Order 1

Order Details: Other
Pdf Text: 1 Ad-interim in L.C.SUIT no.327-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 374 OF 2019
(CNR no. MHCC010009722019)
IN
L.C. SUIT NO. 327 OF 2019
(CNR no. MHCC010007992019)
1. Mr. Purushottam Nansingh Solanki & anr. ]... Plaintiffs
Versus
1. Municipal Corporation of Gr. Mumbai & 5 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 05)
Date : 12th February, 2019.
Mr. Atal B. Dubey, advocate for plaintiffs.
Ms. Deepali Patil, advocate for defendant nos. 1 to 3.
Mr. Ajay Panicker, advocate for defendant no. 4.
Mr. P. D. Gandhi i/b Ms. Mamniya, advocates for defendant no.6.
Mr. Toraskar, Section Officer, the office of Court Receiver, High Court
Bombay.
ORDER
1. The plaintiffs have taken out this motion seeking temporary
injunction for restraining the defendant corporation from acting in
pursuance of the notice dated 20.08.2018 issued under Section 354 of
Mumbai Municipal Corporation Act (M.M.C. Act) and the letters of
intimations for demolition dated 06.11.2018 and 16.11.2018.
2. Heard, respective advocates on adinterim reliefs. It is
prima facie undisputed that the plaintiff no. 1 is the tenant in the suit
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premises (room nos. 12, 13, first floor) and defendant no. 4 is the
owner of the entire suit property (land and buildings located at C.S. no.
405 near Jaywant Industrial Estate, Tulashiwadi, Tardeo, Mumbai). It is
also prima facie undisputed that a suit for specific performance bearing
High Court suit no. 1957 of 1993 is pending before the Hon'ble High
Court between the defendant no. 6 society and defendant no. 4, and the
Court Receiver, High Court Bombay has been appointed and is in
symbolic possession of the entire property.
3. The learned advocate for the plaintiffs submitted that the
impugned notice is illegal and bad in law as the same is not issued to
the plaintiffs – occupiers or the defendant no. 4 owner, and that no
opportunity of hearing as well as repairing the suit premises was given
to them. The defendant corporation did not follow due process of law.
On the other hand, the defendant nos. 1, 4 and 6 are bent upon to
demolish the structure (G+1) including suit premises in order to make
available additional F.S.I. to save five upper floors of the adjacent
building (G+11) which are raised unauthorizedly.
4. He further submitted that the suit premises can be repaired.
According to him, the Court Receiver was appointed pertaining to entire
property, who by letter dated 04.01.2019 directed the defendants that
they should not take any steps for demolition till suitable orders are
passed by Hon'ble High Court. He further submitted that the guidelines
given in the judgment dated 23.06.2014 passed in W.P. (L) 1135 of
2014 (M.C.G.M. vs. The State of Maharashtra and others) are not
followed by the defendant corporation as the report of Technical
Advisory Committee (T.A.C) has not been obtained. Thus, he prayed
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that the report of structural auditor is not proper and the same should
be referred to T.A.C. According to him, the impugned notice has been
issued in anticipation of the report of structural auditor and therefore,
the same is illegal.
5. On the other hand, the learned advocate for the defendant
no. 4 submitted that the Court Receiver is appointed for the entire
property. Therefore, the suit is not tenable. According to him, the
defendant corporation did not issue notice to defendant no. 4 owner
and therefore, due process of law has not been followed.
6. The learned counsel for defendant no. 6 society submitted
that since appointment of the Court Receiver the plaintiff is paying rent
to Court Receiver and is having every notice issued by the defendant
corporation. According to him, when the corporation issued impugned
notice, the Court Receiver appointed Bhumi Consultants who filed its
report stating that the structure (G+1) where the suit premises are
located is falling under “C1” category, whereas the structure (G+11)
falls in “C2B” category and therefore, the Court Receiver informed the
corporation to take necessary action against the structure (G+1).
According to him, the Hon'ble High Court has issued fresh guidelines in
its judgment dated 28.02.2018 passed in W.P. no. 1080 of 2015
(M.C.G.M. vs. State of Maharashtra). According to him, there is no
report contrary to the findings given in the report submitted by Bhumi
Consultants and therefore, there is no need to refer the matter to T.A.C.
7. The learned advocate for the defendant corporation
submitted that due process of law has been followed by issuing notice
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dated 12.05.2018 under Section 353B of M.M.C. Act requesting the
parties to produce structural stability certificate. Thereafter, the
Assistant Engineer of concerned ward inspected the structures on
03.07.2018. According to her, as the parties did not submit structural
stability certificate within stipulated period of one month the impugned
notice was issued to defendant no. 6 and the Court Receiver.
Thereafter, the Court Receiver filed structural audit report, wherein the
structure (G+1) has been shown in absolutely dilapidated condition
with a remark to demolish the same immediately being dangerous to
the life of the occupants and others.
