1 AO-512-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 512 OF 2011 WITH CIVIL APPLICATION NO. 710 OF 2011 IN L.C. SUIT NO. 383 OF 2009 Shakuntala wd/o Ramesh Jamnadas Thakkar & Anr. ..Appellants (Orig. Plaintiffs) Vs. The Mumbai Municipal Corporation. .. Respondent (Org. Defednant) Mr. Abdul Rab Shaikh,Advocate, for the appellants Smt. K.K.Soraan,Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE : 18th July, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The Appeal is preferred by the plaintiffs against rejectin of Notice of Motion in L.C. Suit No.383 of 2009. The notice was issued by the Municipal Corporation under Section 354-A on 9.2.2009 for demolition of unauthorised construction of structure with B.M.Walls in common toilet/passage on 3rd and 4th floor of the building. On the next day, i.e. 10.2.2009, the plaintiffs filed the suit and took out Notice of Motion for injunction against the threatened demolition. 2 AO-512-11.sxw Later on, the Municipal Corporation came forward with a contention that on the basis of that notice, the disputed structure was demolished, but taking benefit of three following holidays, it was reconstructed. The trial Court rejected the Notice of Motion. It appears that on behalf of the plaintiffs, a request was made for appointment of Commissioner for spot inspection which was opposed by the Corporation before the trial Court. Certain photographs have been shown by the learned Counsel for the Municipal Corporation taken on 10.2.2009 and again on 12.7.2011. It is contended that as per the earlier photographs, the old structure was demolished and the new photographs indicate that a complete new construction has been made and it is being used as a cloth shop. 3. It appears that the building is 80 to 100 years old and is of ground plus upper four floors. As per the Conveyance deed under which the plaintiff and three others purchased the said building in 2006, there were at least 76 rooms and they are in occupation of different tenants, who are all carrying on business. According to the plaintiff, the disputed structure was actually not a new structure, but only repairs to old toilets which were being used by the tenants in occupation of the said building. The learned Counsel for the respondent, on instructions from the officer who is present, states that because of the additional structure, the building itself may be in danger. This argument appears to be completely 3 AO-512-11.sxw imaginary. If the five storeys building in occupation of large number of tenants is not otherwise dilapidated and in danger, it is difficult to imagine that a small structure which is alleged to be a toilet, is likely to endanger it. If the disputed structure is a toilet and only repairs have been carried out, in my opinion, it will be in the interest of justice that it should be protected till decision of the suit. But if taking benefit of the same, a new structure is created and is being used for any other purpose, it will have to be demolished and should not be tolerated. This can be ascertained by appointment of Court Commissioner, who can make inspection and submit a report. 4. In view of the above, the Appeal and the Application stand disposed of with the following directions :- The trial Court shall appoint a Court Commissioner to make spot inspection of the disputed structure, who will make the inspection and take photographs in presence of the concerned parties, including the officers of the respondent. If the trial Court finds that the disputed structures are being used as toilets, the same shall be protected till disposal of the suit. However, if it is found to be used for any other purpose, there will be no protection and the Municipal Corporation may proceed with the demolition of such structure. The Court 4 AO-512-11.sxw Commissioner shall submit a report within six weeks and the trial Court shall pass appropriate order within four weeks thereafter. The plaintiff/appellant shall pay the cost of the Court Commissioner. The Appeal and the Application stand disposed of accordingly. (J.H.BHATIA,J.)