IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.6176 OF 2007. APPLICATION NO.6176 OF 2007. APPLICATION NO.6176 OF 2007. IN IN IN FIRST FIRST FIRST APPEAL NO.122 OF 2005. APPEAL NO.122 OF 2005. APPEAL NO.122 OF 2005. T.V.Kunchiraman ...Applicant. Versus. Municipal Corporation of Greater Bombay ...Respondent. ALONGWITH ALONGWITH ALONGWITH CIVIL CIVIL CIVIL APPLICATION NO.6177 OF 2007. APPLICATION NO.6177 OF 2007. APPLICATION NO.6177 OF 2007. IN IN IN FIRST FIRST FIRST APPEAL NO.125 OF 2005. APPEAL NO.125 OF 2005. APPEAL NO.125 OF 2005. Shri Sanjeev Suvarna ...Applicant Versus. Municipal Corporation of Greater Bombay ...Respondent. Shri R.A.Thorat for the Applicant in both the Applications. Shri J.J.Xavier for the Respondent in both the Applications. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th February, 2008. : 07th February, 2008. : 07th February, 2008. P.C.: P.C.: P.C.: 1. Heard advocates appearing for the parties. These are the applications taken out by the respondent in the First Appeal. The First Appeal is filed by the Municipal Corporation. By the judgment and decree which is impugned in the First Appeal, the Municipal Corporation has been restrained from demolishing the suit premises held by the applicant in these applications unless and until alternative accommodations are provided to the applicant in lieu of suit premises. The appeal preferred by the Municipal Corporation has : 2 : 2 : 2 : been admitted. There is a cross-objection filed by the original plaintiffs. The case of the respondent-Municipal Corporation is that the suit structure subject matter of both the appeals have been unauthorisedly constructed which is obstructing the work of construction of Mulund-Goregaon link road. 2. Alongwith Civil Applications filed by the Respondent in companion First Appeal No.121 of 2005, a communication dated 06th June, 2007 issued by the Assistant Commissioner was placed on record in which it was recorded that a proposal has been forwarded to the Assistant Commissioner (Market) for providing alternative accommodation to 28 eligible commercial project affected persons including the Applicants in these two applications. The said Civil Application No.4204 of 2006 was disposed of by order dated 21st September, 2007. By the said order, the respondent-Corporation was directed to take decision on the proposal for providing alternative accommodation. Pending the decision on the proposal, the suit structure was protected. Now communications have been issued by the respondent-Corporation on 05th November, 2007 to the applicant in both these applications offering accommodations to them admeasuring 225 sq. feet each in the Municipal Market Building, Chafekar Marg, Mulund (E). By pointing out that a representation has been : 3 : 3 : 3 : made by the applicants to the Municipal Corporation on 19th November, 2007 incorporating various grievances as regards the accommodation offered on 05th November, 2007, the prayer in the application is for restraining the Municipal Corporation from demolishing the suit premises till the said representation dated 19th November, 2007 is decided. 3. I have considered the submissions made by the advocates appearing for the parties. Advocate for the applicants submitted that the letters dated 05th November, 2007 do not indicate the exact location of the accommodation offered to the applicant and infact it does not refer to the floor on which the accommodation offered is situated. He submitted that the applicant in Civil Application No.6176 of 2007 is carrying on a garage business and the applicant in Civil Application No.6177 of 2007 is carrying on business of running an eating house or hotel. He submitted that it will be difficult for the applicants to get a licence to carry out the same business in alternative premises offered by the Corporation. He submitted that the letter of allotment does not indicate whether the premises will be offered on tenancy basis or on ownership basis. He submitted that premises ought to have been offered free of any cost. He submitted that the premises offered are most inconvenient and therefore, in terms of the : 4 : 4 : 4 : representation made by the applicants, suitable premises ought to be allotted by the respondent-Corporation. 4. The learned advocate for the respondent-Corporation stated that to both the applicants, premises on the ground floor will be offered. He states that the allotment of the premises will be subject to final outcome of the appeals and cross-objections. He has also produced on record photographs of the newly constructed market in which the accommodation has been offered. He pointed out that the Municipal Market is fully constructed and is ready for occupation. He disputed that the applicant in Civil Application No.6176 of 2007 is running a garage by point out from the averments made in the plaint that the said applicant is carrying on business of charging batteries. 5. I have considered the submissions. The suit premises are required to be demolished for construction of Mulund-Goregaon Link Road. The Municipal Corporation has offered an area of 225 sq feet to the applicants in a newly constructed market at Mulund. The appeals and cross-objections are pending and therefore, the allotment will be naturally subject to final outcome of the appeals and cross-objections. The work of construction of public road cannot be obstructed especially when alternative accommodation is offered to : 5 : 5 : 5 : the applicants in a newly constructed market. The other issue regarding entitlement of the applicants to the accommodation free of cost can be always gone into at the time of final hearing of the appeals and cross-objections. There is some dispute regarding nature of business carried on by the applicants. The advocate for respondent-Corporation has made a statement that to both he applicants premises on the ground floor will be allotted. The statement is accepted. It is obvious that the respondent will grant similar licences to the applicants in respect of the new premises which are being held by the applicants as of today in respect of suit premises so that the applicants can continue the same business which was carried on by them in the suit premises as disclosed in the plaints. The grant of licences will be obviously subject to compliance with the other terms and conditions. It is obvious that the licences will not be refused to the applicants on the ground that area allotted to them is less than area of the suit premises held by them. The payment of amounts as mentioned in letters dated 05th November, 2007 by the applicants and receipt thereof by the Municipal Corporation will be subject to final outcome of the appeals and cross-objections. 6. Hence, applications are disposed of by passing following order: : 6 : 6 : 6 : (i) The respondent-Corporation will make available the accommodation offered to the applicants in terms of letters dated 05th November, 2007 within two days from today. The respondent-Corporation will permit the applicants to immediately start construction of the brick walls and other work as provided in the letters of allotment notwithstanding the fact that charges mentioned in the said letters are not immediately paid subject to condition that charges will be paid by the applicants within a period of ten days from today. (ii) Time of three weeks is granted from today to the applicants to remove themselves from the suit premises. On completion of the period of three weeks, it will be open for the respondent-Corporation to immediately proceed with the demolition of suit premises. (iii) The respondent-Corporation will grant licences to the applicants in respect of newly allotted accommodation as observed : 7 : 7 : 7 : in paragraph No.5 above. (iv) It is clarified that the applicants will be entitled to occupy the new accommodation till the final disposal of the appeals and cross-objections. (v) The demolition of the suit premises and allotment of the new accommodation to the applicants will be naturally subject to final outcome of the pending appeals and cross-objections. (vi) It is obvious that payment of the amounts by the applicants in terms of letters of allotment to the respondent will be subject to final outcome of the appeals and cross-objections. (vii) Parties and the concerned authorities to act upon an authenticated copy of this order. Judge. Judge. Judge.