1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1059 OF 2008 WITH CIVIL REVISION APPLICATION NO. 1296 OF 2008 Abrunnisa Kallu Ansari : Appellant versus M/s.Build Arch and others : Respondents. Shri. P.J.Thorat for the Appellant. Shri.Sanjay U Kadam with Ms.Shobha Khaunekar and Ms.Apeksha Sharma i/by M/s.Kadam & Co. for the Respondent No.1. Smt.K.K.Soraan for the Respondent No.3-BMC CORAM : R.M.SAVANT, J. DATED : JANUARY 07, 2009 P.C. 1. The above Appeal, filed by the original Plaintiff, arises out of the Order dated 19th September 2008 passed by the learned Judge, City Civil Court, Greater Bombay by which order the Notice of Motion (Exhibit NO.2) filed by the Appellant/Plaintiff came to be rejected. 2 2. The Appellant/Plaintiff has filed a suit being L.C.Suit No.2229 of 2008 for a declaration that she is entitled to two separate alternate accommodations i.e. one for residential and other for commercial in the Slum Scheme being implemented by the Respondents at Survey No.286(Part) of Lower Parel Division at S.S.Amrutwar Marg, Worli, Mumbai – 400 013. The occupants of the slum on the said plot of land have constituted themselves into a co- operative society i.e. Respondent No.2 – M/s.Shiv Nagar S.R.A. Co- operative Housing Society Ltd which is implementing the scheme of re-development. Pursuant to the NOC granted by the Respondent No.7 – the Slum Rehabilitation Authority, the said Slum Rehabilitation Scheme is being executed under Regulation 33(10) of the Development control Regulations for Greater Bombay, 1991 through the Respondent No.1 - Developers. In terms of the said scheme, initially Annexure-II was prepared wherein the Plaintiff's name appeared at Sr.No.97 for commercial user and at Sr.No.155 for residential user. Thereafter it appears that the Plaintiff was held ineligible for alternate residential accommodation against which the Plaintiff moved an application before the competent Authority i.e. 3 Respondent No.4 under the Slums Act as the Municipal Corporation owns the land in question. The Respondent No.4 thereafter passed an order on 14th May 2008 holding that the Appellant/Plaintiff is one of the sub-tenants of the V.L.T. original holder and, therefore, is eligible to participate in the said scheme. The Appellant/Plaintiff relied upon the ration card, electricity bill and the election identity card in support of her case that she was using the premises for both residential and commercial purpose. Thereafter a fresh Annexure-II was prepared as the earlier Annexure-II had to go through the scrutiny of the Respondent No.7. In the approved Annexure-II, the Appellant/Plaintiff has been shown to be entitled to only one residential-cum-commercial premises. It is pursuant to the said Annexure-II that the Respondent No.1 has issued an allotment letter to the Appellant/Plaintiff allotting the residential-cum-commercial tenement bearing No.116 on the First Floor of the newly constructed rehabilitation building at site and called upon the Appellant/Plaintiff to vacate the premises in question as the same were required for being handed over to the Bombay Municipal Corporation for road widening. 4 3. It is contended on behalf of the Appellant that the Appellant/Plaintiff was having two structures one was being used for commercial and other was being used for residential purpose and the said two structures have been identified in the first Annexure-II as Structures at Sr.Nos.97 and 155. It is further contended on behalf of the Appellant that the Respondent No.4 has also held the Appellant/Plaintiff eligible to two separate premises by observing that the Appellant is entitled to participate in the said Scheme and, therefore, the Appellant is entitled to two separate alternative premises one for commercial and other for residential. 4. The learned counsel for the Appellant relied upon clause 5 (2) of Appendix-IV of the Development Control Regulations for Greater Bombay, 1991 to contend that even if it is held that there was only one structure, the Appellant would still be entitled to the area wherein commercial activities was carried out which in the instant case was 12.5 sq.mtrs as mentioned in the first Annexure-II. 5. Per contra, it is contended on behalf of the Respondents 5 that the documents produced by the Appellant/Plaintiff relate only to the residential user and, therefore, the Appellant, though carrying out commercial activities in the said premises, would be entitled to only one alternate premises wherein residential-cum-commercial user is permissible. 6. The learned counsel for the Respondents, relying upon Appending-IV, contended that under the said Slum Rehabilitation Scheme, a person is entitled to only one structure notwithstanding the number of structures he may have on the concerned plot of land or anywhere-else in the island city as otherwise the purpose of the said Slum Rehabilitation Scheme would be lost and would result in self aggrandizement. 7. As indicated above, the authorities under the Slum Act have approved the Annexure-II and have come to a conclusion that the Appellant/Plaintiff had only one structure which was used by her for both i.e for commercial and for residential purpose and have, therefore, held her entitled to one alternative accommodation for 6 residential-cum-commercial. 8. It would also be pertinent to note that the structures presently occupied by the Appellant are coming within road width and demolition of the said structures is necessitated as the Respondent No.1 – Developers have to hand over the area occupied by the said structure to the BMC for road widening. In so far as grievance of the Appellant/Plaintiff that the structure on the first floor of the newly constructed building is not convenient for the commercial user, the learned counsel for the Respondent No.1 – Developers submitted that similarly situated persons as the Appellant have also been accommodated on the first floor and looking to the peculiar situation of the plot in question, the Planning Authority i.e. The BMC has permitted allotment for commercial user on the first floor as well as on the second floor. 9. Having perused the impugned order and the reasons cited by the learned Judge, City Civil Court, Bombay and considering the 7 facts and circumstances of the case as mentioned herein above, no case for interference with the impugned order is made out. The above Appeal from Order is accordingly dismissed. The Appellant is granted week's time to vacate the present premises. [R.M.SAVANT, J]