SM 1 909.caast.24362.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER (ST.) NO. 24361 OF 2011 WITH CIVIL APPLICATION (ST.) NO. 24362 OF 2011 IN APPEAL FROM ORDER (ST.) NO. 24361 OF 2011 Mr. Manilal Bhimasi Shah and others ....Applicants. Versus The Municipal Corporation of Greater Mumbai ....Respondent ____________ Mr. R. Reis with Y. M. Chaudhari i/b Omkar Kulkarni for the Applicants. Ms. K. K. Soraan for the Respondent-MCGM. CORAM: R. M. BORDE, J. DATED : SEPTEMBER 13, 2011. P.C.: The applicants are the owners of four shops situate at Vile Parle (East). It is stated that two shops are at the ground floor and two shops are at the first floor. Some portion of the property was being used for residential purpose. However, for a conversion of use of the residential premises as commercial, necessary application was made. It is the case of applicants that the respondents accepted the proposal and granted permission to the appellant in respect of change user of premises. Two shops were divided into four shops by putting internal partition wall, since all four brothers wanted to set up separate business. It is SM 2 909.caast.24362.11 stated that acting upon the complaint lodged by one of the occupants of the building, the Municipal Corporation issued a notice as contemplated under Section 53 of the Maharashtra Regional and Town Planning Act, calling upon the appellants to demolish unauthorised construction in front of the shops and undo unauthorised alterations on the ground floor and the first floor level of the building. The appellants were also charged with unauthorised conversion of the user of the premises from residential to commercial use, which gave cause of action for issuance of notice under Section 53 (1) of the Act. 2. It is the contention of the appellant that the change of user has already been permitted by the Corporation. The learned Senior Counsel appearing for Petitioner has invited my attention to Section 53(3) of MRTP Act, which reads thus: “(3) Any person aggrieved by such notice may, within the period specified in the notice and in the manner pres prescribed, apply for permission under section 44 for retention on the land of any building or works or for the continuance of any use of the land, to which the notice relates, and pending the final determination or withdrawal of the application, the mere notice itself shall not affect the retention of building or works or the continuance of such use.” It is contended that Section 53 (3) provides for an SM 3 909.caast.24362.11 remedy to apply for regularisation and Petitioner had in fact availed of the remedy. 3. The Counsel appearing for the respondent Municipal Corporation has contended that an application seeking regularisation submitted by the appellant has already been dealt with and the same has been rejected by the Executive Engineer who has been empowered to consider such application. My attention has been invited to the communication at the page 11 of the Civil Application. According to the Counsel appearing for the respondent, communication at the page 11 dated 9th September, 2011 is the oder contemplated by Section 53(3) of the Act and there is no other separate order passed in that regard. The statement is made in pursuance of the instructions given by Sub- Engineer Mr. Satish Powar, K-East Ward, who is present in the Court. 4. The Counsel appearing for the appellant seeks leave to present an appeal as contemplated by Section 47 of the MRTP Act and further requests for grant of protection for some period with a view to enable appellant to present appeal as contemplated by Section 47 of the Act which provides for an remedy of appeal SM 4 909.caast.24362.11 against an order passed under Section 53 (3) of the Act to the State Government. The, learned Senior Counsel appearing for the appellant, as such, requests for protection for a limited period with a view to enable the appellant to file an appeal and to seek appropriate orders from appellate forum. 5. In this view of the matter, in my opinion, ends of justice would be met if the appellant is granted liberty to approach the Appellate Authority as contemplated by Section 47 of the MRTP Act and seek appropriate orders from the Appellate Authority. No action in respect of demolition of structure shall be taken in pursuance of issuance of notice under Section 53 (3) (I) of MRTP Act for a period of four weeks from today. It would be open for the appellant to tender an appropriate application before the Appellate Authority and request for further protection during the pendency of the appeal. With the directions as referred above, Appeal from Order stands disposed of. 6. Pending Civil Applications, if any, shall stand disposed of. (R. M. BORDE, J.)