1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 686 OF 2009 ALONGWITH CIVIL APPLICATION NO. 855 OF 2009 IN A.O. NO. 686 OF 2009 IN NOTICE OF MOTION NO. 782 OF 2009 IN S.C. Suit No. 1256 of 2009 Babu Vitthal Kokate .. Appellant. (Org.Plaintiff) V/s. 1. Maharashtra Housing and Area Development Authority and Others. .. Respondents. --- Mr. H.S. Shreepadmurthy i/by Mr. Vikrant K. Narkar for the Appellant. Mr. Niranjan Pandit with Mrs. D.A. Chhapgar i/by M/s. D.J. Kamdin & Co. for Respondent No.2. Mr. Rajendra Pai i/by Ms. Sonali S. Pimple for Respondent No.3. --- CORAM : R. V. MORE, J. DATED : JULY 14, 2009 P.C. : 1. Heard Mr. Shreepadmurthy, learned counsel for the appellant, Mr. Pandit, learned counsel for respondent no.2 and 2 Mr. Pai, learned counsel for respondent no.3. 2. The appellant claims to be in possession of Room No.8 and an independent shed adjacent to said Room No.8 situated in the suit chawl, (hereinafter, for short, referred to as the suit premises). In pursuance to the permission of MHADA under DC Rules 33(7), the respondent no.3 has obtained development rights in respect of suit premises from the respondent no. 2 Landlord. 3. The appellant refused to vacate the suit premises and therefore, respondent no. 1 - MHADA issued notice under section 95A(2) of the MHADA Act to the appellant. This notice is challenged by the appellant by filing S.C.Suit No. 1256/2009. In the said suit, the appellant took out Notice of Motion No. 782 of 2009 for seeking interim injunction, restraining the respondents from demolishing the suit premises. However, by order dated 9th of July, 2009 the appellant’s notice of motion was dismissed. Hence, the present appeal. 3 4. It is the case of the appellant that Room No.8 and the shed adjacent to the said room are two different and independent premises and therefore, he is entitled for two independent alternative permanent accommodation. 5. Per contra, according to respondent nos. 2 and 3, the appellant was the occupant of Room no. 8 and he has unauthorisedly constructed the shed adjacent to the said room. Respondent nos. 2 and 3 claimed that the tenancy of appellant is one and the premises of both room no.8 and shed being not more than 200 sq. ft., the appellant is entitled for alternative permanent accommodation to the extent of 225 sq.ft. only. However, the respondent no.3 is offering 325 sq.ft. as an alternative permanent accommodation to the appellant. 6. In view of the above rival submissions of both the sides, what is required to be seen is whether the suit premises in question are two independent premises or it is only one. It is not the case of the appellant that the lease agreement was 4 entered into between respondent no.2 and himself in respect of the shed also. The appellant also could not produce any rent receipt in respect of the said shed. The trial court relied upon the Commissioner’s report, which is annexed as Exh. ‘D’ at page 120. Page 124 is the sketch of the said room. Perusal of the sketch reveals that there is a window in between the room and the shed. This sketch shows that the shed is not independent premies but it is extended to Room no.8. Be that as it may, the appellant gave notice to respondent no.3 through his Advocate on 1st of June, 2009. This notice is annexed as Exh. ‘G’ at page 132 of the compilation. The appellant in para 2 of this notice has specifically stated that he is a tenant of the two rooms in the said property. He claimed one tenancy and not a separate and independent two tenancies. By virtue of the document at page 65, the appellant agreed for 325 sq.ft. Area as an alternative permanent accommodation in lieu of the suit premises. 7. Taking over all view of the matter, I find that the 5 appellant could not prove prima facie existence of independent and separate two structures and therefore, not entitled for any reliefs. All the tenants except the appellant have vacated the suit chawl and shifted to the alternative transit accommodation. The appellant is also at liberty to seek alternative transit accommodation which is offered by the respondent no.3. In these facts, I find no prejudice to the appellant in case of rejection of this notice of motion. The appeal being devoid of any substance is rejected accordingly. 8. At this stage Mr. Shreepadmurthy, the learned counsel for the appellant submits that the respondent no. 3 may be directed to give possession of alternative temporary accommodation immediately to the appellant. Mr. Pai on behalf of the respondent no.3 makes a statement that keys of the alternative temporary accommodation will be handed over to the son of the appellant who is present in the court during the course of the day. Statement accepted. 9. Needless to mention the above observations are prima 6 facie observations made for the purpose of disposal of the present appeal and the suit shall be disposed of by the trial court independently on its own merit without influenced by this order. 10. In view of the above order, the civil application does not survive and the same is disposed of as such. (R.V. MORE,J.) .....