1. The aforesaid two appeals are directed against the order dated 30-11-1994/1-12-1994 passed by the Bombay City Civil Court on the Notice of Motion No. 4539/94 and, therefore, these two appeals have been heard together and are disposed of by this common order.

2. Ahmedmia Gulam Mohuddin Ahmedji, the Original Plaintiff and Respondent No. 1 in both the appeals filed a suit against the Original Defendant No. 1 Municipal Corporation of Greater Bombay Respondent No. 2 in A.O No. 1528/94 and Respondent No. 2 in A.O No. 39/95 and Original Defendants Nos. 2 to 31, some of whom are Appellants in A.O No. 39/95, and, Respondents Nos. 2 to 21 in A.O No. 1528/94 praying therein that it be declared that the construction erected on suit property i.e City Survey No. 1/358, Matunga Division, Bombay described in plan at Exhibit-D to the plaint is unauthorised, illegal and liable to be demolished. The Plaintiff also claimed the relief that Defendants Nos. 2 to 31 be directed by mandatory order to remove or pull down the aforesaid unauthorised construction and Defendant No. 1 be directed to initiate and pursue appropriate action against Defendants Nos. 2 to 31 in respect of the aforesaid unauthorised construction. The plaintiff also prayed for decree of permanent injunction against Defendants Nos. 2 to 31 that they be restrained from constructing any structure on the disputed land or to use the vacant land for commercial use or uses like conference, fair, jatra, etc. and that Defendant No. 1 be restrained from regularising or issuing any permission or sanction in favour of Defendants Nos. 2 to 31 for the unauthorised ‘construction. The Plaintiff also took out notice of motion in the said suit inter alia praying that by mandatory direction the Defendants Nos. 2 to 31 be asked to remove or pull down unauthorised construction and Defendant No. 1 be directed to initiate and pursue appropriate action against Defendants Nos. 2 to 31 in respect of unauthorised construction. The Plaintiff also prayed for temporary injunction against the Defendants Nos. 2 to 31 that they be restrained from constructing any structure and/or giving the vacant land for commercial use or uses like conference, fair, jatra, etc., and, Defendant No. 1 be restrained from regularising or issuing any permission or sanction in favour of Respondents Nos. 2 to 31 for the unauthorised construction. In support of notice of motion, Plaintiff filed his affidavit.

3. Notice of motion was contested by the Defendants and Defendant No. 3 Sayad Akhtar Ali Sayed Asgar Ali, General Secretary of Bazam-a-Haq Committee filed his affidavit in reply for himself as well as for Defendant No. 2 and Defendants Nos. 4 to 20.

4. The trial Court by the impugned order dated 30-11-1994/1-12-1994 made the notice of motion absolute in terms of prayer clauses (b), (c), (d) of the notice of motion.

5. The operative portion of the impugned order reads thus—

“The Notice of Motion is made absolute in terms of prayers (b), (c) and (d). The first Defendants shall issue notice in respect of the structures on the leased property belonging to Defendants 21 to 31. Defendants 21 to 31 shall show cause to the said notice and have a right of hearing. The Deputy Municipal Commissioner of the first Defendants shall pass a reasoned order in respect of the action initiated to complete the process of law. None of the Defendants shall put up any further construction on the land now remaining vacant as shown in the photographs produced by the Plaintiff. Any application for repair or regularisation of any of the structures shall be processed by the first Defendants only after an application in that behalf is made to this Court and further directions obtained from the Court. NOC. 6 photographs produced by the Plaintiff showing the present state of the leased premises are taken on record.”

6. The facts undisputed need not be gone in details in view of the controversy raised in the appeal but it may be observed that the suit filed by the Plaintiff is substantially against another group who claims to have management over dargah called ‘Sheikh Misri Dargah’. It appears that a piece of land was rented out to Ahmedji who is since dead somewhere in the year 1915 and that various persons have occupied the said land and raised construction thereon.

7. In the notice of motion taken out by the Plaintiff, particularly the reliefs granted while making the notice of motion absolute in terms of clauses (b), (c) and (d) read as under—

“(b) for mandatory order and direction, directing Defendant No. 1 to initiate and persuade appropriate action against Defendants Nos. 2 to 31 in respect of unauthorised construction on the suit property i.e C.S No. 1/358, Matunga Division, Bombay, as more particularly described in red colour on the plan Exhibit ‘B’ hereto.

(c) for order and temporary injunction, restraining the Defendants Nos. 2 to 31, their servants and agents from constructing any structure/s and/or giving any other person/s said vacant land for commercial use or uses like conference, fair, jatra, etc., religious purposes, wedding or for any other gathering and/or any such use and purposes. On the suit property viz. C.S No. 1/358, Matunga Division, Bombay and/or extending any structure on the suit property in any manner whatsoever nature;

(d) for order and temporary injunction, restraining the Defendant No. 1 from regularising and/or issuing any permission or sanction in favour of Defendants Nos. 2 to 31 for any premises already constructed by them on suit property being C.S No. 1/358, Matunga Division, Bombay and/or that new premises which may be constructed illegally and/or unauthorisedly by Defendants Nos. 2 to 31;”.

