1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1034 OF 2009 Alamgir A. Shakh ... Appellant v/s The Municipal Corpn. Of Gr.Mumbai ... Respondent Mr.S.M.Sakhardande i/by P.H.Dharmadhikari for the appellant. Mr.J.J.Xavier for the Municipal Corporation. Mr.R.A.Thorat for the caveator. CORAM: SMT.NISHITA MHATRE, J. DATED: 27TH JULY, 2009 P.C.: 1. The appeal has been filed against the decision of the City Civil Court, Mumbai, in Long Cause Suit No.447 of 2005. The suit was filed by the plaintiff i.e. the appellant herein, for regularization of his suit structure. According to the plaintiff, the structure which is a commercial establishment, has been censused prior to 1995 and, therefore, must be 2 accepted as a tolerated structure. The plaintiff contends that in such a situation, the Assistant Municipal Commissioner, P/North Ward has incorrectly rejected the application for regularization. 2. The City Civil Court has, on the basis of the evidence on record, considered the fact that the structure which is a commercial structure was not in existence prior to the datum line i.e. 1962. The Court has then observed that this Court had permitted the structure to continue on the existing site while an application for regularization was being heard. However, the appellant had submitted the undertaking to this Court that, in the event it was found by the Assistant Municipal Commissioner that the structure could not be regularized, he would remove the structure within two weeks of the order being passed. This Court, therefore, clarified the order and observed that the earlier order would be subject to any interlocutory orders which may be passed by the City Civil Court in case there was a challenge to the order of the Assistant Municipal Commissioner. 3. In my opinion, the City Civil Court has not 3 committed any illegality in dismissing the suit. The evidence has been marshalled well and has been correctly appreciated. It has been proved that since the structure was not in existence prior to the datum line, it could not have been authorized nor could it be regularized. I see no reason therefore to admit the appeal. 4. Appeal dismissed. 5. On the request made by the learned counsel for the appellant/plaintiff, the appellant/plaintiff is granted four weeks’ time to remove the suit structure. 6. In default, the Corporation may remove the suit structure in accordance with law as the suit has been dismissed. 7. In view of dismissal of the appeal, Civil Application No.2947 of 2009 also stands dismissed. ..... 4