Interim Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 3865 OF 2018
IN
CHAMBER SUMMONS NO. 1874 OF 2018
IN
L.C. SUIT NO. 1257 OF 2018
Javed Qureshi and others .. Applicants
IN THE MATTER BETWEEN:
Javed Qureshi and others .. Plaintiffs
Versus
Municipal Corporation of Gr. Mumbai
and Anr. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 31st October, 2018
Mr. Asif Husain, Ld. adv. for the plaintiffs.
Ms.Anita Murgude, Ld. adv. for defendant/BMC
O R D E R
1. This N/m is taken out by plaintiffs for staying effect,
implementation, operation of report dated 20.07.2018 and its prequel
notice under sec. 354 of MMC Act dated 06.10.2017 in all manners.
Plaintiff no. 34 Mr. Abdul Mohim has filed affidavit in support of N/m
contending that he is well conversant with the facts of the present case
and he reaffirms pleadings in the plaint. He has filed this affidavit for
the purpose of seeking ad interim, interim reliefs pending the
amendment to the plaint under Order 6 Rule 17 of CPC by way of
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Chamber summons.
2. It is further mentioned in affidavit that plaintiffs have filed
above suit challenging impugned notice dated 06.10.2017 issued by
corporation claiming powers under sec. 354 of MMC Act in respect of
suit building and for further ancillary, incidental reliefs including ad
interim, interim protection. On previous date of hearing
defendant/corporation served copy of TAC report dated 20.07.2018
whereby TAC opined that the suit structure shall be categorized as C1.
However TAC report failed to assign any reason for discarding findings,
conclusion of plaintiff's structural Engineer. No reasons are assigned
by TAC for not considering the building in C2 B category as concluded
in structural audits report filed on behalf of plaintiffs.
3. It is mentioned in affidavit that TAC report has been filed
pursuant to the observations of this Court and it is required to be
incorporated in the plaint by suitably amending the pleadings for
challenging TAC report dated 20.07.2018 for declaring it as null, void
and illegal. According to plaintiff no. 4 during adjudication of Ch/s
and amendment in the plaint, pleadings are required to be protected by
granting ad interim, interim reliefs prayed for if not plaintiffs will suffer
from grave loss which could not be compensated in terms of money.
According to plaintiff no. 34 proposed amendment is necessary and
therefore if interim protection will not be continued the suit will
become infructuous which will cause grave prejudice to plaintiffs.
4. On perusal of plaint it is noticed that plaintiffs have alleged
that they are dissatisfied by arbitrary action of defendant/corporation
taken on 05.01.2018 by which disconnection of water and electric
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supply of building known as Chakkiwala building was made forcibly.
Said building is consisting of A and B wings situated on CTS No.
827(pt.), Village Kurla, New Hall Road, Kurla (W), Mumbai. Further
defendant/ Corporation has issued disputed notice bearing no.
L/BF/165/DOL3/14/354/1718 dated 06.10.2017 claiming powers
under sec. 354 of BMC Act and forceful eviction of plaintiffs within 7
days from above notice. According to plaintiffs they are
tenants/occupants of suit building and they are possessing rent receipts
issued by private landlord. Defendant/BMC has carried out
measurement of suit premises by notice dated 17.06.2017 bearing no.
L/BF/165/DOL3/354/1617. Designated Officer claimed powers
under sec. 354 against landlord to provide propping of ground plus
three upper floors of RCC building wherever necessary under
supervision of licencsed structural Engineer within 30 days. By said
notice it was informed that no structure within regular line of street
may be reconstructed and work should be made with giving notice as
required under sec. 342 of BMC Act. It is contended that landlord
submitted report of structural Engineer i.e. Rex Con Cor Consultants
Pvt. Ltd. dated 29.06.2017. In said report structural Engineer
concluded that building maintenance can avoid major repairs costing in
lacks. Standard building life is 80 to 100 years under Zone IV design.
On 09.10.2017 officer of BMC carried out measurement of suit premises
and prepared survey report. On 18.11.2017 plaintiffs submitted their
reply to notice dated 06.10.2017 alongwith structural audit report.
Said structural audit report certified that suit building is structurally
safe and tenantable repair would be carried out as per procedure
recommended. On 29.11.2017 plaintiffs filed application with
defendant/BMC for tenantable repair works in the building. Land lady
Urmila Devi issued no objection certificate to carry out repair of suit
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building by plaintiffs on their own expenses. In December 2017,
defendant/BMC informed that suit building was in dilapidated
condition and shown in C 1 category. Therefore notice under sec. 351
of MMC Act was given directing to stop unauthorised repairing work
immediately. Thereafter in January 2018 BMC Officers affixed notice
on suit building when Reliance Energy Officer and other officer came
for forceful disconnection of water supply and electric supply and they
disconnected the same. Hence plaintiffs have filed this suit and sought
declaration as prayed in plaint.
