: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.589 OF 2009 Essar Enterprises .. Applicants V/s. Vinayak Ashish Co-op. Hsg. Soc. Ltd. & Anr. .. Respondents Mr. R.B. Paranjape i/b. Mr. M.M. Vaidya for the Applicants. Mr. R.A. Thorat for Respondent No.1. Smt. K.K. Soraan for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 26 TH NOVEMBER, 2009. P.C.: 1. The Civil Revision Application has been filed against the order of the City Civil Court dated 11th September, 2009. By this order, the Court has answered the preliminary issue, as to whether the jurisdiction to entertain and try the Suit in view of the provisions of Section 149 of the Maharashtra Regional Town Planning Act, in the affirmative. 2. The prayers sought by the plaintiffs in the Suit are as follows : : 2 : (a).For declaration that the amended plan at Exh.’G’ to the plaint is illegal, bad-in-law and void for want of written consent of the plaintiffs or of its all member and hence in pursuance thereof or otherwise, the defendant No.1 are not entitle to put up any additional construction/structure in, around and over A and B wings of the buildings of the plaintiff society known as “Vinayak Ashish” situated on plot No.11-B, at Madan Mohan Malavya Road, near Telephone Exchange, Nahur Village, Mulund (W), Mumbai-80. (b).For a permanent injunction order against the defendant No.1, their partners, servant, agent or anybody claiming through them restraining them from putting up any additional and further construction in, around and over A and B wings of the suit building including construction on 7th floor of B wing of suit building and three proposed garages bearing No.11, 12 and 13 as shown in amended plan at Exh.’G’ to the plaint, at plot No.11-B, Madan Mohan Malavya Road, near Telephone Exchange, Nahur Village, Mulund (W), Mumbai-80 in contravention of original sanctioned plan and in pursuance of amended plan at Exh.’G’ to the plaint or otherwise unless written consent is obtained from the plaintiffs or from all its members. (c).For a mandatory order of injunction against the defendant No.1,their servant, agent, partners or anybody claiming through them : 3 : directing them to demolish the illegal construction of seventh floor of ‘B’ wing of the building and enclosure of stilt portion marked as A, B and C in the rough sketch at Exh.’B’ to the plaint and to restore it to its original position as shown in the original sanctioned plan. (d).Pending the hearing and final disposal of the suit, the defendant No.1, their servant, partner, agent or anybody claiming through them be restrained by an Injunction Order from putting further construction in, around and over A and B wings of the suit building including three garages bearing Nos.11, 12 and 13 as shown in the amended plan at Exh.’G’ and further construction on 7th floor of B-wing of suit building situated at Plot No.11-B, Madan Mohan Malavya Road, near Telephone Exchange, Nahur Village, Mulund (W), Mumbai-80 in contravention of original sanction plan and in pursuance of amended plan at Exh.’G’ to the plaint unless written consent of the plaintiff or from all its members obtained. (e).Court Commissioner be appointed to execute commission and submit report regarding present factual position about construction in, around and over the suit building. (f).Ad-interim injunction in terms of prayers (c) and (d) above. (g).For such other and further relief as this Hon’ble Court may deem fit and proper be granted. : 4 : (h).Cost of the suit be provided.” 3. It is obvious that the City Civil Court would have no jurisdiction to decide prayer (a) since in effect the order of the Planning Authority, sanctioning certain amendments to the plan, has been challenged in prayer (a). Therefore, this prayer would be barred by the provisions of Section 149 of the said Act. Consequently, the impugned order as regards this prayer would have to be set aside. However, with regard to the prayers (b) and (e), the City Civil Court can certainly consider these prayers under the jurisdiction vested in it by law. 4. Accordingly, the impugned order dated 15th July, 2009 is modified to the extent that the trial Court would have jurisdiction to entertain the Suit only as regards prayers (b) and (e). 5. The learned Advocate for the respondents submits that the respondents may apply for amendment of the prayer clauses before the trial : 5 : Court. If such an application is filed, the trial Court will consider it in accordance with law. 6. The Civil Revision Application is disposed of. .......