: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.674 OF 2004 SECOND APPEAL NO.674 OF 2004 SECOND APPEAL NO.674 OF 2004 WITH WITH WITH CIVIL APPLICATION NO.770 OF 2004 CIVIL APPLICATION NO.770 OF 2004 CIVIL APPLICATION NO.770 OF 2004 Jatanbai Jethmal Khivansara & Anr. ...Appellants V/s. Pune Municipal Corporation & Anr. ...Respondents Mr.Niranjan Shimpi, Advocate, for the Appellants. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate appearing for the appellants. 2. Appellants are the original plaintiffs. the appellants filed a Civil Suit for challenging notices dated 7th July, 1997, 14th July, 1997 and 21st August, 1997 issued by the 1st respondent-Municipal Corporation. The allegations made in the said notices were as regards unauthorised construction of flat Nos.3, 4, 5 and 6 and staircase at the front and back side of the building. 3. According to the case of the appellants-plaintiffs, in the year 1983 they got the plans approved for construction of upper floors and : 2 : they completed the construction of front and back side staircase in the year 1985. According to the case of the appellants-plaintiffs, they submitted a revised plan to the 1st respondent for approval and paid scrutiny fees of Rs.3,080/- on 11th July, 1996. Their contention is that disapproval of the revised plan was never communicated by the 1st respondent within the time provided by the rules and hence a permission is deemed to have been granted. Though the Trial Court passed a decree holding that notices were illegal, a finding was recorded that the appellants could not produce evidence to show that they had submitted a revised proposal. Therefore, the Trial Court held that the appellants failed to prove that there was a deemed permission granted. The Appellate Court confirmed the said finding by holding that the evidence adduced by the appellants was very vague and there was no specific evidence to show that a revised proposal was submitted. 4. The learned Advocate for the appellants submitted that there were documents produced on record at Exhibit 30/1 and 30/2 to show that revised plan was submitted by the appellants. He submitted that this evidence was sufficient especially in the light of the fact that the respondents did not file written : 3 : statement for contesting the suit. Perusal of the copies of the said documents tendered by the learned Advocate shows that one document is a receipt acknowledging payment of scrutiny charges of Rs.3,080/- in July, 1996 and the other is a letter of the Architect under which he submitted a stability certificate. 5. Perusal of the evidence of one of the witnesses examined by the appellants shows that he has vaguely stated that in the year 1996 a revised plan was submitted. Date of submission of the revised plan is not mentioned in the evidence. A copy of the revised plan is not produced. Production of stability certificate will not prove the fact that a revised plan was submitted seeking permission to carry out the disputed construction. The receipt of the scrutiny charges does not indicate that the amount of scrutiny fees was paid relating to revised proposal for grant of approval to the offending construction. 6. Though the respondents did not file written statement, burden was on the appellants to prove the case of grant of deemed permission. The said burden is not discharged by the appellants. That is the concurrent finding of fact recorded by the Courts : 4 : below. 7. Hence no case for interference is made out. Second Appeal is accordingly dismissed. 8. In view of dismissal of the Second Appeal, Civil Application No.770 of 2004 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]