1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.794 OF 2008 IN NOTICE OF MOTION NO.941 OF 2008 IN LONG CAUSE SUIT NO.1078 OF 2008 ALONGWITH CIVIL APPLICATION NO.957 OF 2008 Shalom Co-op. Hsg. Society Ltd. .... Appellants Vs. Snehal Tower Co-op. Hsg. Ltd. .... Respondents & Ors. Mr. Ram U. Singh i/by Mr. Vijay Kumar Sharma, Advocate for Appellants. Mr. Parag S. Pradhan i/by Subhash Pradhan & Co. for respondent no.1. Coram : SMT. R.P. SONDURBALDOTA,J Date : 22nd September, 2008 P.C. 1. This Appeal arises out of Order dated 22nd July, 2008 passed by Bombay City Civil Court rejecting the appellant's application for ad-interim reliefs, to restrain the respondents from encroaching upon and or carrying out any work of construction on 30” wide internal road on the property bearing CTS No.375/11, 480, 480-A, 480-A-3 to 14 and 490 of village Amboli and from using or utilising the F.S.I. of the land of internal road while developing the adjoining portion of the land. Mr. R.U. Singh, the learned Counsel for the appellant submits that the description of 2 the road in the prayer clauses of the plaint and the Notice of Motion as `D.P. Road' is incorrect. The description should be read as internal road. 2. The building of the appellant-society was constructed in the year 1982, it's members occupied their respective flats in the building in the year 1984 and the land and the building came to be conveyed by the builder to the society in the year 2000. The lay-out plan of the relevant time shows that 30 feet wide internal road starting from near the appellant's property and touching the D.P. Road beyond what is seen on the layout plan as property of building NO.6 and building No.3. It appears that later the builder sold the property to the respondents in the year 1997 who now propose to develop the land by putting up construction thereon. 3. It is contended by the respondents that there has been amendment of the layout plan in the year 1992 in which the internal road with the width of 30 feet has been deleted. The plans were amended prior to purchase of the property by respondents in the year 1997. The respondent proposes to carry out the construction as per the approved amended layout plan. The layout plan has been modified without the consent of the appellants. Therefore, they are within their rights to insist upon the internal road for their use. 3 4. It is argued on behalf of the respondents that there is a DP road which directly reaches the appellant's society. However, the layout plan produced reveals that the D.P. Road does not reach the property of the appellants. It is way beyond, at a substantial distance beyond the appellant's property. It is then submitted on behalf of the respondents that the appellant's society is connected to D.P. road by an internal road, which provides a proper access to the appellants. The photographs of the internal road produced by both the sides show that almost half portion of the road is very narrow strip from which one vehicle can barely pass. This cannot be a substitute for 30” wide road shown in the original layout plan. On the basis of which members of the appellant purchased their respective flats. In these circumstances, the appellants will be entitled ad-interim reliefs to restrain respondents no. 4 and 5 from encroaching upon and or entering into 30 feet wide internal road seen on the original layout plan of property bearing CTS 375/11, 480, 480-A-480-A-3 to 14 and 490 of village Amboli. As regards the other prayers sought to restrain respondents no. 4 and 5 from sanctioning any building plans for construction over the internal road, Mr. Pradhan, the learned Advocate for the respondents states that the building plans have already been sanctioned on 26th March, 2004 and commencement certificate granted to M/s Kusum Construction Company, constituted attorney of the owner. The certificate has been 4 renewed from time to time till 7th April, 2008. There is no extension beyond 7thApril, 2008. Hence, it is directed that Respondents No. 4 and 5 will not grant extension to the respondents pending hearing of the Notice of Motion. With this order, Appeal from Order gets disposed off. 5. It is clarified that the orders granted are only pending the hearing of Notice of Motion by the Bombay City Civil Court. Respondents have already filed their affidavits in reply to the Notice of Motion. The appellants to file their affidavit in rejoinder if any within a period of one week from today. Bombay City Civil Court to dispose off the Notice of Motion within a period of eight weeks thereafter. (SMT. R.P.SONDURBALDOTA,J)