8. As observed above the principal relief prayed in the suit by the original Plaintiff is that it be declared that the construction erected on suit property i.e C.S No. 1/358, Matunga Division, Bombay particularly described in plan at Exhibit-B to the plaint is unauthorised, illegal and the same is liable to be demolished. Obviously, therefore, there is serious dispute between the parties as to whether the construction on the suit property is unauthorised and illegal or not and that is the reason the Plaintiff has sought the relief of declaration that such construction be declared illegal and unauthorised. Action under section 351 of the Bombay Municipal Corporation Act, 1888 is only contemplated if the erection of any building or execution of any such work as described in section 342 is commenced or completed contrary to the provisions of section 347. Thus, unless it is held by the trial court on conclusion of trial that the construction on the disputed property is unauthorised and illegal, question of its demolition at the interim stage would not arise and cannot be said to be justified. How could the Defendant No. 1 i.e B.M.C be directed by the trial court to initiate and take appropriate action against Defendants Nos. 2 to 31 unless the court found after trial that the said construction was unauthorised. Similarly the blanket injunction restraining the Defendant No. 1 from regularising or issuing any permission or sanction in favour of Defendants Nos. 2 to 31 for the premises already constructed cannot be justified because it is for the appropriate authorities of the Defendant No. 1 to consider whether a case for regularisation or permission or sanction under law has been made out or not.

9. Besides that, the conditions precedent for initiating proceedings under section 351 have to be satisfied before the Commissioner of the B.M.C or the authority delegated such power could issue notice under section 351 of the B.M.C Act, 1888. The said conditions are that erection of any building was commenced or completed contrary to section 347 or execution of any such work described in section 342 was commenced contrary to section 347. Unless these two conditions are satisfied, question of initiating the proceeding under section 351 would not arise. Further, if proceeding under section 351 is initiated, it is to be initiated by written notice requiring the person who is erecting such building or executing such work or has erected such building or executed such work or who is owner of such building or work for the time being to show sufficient cause why such building or work should not be removed, altered or pulled down. If the noticee or such person fails to show sufficient cause to the satisfaction of the Commissioner or the authority who has been delegated such power, the Commissioner or such authority may order for removal, alteration or pulling down the building or work by briefly stating the reasons. If the cause has been shown by the noticee or such person and that cause is not found sufficient, then only the Commissioner or such authority after briefly stating the reasons for not agreeing with the contentions raised by such person may order for removal, alteration or pulling down of the building or such work. That means that there is ample discretion left in the Commissioner or authority delegated such power whether to order for removal or alteration or pulling down of the building or work which has been done, commenced or completed contrary to the provisions of section 347 of the B.M.C Act, 1888 or not. Such discretion of the Commissioner or such authority cannot be substituted by the court nor can court direct the Commissioner or such authority to exercise discretion in a particular manner. If the discretion by the Commissioner or such authority appears to have not been exercised in accordance with law then court can only call upon the Commissioner or such authority to consider the matter afresh in accordance with law.

10. I am fortified in my view by the judgment of this Court in Writ Petition No. 1286 of 1980, Bilkishbhai Moizbhai Vasi, Petitioners v. Municipal Corporation for Greater Bombay, Respondents decided on 10-8-1983. In the said judgment Hon'ble Justice S.P Bharucha (as he then was) has considered the provisions of section 351 of the B.M.C Act vis-a-vis the obligation of the Commissioner or the authority delegated such power to demolish the unauthorised construction. Bharucha, J. held thus—

“Section 351 obliges the Municipal Commissioner, if the construction of any building or the execution of any work is commenced contrary to the provisions of the Act, to give notice requiring the person constructing or doing the work to show cause why it should not be pulled down. The word used in this context of “shall”. If sufficient cause is not shown, the Commissioner “may” remove, alter or pull down the building or work. It is left to the Commissioner's discretion whether or not to demolish the unauthorised construction if sufficient cause is not shown. The court cannot impede the exercise of that discretion by the issuance of a mandatory order”.

11. 10-A. Apparently, therefore, the direction given and the order passed by the City Civil Court and impugned in the present appeal making the notice of motion absolute in terms of prayers (b) and (d) impedes the exercise of discretion of the Commissioner or the authority delegated such power. The mandate issued to Defendant No. 1 in issuing notice in respect of the structures to Defendants Nos. 2 to 31 is clearly impediment in the exercise of the discretionary power of the Commissioner or for that matter the authority delegated such power. Such mandatory order and that too pending trial of the suit where it is yet to be tried whether the alleged construction is unauthorised or not cannot be said to be justified.

12. Moreover, mandatory injunction or the order or direction in the mandatory form at the interim relief stage is an exceptional order and such temporary injunction by way of mandatory form is not expected to be granted in routine manner. It is only in rare cases that the Court sparingly exercises its jurisdiction in passing the injunction in the mandatory form and unless there are compelling circumstances, the courts do not ordinarily pass the order of mandatory injunction at an interlocutory stage. In the present case when there is serious dispute as to whether the disputed structure is authorised or not and after trial alone conclusion could be reached on that aspect, it cannot be said that present case was deserving in which temporary injunction in the mandatory form could be passed.

13. As regards prayer-clause (c), I find that the relief prayed for is too general so far as user of the land for holding namaj, religious purposes, etc. are concerned and such temporary injunction too cannot be sustained. Suffice it to observe that interest of justice would be served if the Respondents Nos. 2 to 31 are restrained from making any further construction on the disputed land. Since the dispute relates to the two groups of the particular community and also relates to dargah property, trial Court is expected to hear and decide the suit expeditiously. Needless to say that any observation made in this order shall not impede the Commissioner or the authority delegated by him in discharge of the statutory functions under the B.M.C Act, 1888 relating to the property in question.

14. In the result, the appeals partly succeed and except restraining the Defendants Nos. 2 to 31, their servants and agents from constructing any further structure on the disputed property; the impugned order passed by the trial Court on 30-11-1994/1-12-1994 is quashed and set aside.

15. No costs.

Appeals partly allowed.