1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.568 OF 2009 Kalavati Mahadeo Karpe & anr. ..Petitioners V/s. Mumbai Building Repair & ..Respondents Reconstruction Board & ors Mr.A.G.Damle i/b.M/s.Shukla & Shukla, Advocate, for the petitioners Mr.S.P.Thorat, Advocate, for respondent No.1 Mr.D.A.Nalawade, Government Pleader, for the State CORAM : F.I.REBELLO & C.L.PANGARKAR, JJ. DATE : 18TH JANUARY, 2010 P.C. . Rule. 2. Heard forthwith. 3. The premises occupied by the petitioners has been demolished and subsequentally the building has work of re- construction is in progress. It is the case of the petitioners that they were entitled to 2 commercial accomodation as the place which they surrendered was commercial. It is submitted that the respondent-board has made no arrangement for the same. Hence, the present petition. 4. The respondent-board has filed an Affidavit of one Mr.Dinesh Mahajan, the Deputy Engineer (D-1 Ward), M.B.R. & R. Board (MHADA). In the said Affidavit, reference is made to various documents including the public notice to which the petitioners could have filed an objection that the premises were described as residential. The petitioners however did not raise any objection to the same. 5. It is further submitted by the learned counsel for the respondents across the bar that the premises been constructed are residential and it is not possible to handover and/or to allot to the petitioners the 3 commercial premises at this stage considering that the construction of the building is nearby complete. 6. We find from the record that the area occupied by the petitioners is 9.50 Sq.meter. The petitioners are now entitled to an area of 225 Sq.feet on the ground floor. On behalf of the respondents the learned counsel submitted that the residential premises are available but they did not handover the residential premises to the petitioners on petitioners' making an application for handing over the possession of the commercial premises to them. 7. It is no doubt true that there is an additional document annexed to the reply of the respondents i.e.list of the tenants. The premises occupied by the petitioners is shown as non-residential. However, in the Gazette Notification of the year 1994, the premises were described as residential. The 4 petitioners did not file an objection to the same. We have gone through the pleadings and the other documents placed on record. 8. In the light of the above, the following Order is passed. (i)The petitioners within 15 days from today to make an application to the respondents for handing over the premises under construction on the ground floor admeasuring 225 Sq.feet. (ii)The respondents within 30 days of the building being re-constructed and ready for occupation to intimate the same to the petitioners. On such intimation the petitioners should apply to the respondents for handing over the posession of the premises. The respondents thereafter, within 15 days from the receipt of the application should handover the possession of the premises to the petitioners (iii)Liberty to the parties to apply in the event, any difficulty arises. (iv)Considering the peculiar facts of this case and according to the petitioners, they were entitled to non-residential accomodation and as there is some documentary evidence on record, in the event, the petitioners can apply to the Municipal Corporation of Greater Mumbai for conversion of non-residential premises into residential premises, the respondents 5 will give no objection to the same on the peculiar facts and circumstances of this case. (C.L.PANGARKAR, J.) (F.I.REBELLO, J.)