5. Defendant/BMC has filed its written statement at Exh. 7
and contended that plaintiff’s claim is not tenable for want of notice
under sec. 527 of BMC Act and further their claim is not maintainable
as per amendment of sec. 515A of BMC Act. It is alleged that plaint
discloses no cause of action. Plaintiffs failed to describe suit property.
Hence suit is not maintainable. It is contended that as per order dated
23.06.2014 passed by Lordships Anoop Mohta and A.A. Sayed in Writ
Petition (L) No. 1135/2014 and in view of circular of BMC, the action
of BMC Officer is legal and binding on plaintiffs. It is contended that
TAC established as per guidelines given in above referred Writ petition,
has declared suit building as C1 category and therefore plaintiffs claim
is not maintainable. It is mentioned in written statement that
Structural Engineer of M/s Rexcon Con Cor, M/s B.J. Mehta were
present for hearing of TAC, said hearing was fixed on 07.07.2018 and
members of TAC have stated that structure shall be categorised as C1
category. Hence it is contended that suit building is in highly
dangerous condition, it is in highly dilapidated condition. It is
mentioned in written statement that there is possibility of huge mishap
if suit building is collapse. It is alleged that plaintiffs have suppressed
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material facts from the Court and hence plaintiffs claim deserves to be
dismissed.
6. Roznama dated 18.01.2018 shows that my learned
predecessor has passed order and observed that defendant’s structural
audits report dated 05.10.2016 and report of structural Engineer of
landlord of plaintiffs are conflicting each other hence it is just to refer
all reports of TAC for final conclusion in respect of stability of structure
hence my learned predecessor directed defendant to refer matter to
TAC and not to take any further action in respect of suit structure till
decision of TAC. My learned predecessor has also directed defendant to
reconnect electricity and water connection till decision of TAC. Order
dated 18.01.2018 shows that my learned predecessor has observed that
defendants are at liberty to take further action following due process of
law, if report of committee will be against plaintiff. My learned
predecessor has directed BMC to serve TAC report upon plaintiff and
directed plaintiffs to maintain statusquo in respect of suit property, in
view of photographs on record till further orders. By said order my
learned predecessor directed plaintiffs not to make any construction by
way of repairs till further orders. As such draft N/m is disposed of by
my learned predecessor. Thereafter Ch/s No. 1874/2018 and this N/m
was taken out by plaintiffs.
7. I have heard adv. Mr. Asif Husain for plaintiff and Mrs. Anita
Murgude ld. Adv. for defendant at length. It seems that this N/m is
taken out by plaintiffs after defendant/BMC has moved application Exh.
6 for vacating interim relief order as TAC report dated 12.07.2018 is
filed on record. Plaintiff’s adv. strongly argued that plaintiff is
intending to challenge TAC report by making amendment in the suit
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and therefore till decision of Ch/s taken out for amendment of plaint
interim relief as prayed in this N/m is necessary to be granted.
Defendant’s adv. argued that in view of Judgment of Hon’ble Lordship
Dr. Shalini PhansalkarJoshi passed in AI (St.) No. 23630/18 alongwith
CA No. 23632/18 this Court cannot sit into appeal against TAC report.
It was argued on behalf of plaintiffs that above judgment referred by
defendant is not applicable because in the case between Gehrilal A
Choudhary & Ors. Vs. MCGM and others, Hon’ble Justice A.S. Oka and
Riyaz I. Chagala J.J. while deciding Writ Petition No. 2399/2017 have
observed that "TAC of Municipal Corporation has considered the matter
afresh and submitted report dated 21st April 2017. We have perused
the minutes of meeting dated 21st April 2017 of TAC which were later
on corrected by providing that the building in question is falling under
category 'C1' ( which required immediate demolition). In this Petition,
Writ Court cannot decide issue of structural status of the building.
However, this Court is examining the decision making process of TAC.
the report of TAC shows that Municipal Corporation had appointed a
structural auditor who had opined that the building falls under category
'C1'. The conclusions which are recorded by TAC arefer to the stand
taken by Professor R.S. Jangid of IIT, Mumbai that the building can be
repaired. There are no reasons assigned as to why the opinion of the
expert agency like IIT, Mumbai has been ignored. Therefore, prima
facie, the decision making process adopted by TAC is flawed. "
Plaintiffs adv. also referred following case laws in support of his
arguments.
1. Tushar H. Shah Vs. state of Maharashtra and 4 Ors and in said
case while passing order in Writ Petition No. 1863 of 2017, Hon’ble
Lordship Smt. Vasanti a. Naik and Riyaz I Chagla JJ are pleased to
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observe that " Since admittedly the specific tests required to be
performed as per the guidelines in para 9(d)(ii) were not conducted by
the TAC, it would be necessary to quash and set aside the report of TAC.
