1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.279 OF 2010 WITH CIVIL APPLICATION NO.364 OF 2010 Ismail M. Bhilakhia & Ors. ...Appellants. v. The Municipal Corporation of Gr. Bombay and Anr. ...Respondents. Mr. Anil C. Singh i/by D.R.Shah, advs. For the Appellants. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MARCH 25, 2010 P.C. 1 Heard the learned counsel for the Parties. 2 The learned counsel for the appellants points out that the construction was made sometimes in 1957 after obtaining necessary IOD , sanction plan and commencement certificate. However, on 4.11.2009, the respondent issued a notice under Section 354A contending that the unauthorised construction of bricks masonary walls and R.S.J. ladi koba was going on and, therefore, work should be stopped. According to the appellants, no such work is going on and unnecessary notice has been issued, therefore, they filed Long Cause Suit No.19/10 and took out Notice of Motion No.63 of 2010 therein. Respondents in paragraph 7(a) 2 of the affidavit-in-reply admitted that the documents related to E.E.B.P.’s office and the Municipal Corporation had sought the remarks of that office regarding authenticity of IOD, C.C. and sanctioned plan. However, in reply to the same E.E.B.P. (City-1) informed that in spite of diligent search, the file could not be traced out as it is old matter of 1957 and, therefore, the authenticity of the same could not be verified. On the other hand, in paragraph 7(b), it was stated that plaintiff has ignored notice and carried out construction of ground plus 8 floors without any permission from the Competent Authority. These two stands are self- conflicting and contradictory. The learned counsel for the appellants contends that respondent should have verified the record before taking firm stand in response to the notice of motion. The trial Court did not consider the above referred statement in paragraph 7(a) before rejecting the notice of motion. After some discussion at the bar, the learned counsel for the appellants makes a statement that the appellants will withdraw this appeal as well as the suit with liberty to submit explanation to the notice before the Assistant Commissioner within two weeks and the respondent may consider that explanation after verifying the record and shall take a decision before taking any further action. In my considered opinion, this will be fair act and in the interest of justice. 3 3 Therefore, the appeal as well as civil application stand disposed off as withdrawn. Suit shall also stand disposed off as withdrawn with liberty to the appellants to submit explanation to the notice within two weeks from this date and respondent shall consider explanation ,verify the record and take a decision preferably within four weeks from the submission of explanation and inform the appellant about the decision. The respondent shall not take any action on the said notice till the decision is taken and in case the decision is against the appellant for a further period of two weeks after communication of the decision. The appellant shall be at liberty to file a fresh suit if need be. (J.H. BHATIA,J.)