SIDHARAM M YANAGANDUL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the order dated 10/7/2006 passed by the City Civil Court, Mumbai refusing to grant ad interim relief of an injunction restraining the municipal Corporation from demolishing the unauthorised structure.

(2.) THERE are three shops exist in the property bearing final plot no. 205, Rakshe chawl, Dadar (East), Mumbai. Appellant is a tenant occupying one of the shops. Behind the three shops there is a temporary shed with brick - masonary walls and G. I. sheet roof. The said temporary shed (for short 'the suit shed')is the subject matter of this appeal.

(3.) ON 5th June, 2006 the respondent municipal corporation issued a notice to the appellant under Section 351 of the Mumbai municipal Corporation Act (for short 'the Act')to show cause why the suit shed which was constructed without the permission of the planning authority should not be demolished. By a reply dated 8th June, 2006 the appellant submitted that he was in possession of the suit shop as a tenant since the year 1974. He further submitted that suit shed was not unauthorised but was assessed for the municipal taxes since 1979 and therefore was an authorized structure and cannot be demolished. After hearing the appellant the respondent came to the conclusion that the suit shed was unauthorised and was erected after the year 1962. The unauthorised structures erected prior to 17th April, 1962 -datum line- only were protected as per the government resolution. As the suit shed was errected unauthorisedly after 17th April, 1962 it was liable to be demolished. Aggrieved by the order of the respondent the appellant filed a suit bearing suit no. 3035 of 2006 in the City civil Court, Mumbai for an injunction restraining demolition. In the suit the appellant took out a motion bearing N. M. No. 2597 of 2006 for an interim injunction restraining the respondents from demolishing the suit shed pending hearing and decision of the suit. By an order dated 10th july, 2006 the learned Judge of the City Civil court declined to grant an ad interim injunction holding that no prima facie case was made out. That order is impugned in this appeal.