ABDUL RASHID KHAN Vs. BRIHANMUMBAI MAHANAGARPALIKA

JUDGEMENT

(1.) HEARD the learned counsel for the parties.

(2.) THE appellant before this Court is the original plaintiff. According to the appellant, he had purchased the suit premises being suit shop No. 3 from one mahendra Thakur on 24-1-1995. The said Mahendra Thakur had purchased the suit premises from one Bazirao Shripat Thorat, who was original allottee. On 21-9-2007, two persons from the office of the defendant/ Municipal Corporation approached the suit premises and asked the brother and sister of the plaintiff to demolish the suit premises. According to the plaintiff, no notice was served by the defendant to the plaintiff and the defendant is intending to demolish the suit premises without following due process of law. With this contention, he filed suit seeking to restrain the defendant from taking any action without due process of law till decision of the suit. He also took out notice of motion for temporary injunction of the same nature. The defendant contested the notice of motion contending that the suit shop itself is illegal and unauthorised structures. There are number of illegal constructions in the said vicinity of Tata Colony, Bharat nagar, Bandra (East ). So, the defendant/bmc had issued notice under section 55 of the Maharashtra Regional and Town Planning Act (In brief 'm. R. T. P. Act')and thus, due process of law has been followed. It was contended that after service of the said notice dated 20-6-2007, the occupants from the said vicinity challenged the said notice by filing L. C. Suit No. 2619 of 2007 and in that suit, notice of motion was dismissed and even the appeal was dismissed. It is contended that the plaintiff was aware of that notice and the said proceeding and, therefore, now he cannot take a stand that the notice has not been served. After hearing the parties, the learned trial Court dismissed the Notice of Motion No. 251 of 2007. Hence, the plaintiff has preferred the present appeal.

(3.) AS it is the case of the plaintiff/appellant that no notice was served on him and that the defendant is not taking action, which is as per the due process of law, I called upon the learned counsel for the defendant/respondent to show the notice, which was issued and served on the plaintiff. The learned counsel for the respondent made a statement that notice dated 20-6-2007 was issued to the chairman and Secretary of Tata Colony Co-operative Housing Society. She has also shown that notice. As per that notice, the said Chairman and Secretary were informed that they had carried out development of temporary nature unauthorizedly without permission required under the M. R. T. P. Act and, therefore, they were called upon to remove unauthorised development within 15 days from the receipt of the notice. They were also informed that if they would fail to comply with requisition, they would be liable to prosecution and the unauthorised work would be demolished by the Municipal Corporation. The learned counsel for the Corporation could not show me any notice, which has been issued to the plaintiff. It is contended that the name of the plaintiff was not on record of MHADA. However, the learned counsel for the plaintiff has pointed out that the plaintiff is running auto works shop in the suit premises and for that purpose licence under Bombay Shops and Establishments Act, 1948 has been issued on 2nd September, 2004 and that licence has been renewed from time to time. Therefore, it cannot be said that the Municipal Corporation was not aware about the name of the present plaintiff. Any way it is clear that notice was not issued to the plaintiff, though a notice was issued to the Chairman and Secretary of the Society and possibly notice might have been issued to some other persons, who had also made unauthorised construction of temporary nature.