SM 1 24.ao.1043.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1043 OF 2011 WITH CIVIL APPLICATION NO. 1391 OF 2011 WITH CIVIL APPLICATION NO. 1794 OF 2011 IN APPEAL FROM ORDER NO. 1043 OF 2011 Shri. Prabhakar Keshav Mhatre ....Appellant. Versus The Municipal Corporation of Greater Mumbai. ....Respondent. ____________ Mr. B. P. Shukla for the Appellant. Ms. K. K. Soraan for the Respondent-BMC. Mr. S. N. Salunke for the Intervenor. (C.A.No.1794/11) CORAM: R. M. BORDE, J. DATED : DECEMBER 19, 2011. P.C.: Notice of motion came to be tendered by the appellant requesting the court to grant an order of injuction and restraining the plaintiff from interfering with plaintiff's peaceful use, occupation and possession in respect of the suit premises. While dismissing of the notice of motion, the Trial Court has passed an order restraining the defendants pending the final disposal of the suit from demolishing the suit room or dispossessing the plaintiff therefrom until he is provided with an alternate accommodation of carpet area of 225 sq.ft. It is the contention of the respondent that the accommodation is being offered to the plaintiff/appellant but the same has not been accepted by the appellant. The counsel appearing for the appellant states that the offer of alternate SM 2 24.ao.1043.11 accommodation is not acceptable to the appellant since the disputed structure is not a part of the final scheme. 2. Affidavit in reply is presented by the respondent. In paragraph nos. 3, 4, and 5 it is states thus: “3. I say and submit that the Appellant Plaintiff is occupying the structure adm.32.19 sq.mtr (346.36 sq.ft.) on final plot No. 670 of Borivali Town Planning Scheme No. III, situated at Haridas Nagar, Borivali (W) in R/Central Ward. The copy of the plan showing the structure under reference is annexed herewith and marked “Exhibit”-A. I crave leave to refer to and rely upon the same. 4. I say and submit that as per the award of sanctioned Borivali Town Planning Scheme No. III (hereinafter referred to as T.P. Scheme). The original plot No. 380 (pt.) and 378 (pt.) reconstituted into final plot NO. 670 and allotted to the original plot holder of original plot holder No. 380 i.e. Chief Promoter Haridas Nagar C.H.S. Hereto annexed and marked as “Exhibit-B” is the copy of the redistribution and valuation statement in respect of final plot No. 670 which I crave leave to refer to and rely upon the same. 5. I say and submit that there were four structures on final plot No. 670 of Borivali T.P. Scheme No. III including structure of the Appellant. The Respondent-Corporation have filed Affidavit in Reply as well as written statement before the Hon'ble Trial Court which these Defendants crave leave to refer to and rely upon the same in order to avoid repeatation.” 3. It is also further stated that the plot no. 670 is part of the Borivali Town Planning Scheme No. III. In order to substantiate the contention, original plan alongwith all relevant SM 3 24.ao.1043.11 record is made available to the court. Thus, it transpired that the disputed property is a part of town planning scheme and therefore, the appellant is entitled to have an alternate accommodation. The contention raised by the appellant that the disputed property is not a part of the scheme does not appear to be correct and hence, not acceptable. 4. Appeal from order is devoid of substance and stand dismissed. In view of dismissal of the appeal from order, pending civil applications do not survive and stand dismissed. (R. M. BORDE, J.)