gst 1 app975.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION. APPEAL NO. 975 OF 2010. IN NOTICE OF MOTION NO. 524 OF 2010 IN SUIT NO. 426 OF 2010. Prasad Bhau Satam .... ..... .... Appellant. V/s Darshan Developers & Ors. ..... .... Respondents. Mr.Prakash L. Mahadik, Adv. For the appellant. Mr.Shailesh Shah with Mr.Yadunath Chaudhari and Mr.Kunal Cheema, Adv. For respondent Nos. 1 and 2. Ms.Aparna Murlidharan, i/by M r.P.G.Lad, Adv. For respondent Nos. 3 & 4. Ms.V.S.Gharpure, Adv. For respondent No.6-BMC. CORAM: DR.D.Y.CHANDRACHUD AND ANOOP V. MOHTA, JJ. 21 December, 2020. PC: The order which is impugned in this appeal requires the Appellant to shift from the temporary transit accommodation allotted to him, to flat No.202 on the 2nd floor of the B wing of a newly constructed building, `Ganesh Darshan’. The redevelopment is taking place under Development Control Regulation 33(7). The Appellant had entered into an agreement with the developer consenting to the redevelopment and was placed in possession of transit accommodation. The new building is stated to be ready and the Court has been gst 2 app975.10.sxw informed that an occupation certificate has been received from the Municipal Corporation. The Learned Single Judge recorded the undertaking of the developer in view of the apprehension that was expressed on behalf of the Appellant that the Appellant may be called upon to vacate even the constructed accommodation which is being handed over to the him. The undertaking was that should this happen, the Appellant will be placed in occupation of alternate accommodation. 2. When the Appeal came up for hearing, Counsel appearing on behalf of the Appellant had set forth the grievance of the Appellant that the tenement which had been made available to him viz. flat No.202, did not admeasure 400 sq. ft. as provided in the agreement (including nitches) and necessary amenities had not been provided. In order to obviate any dispute on this issue the Municipal Corporation was directed by an interim order dated 2.12.2020 to depute a Competent Officer from the Building Proposals Department in E ward to inspect the flat. The Court directed that a report shall be submitted to this Court specifying (i) the area of the tenement provided to the Appellant; (ii)whether necessary amenities have been provided and (iii)whether the present position of the tenement conforms to the sanctioned plan. Accordingly, upon inspection an affidavit has been filed by the Assistant Engineer of the Municipal Corporation in the Building Proposals department of E ward. The Assistant Engineer has stated that on measurement the area of tenement No.202 inclusive of the enclosed balcony and nitches is 399.10 sq. ft. Amenities have gst 3 app975.10.sxw been provided in accordance with the agreement except for mosaic flooring in the bedroom. Counsel on behalf of the developer states that as a matter of fact the developer has provided vitrified tiling which is more expensive than mosaic flooring. Besides, it has been stated on behalf of the developer that whereas other occupants had intimated that they should be provided a bedroom in lieu of the area of the kitchen in the tenement, upon which such a facility has been provided to the other occupants, the Appellant had specifically declined to avail of this amenity. Since the grievance was made by the Appellant that a separate kitchen had not been provided for, a kitchen has been now provided. 3. From the affidavit which is filed on behalf of the Corporation it is evident that the tenement which is to be provided to the Appellant is substantially of the same area as what has been provided in the agreement, the short fall being less than of one square foot. Besides, at the hearing of this Appeal Counsel appearing on behalf of the developer has tendered an undertaking on instructions that in the event that the Appellant is required for any reason whatsoever to vacate the existing tenement, a tenement equivalent thereto admeasuring 400 sq. ft. shall be provided in the same development. We have recorded this undertaking specifically since the undertaking which was filed before the learned Single Judge was to the effect that the alternate tenement shall admeasure 290 sq.ft. Counsel appearing on behalf of the Developer states that he has been instructed to tender the undertaking, as noted herein above, by a partner of the First Respondent who is present in the Court and is authorized gst 4 app975.10.sxw to give such an undertaking. 4. The Court has been informed by the Learned Counsel appearing on behalf of the developer that out of 56 tenants, 39 tenants have already shifted to alternate accommodation which is made available in terms similar to the accommodation provided to the Appellant. The premises in the occupation of the Appellant have to be vacated in order to facilitate the remaining construction in the lay out. 5. In this view of the matter, we do not find any infirmity in the order of the Learned Single Judge directing the Appellant to shift to the alternate accommodation provided in pursuance of the agreement entered into by the Appellant with the Developer. We record and accept the undertaking which has been tendered on behalf of the Developer. 6. The Appeal shall accordingly stand dismissed. On the request of Counsel appearing on behalf of Appellant, who seeks time to move to the alternate accommodation, time to shift to the alternate accommodation is granted until 10.01.2011. 5. In view of the disposal of the Appeal, the Notice of Motion does not survive and is disposed of. (ANOOP V. MOHTA, J.) (DR. D.Y.CHANDRACHUD, J)