

3. The City Civil Court, Mumbai in a detailed judgment, came to a finding that the Plaintiff-Appellant herein failed to show that the suit structures existed prior to datum line i.e. prior to 1962 and no Sanctioned Plan of the suit structure was produced before the Court. The documentary evidence, produced by the Plaintiff-Appellant was discrepant in that the Assessment Numbers and the addresses did not tally.

4. Further finding of the City Civil Court, Mumbai was that the Appellant could not produce any documentary evidence to link the assessment documents with the suit structure and thus the Court held that the Appellant failed to make out any prima-facie case for grant of injunction.

5. Virtually on those findings, the prayer for injunction was concurrently refused by the High Court.

6. Apart from those two proceedings, other proceedings were also initiated in respect of the structures in question as would appear from the facts discussed below.

7. The Appellant claims to be one of the owners of land measuring 485 square yards, bearing Survey No.35, Hissa No.1 (Part), C.T.S.No.688, situated at Saki Vihar Road, Kilick Nikason Marol, Andheri (East), Mumbai-40007 and a Chawl standing thereon and the Appellant claims that his father constructed the same Chawl in the year 1956 and the shops therein were let out to various tenants on rent.

8. One of the tenants Chetan Prakash Jain received a notice under Section 351 of the Mumbai Municipal Corporation Act (hereinafter ‘the said Act), from the second respondent who had issued the same in purported exercise of the powers delegated to him under Section 4A of the Mumbai Metropolitan Region Development Authority Act, 1974 (hereinafter `the Act of 1974). The notice was asked to show cause why the shop in his possession be not demolished since it has been constructed in contravention of the provisions of Section 347 of the said Act.

9. That notice was replied to by Chetan Prakash Jain to the effect that the structure in question was in existence much prior to the date of the notice and hence the same is a tolerable structure under the said Act and is not required to be removed.

10. The grievance of the Appellant is that the second Respondent without giving the notice an opportunity of being heard, passed an order directing him to remove the portion of the structure to be affected by the road widening scheme and to hand over the possession of the same to the first Respondent. The further grievance is that no such notice was given to the other tenants and/or adjoining shop owners in the said Chawl.

11. Thereafter, in the second week of March, 2006 some of the officers and the representatives of the Respondent No.1-Corporation allegedly fixed boundary marks in and around the said Chawl on the basis that the area covered under the said boundary wall would be required for the widening of the road.

12. The Appellant and the other owners of the Chawl through the notice of their Advocate dated 22.3.2006 claimed to have placed on record correct facts and documents and complained against such activities of the Respondent.

13. The second Respondent while exercising the powers under Section 351 of the said Act directed Chetan Prakash by a notice dated 3.4.2006 to remove the suit structure, inter-alia, on the ground that the same is unauthorized and not tolerable.

14. Against the said notice, a Writ Petition being W.P.(L) No.868 of 2006 was filed on 12.4.2006 by the Appellant which was disposed of on the same very day by the Division Bench of the Bombay High Court, inter-alia, holding that the first Respondent is to give notice to the Petitioner No.1 who will acc