1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 603 OF 2010 WITH CIVIL APPLICATION NO. 1523 OF 2010 Smt. Pushpadevi Baburao Yadav ..... Appellant Vs. Bombay Municipal Corporation & anr.... Respondents Mr. A.A. Mirza Adv. For the appellant Mr. Vinod Mahadik Adv. For the respondent- BMC. CORAM : R.G. KETKAR, J. DATE : 30th June, 2010. P.C. : 1. Heard Mr. A.A.Mirza, learned counsel for the appellant and Mr. Vinod Mahadik, learned counsel for the respondent. 2. This appeal challenges the judgment and decree dated 17-3-2010 by the learned Adhoc District Judge-2, City Civil Court at Dindoshi, (Borivali Division), Goregaon, Mumbai in Long Cause Suit no.1835/05. By this judgment, the learned trial Judge dismissed the suit instituted by the appellant. The facts leading to the filing of the First Appeal are stated as follows: 2 3. The appellant instituted the suit interalia contending that she is the owner/occupier of the shop admeasuring 12x12 sq.ft. situate on C.T.S. no. 1, Survey no.41, which locality is known as Anand Nagar, Taluka Amboli, Jogeshwari (west), Mumbai. The appellant contended that the suit structure is a commercial structure and the land is given to M/s. Nityanand Builders for development. The appellant referred to the earlier round of litigation between herself and the developers M/s. Nityanand Builder and contended that the suit structure is commercial structure. It was further asserted that the appellant received letter dated 31-3-2005 from Asstt. Municipal Commissioner, K-west ward, calling upon the appellant to vacate the suit premises as per sec. 33 of the Maharashtra Slum Area (I. C. & R.) Act, 1971 (for short `Slum Act’). The appellant therefore challenged the said letter by filing the present suit. The appellant prayed for declaration that the said letter is illegal and bad in law and not binding upon her. The appellant further claimed permanent injunction restraining the respondent from dispossessing her from the suit premises i.e. the structure in Jai Ambe Co-op. Hsg. Society. 4. The respondent resisted the suit by filing the written statement, 3 interalia contending that the developer offered room no. E/6 in transit camp. However she did not remove the structure nor she has shifted to the transit room. In view of this, notice under sec. 33 of the Slum Act was issued on 31-3-2005. She was informed that she has been held eligible for permanent alternate residential accommodation as per Slum Rehabilitation Authorities rules and regulations. The respondent however denied that the structure of the appellant was commercial. It was also submitted that as per annexure-II the appellant was shown eligible for allotment of residential premises and not for commercial premises. On these amongst other grounds, the suit was resisted. The parties have produced oral as well as documentary evidence before the learned trial Judge. The learned trial judge dismissed the suit by the impugned judgment and decree, upon which the present appeal is filed. 5. The learned counsel for the appellant submitted that in the earlier round of litigation between the appellant and M/s. Nityanand Builders by way of Civil Suit no. 6558/2000, it is an admitted fact that the suit structure is commercial structure and therefore the appellant is entitled to alternate commercial premises. He further submitted that the appellant is having residential premises as also separate commercial 4 premises in the area which is declared as slum. The appellant has been offered alternate residential accommodation and she has however, not been offered alternate commercial premises. He invited my attention to the orders dated 25-8-2009, 9-4-2007, 22/6/2007 in Writ Petition (L) no. 369/07 and submitted that pursuant to these orders, the authorities have not carried out survey and prepared revised Annexure-II. On the other hand Mr. Mahadik, learned counsel for the respondent supported the impugned decree. 6. It is not in dispute that in the plaint the appellant contended that she is the owner and occupier of shop admeasuirng 12x12 sq.ft. In the plaint it was nowhere pleaded that the appellant is in possession of residential premises as also commercial premises and consequently entitled to allotment of alternate residential as also commercial premises. Apart from this, agreement dated 16-9-1999 between the developers and the appellant clearly indicates that the developer agreed to provide permanent alternate accommodation of residential tenement of the area admeasuring 225 sq.ft. to be constructed in the said property. Agreement provides offering permanent alternate accommodation in respect of the residential premises and not for 5 commercial premises. 7. In the impugned judgment, the learned trial judge has recorded categorical finding that the list prepared as per annexure-II clearly indicates that all the structures were found as residential structure including the structure of the appellant. During the course of hearing the learned counsel fairly did not dispute the correctness of the said finding. The learned trial Judge on the basis of material on record came to the conclusion that the appellant was not in possession of the commercial structure and consequently she is not entitled to allotment of commercial premises. Though the appellant was offered transit accommodation as she was found eligible, she refused to vacate the premises and also she did not demolish the said structure. In view of this the respondents were constrained to issue notice under sec. 33. of Slum Act. I do not find that the respondent has committed any error in issuing notice under sec. 33 of the Slum Act. The learned trial Judge on the basis of the material on record held that the appellant failed to establish that she was in possession of the commercial premises. I do not find that the Judge has committed any error which requires interference at the hands of this court. 6 8. Since the learned counsel has filed compilation of documents on record, I deem it appropriate to dispense with the calling of record and proceedings on record as per Order 41 Rule 11 of the Code of Civil Procedure, 1908. 9. After considering the material on record, I find that the impugned order does not suffer from any error, and appeal therefore deserves to be dismissed. Hence appeal is dismissed with no order as to costs. 10. In view of the dismissal of the appeal, nothing survives in the Civil Application and the same is also dismissed. [R.G. KETKAR, J.]