IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6571 OF 2008 Dr.Shashank D.Samak & Ors. ...Petitioners V/s. Mr.Subhash Bhalchandra Joshi & Ors. ...Respondents ...... Mr.Anirudha A.Valsankar i/b Mr.Pankaj Das for Petitioners. Dr.Virendra Tulzapurkar, Sr.Counsel with Mr.N.N.Bhadrashete i/b M/s.Ghanekar & Co. for Respondent No.7. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 30, 2009. JANUARY 30, 2009. JANUARY 30, 2009. P.C. 1. Heard Counsel for the parties. 2. In view of the concurrent finding of fact recorded by the two Courts below that the proposed construction to be undertaken by the Respondents is not going to affect the common area in any manner, it is not possible to accept the argument of the Petitioners that the proposed construction is going : 2 : to impact any part of the common area. According to the Counsel for the Petitioners, the common area spelt out in the Deed of Apartment does not specifically deal with certain areas which fall within the earmarked area of proposed construction shown in green which is described as apartment No.1 and apartment No.10 respectively. 2. To substantiate this point, Counsel for the Petitioners has placed great emphasis on the plan at page 105 to juxtapose with the specification of the common area in the Deed of Apartment. However, this argument cannot be countenanced in view of the concurrent finding of fact recorded by the two Courts below which is after appreciating the relevant documents on record. 3. As a matter of fact, there is no Deed of Apartment in favour of the Petitioners, for which reason, the provisions of The Maharashtra Apartment Ownership Act, 1970 will not be attracted. Assuming that the same were to be kept in mind while considering the grievance of the Petitioners, : 3 : the limited grievance in the context of the said enactment is about non-compliance or breach of Section 8 which stipulates that no apartment owner shall do any work which would jeopardise the soundness or safety of the property, reduce the value thereof or impair any easement or hereditament nor may any apartment owner add any material structure or excavate any additional basement or cellar without in every such case the unanimous consent of all the other apartment owners being first obtained. This provision would have been attracted provided the proposed work was to impact the apartment of the Petitioners which is separate and independent than apartment No.1. The proposed work is in respect of area covered of apartment No.1 and is not going to affect apartment in possession of the Petitioners as such. If it is so, the rigours of Section 8 of the Act of 1970 will have no application. 4. On this finding, it necessarily follows that the matter will have to be tested in the context of Section 7 and Section 7-A. On the prima facie finding recorded by the two Courts below, it : 4 : is obvious that the proposed work will not affected by the provisions of Section 7 or 7-A and the same will not come into play in the fact situation of the present case as has been rightly found by the Courts below. 5. Before this Court, no grievance has been made that the proposed work is likely to be in breach of any of the stipulation of Section 7 or Section 7-A as such. Counsel for the Respondents has rightly pressed into service latest decision of Division Bench of our High Court in the case of M/s.Manratna Developers vs. Megh Ratan M/s.Manratna Developers vs. Megh Ratan M/s.Manratna Developers vs. Megh Ratan Co-operative Housing Soc. Ltd. & Ors. reported Co-operative Housing Soc. Ltd. & Ors. reported Co-operative Housing Soc. Ltd. & Ors. reported in 2008 (6) All.M.R. 550 in 2008 (6) All.M.R. 550 in 2008 (6) All.M.R. 550. 6. Taking any view of the matter, no interference in exercise of writ jurisdiction is warranted. Counsel for the Petitioners would then submit that since interim arrangement has prevailed for more than three years, the same be continued till the final disposal of the Suit which in turn can be expedited. This argument clearly overlooks : 5 : that interim arrangement was ordered by way of ad-interim measure. That arrangement cannot be continued in view of the prima facie finding now recorded by the two Courts below. In the circumstances, this submission will have to be turned down. 7. Accordingly, this Petition fails. The same is dismissed. 8. At this stage, Counsel for the Petitioners submits that the order of interim relief granted by the lower Court be continued at least for some time so as to enable the Petitioners to carry the matter in Appeal. I have no difficulty in accepting this request though opposed by the Respondent. It is ordered that the arrangement directed by the Court below which has operated so far, shall continue for a period of four weeks from today. : 6 : A.M.KHANWILKAR, J.