gst 1 fa851.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO. 851 OF 2010. Mewalal Laladas Kuril... ..... ..... ..... Appellant. V/s The Mun. Corpn. Of Gr. Mumbai... .... .... Respondents. Mr.Ditendra Mishra, Adv. For the appellant. Mr.Vinod Mahadik, Adv. For BMC. CORAM: B.R.GAVAI, J. 1st September, 2010. PC: The present appellant challenges the judgment and order passed by the learned City Civi Court, Bombay dated 7.5.2010 thereby dismissing the suit filed by the present appellant. 2. A suit filed by the appellant was for declaration of eligibility in respect of suit premises and for perpetual injunction to restrain the defendant-MMC from demolishing the same. 3. In the earlier round of litigation between the appellant and the Corporation the matter had reached this Court in Appeal from Order No.115/03. In the said proceedings an affidavit was filed by one Vilas Laxman Kamble, an officer of the respondent-Municipal Corporation. In paras 2 and 3 of the said affidavit following statement has been made: “2. I say that at that time about 165 persons were affected and they were settled in the four categories as below: i) The persons affected and having frontage have been shifted 12’ footpath by removing their immediate neighbour to elsewhere on the same road. gst 2 fa851.10.sxw ii) 10 nos. of residential occupants have been shifted in the Ashok Silk Mill Compound by allotting 10’ x 15’ pitches. iii) The persons whose ½ or more shops have been affected are allowed to construct the area affected over existing structure upto 17’ height. iv) The Respondents have provided 18 alternataive accommodations near ONGC complex, Kamraj Nagar and 12 occupants near pumping station on the same road. 3. I say that the appellant has original agreed for the said scheme, however, he refused to accept the alternate premises allotted to him by these respondents. I say that the work of 76’ carriage-way is completed and the persons affected and have frontage have been shifted on the proposed footpath by removing their immediate neighbourrers to elsewhere at the time of road widening.” 4. The statement made by the Corporation was taken into consideration by this Court in those proceedings and vide order dated 21.9.2006 the appeal came to be disposed of on the basis of the statement of the present appellant that he did not wish to proceed further with the appeal. Consequently said suit was also dismissed. 5. The proceedings in the present appeal arise out of subsequent suit for the same cause of action. In that view of the matter no error could be found with the order of the learned appellate court. 6. However from the statement made by the Corporation in the earlier round it can clearly be seen that the Corporation had itself made a statement that in so far as similarly situated persons are concerned, either the affected persons have been granted alternate accommodation or they have been permitted to raise the height of their shops to 17 feet in the ½ portion. A categoric statement has been made in the said affidavit that though an offer was gst 3 fa851.10.sxw made to the present appellant he has refused to accept the same. However the appellant has filed an undertaking that he would make an application to the Assistant Commissioner of the Corporation “G” North ward for permission to raise the height or for alternate accommodation and would abide by the order passed by the Assistant Commissioner of the Corporation. 7. In that view of the matter the appeal is disposed of with following directions: i) The appellant shall make an application to the Assistant Commissioner of the Corporation “G” North Ward for grant of alternate accommodation/raising of the height; ii) The Assistant Commissioner “G”North ward shall decide the said application in the light of the statement made before this Court in affidavit of Mr.V.L.Kamble and either grant alternate accommodation to the appellant or permit him to raise the height upto 17 feet. iii) Said application shall be decided within a period of eight weeks from today. iv) Respondents shall maintain staus-quo in so far as structure of the appellant is concerned for a period of eight weeks from today. With the aforesaid directions civil application stands disposed of.