JUDGMENT :

SANDEEP K. SHINDE, J.

1. Plaintiffs, have filed this Appeal under Order 43 Rule 1(r) read with Section 104 of the Code of Civil Procedure, 1908, challenging the order dated 29th April 2021, by which the learned Judge, City Civil Court, Mumbai declined to restrain defendant no. 1 (developer) from making construction on Plot No. 391, at Motishah Cross Lane, Byculla, Mumbai.

2. Heard Mr. Pradeep Aggarwal, learned Counsel for the appellant; Mr. Girish Godbole, learned Senior Counsel for the Municipal Corporation and Mr. Prasad Dhakephalkar, learned Senior Counsel for respondent no. 1.

Factual matrix:

3. Plaintiff is a Co-operative Housing Society. It owns a building, situated at Plot No. C.S. No. 392, Motisha Cross Lane, Byculla, Mumbai. The defendant no. 1 is, the Developer/Owner of adjoining plot no. 391. Plaintiffs’ alleged, that the defendant no. 1 in collusion with Planning Authority, started constructing ground plus 15 floors building on Plot No. 391, as per development permission dated 15th April, 2020 which was void, being granted in breach of building regulations. Plaintiffs’ would assert, that, the development permission has been granted by the Planning Authority in defiance of Development Control and Promotion Regulations for Greater Mumbai, 2034 (“DCPR” for short), by compromising the urban safety requirements. Plaintiffs would plead that, the building, then existing on Plot No. 391 was demolished by the defendant no. 1 and that distance between the old building prior to demolition and plaintiff’s building was approximately 9 feet/mtrs. however, as per approved plan, open space between their building and proposed building is 1.5 meters. In other words, plaintiff’s case is, that the Planning Authority granted development permission, and approved plans under Section 45 of the Maharashtra Regional and Town Planning Act, by compromising the fire and health safety, of inhabitants of neighbourhood. As well, plaintiffs’ would assert that the proposed construction on Plot No. 391, would affect its’ members right to air and light. To assert these rights in the Suit (St.) No. 3729/2021, plaintiffs’ seek the following reliefs:

“(a) That this Hon’ble Court be pleased to declare that the development permission and or grant of commencement certificate dated 15.04.2020 and approved plan issued by the defendants no. 2 for the development of proposed building known as cozy cottage in favour of defendant no. 1 is illegal, improper and bad in law and same is required to be declare invalid, void and be cancelled in respect of the construction of the proposed building known as cozy cottage at C.S. No. 391 situated at 1st, Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400027.

(Emphasis supplied)

(b) That this Hon’ble Court be pleased to declare that the construction of the proposed building known as cozy cottage situated at C.S. No. 391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400027 is illegal, improper, bad in law.

(c) That this Hon’ble Court be pleased to passed the order directing the defendants no. 1 and 2 to remove the illegal, improper and unauthorized construction work of the proposed building known as cozy cottage situated at C.S. No. 391 situated at 1st Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400 027.

(d) That this Hon’ble Court be pleased to grant the permanent order and injunction restraining the defendants, their officers, servants, agents, person/persons claiming through them from carrying out any addition, alteration and or construction of any nature of the proposed building on the plot bearing C.S. No. 391 situated at 1st, Motisha Cross Lane, (love lane), Byculla (E), Mumbai-400027.”

4. Pending suit, vide Notice of Motion No. 1170/2021, plaintiffs’, sought an order, to restrain defendant no. 1 from making construction on Plot No. 391, on the premise that the development per