1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.313 OF 2010 WITH CIVIL APPLICATION NO.409 OF 2010 Shri Bharat R. Thakkar & Anr. ...Appellants. v. The M.C.G.M. & Ors. ...Respondents. Mr.Anil C. Singh i/by D.B.Shukla, advs. For the Appellants. Mr.J.Xavier, adv. For the Respondent No.1/BMC. Shri V.S.Kapse, adv. for the respondent no.3. Shri Shailesh Chavan i/by H.R.Pawar, advs. for the Respondent Nos.5 to 10 and 12. CORAM : J.H. BHATIA, J. DATED : MAY 5, 2010 P.C. 1 Heard the learned counsel for the parties. 2 Appellants before this Court are the original plaintiffs. They are the licensees or gala holders in Sant Jalaram Bappa Market situated at Mulund (W). The market was constructed by the Municipal Corporation and the shops/galas therein were allotted to different members. It is stated that there are in all 151 gala holders. There was a proposal to re-develop the said market and the Municipal Corporation has appointed the respondent no.3 Ankur Developers for development and construction of new market. Plaintiffs challenged the same on 2 several grounds. According to them, there was already in existence Sant Jalaram Bappa Market Vyapari Association, which is duly registered with the charity commissioner as a trust and that the said association has not given any consent in favour of the defendant/respondent no.3. It is contended that the defendant/respondent no.5 also has assumed same name, i.e., Sant Jalaram Bappa Market Vyapari Association while association of the same name is already in existence and the respondent no.5 has been wrongly used by the developer for obtaining permission from the Municipal Corporation. It is contended that the respondent no.3 has not complied with the terms of the IOD and, therefore, he should be restrained from taking possession and from demolishing existing galas and from making development. Plaintiffs took out notice of motion which was contested by the respondents and after hearing the parties, the trial Court rejected notice of motion. Hence, the appeal. 3 On hearing the learned counsel for the parties, it appears that there are in all 151 gala holders. According to the respondent nos.1 and 3,135 consent letters were already received, out of which on verification 132 consent letters were found to be valid. Thus, out of 151 members, 132 gala holders have given consent in favour of the defendant no.3. That being more than 70% of the number of gala holders, 3 Municipal Corporation had issued IOD in favour of the respondent no.3 with certain conditions on 29th October, 2009. It is also stated by the learned counsel for the respondent nos.1 and 3 that the gala holders, who have given consent for handing over the possession of the said galas to the respondent no.3, are also allotted alternative transit accommodation. Demolition of those galas have also taken place. As per the terms of the IOD, agreement with the existing tenants will be necessary before the commencement certificate is issued. As far as the galas in occupation of the present plaintiffs/appellants are concerned, they are still in possession and have not given consent. The learned counsel for the respondent no.3 makes a statement that after reconstruction of the market, shops will have to be allotted to the existing gala holders by the Municipal Corporation and not by the builder. It indicates that the builder has to hand over the market after construction to the Municipal Corporation and then the shops will be allotted to the eligible members. The learned counsel for the respondent no.3 also makes a statement that the letter of allotment of transit accommodation with assurance of allotment of permanent accommodation in the new market to be constructed will be issued to the plaintiffs within a one week from this date and they should hand over the possession because development can 4 not take place unless all the shops are demolished. 4 The learned counsel for the plaintiffs/appellants tried to point out existence of the earlier association and another association, respondent no.5 with the same name. However, in my considered opinion, it is not necessary to enter into that question nor it is relevant for granting permission to the respondent no.3 for construction. The consent of more than 70% gala holders will be an individual act of the gala holders and not the act of the particular association. As the record reveals that more than 70% of the existing gala holders have already given consent, it will not be in the interest of justice and development to grant any stay against the said development on the request of some of the members, which may not be agreeable to the same. In my considered opinion, in view of the statement made by the learned counsel for the respondent nos.1 and 3, the interest of all the existing gala holders including plaintiffs will be fully protected. Therefore, I do not want to interfere in the rejection of the notice of motion. 5 For the aforesaid reasons, appeal stands dismissed. As the appeal itself is dismissed, civil application no.409/10 does not survive and stands disposed off accordingly. However, the respondent no.3 shall give allotment letter of the transit accommodation to the plaintiffs within 5 one week from this date and the plaintiffs shall be handed over the possession of such transit accommodation within one week thereafter and the plaintiffs shall vacate existing galas and shift to such transit accommodation within one week thereafter. Respondent no.3 shall also enter into agreement with the plaintiffs within a period of three weeks from this date. (J.H. BHATIA,J.)