1 wplod1656-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.1656 OF 2011 Narayan Mohanlal Ruparelia & Anr. .. Petitioners Versus Municipal Corporation of Gr.Mumbai and Anr. .. Respondents Mr.Shailesh Shah with H.V.Kode for petitioners Mr.Atit Shukla i/b. Rohan S. for respondent Ms.Trupti Puranik for respondent Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. 23rd August 2011. P.C.: 1] The petitioner is aggrieved and dis-satisfied with the notice issued by the Mumbai Municipal Corporation, a copy of which is at Annexure A to the petition. 2] In the submission of the petitioner, the apprehension is that the temporary arrangement for parking of vehicles which has been made and that too bearing in mind the monsoon season, will be removed and, thereafter, the cars and other vehicles may have to be parked in open space. The area is covered by trees 2 wplod1656-11.doc and branches of these fully grown up trees present danger to the vehicles and even the rain water accumulates. For all these reasons and to prevent any damage to the vehicles that a temporary arrangement is made. Section 349 of Mumbai Municipal Corporation Act does not apply to such a work at all. 3] There is a dispute between the petitioner and the co-owner and in the light of the order passed by this Court, the co-owner has been impleaded. The co-owner is also present in court today. 4] The learned Advocate appearing for Corporation submits that the work is covered by section 349 of the MMC Act and it is not as if some temporary arrangement like monsoon shed is erected at site but a fullfledged work covered by section 349 of the MMC Act and by using inflammable materials has been carried out. For all these reasons, the notice does not require any interference and the petition be dismissed. 5] Learned Advocate for the co-owner submitted that the 3 wplod1656-11.doc petitioner is misleading this Court inasmuch as he is carrying on commercial activities in the open space and which is prohibited by law. Therefore, he was constrained to make a complaint and based upon the same, the impugned notice has been issued. 6] After hearing both sides and perusing with their assistance the impugned notice, what I find is the notice proceeds on the basis that the external walls and covering of structure of the unauthorised shed No.1 is with Bamboo and tarpaulene roof has been constructed of inflammable material and therefore, section 349 of MMC Act applies and the said covering be removed. 7] Pertinently, there is no description which has been given of the work which is found to be objectionable and covered by section 349 of MMC Act. There is no schedule to this notice either. It has been orally stated that the external walls and covers of the structures consist of inflammable material. 8] Mr.Shah, learned Counsel appearing for petitioner on taking instructions from petitioner No.1's son, who is present in 4 wplod1656-11.doc court today, states that what has been done is to cover the open space by tarpaulene shed so as to enable the cars to be parked. The cars and vehicles which are parked may be spoilt and damage would be caused in case there is no covered parking. Further, trees surrounding are also likely to affect the cars which are parked, if any branches or leafs were to fall thereon. In such circumstances, only for the present monsoon that this temporary shed is made. There is no inflammable material used much less any covering of roof or any external wall. In these circumstances, section 349 of MMC Act is inapplicable. 9] It is not necessary to enter into any larger dispute and particularly between co-owners. If the co-owner is aggrieved by any acts of the petitioner, which according to him, causes nuisance, annoyance or damage the property, then, the remedy lies elsewhere and all pleas as far as the same are concerned are kept open. For the present, having satisfied myself that section 349 of MMC Act would not have any application to the temporary arrangement made for parking of vehicles and to protect them from the monsoon and falling trees, that I dispose of 5 wplod1656-11.doc this petition with following directions:- (a) The Corporation shall not act in furtherance of the notice and remove the subject covering by tarpaulene shed or the work in the open space, if the petitioners file an undertaking in this Court by 24th August 2011 that on or before 30th September 2011, they shall remove the said shed which they have erected by putting up bamboos and tarpaulene cover, which is only used for the purpose of parking vehicles and it is not a permanent or temporary structure, capable of independently used. (b) Petitioner No.2 is stated to be out of station and a request is made on his behalf that he be given some time to file undertaking in the above terms. Hence, it is directed that petitioner No.1 shall file undertaking as aforesaid on or before 24th August 2011. However, petitioner No.2 shall file undertaking to the above effect within a period of ten days from today. (c) The petitioners shall further undertake that they will 6 wplod1656-11.doc not extend the time aforesaid in any manner nor use the shed for any other purpose than parking of vehicles. No commercial activities or sale of any articles or goods shall be carried out in the portion which is covered by tarpaulene. (d) If the shed is not removed by 30th September 2011, the Corporation is free to demolish or remove it without causing any damage to the other structures and hoardings. (e) Any breach of undertakings to be filed will be dealt with in accordance with law. (f) Petition disposed of in the aforesaid terms. No costs. (S.C.DHARMADHIKARI, J)