1 ao1096.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 1096 of 2011 WITH Civil Application No. 1462 of 2011 IN AO 1096/2011 Tanvir Shah & anr. ....Appellants v/s. The Municipal Corporation of Gr. Mumbai ....Respondents Ms. Shikha Goenka i/b. M.M. Legal Associates for the appellants. Ms. K.K. Soran for BMC. CORAM: R.M. BORDE, J. 04th October, 2011 PC: Heard respective Counsels appearing for the parties. 2. Admit. 3. Taken up for final disposal at admission stage with the consent of Counsel appearing for the parties. 4. The appellant is raising exception to the order passed by the Judge, City Civil Court on 28th September, 2011 in a Notice of Motion in L.C.Suit No. 1915/2011. The appellant has instituted a suit in the City Civil Court claiming following reliefs:- (a) That it be declared that the Notice under Section 53 (6)(b) of the MRTP Act, bearing No. HW/JEIII/MRTP/53(6)(b)/2296/2011 dated 14th September, 2011 and the Notice under Section 488 of the 2 ao1096.11.sxw Mumbai Municipal Corporation Act, bearing No. HW/BF/JEIII/488/94/2011 dated 26th September, 2011 stand discharged and no more in force and cannot be acted upon or further steps taken in pursuance thereof; (b) That it be further declared that the said Impugned Notice bearing No. HW/BF/JEIII/488/94/2011 dated 26th September, 2011, are illegal, bad in law and liable to be withdrawn and revoked; (c) That this Hon’ble Court be pleased to pass a permanent order and Injunction restraining the Defendant Corporation by itself, its servants, agents and officers from in any manner acting pursuant to the Impugned Notice bearing No. HW/JEIII/MRTP/53(6) (b)/2296/2011 dated 14th September 2011 and bearing No. HW/BF/JEIII/488/94/2011 dated 26th September, 2011; (d) That ad-interim and interim reliefs in terms of prayer clause (c) above be granted; (e) That cost of t his Suit be provided for and (f) That such other and further reliefs as the nature and circumstances of the case may require, be granted. 5. It is the contention of the plaintiff that the Mumbai Municipal Corporation issued a notice as contemplated by Section 53(6)(b) of the MRTP Act which was addressed to the builder and developer on 14th September, 2011. It was directed to builder or developer to demolish the development made which is beyond the sanctioned plan and directed to restore the work as per the plan. 6. The reply was filed by the plaintiff who is a owner and occupier of the flat, which has been purchased by the plaintiff from the builder and developer. It is contended in the reply that the notice is not addressed to the owner and occupier. It was also contended that there is no additional work carried out by the owner or occupier and flat situated in the building and it is in the same condition and having same status which was at the time of purchase by the 3 ao1096.11.sxw plaintiff-appellant herein. It was also pointed out that there are no details given as to what is the excess work allegedly carried out by the occupier or owner. However, overlooking the reply tendered by the plaintiff a notice under Section 488 of the Mumbai Municipal Corporation Act was issued. The said notice was also addressed to the builder and developer, however, the copy of the notice was circulated in the building. As such the plaintiff became aware of the issuance of notice by the Mumbai Municipal Corporation. By the said notice issued by the Corporation on 26th September,2011 it was directed to the concerned to demolish the unauthorized work beyond plan within 48 hours. The plaintiff as such was constrained to approach the City Civil Court by filing a suit claiming protection from the proposed action of the Corporation. Learned Judge of the City Civil Court while considering the Notice of Motion presented in the suit was pleased to reject ad-interim relief. As such the appellant-original plaintiff has approached this Court. 7. It is pointed out that in similar set of facts and on consideration of Notice of Motion presented by Occupier/owner of the flat in the same building, the learned Judge of the City Civil Court entertained the request for grant of protection and while allowing the Notice of Motion remitted the matter back to the Corporation for considering afresh. The facts giving rise to the present dispute and in the decided matter in L.C. Suit No. 1916/2011 are identical. As such the same view which has been adopted by the Judge of the City Civil Court needs to be adopted in the instant matter. In fact the trial Court ought to have passed a similar order which also would be in consonance with the principle of parity. In the facts and circumstances of this case, therefore, I deem it appropriate to allow the Notice of Motion presented to the City Civil Court and pass the similar order as in the case of Ranjit Singh Dhody in Suit No. 1916/2011. 4 ao1096.11.sxw The matter is remanded back to the respondent for fresh consideration and decision on the impugned notices. Plaintiffs shall appear before the Commissioner or its delegate on 10/10/2011 alongwith reply and documents of authorisation, if any, in their possession, without fail. The Commissioners or its delegate shall give hearing to the Plaintiffs and to consider the reply and documents, if any, submitted by the Plaintiffs in support of their case and to pass appropriate order in accordance with law in respect of the notice structure. The concerned officer will communicate the order passed to the Plaintiffs within a period of one week from the date of passing of such order and if the order passed is adverse to the Plaintiffs, the notice structure shall not be demolished for the period of one week from the date of communication of the said order and if the Plaintiffs fail to file reply and produce the documents in support of their case, it will be open to the Respondent Corporation to proceed with the demolition of the disputed structure. In view of the above, Notice of Motion and suit stand disposed of. Notice of Motion be registered for statistical purpose. Plaintiffs are directed to communicate the above order to the concerned Ward Office. 8. Appeal from Order is accordingly allowed. In the facts and circumstances there shall be no order as to costs. In view of disposal of Appeal from Order, Civil Application does not survive and stands disposed of. (R.M.BORDE, J)