SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5183 OF 2008 M/s.Saifee Foundation Trust ...Petitioner Versus Abdul Khalid Bashir Ali & Anr. ...Respondents ...... Mr.M.V.Singh for Petitioner. Mr.D.C.Shah for Respondent No.1. Mr.A.J.Bhor for Respondent No.2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 9, 2008. SEPTEMBER 9, 2008. SEPTEMBER 9, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Shah waives notice for Respondent No.1. Mr.Bhor waives notice for Respondent No.2. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition takes exception to the order passed by the IInd Ad-hoc District Judge dated 16th June 2008 in L.C.Suit No.3486 of 2005 whereby the Trial Court has directed the parties to maintain the status-quo in respect of the suit structure. The background in which present Petition emanates is as follows: . The Corporation initiated action in respect of the suit structure. The Respondent No.1 filed Suit before the Trial Court challenging the proposed action of the Corporation. In the said Suit, Respondent No.1 took out Notice of Motion No.3196 of 2006 praying for interim relief during the pendency of the Suit. The Trial Court, however, after considering all aspects of the matter found that the suit structure was unauthorised and cannot be protected. In other words, the Trial Court declined to grant any injunction against the Corporation in respect of the suit structure. That decision was carried in appeal before this Court by way of Appeal from : 3 : Order No.76 of 2008. This Court upheld the view expressed by the Trial Court that the suit structure was unauthorised and cannot be protected. 5. For proper understanding of the issues that arise in the present Petition, it is apposite to advert to the order passed by this Court on the said Appeal from Order dated 6th May 2008 which reads thus: "1.It is quite possible that the Appellant is a innocent victim having purchased the suit structure where ultimately it may be found that he had no rights. 2. It is not possible to interfere with the impugned order on the record as it stands and considering the submissions that have been advanced thus far. One this appears to be clear at this stage and that is that the structure was not in existence prior to 1986.This appears to be so from the plan at page 31-B. The structure has been shown in the records only in the year 1989. 3. Further the structure was demolished and the Appellant reconstructed the same without permission. That is the explanation for part of the structure being still in existence as on date. No policy has been relied upon before the Trial Court which would indicate a right in favour of the Appellant at least to retain the structure. Further this would hamper the project undertaken by the : 4 : second Respondent Trust namely M/s.Saifee Foundation Trust of a municipal market and a building adjoining thereto. It is however made clear that neither the impugned order nor this order prevents the Appellant from making an application for alternate accommodation or accommodation in lieu of the structure if the Appellant is otherwise entitled to it in law.Such application would be considered on its own merits. 4. It is agreed between the parties that all of them will maintain status-quo in respect of the suit structure till 15.6.2008. 5. The Appeal from Order is accordingly disposed of. The Civil Application is also disposed of." 6. On plain reading of this order, it is amply clear that this Court has upheld the view expressed by the Trial Court that the suit structure was unauthorised and cannot be protected. At the same time, this Court granted limited liberty to the Respondent No.1 to ask for further relief against the Corporation to provide for alternate accommodation in lieu of the suit structure which was likely to be demolished. Indeed, if the Respondent No.1 was entitled for said relief of alternate accommodation, the Court would consider of protecting the possession of the Respondent No.1 till appropriate decision was to be : 5 : taken by the Respondent No.2 Corporation on the representation to be made by the Respondent No.1 for alternate accommodation. It is in that context this Court directed parties to maintain status-quo in respect of the suit structure to enable the Trial Court to consider those aspects. The Respondent No.1, however, taking benefit of the order passed on 6th May 2008 not only asked for relief of amending the plaint, so as to ask for further relief of alternate accommodation against the Respondent No.2 Corporation but also asked for relief of stay of proposed action of the Corporation in respect of the suit structure. Obviously, the interim protection could be given to the Respondent No.1 provided the Respondent No.2 was to take sometime for considering the prayer for grant of alternate accommodation to Respondent No.1. The parties could be directed to maintain status-quo with regard to the suit structure only for that limited purpose. However, the Trial Court not only allowed the amendment application preferred by the Respondent No.1 but also granted interim relief of status-quo in respect of the suit structure dehors the relief claimed in the : 6 : amendment. That part of the order is put in issue before this Court. In my order dated 21st August 2008, I have already recorded prima facie opinion, which I may now reiterate in the present order. 7. In my opinion, the interim protection that could be granted to the Respondent No.1 was only till the Respondent No.2 was to take decision on the issue of whether the Respondent No.1 was entitled for alternate accommodation in lieu of the suit structure which was required to be demolished being unauthorised structure. The interim protection could not enure beyond the consideration of the said request of the Respondent No.1. Now the Respondent No.2 Corporation has placed on affidavit that the Respondent No.1 is not entitled for any alternate accommodation in lieu of the suit structure. That decision has been taken by the Respondent No.2 on the basis of the policy of the Corporation in that behalf. In view of the opinion expressed by the Respondent No.2, the question of protecting the suit structure merely because the Suit is pending before the Civil Court does not arise. The Respondent No.1, if so advised, may be : 7 : free to challenge the decision of the Corporation which has opined that the Respondent No.1 is not eligible for alternate accommodation in lieu of the suit structure, which proceedings will have to be decided on its own merits. Pendency of that action cannot be the basis to protect the suit structure which has been found to be unauthorised and not protected by any of the extant policy of the Government or the Corporation. 8. The suit structure will have to be necessarily demolished irrespective of the outcome of the proceedings to be taken out by the Respondent No.1 questioning the correctness of the opinion recorded by the Corporation Respondent No.2 with regard to allocation of alternate accommodation to Respondent No.1 in lieu of the suit structure. Taking any other view would inevitably negate the efficacy of the view taken by the Trial Court and later on affirmed by this Court that the suit structure is unauthorised and not eligible to be protected. 9. Accordingly, this Petition succeeds. The : 8 : order impugned in this Writ Petition of continuing the status-quo with regard to the suit structure is set-aside with the above observations and liberty to the Respondent No.1 for pursuing such other remedy for allocation of alternate accommodation in lieu of the suit structure, if so advised. 10. At the request of the Respondent No.1, it is observed that no precipitative steps be taken for a period of two weeks from today with regard to the suit structure. A.M.KHANWILKAR, J.