: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1013 OF 2008 WITH CIVIL APPLICATION NO.1235 OF 2008 IN NOTICE OF MOTION NO.1278 OF 2008 IN L.C.SUIT NO.1235 OF 2008 Vishwanath K. Jethe ....Appellant V/s. Municipal Corpn.of Gr.Bombay & Anr. ....Respondents Mr.Hiralal Thakkar, Senior Counsel with Mr.Mohit Jadhav for the Appellant. Mrs.Geeta Joglekar for Respondent No.1. Mr.Surindra K. Chaturvedi i/b M/s.Chaturvedi & Associates for Respondent No.2. CORAM : S.J. VAZIFDAR, J. DATED : 13TH OCTOBER, 2008. P.C. : 1. Admit and heard finally. 2. The only defence to the notice under Section 351 of the Bombay Municipal Corporation Act (B.M.C. Act) which has not been considered by the Assistant Municipal Commissioner (AMC) is whether the application in respect of the impugned structures was deemed to have been granted in view of the provisions of Sections 345 and 347 of the B.M.C. Act. The learned Judge has also observed that this question has : 2 : not been considered by the A.M.C. The learned Judge has also not considered the same. 3. It was contended on behalf of Respondent No.2 that the permission could not have been granted in any event and that there is no question of any deemed permission. That is also an issue which must be considered by the A.M.C. The fact that the application was made to the Assistant Engineer (Building Proposal) would make no difference. The legality of the construction will be decided by the A.M.C. 4. I wish to make it clear that this order ought not to be construed as having even remotely approved the impugned construction. There are serious disputes between the society/Respondent No.2 and the Appellant. Respondent No.2/society is always at liberty to adopt any proceedings in respect of the said structures and to enforce its rights against the Appellant. Needless to add that such proceedings will be decided on their own merits. 5. The impugned order is set-aside. The A.M.C. shall decide the question as to whether in respect of the said structures the Appellant are deemed to have received the permission. No other contention shall be : 3 : raised by the Appellant in regard thereto. The A.M.C. shall pass an order only after hearing Respondent No.2. All contentions including as to whether the application was validly made, will be open to be urged before the A.M.C. It is further clarified that all the contentions as are open to Respondent No.2 in respect of the notice under Section 351 of the B.M.C. Act, are kept open. The parties shall appear before the A.M.C. in the first instance on 22.10.2008 at 11.00 a.m. and thereafter as directed by the A.M.C. . The Appellant shall henceforth not carry out any further construction in, to, upon or in respect of the entire property on which the structure has been constructed. Further the Appellant shall not dispose of, alienate, encumber, part with possession of or create any third party right, title and/or interest of any nature whatsoever in respect of the said structures. The impugned W.C. shall be used by the members of the society without prejudice to their rights and contentions. Till the order is passed and for a period of six weeks thereafter, no adverse action shall be taken in respect of the suit structures. 6. The suit is also disposed of. : 4 : 7. In the circumstances, the Appeal from Order is accordingly disposed of. The Civil Application is also disposed of.