1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 194 OF 2009 Krishnasingh Diwansingh Malhotra & Anr. ..Appellants versus Municipal Corporation of Gr. Mumbai ..Respondent Mr.Madhav Jamdar for the appellants Mr.J. Xavier for the respondent BMC CORAM : R.Y.GANOO, J. DATE : 24th JUNE, 2009. P.C: 1. This first appeal can be disposed of at the stage of final hearing as the appellants herein have come out with the suggestion that they be permitted to file a proposal for regularisation. It was from this angle the matter was taken up. 2. The respondent Corporation issued notice under 2 Section 351 of the Corporation Act, and the procedure as required under the Corporation Act was completed and the decision was against the appellants. The appellants therefore instituted Long Cause Suit No.1396 of 2003 in the City Civil Court at Mumbai challenging the notice under Section 351 of the Corporation Act as also the decision arrived at by the Corporation contained in letter dated 28.2.2003. The learned Judge of the City Civil Court conducted the trial and by judgment and decree dated 20.10.2008 dismissed the suit. The appellants have challenged this judgment and decree dated 20.10.2008. 3. On the last occasion, the learned Advocate Mr. Jamdar had taken time to find out whether the appellants are interested in moving the Corporation for regularization. It appears that they were not properly advised and on account of anxiety on their part they tendered an application to the Asst. Commissioner for regularization being the application dated 19.6.2009. It is seen that 3 the said application is not properly drafted and is not filed by an Architect as is required as per the rules. When this was pointed out to learned Advocate Mr. Jamdar by the Court, learned Advocate Mr. Jamdar today sought time to file fresh regular proposal for regularization through an Architect. Learned Advocate Mr. Xavier submitted that if the regular proposal is submitted the same will be considered on merits and if the same is not filed within time than the Corporation shall be at liberty to act upon the impugned notice and demolish the structure. The submissions made by learned Advocate Mr. Jamdar and Mr. Zavier respectively are proper, keeping in view their respective cases. In view of the aforesaid, I am inclined to grant the time to the appellants to file the proper and regular proposal to the BMC so that it can be disposed of by the Corporation. In view of the aforesaid discussion, the first appeal is disposed of by passing the following order: ORDER 4 1. The application filed by the appellants dated 19.6.2009, shall not be acted upon by the Corporation. 2. The appellants shall be at liberty to furnish a regular proposal for regularization through a licensed Architect. The said proposal should be filed on or before 5.8.2009. The said proposal should be filed in the Office of the Executive Engineer, Building Proposal,(City), having hiss office at Byculla, Bombay. 3. If at all such proposal is received by the Corporation on or before the date stipulated, the Corporation shall process the said proposal and arrive at the decision . The Corporation shall communicate the said decision to the appellant No.1 and to the Architect of the appellants. 4. The Corporation shall not demolish the suit 5 structure till the application for regularisation is decided. 5. If the decision of the Corporation is against the appellant, the suit structure shall not be demolished for a period of three weeks from the date of service of the decision upon the appellant No.1 or the Architect which ever is earlier. If the appellants do not file the regular proposal on or before the stipulated date as above, it will be taken that the appellants are not interested in submitting the proposal in which case the impugned judgment delivered in the Suit No.1396 of 2003 shall stand confirmed without any further Orders from this Court and in that case the Corporation will be free to demolish the suit structure on or after 6.8.2009. 6. This Court has not expressed any views on the merits as regards authenticity of the suit structure. 6 7. In view of the dismissal of the first appeal, Civil Application Nos.138 of 2009 and 1589 of 1990 are disposed of with no order as to costs. (R.Y.Ganoo, J.)