Case Note & Summary
The appellant, Afroze A. Shaikh, filed a suit challenging a notice under Section 351 of the Bombay Municipal Corporation Act, 1888 issued by the Municipal Corporation of Greater Mumbai (respondent) regarding shop (godown) Nos. 8 and 9. The appellant sought a temporary injunction restraining the respondent from demolishing the godowns. The trial court, while considering the ad-interim relief, protected godown No.9 from demolition but rejected the prayer for ad-interim relief regarding godown No.8. Aggrieved, the appellant filed an appeal. The appellant's counsel argued that the notice under Section 351 was vague as it did not specify the exact nature of the unauthorized construction in respect of godown No.8. The court examined the notice and found that it merely mentioned 'godown No.8' without specifying what construction was alleged to be unauthorized. The court held that such a vague notice cannot justify demolition without giving the plaintiff an opportunity to demonstrate that the construction is authorized. The court set aside the trial court's order rejecting ad-interim relief for godown No.8 and directed the trial court to hear the notice of motion afresh and pass appropriate orders. The court also directed that pending the hearing of the notice of motion, the respondent shall not demolish godown No.8.
Headnote
A) Municipal Law - Section 351 Notice - Specificity Requirement - Bombay Municipal Corporation Act, 1888, Section 351 - The notice under Section 351 must specify the exact nature of the unauthorized construction alleged. In this case, the notice referred to 'godown No.8' without specifying what construction was unauthorized. The court held that such a vague notice cannot form the basis for demolition without giving the plaintiff an opportunity to show that the construction is authorized. (Paras 1-4) B) Civil Procedure - Temporary Injunction - Ad-Interim Relief - Code of Civil Procedure, 1908, Order 39 Rules 1 and 2 - The trial court's rejection of ad-interim relief for godown No.8 was set aside because the notice under Section 351 was defective. The court held that the plaintiff had made out a prima facie case for injunction as the notice did not specify the unauthorized construction, and the balance of convenience was in favor of granting ad-interim relief. (Paras 2-4)
Issue of Consideration
Whether the trial court was justified in rejecting ad-interim relief in respect of godown No.8 when the notice under Section 351 of the Bombay Municipal Corporation Act, 1888 did not specify the exact nature of the alleged unauthorized construction.
Final Decision
The appeal is allowed. The impugned order rejecting ad-interim relief for godown No.8 is set aside. The trial court is directed to hear the notice of motion afresh and pass appropriate orders. Pending the hearing of the notice of motion, the respondent shall not demolish godown No.8.
Law Points
- Section 351 of Bombay Municipal Corporation Act
- 1888 requires notice to specify exact nature of unauthorized construction
- Ad-interim injunction can be granted if notice is vague or defective
- Prima facie case for injunction arises when notice fails to specify the alleged unauthorized construction
