1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3279 OF 2008 IN FIRST APPEAL NO.1016 OF 2008 IN L.C.SUIT NO.6219 OF 1997 Standard Ice-Cream & Anr. .. Applicants versus Municipal Corporation of Greater Mumbai .. Respondent Mr.Farhan Dubhash with Mrs.Jyoti N.Shah for the Applicants/Appellants. Mr.J.J.Xevier for the Respondent. CORAM : R.M.SAVANT, J DATED : JULY 18, 2008 P.C.:- By the above Civil Application the Applicants pray for the following reliefs. 2 “a) that this Hon'ble Court may be pleased to allow the Respondents to replace at their costs the two sides of the suit structure namely the one facing the compound wall on the right ( north ) side and the one at the rear (west) side by tin sheets with wooden ply between them and to be fixed to the metal frame and angles and any consequential fitting for the same. b) that the implementation of stop work notice bearing No.AF/BF-I/354-A/353/BF/2008 dated 1st June, 2008 being Ex.B hereto be permanently stayed.” 2. The Applicants are the original Respondents in the above First Appeal No.1016 of 2008 which has been filed by the Mumbai Municipal Corporation against the Judgment and decree dated 16th April, 2008 passed by the Bombay City Civil Court in Suit No.6213 of 1997. The above First Appeal has been admitted. By an order passed in the Appeal the parties were directed to maintain status- 3 quo in respect of the said suit structure. 3. The suit structure is a temporary structure wherein an Ice-Cream and Juice Stall is being run by the Applicants. 4. The Applicants in April, 2008, in view of the ensuing Monsoon of the year 2008, filed a Civil Application No.2587 of 2008 inter-alia praying for the following reliefs : “(a) that this Hon'ble Court may be pleased to allow the Respondents to repair and renovate at their costs the suit structure by :- i) Replacing the existing roof and weather sheds with a galvanized tin sheets with plywood underneath with necessary metal / wooden frame and angles. ii)Replacing the existing two rolling shutters with new metal shutters with metal frame work and painting the 4 structure from inside and outside. b) The Respondents may be permitted at their costs to shift their electric meter for installation inside the suit stall with necessary permission of BSES authorities.” 5. The said Civil Application was allowed in terms of prayer clauses (a)-(i) and (ii) by this Court by order dated 6th May, 2008, which is reproduced hereinunder : “ Heard both sides. This is an application for permission to repair in terms of prayer clauses (a)-(i) and (ii) and for permission to shift electric meter for installation inside the suit stall with necessary permission of BSES authorities. The photographs indicate that the roof is cracked. The First Appeal of the appellants has been admitted subject to condition regarding non creating 5 third party rights. On perusal of the photographs it appears that if the permission is not granted then there will be leakage in the monsoon. In the circumstances, Civil Application is allowed in terms of prayer clauses (a) and (b). It is however, made clear that grant of these reliefs will not create any equity in favour of the applicants and if ultimately, appeal of the Corporation is allowed then the offending structure will have to be removed alongwith improvement made by this order. It is also made clear that this order will not entitle the applicants to make any permanent construction of any nature.” 6. Pursuant to the said order. the Applicants commenced the work of repairs to the roof and rolling shutters of the suit structure. However, it is the case of the Applicants that during the course of carrying out the said repairs work and work of replacing 6 the rolling shutter and roof, the existing walls on the two sides of the stall collapsed, thereby necessitating re-erection of the said structure so as to put the structure in place. 7. It is also the case of the Applicants that on account of corrosion of the angles by which the said walls were connected with each other the said structure collapsed. The Applicants therefore filed the above Civil Application for claiming the reliefs which are reproduced hereinabove. 8. On behalf of the Respondents, an affidavit has been filed by one Prakash Khatwani, Assistant Engineer attached to the Building and Factory Department. The sum and substance of the case of Respondents is that a new structure is sought to be put up by the Applicants. Photographs relating to the said structure have been annexed to the affidavit. It is further the case of the Respondents that on acquiring knowledge of the structure being put 7 up by the Applicants, stop work notice dated 1st June, 2008 came to be issued to the Applicants. 9. On behalf of the Applicants, it is reiterated that the structure collapsed whilst the work of the roof and rolling shutters was undertaken. It is further contended that what was sought to be done by the Applicants was what was permitted by the order dated 6th May, 2008. It is further contended that on account of the collapse of the said structure, the structure that would be put up will be of the same size as was in existence earlier and by using the same material. It is further contended on behalf of the Applicants that the issuance of the said stop work notice was malafide inasmuch as it is the case of the Applicants that the adjoining Petrol Pump owner is responsible for the same. In fact, in support of the said contention of the Applicants the learned counsel for the Applicants draw my attention to the letter of Petrol Pump owner which is annexed to the affidavit of the Respondents. 8 11. The case of the Applicants that the structure has collapsed in the midst of carrying out repairs to the then existing structure in terms of the order dated 6th May, 2008 deserves acceptance since the structure has collapsed, the Applicants would be entitled to put up the structure by using the same material which was used earlier and put up a structure of the same size as was in existence prior to its collapse. The Applicants would also be entitled to carry out the work as permitted by the order of the learned Single Judge dated 6th May, 2008. All the other conditions imposed in the said order dated 6th May, 2008 would also be applicable to the structure that would be put up by the Applicants. 12. It is made clear that the Respondent Municipal Corporation would be entitled to oversee the work that is being carried out by the Applicants. 9 13. The Civil Application is accordingly made absolute in terms of prayer clauses “a” and “b”. 14. The Civil Application is, accordingly, disposed of. 15. The Applicants to intimate the Assistant Commissioner, A Ward the date on which they intended to start the work in question. [R.M.SAVANT, J.]