1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 403 OF 2009 Shri Liyakat M. Momin ....Appellant Versus The Municipal Corporation of Gr. Bombay ....Respondents. Mr. R. A. Thorat i/b. Mr. B.P.Shukla, Advocate for the Appellant. Ms. K.K.Soraan, Advocate for the B.M.C.. CORAM : R. V. MORE, J. DATED : 6TH APRIL, 2009. P.C. Heard learned Counsel for the respective parties. The Appeal arises out of an Order dated 12th March, 2009 dismissing the Appellant's' Notice of Motion No. 68 of 2007 in Suit No.46 of 2007. 2. The dispute is about the premises admeasuring about 16' x 10' x 7' constructed with B.M.Wall and A.C. Sheet roof situated on first floor terrace attached to Flat No.103, Plot No.6, R.S.C.I, Ganesh Nagar, MHADA Layout, Kandivli (West), Mumbai – 400 067 (hereinafter referred to as the “said structure”). The respondent issued notice dated 7th May, 2007 under section 351 of the B.M.C. Act alleging that the Appellant had unauthorizedly constructed the said structure and asking to 2 show cause why the same should not be demolished. The Appellant gave reply on 9th May, 2007 and denied the correctness of the said allegation and claimed that the suit structure is authorized and the same has been in existence since the inception of the said building. The learned Assistant Commissioner, R/South Ward, Mumbai Municipal Corporation, after considering the aforesaid reply, by his order dated 18th September, 2007 directed the Appellant to demolish the said structure within the period of fifteen days from the date of the receipt of the order. The Appellant thereafter, filed the above L.C.Suit No. 46 of 2007 challenging the notice under section 351 of B.M.C. Act. The Appellant also filed the Notice of Motion No. 68 of 2007 for injunction restraining the respondents from taking any action in pursuance of the said notice. The learned 3rd Ad-hoc Additional Session Judge, Borivali Division, Dindoshi, Bombay by the order impugned in the Appeal from Order, dismissed the said Notice of Motion and hence the present Appeal from Order. 3. The learned Trial Judge recorded finding of fact that there is nothing on record to show that the construction of the said structure on terrace was authorized by B.M.C. It is further held that the Appellant also could not produce any sanctioned plan showing authorization of the said structure. Mr. Thorat, however, submitted that the construction of the said structure is open from three sides and it is the policy of the B.M.C. to regularize the same. He further submitted that the Appellant may be given liberty to apply for regularization of the said structure and if such liberty is given, the suit itself will not survive and he will withdraw the same. Mr. K.K.Sorran, learned Counsel for the B.M.C. has no objection if liberty is given to the appellant to apply for regularization of the said structure in accordance with the relevant policy of the B.M.C. 3 4. In the above facts and circumstances, I dispose of the Appeal by passing the following order : 1. The Appellant is at liberty to apply to B.M.C. for regularization of the said structure which is the subject matter of Notice of Motion No.68 of 2007 within the period of four weeks from today. 2. If the representation as stated above is made within the period of four weeks, the Respondent i.e B.M.C. shall dispose of the same independently on its own merit and without being influenced by the impugned order within the period of four weeks, thereafter. 3. The parties to the Appeal shall maintain status-quo in respect of the said structure which is the subject matter of Notice of Motion No.68 of 2007 for the period of ten weeks from today. 4. The statement of Mr. Thorat that he will withdraw the L.C.Suit No.46 of 2007, is accepted. (R. V. MORE, J.)