( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 427 OF 2005 Ashabai w/o. Murlidhar Karpe, .. Appellant Age. Major, Occ. Household, [Ori. plaintiff] R/o. Bhausingpura, Aurangabad. Versus The Municipal Corporation of Aurangabad, .. Respondent through its Commissioner, [Ori. defendant] Aurangabad. Shri S.V. Gangapurwala, Advocate for the appellant. Shri R.S. Deshmukh, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 30.06.2009 ORAL JUDGMENT :- 1. Heard Adv. Shri S.V. Gangapurwala for the appellant and Adv. Shri R.S. Deshmukh for the respondent. This appeal is preferred by the original plaintiff whose suit bearing ( 2 ) Regular Suit No.1788 of 2000 for perpetual injunction against the respondent was dismissed by the learned Jt. Civil Judge, Senior Division, Aurangabad on 30.07.2003, which judgment and decree is further confirmed by the IV Additional District Judge, Aurangabad, while deciding Regular Civil Appeal No.246 of 2003 on 13.12.2004. 2. Briefly stated it is case of the appellant that she is owner and possessor of C.T.S. No.910, admeasuring 231 sq.mtr. Situated at Bhausingpura, Aurangabad. Earlier Regular Civil Suit No.317 of 1993 (Narayan V/s. Municipal Corporation) was filed against the respondent. During existence of order of status-quo passed in that suit the Corporation demolished the suit house of the plaintiff. In that case, there was compromise between the plaintiff and the Corporation. Compensation of Rs. 43000/- was received by the plaintiff from the Corporation. The appellant carried out minor repairs and renovations in the structure over the suit property for making the structure habitable and proper. However, the respondent-Corporation gave notice dated 22.11.2000 under Sections 260 and 478 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter ( 3 ) referred to as “the B.P.M.C. Act”). According to the plaintiff the notice is illegal and therefore the injunction is sought for restraining the respondent and its employees from implementing notice dated 22.11.2000 and from demolishing the structure which is situated in the suit property. 3. The respondent-Corporation's advocate appears to have filed say under his own signature on reverse side of page Nos. 3 and 4 of the plaint. This novel way of filing of written statement cannot be said to be pleadings of the party because they are neither signed by the representative of the Corporation nor there is verification of the same. Though the suit is contested, there is no written statement as required by the law. 4. The main question for consideration of this Court is whether the impugned notice is illegal. The original notice is at page No.20 of part “C” of the record and proceedings. It shows that according to the Administrative Officer of the Municipal Corporation, the appellant had carried out illegal construction of two rooms of 10' x 12' ( 4 ) size and the construction was being made in cement hallow blocks. The doors and windows were also fixed and work for putting of G.I.C. Sheets on the roof was going on. Therefore notice was given to explain within 24 hours regarding the illegal construction. It is also stated that if no explanation is received within the prescribed time, the construction would be pulled down. The notice also bears at its bottom the sketch showing the place of construction which is being made. 5. In the plaint the appellant has admitted that he was carrying out minor repairs and renovations. For ascertaining whether what was being constructed by the respondent was within ambit of Section 254 of the B.P.M.C. Act or not, the appellant ought to have given details as to what she was doing and what she meant by minor repairs and renovations. If the repairs and renovations which she has carried out are covered by Section 254 of the B.P.M.C. Act, in that case the appellant ought to have given notice to the Commissioner of her intention to make repairs or additions etc. Admittedly, no such notice was given. It is also not case that any plan, structural drawing etc. were submitted as ( 5 ) per Section 255 of the B.P.M.C. Act. Even in oral evidence that is led by the appellant, nowhere it is explained what ‘repairs & renovations’ she was carrying out to make house habitable and proper. In-fact, the examination in chief is nothing but almost copy of the plaint in the form of affidavit. So, on the material before this Court and in absence of any details, it cannot be said that the repairs or renovations which the appellant was carrying out was not covered by Section 254 of the B.P.M.C. Act. 6. This appeal is admitted on the following substantial question of law, which is framed by order dated 05.08.2008. “That, when oral permission to construct the house is proved by the evidence of PW 2 Narayan, the plaintiff in R.C.S. No.317 of 1993, the Court below has erred in discarding the same and in holding that the construction is unauthorized and illegal”. 7. At the time of arguments it is submitted that earlier Regular Civil Suit No.317 of 1993 was filed by the husband of present appellant. In that case status-quo order was passed. Inspite of the order to maintain status-quo, the house of the appellant was demolished and at that time there ( 6 ) was compromise. Respondent corporation paid Rs. 43000/- as compensation and the suit was withdrawn. It is said that at that time major repairs and construction was carried out as there was demolition. If we consider the evidence of P.W.2- Narayan (the husband of the appellant) which is at Exh.25, it is clear that his evidence is regarding oral permission granted to him in 1996 when said demolition was carried out. It cannot be said that the Commissioner had given oral permission for construction when the impugned notice was given on 22.11.2000. Even assuming for a moment that such permission was granted orally for the sake of arguments, the scheme of Chapter XV of the B.P.M.C. Act nowhere contemplates oral permission by the Commissioner on oral request. The scheme shows that person intending to carry out additions and other repairs, alternations within meaning of Section 254 of the B.P.M.C. Act was to give notice, submit plan etc. under Section 255 of the B.P.M.C. Act and then it is for the authorities to either refuse the permission under Section 258 of the B.P.M.C. Act or grant permission. They may also carry out inspection under Section 259. of the B.P.M.C. Act. 8. In my considered opinion, having regard to the ( 7 ) provisions of the B.P.M.C. Act and the sequence of the events, it cannot be held proved that there was oral permission of the Commissioner to carry out repairs in 2000. Accordingly I answer the substantial question of law. 9. In the circumstances of the case, the appellant has not come out with clean hands. She has not explained what she meant by ‘minor repairs and renovations’ which she intended to carry out and how Section 254 of the B.P.M.C. Act is not applicable. In these circumstances, it is not possible to interfere with the discretion used by the Trial Court and the First Appellate Court in refusing to grant injunction which is a discretionery relief. 10. At this stage the learned advocate for the appellant seeks liberty for the appellant to approach the officers of the respondents to file reply in response to notice dated 22.11.2000 within period of two weeks. In the interest of justice considering that the appellant is poor person coming from socially lower strata of the society, liberty is given to approach the concerned authority and submit her reply in response to notice dated 22.11.2000 ( 8 ) within two weeks. The interim protection granted to continue for a period of three weeks. The authorities are directed to consider the reply of the appellant, if filed, according to the Law. 11. The Second Appeal is disposed of. Parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa427.05