:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL FROM ORDER (ST)NO. 5496 OF 2008 IN B.C.C.C. NOTICE OF MOTION NO. 1178 OF 2006 IN B.C.C.C. L.C.SUIT NO. 366 OF 2005 Mrs.Suvarna Vijay Kamble ...Petitioner Versus The Municipal Corporation of Greater Mumbai ....Respondents ====== Mr.Mogre, i/by. Mr.Sujit Shelar Adv. for the petitioners. Mrs.Jogalekar, Adv. for the respondents/BMC. CORAM: S.C.DHARMADHIKARI, J. DATED: 3RD MARCH, 2008. P.C. P.C. P.C. : : : 1. This Appeal from Order is directed against the Order passed by the learned Judge, City Civil Court, Bombay on 4.2.2008 in Notice of Motion No. 1178 of :2: :2: :2: 2006 in L.C.Suit No. 366 of 2005. 2. The Notice under Section 351 of the BMC Act was issued on 16.7.2004 and an order has been made in pursuance thereof on 6.12.2004 for demolishing the suit premises. That is subject matter of challenge in the suit. 3. The Appellant is the original plaintiff. She has been proceeded against on the basis that she is the owner/occupier. She constructed unauthorised structure with B.M.Walls and A.C.sheet, more particularly, described in the Notice. In the reply to the said Notice, the Appellant has contended that she is the owner and Occupier of the Room and Shop admeasuring 12 x 60 which is constructed by B.M.Walls and A.C.Sheet Roof, prior to 1993. While it is true that she referred to the documents, whereunder she purchased and acquired the suit premises, but, in the same there is no reference to any structure. Reliance, however, is placed upon the 7/12 Extract and the order of the Additional Tahsildar, N.A. Kurla dated 24.12.2001 directing the Appellant-Plaitniff to pay the :3: :3: :3: Non-Agricultural assessment. The Appellant produced some other documents evidencing her possession. 4. Reliance is placed by the respondents upon its policy and more particularly pertaining to Commercial structure. The policy is that structures prior to 1962 used for commercial purpose and 1964 for Residential use deserve to be protected and non-else. 5. Apart from the fact that the Appellant is not disputing this position, additionally, it is contended by Mr.Mogre that being the owner of the land and the structure, the Appellant desires to approach the Respondents with a request for regularisation of the structure. He submits that if the entire FSI is not consumed and if there is a balance FSI or that any policy or Regulation pertaining thereto permitting the utilisation at site, then, by paying such charges/fees as are permissible in law the Appellant would request for regularisation of the same. He submits that he would like to avail of this opportunity and till such time, the structure should not be demolished. :4: :4: :4: 6. The Respondents have contended that the Notices have been issued as early as in 2004 and the Appellant has not complied with the same. 7. In my view, interest of justice would be subserved,if this Appeal From Order is disposed off by the following order and directions :- (i) The Notices ae upheld and challenge to them fails. The Appellant-Original plaintiff is granted 3 weeks time to apply for regularisation of the subject structure. (ii) The Corporation to decide the said Application, if made, during the above period and dispose off the same within a period of 6 weeks from the date the same is received. (iii) To enable the Appellant to apply for regularisation, it is directed the Structure will not be demolished for a period of 3 weeks and if the Application for regularisation is made, then, during the pendency of the same. :5: :5: :5: 8. Needless to state that the order passed today, does not in any manner direct the Respondent to regularise the structure but to consider the request in accordance with law and prevalent policy. 9. All contentions in that behalf are kept open and no opinion is expressed by this court either way. 10. In the light of the aforesaid, Mr.Mogre applies for leave to withdraw the suit in the Trial Court. Leave granted. Suit No. 366 of 2005 is dismissed as withdrawn with no costs subject to above directions. Even the Appeal from order is also disposed off. The Civil Application therein does not survive and stands disposed off accordingly. No costs. **********