JAYESH TRIKAMDAS CHANDAN Vs. SHANTABEN G TANNA

JUDGEMENT

(1.) RULE. Rule made returnable forthwith. By consent of the parties, matters called out for final hearing forthwith. Respondents waive service. Heard counsel for the parties.

(2.) THESE are two petitions, one filed by the trustees who are landlords and the other by developers. Originally building was three storey building and the landlord gave written permission to the tenant to erect water storage tank on the terrace of the 4th floor and there is booster pump also which is constructed. This facility the tenant is enjoying with permission of the landlord since 1979. Since landlords wanted to develop the property and carry on development by constructing two more floors, they wanted to remove the water tank from the terrace of the 4th floor and wanted to erect a separate water tank on the 6th floor and continue the essential supply to the tenant. However, tenant filed a substantive suit claiming declaration that the defendants have no right to shift, demolish or withhold the water supply apparatus of the plaintiffs and thereby the water supply of the plaintiffs and to withhold the use of common terrace and common passage leading to 4th floor terrace of the building, viz. , "ramakunj", 155-A, Sir Bhalchandra Road, Hindu Colony, Dadar, Bombay-14. In that they took out an injunction notice and the trial Court rejected the injunction notice. Against that an appeal was carried and the Appellate Court allowed the tenants' appeal and the interim relief is granted during the pendency of the suit in terms of prayers (a) and (b) of the interim notice. It is this order which is impugned in these writ petitions.

(3.) IT is contended by Shri Dalvi, learned counsel appearing for petitioners in Writ Petition No. 189 of 1994 that the suit itself is not maintainable and the only remedy for the tenant was to file an application under S. 24 of the Rent Act for essential supply and in any event the tenant has no right whatsoever to the terrace because no tenancy with respect to terrace was ever created in favour of the tenant. The tenant in writing was permitted to erect the water storage tank on the terrace of the 4th floor and the booster pump but no right whatsoever in terrace was ever created except may be for the purpose of cleaning water tank. Since landlords decided to develop the property by constructing two additional floors, it was necessary for them to remove water storage tank from the terrace of the 4th floor and shift it on the 6th floor. So it is contended by Shri Dalvi, at the most the tenants' interest to the extent of essential supply, which was available to them, should be made available to them after the construction of water storage tank on the 6th floor and to this effect the necessary undertaking they were ready and willing to give. It is contended that no independent right whatsoever, is created with respect to terrace as such other than allowing the tenant to receive essential supply.