1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.840 OF 2008 IN NOTICE OF MOTION NO.1073 OF 2006 IN LONG CAUSE SUIT NO.1194 OF 2006 Vikas Narayan Sangle & Anr. .... Appellants (Ori. Plaintiffs) Vs. Municipal Corporation of Greater.... Respondents Mumbai & Ors. (Ori.Defendants) WITH APPEAL FROM ORDER NO.841 OF 2008 IN NOTICE OF MOTION NO.67 OF 2006 IN LONG CAUSE SUIT NO.50 OF 2006 M/s Tele Tracks Advertising .... Appellants (BO) Pvt. Ltd Vs. Rakesh Amrit Nahata & Ors. .... Respondents Mr. Vijay Thorat with Ms.Prachi Tatke i/by Mr. A.R. Pande for the Appellants. Mrs.Geeta Joglekar for M.M.C.-respondent no.1. Mr. Ahmed Abdi for respondents no.3 and 4. Mr. G.W. Mattos, AGP for MHADA. Mr. Ashok Saraogi for respondent no.2. Coram : SMT. R.P. SONDURBALDOTA,J Date : 20th August, 2008 P.C. 1. Rule. Returnable forthwith. By consent, the rule is taken up on board. Heard all the counsels. The above 2 two appeals arise out of the same impugned order and hence are disposed off by this common order. 2. The first appeal is filed by one Vikas Sangle and M/s Tele Tracks Advertising (Bo) Pvt.Ltd. who are the plaintiffs in L.C. Suit No.1194 of 2006. The defendants to that suit are Mumbai Municipal Corporation, one Rakesh Nahta and one Shirajuddin Bhadur. The Second Appeal is by M/s Tele Tracks Advertising (Bo) Pvt.Ltd. who is defendant No. 1 in L.C. Suit No. 50 of 2006 which is filed by Rakesh Nahta. The other defendants to that suit are Maharashtra Housing Area Development Authority and Mumbai Municipal Corporation. Since the dispute essentially is between M/s Tele Tracks Advertising (Bo) Pvt. Ltd. And Rakesh Nahta, they are hereinafter referred to as the appellant and the respondent respectively. By the impugned order, the appellant has been restrained from continuing with the commercial activities in any manner and/or continuing with commercial user of the suit flat i.e. flat no.103 in Green View Co- operative Housing Society Limited. The appellant is the owner of the suit flat. The respondent is the owner and occupier of flat No.003 in the same building. 3. The appellant has been running a studio from the suit premises. The respondent, the occupant of flat No.003 contends that the activity of sound recording carried on by 3 the appellant causes nuisance to him. He also has a serious objection as regards the change of user of the suit flat from residential to non-residential. It may be noted at this stage itself that the society also has a strong objection to the change of user of the suit flat. 4. Maharashtra Housing and Area Development Authority in it's capacity as a planning authority had constructed several buildings within the locality known as Oshivara for persons in need of residential premises. After the flats in the buildings were sold, the occupants of the respective buildings have formed and registered the societies for managing affairs of the buildings. The society of the occupants of the building in which the suit flat is situate was registered in the month of May,2006. By then the appellant had, not only changed the user of the premises, but the litigation concerning the change of user had also commenced. Though the society has serious objection to the change of user of the suit flat, the appellant, however had been granted permission by Maharashtra Housing and Area Development Authority and Mumbai Municipal Corporation, out of which the permission granted by the Mumbai Municipal Corporation stands revoked, which revocation is under challenge in L.C. Suit No.1194 of 2006. 5. Mr. Thorat, the learned Senior Counsel for the 4 appellant submits that at the time the appellant desired to change user of premises, the society was yet to be registered hence there was no question of obtaining permission from the society. The appellant had to perforce approach the owner of the building i.e. Maharashtra Housing and Area Development Authority. The Authority granted permission subject to condition that the appellant submits no objection certificate from the society after its registration. This condition has been accepted by the appellant by filing affidavit on 25th May,2005. Thus, permission granted by Maharashtra Housing and Area Development Authority being conditional. Today the same is of no consequence, for non fulfillment of the condition. As regards the Mumbai Municipal Corporation, it has already revoked the permission granted by it, in view of the serious complaints made by the society. 6. Since the permission of the society is indispensable for the appellant to continue with the commercial activity, it is not necessary by this Court to go into merits of the cause of nuisance alleged in the suit. With the permission granted by the Mumbai Municipal Corporation having been revoked, the objection take by the society for change of user of the premises, the appellant cannot carry on commercial activity from the suit flat and hence the order of the learned trial Judge cannot be faulted 5 with. Therefore both the appeals are dismissed in limine. 7. At this stage, Mr. Thorat submits that the interim order dated 20th August 2008 be extended for some period by subjecting the appellant to some terms if necessary. Presently the appellant is carrying on it's business in the suit flat from 6 am. to 8 pm. These hours are too long. Taking into consideration the kind of activity carried on by the appellant, it is directed that the order dated 20th August, 2008 is continued for a period of six weeks from today on condition that the appellant carries on business from the suit flat during 10 am. to 6 pm. (SMT. R.P. SONDURBALDOTA,J)