JUDGMENT - Naik Bhimrao N., J.:—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 section 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. 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. 4. Shri Jahagirdar, learned Counsel appearing for landlords in Writ Petition No. 334 of 1994 contended by adopting the arguments advanced by Shri Dalvi, that the tenants ought to have filed an application for essential supply. Now, in a substantive suit the right referred to is also one under section 24 and for that no independent suit can be filed but only an application is contemplated. Secondly, he contended that other than the essential supply, it is choice of the landlord to shift the place of water tank and continue the water supply and tenant cannot obstruct the landlord in doing so. While granting written permission the landlord has not surrendered his right of shifting the place of water storage tank and thus he contended that the tenant wants to claim some rights with respect to terrace which otherwise he does not possess and wants to affect the development of the property. 5. As against this, Mr. Unnikrishnan, learned Counsel appearing for tenants contended that the essential supply is being enjoyed by the tenants since 1979. The question of non-maintainability of the suit and the jurisdiction is not raised in the two courts below and it cannot be permitted to be raised for the first time in the High Court. 5. As against this, Mr. Unnikrishnan, learned Counsel appearing for tenants contended that the essential supply is being enjoyed by the tenants since 1979. The question of non-maintainability of the suit and the jurisdiction is not raised in the two courts below and it cannot be permitted to be raised for the first time in the High Court. Secondly, he contended that the Appellate Court has passed just and proper order and the balance of convenience is also taken into consideration and hence this Court should not interfere while exercising extra-ordinary Jurisdiction of the constitutional provisions viz. Article 227. 6. After hearing rival contentions of the parties, I am of the view that the right conferred upon tenant is only under section 24 so far as essential supply of water as such is concerned. The only additional thing that has happened in this matter is that the tenant constructed water storage tank on the terrace of the 4th floor with written permission of the landlord and he wants to contend, as a result of such construction for all the time to come he can continue to have water storage tank on 4th floor affecting the right of the landlord to develop the property including removal of such water storage tank for the purpose of putting additional floors. In my opinion, the tenant cannot obstruct the landlord in shifting the place of water tank if the interest of the tenant of essential water supply which otherwise he is getting since 1979 is protected because that is the highest right which tenants possess qua essential supply and that can be achieved by retaining present position till the landlord completes the development and constructs water storage tank on 6th floor and gets the necessary water supply to the tenant who is on 3rd floor. Till this is done, the tenant will continue to get water supply from the terrace of 4th floor. Till this is done, the tenant will continue to get water supply from the terrace of 4th floor. The moment water storage tank is constructed on the terrace of the 6th floor and it is ready for water supply then petitioners in both the petitions are directed to give written intimation to the tenant and after period of two weeks after receipt of such intimation, tenant, if he is not satisfied that the water supply is not one and the same which he used to get, then he is entitled to apply to the trial Court and the trial Court will appoint Commissioner to examine whether the water supply is one and the same as it existed on the 4th floor and once the Court is satisfied on report to be submitted that it is one and the same, then in that event the application filed by the tenant shall be rejected. However, if the contentions raised by the tenant are accepted by the trial Court, then trial Court is free to issue such directions which can meet the end of justice, keeping in mind that the matter pertains only to essential supply. In view of this I set aside the order passed by the Appellate Court and substitute the same by the order passed by me as above. It is made clear that only controversy which is kept open is whether the essential supply which is being provided by the landlord from the 6th floor is the same as is being enjoyed by the tenant on the 4th floor as on today. Rule made absolute accordingly. 7. Issuance of certified copy of this order is expedited. Order accordingly. -----