1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION (L.) NO.2510 OF 2008 PETITION (L.) NO.2510 OF 2008 PETITION (L.) NO.2510 OF 2008 Suresh Tulsidas Gajja ...Petitioner V/s. The Municipal Corporation of . Greater Bombay ...Respondent Mr.C.K. Tripathi for the Petitioner. Mr.N.A. Shaikh for the Respondent. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 22nd October, 2008 : 22nd October, 2008 : 22nd October, 2008. P.C. . Heard Counsel for the parties. 2. Rule returnable forthwith by consent. Mr.Shaikh waives notice for respondent. As short question is involved, Petition is taken up for final hearing forthwith by consent. 3. By this Petition, the decision passed by the Assistant Commissioner, R-South, dated 4th October, 2008 holding the suit structure as unauthorised and ordering removal thereof has been questioned. The petitioner fairly accepts that the relevant documents which were produced before the authority have been referred to in the impugned decision. However, according to the 2 petitioner, the crucial document which ought to have been considered by the authority has been glossed over and that will clearly establish the fact of existence of structure as back as in 1959-60. To establish the existence of the structure on the disputed plot as back as from 1959-60, reliance is placed on "Exhibit B-3" which is a communication issued under signature of the Assistant Assessor and Collector, ’R’ Ward dated 22nd August, 1975 addressed to the father of the petitioner. This communication clearly records the fact that assessment of the structure is noted in the inspection book for the year 1959-60 in respect of the property "R-623 on Street No.132, G. Veer Hemukalani, Y Lane, 3rd stable, Dr.Thakurdas Babar." 4. According to the petitioner, this document though relied by the petitioner has not been adverted to in the impugned decision. The fact that this document has been relied by the petitioner before the authority is in dispute. According to the Counsel for the respondent, this document was not produced before the authority alongwith the reply given to the show cause notice. It is not necessary for me to enter into this controversy for the nature of order that I propose to pass. In my view, it would be appropriate that the Assistant Commissioner considers the efficacy of the document at 3 "Exhibit B-3" dated 22nd August, 1975. If the existence of the said document is not in dispute and the petitioner is able to substantiate the contents thereof, the authority would be required to examine the efficacy of the said document and decide the controversy on that basis. 5. In my opinion, if the authority were to accept the stand of the petitioner that this document would substantiate the factum of existence of disputed structure on the suit property from 1959-60, it would necessarily follow that the structure is a protected structure and will have to be regularized in accordance with law even if no prior permission before construction of the said structure has been obtained. 6. All these aspects will have to be considered by the authority in the first instance. For the time being I am inclined to set aside the impugned decision with liberty to the authority to continue with the action on the basis of self same show cause notice and decide the matter afresh upon considering the efficacy of document at "Exhibit B-3". It is not necessary for me to examine the argument canvassed by the learned Counsel for the respondent-Corporation that from the suit structure in the schedule to the show cause notice, it is more than 4 evident that the stand taken by the petitioner is unacceptable one. In that, the structure referred to in the show cause notice is only a plastic sheet structure / AC sheet and wooden poles as shown in the sketch. It was argued by the learned Counsel that it is inconceivable that such a structure would exist for a period of over 50 years as is sought to be contended by the petitioner. All these matters can be considered by the authority and pass appropriate order as may be advised. All questions in that behalf are kept open. The authority may decide the proceedings not later than two months from the date of receipt of writ of this order. 7. Petition disposed of on the above terms. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]