1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.617 OF 2009 IN NOTICE OF MOTION (EXHIBIT-6) IN L.C.SUIT NO.150 OF 2008 Vile-parle Lok Seva Mandal ..Appellants V/s. The Municipal Corporation of Greater Mumbai & Anr. ..Respondents. ---- Mr. R.Laxman i/by M.V. Kini & Co. for the appellants. Mrs. K.K.Soraan for the respondent/BMC. ---- Coram : R.S.MOHITE,J Date : 6th August, 2009. PC 1 This appeal impugns an order dated 21.1.2009 below Exhibit-6 in L.C.Suit No.150 of 2009. The plaintiffs are the public charitable trust. According to them, since about 1977 i.e for the last 30 years they are carrying on their activities from an office which is situated in a compound of Shridhar Sahanivas Co-operative Housing Society Ltd., Hanuman Road, Vile Parle (East), Mumbai-400 057. The appellants/plaintiffs were issued a notice under Section 351 on the ground that they have erected an unauthorised construction of office structure of an area specified in the said notice. A diagram was annexed to the said notice. It appears that since documents were not submitted within 15 days, an order dated 2 7.1.2009 came to be passed directing the plaintiffs to remove the unauthorised structure on the ground that documentary evidence was not produced. Before me, the plaintiffs now produce the approved plan which appears to show the allegedly unauthorised structure as a construction approved for the purpose of garage. Learned Counsel for the Corporation states that even if this be so, still there is a change of user and the user of the said garage had been changed. My attention is drawn to section 342-A which requires notice to be given with the intention of changing existing user. This amendment has been brought about in the year 1998. The plaintiffs’ case was that he has purchased the premises in the year 1977. In my view, it will also be proper if an opportunity be given to the plaintiffs to submit the documents on which they rely. Counsel for the Corporation states that the order dated 7.1.2009 can be withdrawn if liberty is granted to pass a fresh order after considering the documents produced by the plaintiffs and in accordance with law. The Advocate for the plaintiffs states that if such an opportunity is given, they will not press this appeal and will also withdraw the suit with liberty to file a fresh suit in case any adverse order is passed. In the circumstances, statements made by both the Advocates are accepted and following order is passed :- O R D E R 1 The order of the BMC impugned in the suit dated 7.1.2009 is set aside as withdrawn. Both the parties agree that additional documents on which the plaintiffs seek to rely will be submitted afresh along with additional reply, to the Assistant Commissioner, K/East Ward, Azad Road, Gundavali, Andheri (East), Mumbai-400 069, within two weeks from today. On receipt of the documents, the Corporation will be at liberty to pass a fresh order in accordance with law. If the said order is adverse then the appellants will have liberty to 3 challenge the same or to initiate any proceedings permitted by law if they so desire. City Civil Court to pass a formal order regarding dismissal of the suit. On the request made by the Counsel for the Corporation, it is recorded that Shri Kale, Sub Engineer has instructed her and he is present in Court today. 2 In view of withdrawal of Appeal, Civil Application No.775/2009 does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 4