IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.938 OF 2006 APPEAL NO.938 OF 2006 APPEAL NO.938 OF 2006 Shri Kishore Malshi Chheda & Anr. ...Appellants Versus Kalyan Dombivali Municipal Corporation ...Respondent Shri R.G.Ketkar for the Appellants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : JULY 05, 2007. : JULY 05, 2007. : JULY 05, 2007. P.C.: P.C.: P.C.: 1. Heard Shri Ketkar appearing for the Appellants. The Appellants are the original Plaintiffs. A suit for declaration and injunction was filed by the Appellants for challenging notices dated 12th November, 1990 and 23rd November, 1990 issued by the Respondent-Corporation. The notices are for demolition of 19 blocks and 4 shop premises in ‘C’ Wing out of the construction made by the Appellants. The trial Court decreed the suit by holding that the notices were illegal. The Appellate Court has set aside the said decree and has dismissed the suit. 2. The learned Advocate for the Appellants pointed out that the Respondent-Corporation could not have issued notices under section 478 of the Bombay Provincial Municipal Corporations Act, 1949. He submitted that infact notices ought to have been issued ... 2 ... under section 260 of the said Act of 1949 and the Respondent-Corporation ought to have granted an opportunity of being heard to the Appellants as held by this Court in the case of Sopan Maruti Thopte & Anr. Vs. Pune Municipal Corporation & Anr. He submitted that Appellate Court has completely overlooked the effect of the Judgment and Decree dated 27th January, 1993 passed by the trial Court in earlier suit filed by the predecessor of the first Appellant in respect of construction on the same property. He submitted that finding recorded by the Appellate Court on the issue of res judicata is perverse. 3. I have considered the submissions. The averments made in the plaint show that the original owners of the property namely Kaprekar Brothers had obtained a building permission from the erstwhile Municipal Council on 15th February, 1972. It is stated in the plaint that in the year 1982, the said Kaprekar Brothers executed an Agreement authorising one Shri Deodhar to construct 15 flats. According to the case made out in the plaint, said Shri Deodhar constructed 15 blocks and made construction of plinth and RCC columns of the ground floor. It is stated that on 20th February, 1986 the property was sold to the first Appellant and thereafter the first Appellant carried out and completed the construction. As stated earlier the ... 3 ... said notices dated 12th November, 1990 and 23rd November, 1990 relate to specific flats/shops mentioned in the notices. The decree passed in earlier suit is of the year 1993 where the challenge was to the notices issued in the year 1985. The Appellants have admitted that the first Appellant carried out further construction from 1986 onwards. It is not in dispute that the permission which was earlier granted by the Municipal Council was valid only till the year 1981 and thereafter the permission was not extended or renewed. 4. Thus, the construction carried out after 1986 was completely unauthorised as there was no valid permission permitting the Appellants to carry out construction. 5. Therefore, no fault can be found with the view taken by the Appellate Court. No substantial question of law arises. The Second Appeal is accordingly dismissed. 6. At this stage the learned Advocate for the Appellants submits that the decision of the Appellate Court and this Court should not preclude the Appellants from applying for regularisation of the offending structure. If the Appellants have a right to apply for regularisation of the offending structure, they can ... 4 ... always do so in accordance with law. JUDGE JUDGE JUDGE