1 ao1099.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 1099 of 2011 WITH Civil Application No. 1465 of 2011 IN AO No. 1099/2011 Bhujang M. Shetty & ors. ....Appellants v/s. The Municipal Corporation of Greater Mumbai ....Respondents Mr. R.M.Pandey for the appellants. Ms. K.K. Soran for BMC. CORAM: R.M. BORDE, J. 04th October, 2011 PC: This Appeal from Order is directed against the order passed by the Judge, City Civil Court, Dindoshi, Goregaon on 12th September, 2011 in Notice of Motion No. 1630/2011 in L.C.Suit No. 1232/2011. The learned Judge of the City Civil Court was pleased to dismiss the Notice of Motion taken out by the appellant-original plaintiff. Hence, the instant Appeal from Order. 2. The notice came to be issued by the Mumbai Municipal Corporation on 25th March, 2011 under Section 351 of the MMC Act calling upon the owner and occupier to submit proof in respect of the authorization of the construction. It was noted in the notice that construction of the structure of ground and first floor admeasuring (length) 23.30 meters and width as shown in Sketch plan and height 5.9 meters, is unauthorized one. In pursuance to the notice issued by the Corporation, the plaintiff tendered reply on 29th March, 2011 and contended 2 ao1099.11.sxw that the structure is in existence since prior to 1960. It is the contention of the plaintiff that he has purchased the property on 11th July, 2006 and structure i.e. ground plus first floor was in existence since the date of purchase. 3. The plaintiff also tendered the copies of assessment bills alongwith his reply and called upon the authorities to verify the record in relation to assessment bills which would disclose, according to plaintiff that the structure is authorized one. The reply was taken into account by the Assistant Commissioner P-South Ward who decided the matter and found that ground floor structure 89.47 sq. Mtr. is tolerated structure and rest of the structure is unauthorized one. The Appellant-original plaintiff is, therefore, directed to remove the unauthorized structure within 15 days from the date of receipt of letter. The plaintiff approached the City Civil Court taking exception to the order passed by the Corporation and prayed for grant of ad-interim protection during the pendency of Notice of Motion taken out in the pending suit. Ad- interim protection it appears was granted. However, the learned trial Judge on considering the submissions of both the parties was pleased to dismiss the Notice of Motion by passing a reasoned order. It was found by the Court on consideration of documentary evidence placed on record that only the ground floor structure is tolerated structure and the construction raised relating to first floor of building is unauthorized one. The document at sr. no.15 noted in the order passed by the Assistant Commissioner is an agreement of transfer between the transferor and the plaintiff dated 19/12/1998 and it makes a reference to 48.3 sq. meters constructed area. The documents at sr. no. 34,35 and 36 are considered by the Appellate Authority and it was found that license under Section 394 and 412-A in respect of eating houses is considering the area of 89.470 sq. meters whereas the plaintiff is serving liquor in an area to the extent of 17.431 sq. meter and running the Panpatti Shop in the area to the extent of 0.8550 sq. meter unauthorizedly. The Assistant Commissioner was, 3 ao1099.11.sxw therefore, justified in drawing a conclusion that the construction over the area to the extent of 89.47 sq. meters is tolerated structure. The learned Judge of the City Civil Court has also on perusal of documentary evidence confirmed the findings recorded by the Assistant Commissioner. In exercise of the Appellate jurisdiction invested with this Court I do not deem it necessary to cause interference in the instant Appeal from Order. 4. The Appeal from Order is devoid of substance. Hence, stand dismissed. In view of disposal of Appeal from Order, Civil Application does not survive and stands disposed of. (R.M.BORDE, J)