1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL FROM ORDER NO.1205 OF 2008 WITH CIVIL APPLICATION NO.1475 OF 2008 Smt.Najmabi Abdul Khalique Shaikh ..Appellant V/s Maharashtra Housing And Area ..Respondents Development Board & ors Mr.Simil Purohit i/b.M/s.JRT LEGAL, Advocate, for the appellant Mr.S.P.Thorat with Mr.A.R.Patil, Advocate, for the respondent No.1 CORAM : R.M.SAVANT, J. DATE : 6TH JANUARY, 2009 P.C. . The above appeal takes exception to the Order dated 12th November, 2008, by which order the Notice of Motion filed by the plaintiff was partly made absolute thereby the respondent Nos.2 & 3 were restrained from creating any third party interest in the newly constructed building to the extent of the area i.e.48 Square Feet which was the area allegedly in occupation of the plaintiff until the disposal of the suit. 2 2. The plaintiff claims to be a tenant in respect of the portion of the ground floor admeasuring 48 Square Feet of the building known as “Dalvi Building” at Parel, Mumbai. The said building is a cessed building belonging to 'A' category. In view of the fact that the building was in dilapidated condition, a proposal was mooted by one S.V.Developers for re-development of the building under the provisions of Regulation 33(7) of the Development Control Regulation, 1991. The tenants and the occupants, who were identified by M.H.A.D.A pursuant to a survey carried out were to be occupied in the re-developed building. 3. The plaintiff filed Short Cause Suit No.842 of 2008 seeking permanent alternate accomodation in view of the proposed re- development of the building. In the said suit, the plaintiff filed Notice of Motion No.986 of 2008 seeking an injunction restraining the defendants from dispossessing her from the suit shop or damaging the suit shop. 3 4. The Notice of Motion filed by the plaintiff for the reliefs claimed was considered by the Trial Court and the Trial Court partly allowed the Notice of Motion thereby protecting the plaintiff's interest to the extent of 48 Square Feet on the ground floor of the re- developed building. The Trial Court was of the view that since the plaintiff claims to occupy premises wherein commercial activities carried out by her, she was not entitled to temporary alternate accomodation. The Trial Court was of the view that the re- development could not be stalled at the behest of the plaintiff and that the claim of the plaintiff can be adequately protected pending the said suit. 5. On behalf of the appellant it is contended that though, the Trial Court has recognized the right of the plaintiff by granting the limited relief in the Notice of the Motion, the Trial Court has erred in not directing the defendants to allot temporary alternate accomodation and to pay compensation to the plaintiff as paid to the other occupants of the said Dalvi building pending reconstruction. 4 6. In so far as the temporary alternate accomodation is concerned, as mentioned herein above, as per the policy of the M.H.A.D.A, the persons in occupation of commercial premises are not eligible to temporary alternate accomodation. In so far as the claim for compensation pending the allotment of the permanent alternate accomodation is concerned, there is a dispute as regards the plaintiff's entitlement as the plaitniff was not one of the persons identified by the M.H.A.D.A ., in the list of the tenants/occupiers prepared prior to the demolition of the said building. Admittedly, the plaintiff claims to be a sub-tenant of the original tenant. The plaintiff's claim will therefore, have to be adjudicated in the suit filed by her. Therefore, the plaintiff would not be entitled for grant of any compensation as paid to the other tenants/occupiers. 7. In my view, considering the right claimed by the plaintiff, the Trial Court by granting the limited relief by the impugned order has adequately protected the interest of the plaitniff pending the said suit. The impugned order therefore calls for no interference at the hands of this Court. The Appeal is accordingly dismissed. 5 8. In view of the dismissal of the appeal, Civil Application does not survive and is disposed of. Considering the claim in the suit the hearing of the suit expedited. (R.M.SAVANT, J.)