The central legal point established is that the Municipal Corporation has the authority to decide on unauthorized construction and must complete proceedings under the Act, and the court should not intervene in such matters.

ORDER

1. LEAVE GRANTED.

2. THIS APPEAL HAS BEEN PREFERRED FROM AN INTERIM ORDER ARISING OUT OF A SUIT FILED BY RESPONDENT 1 AND OTHER OCCUPANTS OF A PARTICULAR BUILDING IN VADODARA. PRIOR TO THE FILING OF THE SUIT, IN 2002, A NOTICE HAD BEEN ISSUED BY THE RESPONDENT MUNICIPAL CORPORATION UNDER SECTION 260 OF THE BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT, 1949 (FOR SHORT "THE ACT") TO THE F APPELLANTS CALLING UPON THEM TO SHOW CAUSE WHY PROCEEDINGS FOR DEMOLITION, ETC. SHOULD NOT BE TAKEN AGAINST THE APPELLANTS FOR HAVING UNAUTHORISEDLY CONSTRUCTED STRUCTURES AND A ROOFTOP GARDEN ON THE BUILDING. ALTHOUGH THE APPELLANTS SUIT CHALLENGING THE NOTICE APPEARS TO BE PENDING, THE APPELLANT WAS UNSUCCESSFUL IN GETTING ANY INTERIM ORDER RESTRAINING THE MUNICIPAL CORPORATION FROM TAKING STEPS PURSUANT TO THE IMPUGNED NOTICE UNDER SECTION 9 260 OF THE ACT.

3. A SEPARATE SUIT WAS FILED BY RESPONDENT 1 AND OTHER OCCUPANTS OF THE PREMISES RAISING A GRIEVANCE THAT THE RESPONDENT CORPORATION WAS NOT TAKING STEPS PURSUANT TO THE NOTICE ISSUED UNDER SECTION 260 OF THE ACT. THEY PRAYED FOR REMOVAL OF THE UNAUTHORISED GARDEN ON THE ROOF. THE TRIAL COURT REFUSED TO GRANT ANY INTERIM RELIEF TO RESPONDENT 1. RESPONDENT 1 PREFERRED AN APPEAL WHICH APPEAL HAS BEEN DISPOSED OF BY THE IMPUGNED ORDER. THE HIGH COURT PROCEEDED ON THE BASIS THAT IT WAS RESPONDENT LS CASE THAT THE TERRACE ON WHICH THE GARDEN HAD ADMITTEDLY BEEN SET UP BY THE APPELLANTS BELONGED TO ALL THE MEMBERS/OCCUPANTS OF THE BUILDING. IT WAS OBSERVED THAT NORMALLY A TERRACE IS NOT MEANT FOR PUTTING THINGS LIKE SOIL, MUD, STONES, WATER POOL, PLANTS, TREES, ETC. THEREON. IT WAS ALSO OBSERVED THAT DURING THE EARTHQUAKE IN THE STATE OF GUJARAT BECAUSE OF HEAVY LOADS ON TERRACES, MANY BUILDINGS HAD FALLEN DOWN. ALTHOUGH, NO CONCLUSION WAS ARRIVED AT BY THE HIGH COURT AS TO WHETHER THE APPELLANTS HAD EXCLUSIVE RIGHTS OVER THE TERRACE OR WHETHER THE TERRACE BELONGED TO ALL THE OCCUPANTS, THE APPEAL WAS DISPOSED OF BY DIRECTING THE APPELLANTS TO REMOVE THE SOIL, MUD, STONES, WATER POOL, PLANTS, TREES, ETC. ON THE TERRACE GARDEN "IF THE SAME ARE OBJECTIONABLE" TO RESPONDENT 1 AND/OR OTHER OCCUPANTS OR OWNERS OF THE COMPLEX. TILL SUCH REMOVAL OF THE "OBJECTIONABLE THINGS" OR THE DEMOLITION OF THE UNAUTHORISED CONSTRUCTION, THE APPELLANTS WERE RESTRAINED FROM MAKING ANY USE OF THE TERRACE. THE HIGH COURT, HOWEVER, MADE IT CLEAR THAT THE MUNICIPAL CORPORATION WAS NOT RESTRAINED IN ANY WAY FROM TAKING ANY ACTION PURSUANT TO THE NOTICE UNDER SECTION 260 OF THE ACT.

4. WHEN THE MATTER CAME UP BEFORE THIS COURT, THIS COURT PASSED AN INTERIM ORDER ON 14-6-2004 DIRECTING THE STATUS QUO TO BE MAINTAINED.

5. IN ANSWER TO THE NOTICE ISSUED ON THE SPECIAL LEAVE PETITION FILED BY THE APPELLANTS, RESPONDENT 1 HAS FILED A COUNTER-AFFIDAVIT IN WHICH IT HAS BEEN CANDIDLY ADMITTED THAT RESPONDENT 1 NEVER QUESTIONED THE EXCLUSIVE OWNERSHIP OF THE APPELLANTS TO THE TERRACE. WHAT WAS OBJECTED TO WAS THE HEAVY LOAD ON THE TERRACE WHICH WAS PUT WITHOUT OBTAINING PERMISSION FROM THE AUTHORITIES CONCERNED.

6. IN VIEW OF THIS CONCESSION, WE ARE OF THE VIEW THAT THE HIGH COURT SHOULD NOT HAVE DIRECTED THE APPELLANTS TO REMOVE THE TERRACE GARDEN AND ITS VARIOUS FEATURES. IN SO DIRECTING IT IS ABUNDANTLY CLEAR THAT THE HIGH COURT WAS NOT CONCERNED WITH THE LOAD FACTOR BUT WITH THE POSSIBILITY OF THE TERRACE BEING COMMONLY OWNED BY THE OCCUPANTS OF THE PREMISES, THAT IS WHY THE HIGH COURT GAVE THE DIRECTION TO REMOVE THE MATERIAL ONLY IF RESPONDENT 1 FOUND THE SAME OBJECTIONABLE. IN OTHER WORDS IF RESPONDENT 1 DID NOT FIND IT OBJECTIONABLE, THE APPELLANTS COULD CONTINUE TO MAINTAIN THE TERRACE GARDEN.

7. IN ANY EVENT IT APPEARS TO US THAT IT IS FOR THE MUNICIPAL CORPORATION IN THE FIRST INSTANCE TO DECIDE WHETHER THE GARDEN ON THE TERRACE WAS UNAUTHORISED OR ANY CONSTRUCTION WAS UNSAFE AND TO TAKE ACTION UNDER THE PROVISIONS OF THE ACT PURSUANT TO THE NOTICE ALREADY ISSUED BY IT.

8. WE ARE OF THE VIEW THAT HAVING REGARD TO