- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER 377 OF 2008 IN NOTICE OF MOTION NO.136 OF 2008 IN BOMBAY CITY CIVIL COURT L.C.SUIT NO.134 OF 2008 Mr.Mohd.Mustafa Choudhary. ...Appellant. vs. 1.The Municipal Corporation of Gr.Mumbai, and others. ...Respondents. --- Mr.M.V.Sawant & V.Ramkrishnan, for Appellant. Mr.Geeta Jogalekar, for BMC. CORAM: S.J. VAZIFDAR, J. CORAM: S.J. VAZIFDAR, J. CORAM: S.J. VAZIFDAR, J. DATED: 3rd October,2008. DATED: 3rd October,2008. DATED: 3rd October,2008. P.C. P.C. P.C.: 1. Admit. Heard finally. 2. There appears to be some dispute regarding the entitlement of the petitioner to alternate accommodation and even on some other facts also. The matter was heard at length. It appears that there are certain facts which have not been dealt with - 2 - fully. No doubt for that neither Additional Municipal Commissioner nor the Trial Court can be faulted for the same. However, this is a case where both the parties ought to have been given an opportunity of presenting their respective case on facts as well as on the question of entitlement, afresh. I do not wish to express any further opinion on the question raised and case put up by either of the party. However, it is important that the public project should not be affected in any manner in consequent to delay. 3. In the circumstances, AO is disposed of in the following manner:- (i) The Additional Municipal Commissioner is requested to consider the matter afresh as regards the petitioner’s case both on the question of entitlement of principal as well as on facts. (ii) The parties shall be at liberty to file further facts/ documents if so they desire. The parties shall at the first instance appear before the Additional Municipal Commissioner on 17.10.2008 at 11 a.m. and thereafter as directed by the learned - 3 - Additional Municipal Commissioner. (iii) In the meantime, if the respondent offers alternate accommodation to the petitioner anywhere, the petitioner shall be bound to vacate the suit structure and occupy the alternate accommodation. This, however, shall be without prejudice to the rights and contentions of both the parties. In other words, mere fact that the alternate accommodation is offered elsewhere will not affect the appellant’s right on merits. The mere fact that the alternate accommodation furnished elsewhere and is accepted by the appellant will not affect the appellants’ right on merits, in accordance with law, and any order that may be passed in his favour and to which he may be entitled to in law. This arrangement is only for the purpose of ensuring the thing that the public project should not be stalled. (iv) If the order is adverse to the petitioner, it shall not be enforced for a period of six weeks after the date of communication to the petitioner. The petitioner shall be entitled to challenge the same by a fresh and independent proceedings. - 4 - . AO is accordingly, disposed of. . All the parties are directed to act on the copy of the order duly authenticated by the Sheristedar of this Court. ---