Abdul Rab / Bharat Kothari

Order - Status 7: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.235 OF 2012 WITH CIVIL APPLICATION NO.303 OF 2012 Gokuldas R. Pai .. Appellant Vs. Mumbai Municipal Corporation of Greater Mumbai and Anr .. Respondents Mr. Abdul Rab,for the Appellant. Ms. M. R. Bhoir,for the RespondentMCGM. CORAM : J. H. BHATIA,J. DATE : FEBRUARY 29, 2012 P.C. 1 Heard learned counsel for the parties. The plaintiff claims to be in possession of the open plot bearing Survey No.39, City Survey No.1 at Link Road, Malad(W). On 21/03/2011, a letter was addressed by the Assistant Engineer(Bldg and Fact)P/North Ward to the plaintiff, wherein it was contended that there was a complaint received from one Jitendra Sutar that the plaintiff had placed three containers in the open plot and was using the said plot as a yard. By the said letter, he was directed to remove the containers within 24 hours, failing which they would be ata removed by the Municipal Corporation at his risk and costs. The plaintiff filed suit challenging the said letter and sought perpetual injunction restraining the Municipal Corporation from acting upon the same. By Notice of Motion, he sought temporary injunction of the same nature. The Notice of Motion was dismissed on the ground that the plaintiff had no title over the property. 2 Learned counsel for the plaintiff/appellant pointed out that about the said property, one Krishna Patil and others had filed S. C. Suit No. 2788 of 1983 against him and that suit was dismissed in default. The plaintiff had taken out Notice of Motion No. 747 of 2010 for setting aside the dismissal and for restoration of the suit to file. However, that Notice of Motion was also dismissed by order dated 06.05.2010. Learned counsel contends that in view of this, the plaintiff is in adverse possession over the suit property for the last about 30 years. It is not necessary to make any observation about his claim about adverse possession because the real owner of the property is not a party to the suit. Learned counsel for the Municipal Corporation could not explain under which provisions of law the letter dated 21.03.2011 was issued by the Assistant Engineer to the plaintiff. She concedes that it was not a notice issued by the Municipal Corporation under any provisions of Mumbai Municipal Corporation Act. The Corporation does not claim :3: 235.12.ao title over the property. It is not clear who is Jitendra Sutar, who had made a complaint to the Assistant Engineer about parking of the said containers on that plot. It is not clear whether the Municipal Corporation has any right to issue such letter in respect of certain private property, particularly, when there is no allegation of any unlawful construction. Therefore, the said letter, prima facie, appears to be unauthorized, but it certainly gives a threat and creates apprehension in the mind of the plaintiff that he may be dispossessed without following due process of law. Therefore, it is necessary to give him some protection pending the suit. 3 In view of the above, the impugned order stands set aside. The Notice of Motion is allowed. The respondents are hereby restrained from taking any action against the plaintiff in respect of the suit property without following due process of law pending the suit. 4 As the appeal itself is finally disposed of, civil application does not survive and stands disposed of accordingly. (J. H. BHATIA,J.)