: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.961 OF 2009 Smt.Sarojini S. Shetty ... Appellant V/s. The Municipal Corporation of Greater Mumbai ... Respondent Mr.M.C. Hegde for Appellant Mr.J.J. Xavier for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: JULY 24, 2009 P.C.: 1. This appeal is directed against the judgment and order of the City Civil Court dated 15.4.2009. The Court has dismissed the suit filed by the appellant. This suit was filed since the appellant had received a notice u/s 351 of the Mumbai Municipal Corporation Act in which she was directed to remove the “construction of structure “partly brick masonry and partly MS grill G.I. Sheet wall below water tank admeasuring 6`3” X10`7” X 8` in compulsory open space of Harakh Niwas, Plot No. 11, Sion (E)”. 2. The Constituted attorney of the plaintiff filed an affidavit in lieu of examination in chief. In his cross-examination, he has admitted that he did not have any document in his possession to prove that the structure was in existence prior to 1962 which is the datum line. The plaintiff tried to establish that the structure was in existence since 1967 by producing the certificate issued under the Bombay Shops and Establishments Act. The City Civil Court has after considering the documents appreciated the fact that it pertains to running of a hotel i.e. the Sion Lunch Home from 1967. However, that document did not indicate that the offending structure had been constructed prior to 1962. It has been argued that the water tank is next to the compound wall which has not been built by the plaintiff and therefore, the notice was not valid. : 2 : 3. The City Civil Court has observed that the suit structure is built in the compulsory open space of Harakh Niwas building. It has also observed that the offending structure has been constructed by enclosing area beneath the water tank and, therefore, was not a tolerable construction. 4. In these circumstances, the appellant has no right to continue with the suit structure and the City Civil Court has rightly dismissed the suit. 5. Appeal dismissed. The offending structure to be removed by the appellant within a period of four weeks. In case of default, the Corporation may remove the same after four weeks. 6. In view of the dismissal of the Appeal, nothing remains in Civil Application No. 2742 of 2009 and the same is dismissed accordingly.