1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.1091 OF 2010 WITH CIVIL APPLICATION NO.1344 OF 2010 Raj Restaurant and Ors. ...Appellants. v. M.C.G.M. And Anr. ...Respondents. Mr. Anil C. Singh i/by D.R.Shah, advs., for the Appellant. Smt. K.K.Soran, adv. For the R.No.1/MCGM. Mr.N.D.Jaywant, adv., for the respondent no.2. CORAM : J.H.Bhatia, J. DATE : 20th September, 2010 P.C.: 1 The plaintiffs/appellants are running a restaurant in the Kailash Apartments, ‘D’ Wing Building and he also has stilt open parking space in D Wing. Notice was issued to the plaintiffs under Section 351 taking objection to a small structure admeasuring 14’ X 5’ ft abutting main building of the restaurant and also about use of the stilt parking for the purpose of kitchen. He filed suit no.1176 of 2008 challenging the notice and also he took out notice of motion no.1120 of 2008 seeking interim relief. Notice of motion has been rejected. Hence, the appeal. 2 The learned counsel for the plaintiffs/appellants pointed 2 out that in per paragraph 4 of letter dated 26.6.1987 , Fire Brigade had directed to make construction on the open space along the compound wall on East side of the premises for the purpose of keeping gas cylinders. Almost similar direction was given by the Medical Officer ‘D’ Ward by letter dated 7.9.1987. The learned counsel for the respondent no.2/Society contended that the direction was to make construction for the purpose of keeping gas cylinders abutting compound wall and not abutting main building, therefore, the Society has got objection to the structure made by the plaintiffs. The learned counsel for the plaintiffs on instructions, makes a statement that he would have no objection to shift the said structure abutting the compound wall. He also makes a statement that the plaintiffs/appellants will not use stilt parking for the purpose of kitchen. In view of the statement, the appeal and the application stand disposed off with the following directions: (a) Plaintiffs/appellants shall approach the Assistant Municipal Commissioner ‘D’ Ward with their explanation within two weeks from this day, under intimation to the society. The Assistant Municipal Commissioner shall after hearing the concerned parties pass appropriate order regarding disputed structure for keeping cylinders 3 and re-construction thereof abutting compound wall as per the above referred two letters from Fire Brigade and Health Officers. The Assistant Municipal Commissioner shall take decision within four weeks after the plaintiffs submit the explanation. Plaintiffs shall also withdraw suit pending before the trial Court. (b) The Municipal Corporation shall not take action on the basis of impugned notice till the decision is taken by the Assistant Municipal Commissioner. (c) In case the decision is against the plaintiffs, no action shall be taken for further period of two weeks from the date of communication of the order. (J.H.BHATIA, J.) 4