-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L)NO. 1862 OF 2008 Arcadia Premises Co-op. Soc. Ltd. ... Petitioners versus Municipal Corporation for Gr. Mumbai and another ...Respondents Mr. M.P.S. Rao, with Mr. Girish Kulkarni, Mr. D.G. Dhanure and Ms. Kavita Anchan, instructed by M/s. M.V. Kini and Company, for the petitioners. Mr. K.K. Singhvi, Senior Advocate, with Ms. S.M. Modale & Ms. Archana Joshi, for respondent No.1. Mr. Makarand Narwekar for respondent Nos. 3 and 4. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: AUGUST 29, 2008. P.C. Learned counsel for the petitioners state that copy of the petition will be served to the learned counsel appearing for the newly added respondent Nos. 3 and 4. 2. It is the grievance of the petitioner-society that the premises in question has been given on leave and license by respondent Nos. 3 and 4 to the Consulate General of the Federal Republic of Germany, respondent No.2 herein, wherein even open land which belongs to the society is also -2- allowed to be used by way of license to the said respondent No.2. It is also the case of the petitioners that respondent No.2 has carried out certain structural alterations contrary to the Rules and Bye-laws of the Corporation. It is also the grievance of the petitioners that the compound wall has been raised contrary to the statutory provisions in the bye-laws and it may damage the structure of the premises. It is submitted that because of such structural changes, there is an apprehension that there may be a mishap for which the society may be held responsible. 3. Against the aforesaid argument, Mr. Singhvi, learned senior counsel appearing for the Corporation, submits that the apprehension is not justified. It is submitted that regarding open space, a dispute is going on between the petitioner and the original occupant before the Co-operative Court. It is further submitted that on physical examination of the premises, the Corporation is satisfied that there is no damage of any nature as apprehended by the petitioners and that the structural alteration is not such which is likely to damage the premises/building in question. 4. Mr. Singhvi has further submitted that the Officer of the Corporation after visiting the premises has prepared a report through its Architect. It is submitted that even the Architect has also given certificate in this behalf. Mr. Singhvi further submitted that even fire brigade authorities -3- also gave its no objection. Mr. Narwekar, learned counsel appearing for the newly added respondent Nos. 4 and 5, who are allottees of premises, submitted that whatever alterations are required to be done or has been done, the same has been done only by giving appropriate application to the Corporation and with the prior permission of the Corporation. He submitted that regarding open space, respondent Nos. 4 and 5 are asserting their right for which the proceedings are pending before the Co-operative Court. During the course of arguments, Mr. Singhvi submitted that so far as question of raising of wall is concerned, the Commissioner has power to give such permission as per rules and bye-laws of the Corporation. 5. We have heard the learned counsel appearing for the parties at length and have gone through the documents annexed with the petition. In our view, whether there is any structural alterations in the premises or whether by such alteration the premises is likely to be damaged is the question of fact and when the other side is disputing this fact, this Court cannot give any finding on this issue as highly disputed questions of fact arise in this petition. 6. The counsel appearing for the petitioners submits that the petitioners would like to make a representation to the Commissioner of the Corporation giving all data and factual aspects in connection with the -4- subject matter of this petition. We permit the petitioner to make a representation to the Commissioner of the Corporation. The Commissioner may decide such representation according to law and whatever may be the decision, the same should be be communicated to the petitioners. However, it is for the Commissioner to assign the subject matter to any other Officer of the Corporation. In case the work is assigned by the Commissioner to any other Officer of the Corporation, the ultimate decision may be taken by the Commissioner. The decision so arrived at may be communicated to the petitioners within four weeks from the date of receipt of representation of the petitioner. If the ultimate decision is against the petitioner, it will be open to the petitioners to challenge the same before the appropriate forum as deem fit. It is clarified that all contentions are kept open and this Court has not adjudicated any point on the merits of the matter. Interim order if any stands vacated. Petition is disposed of in the above terms. P. B. MAJMUDAR, J. A.A. SAYED, J.