SRJ 1 505-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.505 OF 2010 WITH CIVIL APPLICATION NO.652 OF 2010 Shri Mulchand B. Gupta .. Appellant V/s. Shri Saifuddin F. Hussein & Another .. Respondents. Shri Ramesh Dube-Patil i/b. M/s. Jay & Co.,for the Appellant. Shri Anil C. Singh i/b. Shri Mustafa Kachwala, for Respondent Nos.1 to 5. Shri Tushad Cooper i/b. D.R.Shah, for Respondent No.6. Shri G.W.Matoos, for Respondent No.7-MHADA. CORAM :J.H.BHATIA,J. DATE :6th MAY,2010 P.C.:- 1. With consent, matter is taken up immediately for final hearing. 2. The Applicant claims that he was in occupation of shop and residential premises which is now to be developed under Regulation Act 33 (7) by the Respondent no.6 under N.O.C. from MHADA. There are in all, 120 occupants and 119 occupants have already vacated the premises. However, Plaintiff/Appellant is not willing to vacate the premises. The Plaintiff s contention is that he is in occupation of commercial premises ad-measuring SRJ 2 505-10.sxw 150 sq. ft. and two residential premises having total area of 800 sq. ft. and he is entitled atleast to that much area in the new building, to be constructed. He also contends that he is entitled to two residential tenements with one commercial tenement. Respondent No.6 has agreed to allot one residential tenement of 300 sq. ft. carpet area and one commercial premises having 300 sq. ft. carpet area. According to the Plaintiff/Appellant, this is not as per rules and, therefore, status-quo should be granted to the proposal. In the suit filed before the City Civil Court, he took out a Notice of Motion for the interim relief. The Trial Court refused to grant ad-interim relief, while Notice of Motion is fixed on 3rd July, 2010. The reply is to be filed by the Respondent. 3. The learned counsel for the Plaintiff/Appellant has shown a map of the premises in occupation. Of course, the correctness of that map is denied by Defendants/Respondents. Even if that map is taken into consideration, it is difficult to accept his contention. The residential tenement consists of two rooms but they are not two separate tenements. The suit premises include a shop ad-measuring 6 x 12 ft. and go-down of about 13 x 8 ft. After calculation, the total area comes to 520 sq.ft.. The Plaintiff/Appellant claims that he was tenant in the suit premises while Respondent No.6 has offered him commercial and residential premises, total ad-measuring about 600 sq.ft. carpet area which is not less then what he is occupying even according to his own claim. SRJ 3 505-10.sxw Defendants/Respondents states that he is in occupation of only 8.99 sq. meters as certified by MHADA. 4. Besides this, it is also pointed out that the present Plaintiff/Appellant had filed R.A.D.Suit No.1437 of 2008, seeking declaration of his tenancy. That suit was withdrawan by him by filing affidavit dated 11th February, 2010. The endorsement made by the learned Judge of the Small Causes Court clearly shows that the Plaintiff/Appellant was present with his Advocate and the Plaintiff/Appellant had admitted the contents of the said affidavit. As per that affidavit, he had undertaken to fully cooperate with the developer and he had agreed to hand over the possession within two weeks from the date of execution of that affidavit. Para 2 of the affidavit shows that he would not file any fresh suit against the Defendants. It is also pointed out that as the rent in lieu of the transit accommodation, Respondent No.6 has deposited amount of Rs.1,80,000/- before MHADA @ Rs.15,000/- per month. The learned counsel for Respondent No.6, after taking instructions, makes a statement that for the commercial premises, rent is paid @ Rs.15,000/- per month while for the residential premises Rs.5,000/- per month is paid in lieu of the transit accommodation. The learned counsel for Respondent No.6 also makes a statement that Respondent No.6 is willing to deposit further amount of Rs.60,000/- before the MHADA which may be withdrawn by the Plaintiff/Appellant, if he hands over the premises. The learned counsel for the SRJ 4 505-10.sxw Plaintiff/Appellant on instructions, states that rent in transit accommodation for residential purposes should not be less then Rs.15,000/- and for commercial premises it is not less then Rs.25,000/- per month. This is not acceptable to the Defendants/Respondents. 5. Taking in to consideration all facts and circumstances and contentions of the Plaintiff/Appellant , I do not find any substance in the appeal. Therefore, appeal stands dismissed. 6. As the appeal itself is dismissed, Civil Application No.652 of 2010 does not survive and stands disposed of. (J.H.BHATIA,J.)