IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL (ST) NO.10905 of 2009. FIRST APPEAL (ST) NO.10905 of 2009. FIRST APPEAL (ST) NO.10905 of 2009. Mrs.Aasiya Maqsood Alam Shaikh ..Appellant versus Municipal Corporation of Gr.Mumbai & Anr. ..Respondents Ms.Anita Patil i/b. S.J.Ghogare for the appellant Mr.Vinod Mahadik for the respondent No.1 BMC Mr.S.K.Mahadik for the respondent No.2 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th May, 2009. DATED : 6th May, 2009. DATED : 6th May, 2009. P.C. 1. The appellant herein had filed Civil Application No.2001/2009 for condonation of delay in filing the aforesaid First Appeal with stamp. Learned Advocate Mr. Mahadik appears on behalf of the respondent No.1. Mr. Mali appears on behalf of respondent No.2. Both the advocates waive service of notice. I have separately heard learned advocates on both the sides and I have passed an Order on Civil Application No.2001 of 2009 granting the civil application, and thereby condoned the delay. 2. As a result of condonation of delay in filing the civil application, it became necessary for the Court to hear the first appeal at the stage -2- of admission. In the peculiar facts and circumstances, as the appellant expressed a fear that the suit structure may be taken for demolition. Learned Advocate Mr. Mahadik for the respondent No.1 and Mr. Mali for respondent No.2 expressed willingness to advance their submissions in the first appeal at the stage of admission. Accordingly, first appeal was taken up for hearing by consent of all the parties. 3. The appellant received notice under Section 351 of the Corporation Act in regard to the impugned structure. The appellant also received a decision from the Corporation that the suit structure is unauthorised and therefore the appellant instituted Long Cause Suit No.3582 of 2007 so as to challenge the action initiated in regard to the suit structure. The appellant appeared before the learned Judge of the City Civil Court on 16.1.2009 and expressed desire to approach the Corporation with a prayer for regularisation. The said request was granted and the appellant was set up in time frame for the purposes of submitting the application for regularisation and the Corporation was also directed to dispose of the said application and usual orders so as to protect -3- the suit structure during the time the application for regularisation is pending and for some time thereafter was passed. I have perused the Order dated 16.1.2009, which in my view is proper order which the learned trial Judge has passed keeping in view the request to approach the Corporation for regularisation of the suit structure. 4. Learned Advocate for the appellant informed the Court that the appellant engaged the services of an Architect and on 30.3.2009 the Architect informed the appellant that the Corporation has declined to accept the application for regularisation. This will mean that between 16.1.2009 to 30.3.2009 some efforts were made by the appellant to tender an application to the Corporation for regularisation. 5. If the Corporation has declined to accept the application for regularisation that may provide a separate cause of action to the appellant and that refusal on the part of the Corporation cannot be viewed for the purpose of re-opening the events which had taken place in the aforesaid suit filed by the appellant and going into the correctness of the Order dated 16.1.2009. -4- 6. For the aforesaid reasons, I am inclined to observe that no fault can be found in the impugned judgment and decree dated 16.1.2009. To that extent, the appeal will have to be dismissed. A clarification can be made that if the appellant is aggrieved by the conduct of the Corporation in declining to accept the application for regularisation (as told to her by her Architect) and if it provides the cause of action, the appellant is free to attend to the matter in accordance with the provisions of law. Hence the appeal can be disposed of at the stage of admission. . For the reasons aforesaid, I pass the following Order. ORDER i. Appeal is dismissed. ii. It is clarified that if the conduct of the Corporation in not accepting the application for regularisation provides the cause of action for the appellant, the appellant is free to take steps to -5- protect the interest of the appellant qua suit structure. iii. There shall be no order as to costs. iv. In view of the dismissal of the first appeal, office objections except the objections regarding payment of Court fees are dispensed with. If the Court fee paid is inadequate, the appellant should pay the same on or before 9.6.2009. Office to number the appeal. v. In view of the above, Civil Application for stay bearing No.2002/2009 is dismissed with no order as to costs. vi. Undertaking given by Mr. Mali for filing Vakalatnama on behalf of respondent No.2. on or before 8.5.2009 is accepted. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)