The TAC should conduct the tests mentioned in paragraph 9(d)(ii) of
the judgment in writ petition (L) No. 1135 of 2014, as are necessary
within a time frame. Since some time would be required for performing
the said tests, without going into the merits of the submission made on
behalf of the respective parties about the requirement of the members
of TAC to personally carry out visual inspection, as required by clause
(d)(i), we wish to direct the members of TAC to carry out visual
inspection so that the said question may not fall for consideration when
the TAC submits a fresh report after carrying out the tests that are
required to be carried out in terms of clause (d)(ii) of the guidelines in
the judgment in writ petition (L) No. 1135 of 2014. If the visual
inspection is carried out by the members of TAC immediately, some
time would be saved and the TAC would be able to submit a fresh
report, no sooner than the required rests are conducted, as per clause
(d)(ii) of the guidelines.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The report of the TAC dated 08.06.2017 is hereby quashed and
set aside . The members of the TAC are directed to carry out the visual
inspection as per the guidelines in paragraph 9(d)(ii) in the judgment in
writ petition (L) No. 1135 of 2014 within 8 weeks. The specific tests,
that are required to be conducted as per clause (d)(ii) of the guidelines
should also be conducted as early as possible and positively within 8
weeks. With the aforesaid directions, the writ petition stands disposed
of within no order as to costs."
2. Shivaji Ganpat Muthal Vs Murlidhar Daji Muthal reported
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in TP ILR 1954 BOM 1974 but the said is related to alliance by Hindu
father hence said case is not related to the facts of this case.
3. Indian Ceramic House Vs. Sales Tax officer reported in
1970 SCC online ALL 193 in which judgment is delivered about
considering ratio.
4. Arun Kumar Aggarwal Vs. State of Madhya Pradesh in said
case meaning of obiter dicta is explained.
5. Dadu Dayalu Mahassabha Vs. Mahant Ram Niwas and Anr.
reported in (2008) 11 SCC 753 in which it is observed that " the court
while passing a judgment cannot take away the right of the successful
party indirectly which it cannot do directly."
6. State of Orissa Vs. Sudhansu Sekhar Misra reported in
(1968) 2 SCR 154. This case is related to service matter hence it is
different than the facts of present case.
7. Oriental Insurance Co. Ltd. Vs. Raj Kumari (Smt) and Ors.
reported in (2007) 12 Supreme Court Cases 768. This case is related to
liability of insurance of 3rd party risk. Hence it is not applicable.
8. Qari Mohammed Zakir Vs. MCGM reported in 2001 SCC on
line BOM 871. This case is related to the question that whether trial
Court who was justified in returning plaint presented by plaintiff.
9. Dhruv Green Field Vs. Hukam Singh (2002) 6 SCC 416.
Said case is related to jurisdiction of Civil Court to try all suits of civil
nature.
10. Revajeetu Builders and Developers Vs. Narayanswamy and
Sons and Ors reported in (2009) 10 SCC 84. This case is related to
amendment in the plaint.
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8. In view of observations of Hon'ble High Court passed in AO
(St.) No. 23630/18 alongwith CA (St.) No. 23632/18 it becomes clear
that TAC is independent expert committee which is appointed as per the
directions given by Hon'ble High Court in Writ Petition No. 1135/2014.
As observed by the Hon'ble High Court in above referred AO, TAC is
supposed to take independent decision in all these matters, wherein
there are conflicting reports submitted by occupants/ tenants and
landlord. Therefore TAC is independent and impartial authority which
is consisting of the experts. As observed by Hon'ble High Court in above
referred said case between Pravinchandra Meghji Nisar and Ors. Vs.
MCGM it becomes clear that the Hon'ble High Court has observed that
"Neither the Hon'ble High Court and trial Court is expected to sit over
TAC's report and take any different view of the matter ". Facts of the
case laws cited on behalf of plaintiffs are different than the facts of this
case because my learned predecessor after considering the conflicting
structural audit reports has referred the matter to TAC and now TAC
has declared suit building as C1 category building hence it becomes
clear that lives of occupants residing in said building are more valuable
than the interim reliefs sought by plaintiffs. As suit structure is declared
by TAC as C1 category and it is in dilapidated condition, I find that this
Court cannot grant ad interim relief sought by plaintiffs. Hence ad
interim relief granted by my learned predecessor by order dated
18.01.2018 is also necessary to be vacated because TAC has delcared
suit building as C1 category building and lives of occupants of suit
building are necessary to be protected. Hence I find that plaintiffs have
not made out prima facie case to grant ad interim relief sought in this
N/m. Further the photographs of suit building filed by plaintiffs on
record show the dilapidated condition of suit building. Hence I find
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that no interim relief as sought by plaintiff can be granted. Hence I
proceed to pass following order.
O R D E R
1. N/m No. 3856/2018 stand dismissed/disposed off.
2. Interim relief dated 18.01.2018 granted by my learned
predecessor stands vacated.
(K.P.Nandedkar)
Judge,
City Civil Court,
31/10/2018 Gr.Bombay
Dictated on : 31.10.2018
Transcribed on: 02.11.2018
Signed by HHJ on: 03.11.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/11/2018 04.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 31/10/2018
Judgment/order signed by P.O on 03/11/2018
Judgment/order uploaded on 03/11/2018
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