VINAY N. TEWAR Vs. J. SUBRAMANIAN

JUDGEMENT

(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 u/s. 260 of the Bombay Provincial Municipal Corporation Act, 1949 (for short "the Act") to the 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 u/s. 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 u/s. 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 1's 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 u/s. 260 of the Act.