1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1111 OF 2009 Sandeep Vimal Jain & anr. ... Appellants (Ori. Plaintiffs) v/s M/s.Devendra Associates & ors. ... Responden (Ori. Defendants) Mr.V.B.Naik with Deepa Ahuja i/by M/s.Arun Sapkal & Co. for the appellants. Mr.Kunal Cheema for respondent Nos.1 & 2. Mr.Yadunath Chaudhari for Resp. Nos.8 to 10. Smt.K.K.Soraan for the respondent No.5. CORAM: SMT.NISHITA MHATRE, J. DATED: 9TH NOVEMBER, 2009 P.C.: 1. The appellant has approached this Court against the interim order passed by the City Civil Court vacating the status-quo order granted on 28.4.2009 and dismissing the notice of motion. 2. The appellants claim to be running a business of 2 stainless steel and other metals products including wires and rods. The appellants contend that, they are entitled to allotment of premises in the redeveloped building on the ground floor, but the MHADA has not taken into consideration the nature of their business while allotting them premises on the first floor of the redeveloped building. It is submitted that as a result, the appellants have been non-suited only because of this improper consideration of their rights to the premises in the redeveloped building. 3. Admittedly, the City Civil Court in an earlier motion had directed the Chief Officer, Mumbai, or any other officer nominated to allot premises in redeveloped building to the tenants. The problem has arisen because in the old structure there are eight claimants of commercial premises whereas the redeveloped building has only 5 premises for commercial use on the ground floor. The parties aggrieved by this order, significantly not the plaintiffs, approached this Court in Appeal from Order No.102 of 2003. By his order dated 3.6.2008, Vazifdar, J. has modified the order only to the extent that the allotments to be made by the MHADA should be made after hearing the parties and that they will be subject to the result of the suit. It was also made clear that no equities could be claimed by any of the parties. The 3 learned Judge has also further directed that, during the pendency of the suit the parties would not create third party rights in respect of the tenements which would be allotted by MHADA in order to protect the rights of those who claimed premises on the ground floor and who had instead been allotted premises by MHADA on the first floor. The learned Judge has passed further directions that an allottee of the ground floor premises should deposit in Court the difference in the market rate between the first floor premises and the ground floor premises, so that, if the allottee of the first floor premises is ultimately found to be entitled to the ground floor premises, he shall be entitled to the amounts so deposited. 4. The MHADA has passed orders in consonance with the order of the City Civil Court as modified by this Court. While passing the aforesaid order, the officer has adopted certain criteria for allotment of the premises. The parameters considered include the length of occupancy of the present occupant, type of business, etc. The MHADA has considered the nature of business which claimants were conducting and it was found that most of the claimants of commercial premises were conducting a metal business. 4 5. Under these circumstances, in my view, the criteria adopted as an interim measure by the MHADA cannot be faulted. In any event, as directed by Vazifdar, J. the order passed in the Appeal from Order No.402 of 2008, the rights of the parties are fully protected during the pendency of the suit and the allotment by MHADA has been made subject to the result of the suit. 6. In these circumstances, I find no reason to interfere with the impugned order. 7. Admittedly, the plaintiffs are occupying premises which are required in the setback area and the occupation certificate of the building has not been issued because they have failed to vacate the premises. 8. Appeal from order dismissed. 9. On the application made by Mr.Naik, the status-quo as of today be maintained for a period of four weeks from today. 10. Civil application No.1366 of 2009 also stands dismissed in view of dismissal of the appeal from order. ...... 5 6