IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.408 OF 2009. (SMT. KAMAL RAMBHAU AMADE...VS.. NAGPUR MUNICIPAL CORPORATION) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. J.M. Gandhi, Advocate for Appellant. Smt. Sangeeta Jachak, Advocate for Respondent. CORAM : SMT. VASANTI A. NAIK, J. DATED : SEPTEMBER 30, 2010. Heard the learned counsel for the parties. 2. The appellant is the original plaintiff. He had instituted a suit for declaration and prohibitory / mandatory injunction against the respondent/ defendant. According to the plaintiff, the notice issued by the respondent under Section 286(2) of the City of Nagpur Corporation Act asking the plaintiff to demolish the unauthorized construction made by the plaintiff on the suit property was illegal. According to the plaintiff, the construction was carried out by the plaintiff in accordance with the building plan which was sanctioned and hence, the notice was bad. 3. The defendant filed the written statement and denied the case of the plaintiff. It was pleaded that the suit of the plaintiff was not maintainable in view of the provisions of the City of Nagpur Corporation Act. The defendant pleaded that the notices were rightly issued in view of the unauthorized construction made by the plaintiff. The trial Court, on appreciation of the evidence on record, held that the notices issued by the defendant on 08.10.1997 and 01.08.1998 were illegal. The Court held that the plaintiff was entitled to the declaration and injunction sought by him. 4. The first appellate Court, on an appreciation of the evidence on record, came to the conclusion that the notices issued by the defendant on 08.10.1997 and 01.08.1998 were illegal and the plaintiff was not entitled for a declaration and injunction, as sought by him. The first appellate Court held that the construction carried out by the plaintiff was not in accordance with the sanctioned plan and the notices could not have been said to be illegal. The first appellate Court, therefore, dismissed the suit of the plaintiff by allowing the appeal filed by the respondent Corporation. 5. In this Court, the counsel for the appellant had filed an undertaking that if in course of a joint inspection it is found that some construction in excess of the sanctioned plan is made by the plaintiff, he is ready to demolish the same. This has been observed by the Court in the order dated 28th April, 2010. The Court, therefore, directed that one Shri Milan Kale an Architect should be appointed as Commissioner and he would measure the construction made by the appellant in the presence of the appellant and the officers of the respondent. This Court, by an order dated 28th April, 2010, called for the report of the Commissioner. The Commissioner filed the report in this Court on 06.09.2010. The Commissioner found that certain construction, as observed in the inspection report, was found to have been carried out illegally in the absence of any sanction to the same. It is apparent from the report that the inspection was carried out in the presence of the appellant/ plaintiff and the officers of the respondent corporation. Hence, the undertaking dated 21.04.2010 given by the appellant in this Court that the excess construction would be removed in case it is found that the plaintiff had constructed in excess of the sanctioned plan, would operate in this case and the appellant will have to demolish the construction which is found to be in excess of the sanctioned plan as per the report of the Commissioner dated 06.09.2010. 6. The Corporation would be free to remove the excess construction if the appellant fails to remove the same within a period of ten days. 7. Since no substantial question of law arise for consideration in this appeal, as the findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the evidence on record and since the appellant had given undertaking to remove the excess construction, the second appeal is dismissed with no order as to costs. JUDGE RR.