1 NMS.410/2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 410 OF 2010 IN SUIT NO. 244 OF 2009 Waman Arjun Gawde & Ors. ..Plaintiffs. Vs. Municipal Corporation of Gr. Mumbai ..Defendant. ---- Mr.V.V. Pai, for the Plaintiffs. Mr. N. P. Bedse i/b P.G. Lad, for the Defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 16th SEPTEMBER 2010. P.C. 1] After both sides were heard on 6.9.2009, it was indicated that interim orders can be passed only if the plaintiffs file an undertaking in terms of the Order and particularly incorporating the details and statements as per para 3 thereof. 2] Accordingly, Shri Pai, learned Advocate for the plaintiffs has tendered today affidavit-cum-undertaking of plaintiff nos.1,2,3 and 5. He states that affidavit-cum-undertaking of plaintiff no.4 will be filed by 21.9.2010. 2 NMS.410/2010 3] Having perused the Notice of Motion and the affidavit in support and reply, I am of the view that the Order passed by the Municipal Corporation and impugned as per the amended prayers takes into account some of the events and notices issued way back in 1994-1995, prima facie, Schedule to each of these notices indicate that they are in respect of unauthorized covering and construction of Mezzanine floor/lofts. The policy of regularizing Mezzanine floor/lofts has been notified by the Municipal Corporation and the cut off date in respect of Commercial premises is 15.8.1997, prima facie, each of the premises in question are commercial. Further, the notices have been issued in respect of Mezzanine floor and lofts and alleging the construction thereof to be unauthorized. If the existence of Mezzanine floor is prima facie admitted by the defendant-Municipal Corporation as of 14.6.1995, or in any event in 1996, then, prima facie the Circular would apply. All these documents were carefully perused by me on the earlier occasion. 4] Having seen that the affidavit in reply does not explain as to how the Order passed earlier, which was set aside and matter was remanded for fresh hearing and orders, could have been the basis in 3 NMS.410/2010 the Order now impugned and passed as recently as in January, 2010. In other words, the same events, same notices and the same reasons are assigned to support the action of the Municipal Corporation. All this requires detailed scrutiny and evidence will have to be led and such an opportunity must be given to the parties at the Trial. 5] In the result, the Notice of Motion succeeds and pending hearing and final disposal of the suit there will be an interim order in terms of clauses (c) and (d) but on undertakings of the plaintiffs which are taken on record. 6] Needless to add that this order is without prejudice to the rights and contentions of the parties and any violation of the undertakings would be reason enough for vacating the interim orders. In addition, this Court will proceed under the Contempt of Courts Act, if the plaintiffs or any of them breach willfully and deliberately the order. The benefit of this Order will be available to the plaintiffs who have filed an affidavit cum undertaking. The affidavit cum undertakings of plaintiff nos.1 to 3 and 5 are taken on record. Plaintiff No.4 will be entitled to the benefit of this Order only after he files his affidavit-cum-undertaking as stated by Shri Pai. 4 NMS.410/2010 7] The Notice of Motion is disposed, with no order as to costs. [S.C. DHARMADHIKARI, J.]