8. Upon careful consideration to the facts on record and the
copies of documents, it prima facie appears that the plaintiff no. 2 is an
occupant of the suit premises residing with plaintiff no. 1. The
remaining occupants of the structure (G+1) have already handed over
the possession of their respective premises by settling the matters with
the defendant nos. 4 or 6. Even in the present matter attempts of
settlement were made. The defendant no. 6 filed affidavits (Exh. 8 &
10) to show its readiness to settle the matter amicably by providing
monthly rent and permanent alternate accommodation of the same area
(100 sq. ft.) held by the plaintiff no. 1 at present, upon decision of the
High Court suit no. 1957 of 1993 and to pay interim rent Rs.25,000/
per month. The defendant no. 4 also showed readiness on similar
conditions in affidavit (Exh.9). However, the plaintiff insisted on an
area admeasuring 300 sq. ft. or the area permissible under law
prevailing at the time of decision of the aforesaid suit. Whether the case
of plaintiffs is governed by the Section 16(C) of the Maharashtra Rent
Control Act or Development Control Regulation 33(7) or 33(10) is not
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question to be considered by this Court at this juncture. Be that as it
may.
9. It prima facie appears that the defendant corporation
issued notice under the Section 353B of the M.M.C. Act on 12.05.2018
to the Court Receiver and defendant no. 6 directing to produce
structural stability certificate within 30 days. The officers of the
defendant inspected the suit site on 03.07.2018 and filed inspection
report with photographs. It prima facie appears that as the structural
stability certificate was not produced within stipulated period of 30
days, the impugned notice under Section 354 of the M.M.C. Act was
issued to the Court Receiver and the defendant no. 6 for demolition of
the structure (G+1). Prima facie the entire property being custodia
legis and the Court Receiver has been appointed, the plaintiffs being
tenant / occupant can not expect a separate notice. Moreover, the
letters of intimation dated 06.11.2018 and 16.11.2018 are served upon
the plaintiffs.
10. The copy of letter dated 04.01.2019 issued by the Court
Receiver, High Court Bombay to the defendant corporation prima facie
shows that the structural stability certificate with the structural audit
report of M/s. Bhoomi Consultants was tendered with a direction that
the corporation should not take any steps against the structure (G+11)
until the Court Receiver obtains necessary orders from the Hon'ble High
Court Bombay.
11. The copy of structural audit report submitted by the
M/s. Bhoomi Consultants prima facie shows a conclusion that the
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structure (G+1) was found in dilapidated condition and in “C1”
category, and it was further opined that the same should be evacuated
and demolished immediately to avoid any mishap and damage to
human life. There is no report of any other structural auditor contrary
to the aforesaid report and therefore, there is not need to refer the
matter to T.A.C. for further report regarding structural stability.
12. Consequent upon these facts and circumstances, prima
facie there is nothing on record to show that the defendant corporation
did not follow due process of law. There is nothing to show prima facie
that the report of M/s. Bhoomi Consultants is perverse. The
photographs filed along with the inspection report prima facie show
the dilapidated condition of the suit premises and that the plaintiffs are
residing in a polythene shed on the first floor. Similarly, nothing has
been placed on record to show prima facie that the structure (G+1) can
be repaired. Therefore, intervention of this Court by granting adinterim
reliefs is not warranted.
13. At this juncture the learned advocate for the plaintiffs prays
for some protection so that the plaintiffs can approach the Hon'ble High
Court so as to challenge the order of rejection of adinterim relief. The
learned advocates for the defendant corporation and defendant society
strongly opposed to grant such protection. Normally, in view of ratio
laid down in the case of Kranti Mohan vs. Fatehchand reported in
A.I.R. 1982 Bombay 263, such stay or protection could be granted so
as to facilitate the aggrieved party to seek redress of its grievance
against the order which it wants to challenge, however, the facts of
present case are different. The report of the structural auditor in an
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unambiguous words states that the structure (G+1) is in utmost
dilapidated condition and beyond repairs. Moreover, the photographs
show that the plaintiffs reside in a polythene shed, and that too, on the
first floor of the structure. There is an imminent danger to the life, limb
and property of the plaintiffs and therefore, the plaintiffs would not be
entitled for such order for protection of the notice structure. Thus, the
following order is passed:
ORDER
1. Adinterim relief is rejected.
2. An ordinary copy authenticated by the Sheristedar of this Court
be supplied to the plaintiffs and defendant no. 1.
3. Certified copy is expedited.
sd/
(Dr. M. S. Deshpande)
Judge,
Date : 12.02.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 12.02.2019
Checked by HHJ on : 12.02.2019
Signed by HHJ on : 12.02.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.02.2019 at 4.36 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
12/02/2019
JUDGMENT/ORDER signed by
P.O. on
12/02/2019
JUDGMENT/ORDER uploaded
on
12/02/2019
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