IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.328 OF 2001

IN

NOTICE OF MOTION NO.3358 OF 1999

IN

B.C.C.C. SUIT NO.4238 OF 1999

ALONG WITH

CIVIL APPLICATION NO.401 OF 2001

Mayur Kapadia ...Appellant

Versus

Municipal Corporation of Gr.Bombay ...Respondent

......

Mr.Bharat Joshi for Appellant.

Mr.A.Y.Sakhare, Sr.Counsel with Mr.J.Xavier

for Respondent.

......

CORAM: A.M.KHANWILKAR, J.

CORAM: A.M.KHANWILKAR, J.

CORAM: A.M.KHANWILKAR, J.

JANUARY 27, 2006.

JANUARY 27, 2006.

JANUARY 27, 2006.

P.C.

P.C.

P.C.

1. Heard Counsel for the parties. Perused

the relevant records.

: 2 :

2. In my opinion, there is no reason to

depart from the conclusion reached by the Court

below that the stand taken on behalf of the

Plaintiff that the offending structures referred to

in the suit notice including the fourth floor

construction was in existence in terms of

sanctioned plan of 1958 or that there was no

covering of open chowk, as no chowk existed in

terms of plan of 1958. That plea has been rightly

negatived by the Trial Court relying on the

sanctioned plan of 1996. The original file was

produced before the Trial Court by the Officer to

support the stand taken by the Corporation in

Paragraphs 6, 7 & 8 of the reply to the Notice of

Motion. It is obvious that application for

permission of construction of 4th floor was made to

the Corporation as per the sanctioned plan of 1996.

From the assertions made in Para 8 of the reply

affidavit, it is observed that full commencement

certificate was issued for repairs to existing

building comprising of ground plus two upper floor

plus third floor (part) on 27th August 1996. The

question of existence of 4th floor before issuance

: 3 :

of commencement certificate will not arise. It is

also seen that when the construction on the 4th

floor was in progress, notice under Section 354 of

the Act to stop work was issued by the Corporation

on 29th November 1997. This presupposes that six

rooms on the 4th floor were not in existence.

3. Strong reliance was placed on the alleged

sanctioned plan of 1958. However, from the reply

affidavit as filed by the Corporation, in

particular, Paras 6 and 7, it is amply clear that

the so-called sanctioned plan produced by the

Plaintiff was doubtful. On the other hand, the

Plaintiff under his signature had submitted

applicati