Chandka 1 APP-716-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 716 OF 2010 IN WRIT PETITION NO. 1086 OF 2010 WITH NOTICE OF MOTION NO. 1989 OF 2010 Mrs. Manali Atul Ashar ..Appellant versus The Municipal Corporation of Brihanmumbai & Ors. ..Respondents Mr. Navin Parekh with Ms. Hetal Patel for Appellant. Mr. Suresh S. Pakale with Ms. Trupti Puranik for Respondent No. 1. Mr. V. R. Dhond with Mr. Ashwin Shete, Mr. Vishwabhushan Kamble i/b. Khaitan & Jaykar for Respondent No. 2. Mr. R. A. Shaikh for Administrator. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 07 February 2011. P.C. : This Appeal arises out of an order dated 22 June 2010 of a learned Single Judge. The dispute in question relates to a hoarding constructed by the Appellant on the terrace of a residential building immediately above the flat which is in the occupation of the Second Respondent. The Third Respondent is a Cooperative Society which is now represented by an Administrator who has been appointed in respect of the affairs of the society. The Administrator Shri Anand Mohole has appeared in these Chandka 2 APP-716-10 proceedings through a learned Advocate. 2. The complaint of the Second Respondent was that as a result of the hoarding which has been installed by the Appellant, a leak had developed in the terrace above the flat in the occupation of the Second Respondent resulting in damage to the ceiling and the internal walls. The Municipal Commissioner by his order dated 20 April 2010 directed the Appellant to obtain an NOC from the flat occupier within one month failing which it was stated that the hoarding would be removed. The learned Single Judge while hearing a challenge by the Appellant to the order of the Municipal Commissioner found the complaint of the Second Respondent prima facie to be genuine from the photographs produced before the Court. Before the learned Single Judge a statement was made on behalf of the Appellant that the Appellant would carry out complete repairs to the terrace of the flat of the Second Respondent. Accordingly, the Appellant was directed to commence and complete the work of repairs to the terrace within four weeks and was directed to obtain the consent / NOC of the Second Respondent and thereupon to comply with an order dated 8 December 2009 passed by the Deputy Municipal Commissioner (Special). The Deputy Municipal Commissioner had imposed the following conditions in the order:- Chandka 3 APP-716-10 “ 1) The hoarding shall be erected on pillar / column of the building within four months from the receipt of this order, in such a way that the load of the hoarding should not come on the topmost floor of the terrace. 2) The advertiser shall modify the hoarding bearing Permit No. 78995, SAP No. 761102624 as per the Annexure I of the New Policy guideline 2007. 3) The Advertiser shall remove the projection of 2 feet and erect the hoarding on the pillars / columns of the building to avoid the extra load of the hoarding on the terrace floor. 4) The advertiser shall take every steps to enhance the aesthetic view of the display of advertisement along with structure. 5) The Advertiser shall submit the Structural Stability Certificate from the practicing structural engineer registered with MCGM, keeping in view the public safety. 6) If the Advertiser fails to comply with the directions as mentioned in the order, then the permit shall be revoked under section 328/328A of M.M.C. Act without any further notice.” Upon complying with the order the Appellant was directed to apply for renewal of the licence to the Municipal Corporation and not to use the hoarding after the expiry of a period of four weeks without the NOC / consent of the Second Respondent. 3. The contention of the Appellant is that though the Appellant has carried out all the repairs to the terrace, the Second Respondent has not Chandka 4 APP-716-10 issued an NOC as a result of which the hoarding cannot be used. It has been submitted that the Second Respondent is unreasonably withholding consent. On the other hand it has been submitted on behalf of the Second Respondent that the work of water proofing has not been properly carried out and that as a result, extensive damage has been sustained in the flat which is occupied by the Second Respondent. 4. During the course of the hearing, learned counsel appearing on behalf of the Appellant and the learned counsel appearing on behalf of the Second Respondent have both agreed on instructions that an independent Structural Consultant may be appointed with a view to determine as to whether the work of water proofing has been carried out in a proper and correct manner, and in the event it is found that any further work is to be done, that would be carried out by the Appellant at her expense under supervision of the Consultant. Accordingly, the Court is informed that the following order may be passed with the consent of the Appellant and the Second Respondent without further reasons in order to resolve the dispute between the parties:- I. M/s. Shrikhande Consultants Pvt. Ltd. are appointed in order to verify whether : (i) The Appellant has properly carried out the work of water proofing of the terrace; Chandka 5 APP-716-10 (ii) The hoarding satisfies the requirement of structural stability and in that event to issue a Certificate as envisaged in the order of the Deputy Municipal Commissioner dated 8 December 2009; and (iii) Whether the requirements of conditions i and iii of the order of the Deputy Municipal Commissioner have been complied with; II. The Appellant agrees to abide by the report of the Structural Consultant and to make such modifications and to carry out such repairs, if any, that may be determined to be necessary by the Structural Consultant, under the supervision of the Structural Consultant and at the costs and expenses of the Appellant. The fees and expenses including incidental charges of the Structural Consultant will be borne by the Appellant. III. In the event that any repairs are required to be carried out, the Appellant shall do so at his expenses subject to the due supervision of the Consultant appointed by the Court under clause (I) hereinabove. IV. Upon due verification by the Structural Consultant that the requisite work has been carried out in accordance with the directions contained in the order of the Deputy Municipal Commissioner and in compliance with these directions, the Consultant shall issue a Chandka 6 APP-716-10 Certificate in that regard upon which the Second Respondent agrees and undertakes to furnish an NOC to the Appellant. V. The NOC to be furnished by the Second Respondent to the Appellant shall be in terms of Clause 3 of the guidelines issued by the Municipal Corporation (Exhibit ‘B’ to the Appeal). VI. Upon receipt of the NOC from the Second Respondent, the Appellant shall produce a copy of the same before the Municipal Corporation to enable the Corporation to consider and if permissible in law, to issue further renewal of licence. VII. The Appellant agrees and undertakes to pay within a period of one week from today to the Second Respondent an amount of Rs. 50,000/-. In addition to this the Third Respondent agrees to pay a further amount of Rs.50,000/- subject to the approval of the Administrator. 5. The Appeal is disposed of accordingly. No other point is pressed. 6. In view of the disposal of the Appeal, the Notice of Motion does not survive and is accordingly disposed of. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.)