1 caf3434 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.3434 OF 2011 IN FIRST APPEAL NO.455 OF 2010 Municipal Corporation of Greater Mumbai ...Applicant vs. Champaben Tejabhai Shah & Anr. ...Respondents Mr.J.J.Xavier for the applicant Mr.Anil Singh for the respondent nos.1 and 2 Mr.Bharat Joshi for respondent no.4 CORAM : A.S.OKA,J. DATE : AUGUST 20, 2011 P.C.: 1 Heard learned counsel for the applicant- Municipal Corporation, learned counsel for respondent nos.1 and 2 and learned counsel for respondent no.4. 2 This application has been preferred in First Appeal No.455 of 2010. The operative part of the impugned decree reads thus : ORDER 1 Suit is decreed with costs. 2 It is hereby declared that basement of Khimji Palace Building, situated at 39 Hill 2 caf3434 Road, Bandra (West), Mumbai 400 050 into various shops by defendant nos.2 and 3 and using the same for commercial purpose is illegal. 3 Defendant nos.2 to 4 are hereby directed to restore the basement of Khimji Palace Building to its original position forthwith. 4 Defendant nos.2 and 3 are permanently restrained from using the basement of Khimji Palace Building for any commercial purpose without the sanction of defendant no.1/BMC. 5 Defendant no.1/BMC are directed to take action in respect of the basement according to law and pass necessary order against defendant nos.2 to 4. 6 Decree be drawn up accordingly. 3 On civil application No.1033 of 2010 for interim relief filed by the respondent nos.1 and 2 (appellants), on 23rd March 2010, this Court passed the following order : 1 Heard. 2 The decree is stayed qua defendant nos.2 and 3 i.e the appellants herein. The stay of this decree will not preclude the Mumbai Municipal Corporation from proceeding with the notice issued against 3 caf3434 the appellants u/s 53 (1) of the Maharashtra Regional Town Planning Act. The Corporation will also take into consideration the pending proposal for regularization which has been filed by the 4th Respondent society in which the suit premises are situated. These two proceedings, the proposal for regularization and the order on the notice under section 53(1) shall be decided within 12 weeks from today. 4 The contention raised in this application is that when order dated 23rd March 2010 was passed by this Court, a proposal for regularization dated 20th July 2006 submitted by the respondent no.4-society was pending. It is pointed out in the application that instead of deciding the said proposal, the applicant-Municipal Corporation scrutinized the subsequent proposal dated 4th May 2010 submitted by the Architect of the respondent no.4. The said fresh proposal has been rejected by order dated 23rd June 2010. 5 It is contended in this application that due to inadvertence, proposal dated 20th July 2006 was not considered by the applicant. It is pointed out that 4 caf3434 now the Architect who had filed subsequent proposal dated 4th May 2010 has filed a revised plan on 11th July 2011. The first prayer in this application is that the order dated 23rd March 2006 passed by this Court be modified by treating the decision of the Corporation on fresh proposal dated 4th May 2010 as a sufficient compliance. In the alternative, a prayer is made for a direction to grant 12 weeks time to decide the proposal dated 20th July 2006 and amended plan submitted on 11th July 2011. 6 After having heard the learned counsel for the applicant, I find that the application is completely misconceived. The application/proposal dated 20th July 2006 was for regularization as noted by this Court in order dated 23rd March 2010. There is hardly any convincing explanation in the application as to why said proposal was not decided. However, the excuse given is that the Architect who had submitted the proposal expired. If the Architect had expired, the applicant could have always called upon the respondent no.4 to appoint a new Architect. Nevertheless, a fresh proposal dated 4th May 2010 for regularization made by the respondent no.4 through another Architect has been considered and has been 5 caf3434 rejected by order dated 23rd June 2010. It is for the respondent no.4 to adopt appropriate remedy for challenging the said order. 7 After having rejected the subsequent proposal submitted by the respondent no.4 for regularization, now no purpose will be served by considering the earlier proposal for regularization. Hence, the consideration of the proposal dated 4th May 2010 will have to be treated as a substantial compliance with order dated 23rd march 2010. 8 In the present application, the applicant has relied upon the revised amended plan submitted by the respondent no.4 on 11th July 2011. After having rejected the application for regularization, there was no reason for the applicant to refer to the said amended plan. The second half of prayer clause (b) seeks an order from this Court directing the applicant to consider the revised amended plan. It is very difficult to understand why a prayer is made by the Municipal Corporation for seeking a direction against itself to consider the amended plan. Prima facie, it appears to me that by making such a prayer the Applicant-Corporation wants to help the party 6 caf3434 concerned. Otherwise there was no occasion to seek such a direction against itself. After having rejected the proposal for regularization dated 4th May 2010, the Application Corporation possibly cannot consider the subsequent modified proposal and therefore, the Applicant wants the Court to issue a direction. The said prayer is completely misconceived. Such a prayer could not have been sought by the applicant-Corporation in the present application. 9 The learned counsel for the respondent nos.2 and 3 submits that the order dated 23rd June 2010 passed by the applicant-Corporation does not amount to rejection of the subsequent proposal dated 4th May 2010. While deciding this application, it is not necessary to interpret the said order/communication issued by the applicant. In paragraph 12 of the application, the applicant has stated that the fresh proposal dated 4th May 2010 has been rejected. It is for the parties to adopt appropriate remedy to challenge the order dated 23rd June 2010. 10 Hence, I pass the following order : 7 caf3434 . Consideration and rejection of the proposal dated 4th May 2010 made by the applicant shall be treated as substantial compliance with order dated 23rd March 2010. To that extent prayer (a) is granted. However, prayer (b) is rejected. JUDGE