Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 308/2020 1 IN SU 387/2014
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO.308 OF 2020
(CNR NO.MHCC010007992020)
IN
L.C. SUIT NO.387 OF 2014
(CNR NO.MHCC010000742014)
Vimlaben Vishnji Thakkar and Ors. ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai and Others
]...Defendants
Adv. Neel Gala for the Plaintiff
Adv. Tondwalkar for defendant Nos.1 and 2 / MCGM
Adv. Manek for defendant No.3
None for defendant Nos.4 to 13
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 4)
DATED : 12th April, 2022.
O R A L O R D E R
1 . The defendant No.3, has taken out this Notice of Motion for
vacating the interim order passed on 04.05.2016 by this court and
restrained defendant from demolishing the suit property in pursuance
of notice u/sec.354 of MMC Act. The contention of defendant No.3, that
the plaintiff has filed this suit and challenged the notice issued to her
u/sec. 354 of MMC Act. This court has granted interim relief in favour
of the plaintiff and restrained defendant / MCGM from demolishing the
suit property. The defendant / MCGM further directed to refer the
matter to the Technical Advisory Committee (TAC) for conducting
independent structural audit by following guidelines given by the
Hon’ble High Court in Writ Petition No.1135 of 2014.
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2. The contention of defendant No.3, that the matter was
referred to the Technical Advisory Committee (TAC) by following
guidelines given by the Hon’ble High Court. The plaintiff and defendant
No.3, were given an opportunity to submit the structural audit report
about the suit building before the Technical Advisory Committee (TAC).
The personal hearing was also given to the parties before the Technical
Advisory Committee (TAC). The committee has also visited the suit
property and pass the order. The Technical Advisory Committee (TAC)
report was filed by the defendant No.1 in this court then defendant
No.3, has taken out the Notice of Motion for vacating the interim order.
This court has allowed the Notice of Motion then plaintiff has preferred
the appeal before the Hon’ble High Court and the Hon’ble High Court
was directed to reconsider the matter or structural assessment of
building Shree Krupa and committee was also requested to complete
the assessment within six weeks. The Technical Advisory Committee
(TAC) come to the conclusion that after the assessment, that building is
dilapidated and falls under the C1 category and is required to be
demolish. Therefore, the contention of defendant No.3, that adinterim
order passed by this court in favour of the plaintiff on 04.05.2016 be
vacated.
3. The plaintiff strongly objected the Notice of Motion by
contending that the Technical Advisory Committee (TAC) did not
consider the repair work carried out by the plaintiff. The Technical
Advisory Committee (TAC) has not given sufficient opportunity to the
plaintiff and not visited and carried out the inspection by their own
committee members. Therefore, plaintiff is entitled for the protection
and there is no sufficient ground to vacate or set aside the interim order
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passed I
n favour of the plaintiff.
4. Perused Notice of Motion, reply filed by the plaintiff.
Having heard all the advocates and on perusal of the entire documents
filed on record following points arose for my determination alongwith
my findings on those points for the reasons mentioned thereunder are
as follows:
Sr.
No. POINTS FINDINGS
1. Whether defendant no.3, is entitled for
vacating the interim order passed on
04.05.2016 ?
In the affirmative
2. What order ? Notice of Motion is
allowed
R E A S O N S
AS TO POINTS NOS. 1 :
5. The advocate for defendant No.3, has taken my attention
towards the Technical Advisory Committee (TAC) report therein, it is
clearly mentioned that the report submitted by the structural auditor.
The committee has also gone through the comparison study of the
structural audit report submitted by the M/s. M.M. Consultants
structural auditor of the plaintiff / occupant, Sardar Patel College of
Engineering for owner and VJTI structural auditor of the defendant /
MCGM. The observation of all the auditors were compared. The NDT
test carried out by all the structural auditor also compared with each
other and come to the conclusion that the building Shree Krupa for
which structural audit have been done and falls under C1 category.
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6. The advocate for the defendant No.3, relied on the ratio
laid down in the case of Mahendra Bhalchandra Shah and Anr. V/s.
Municipal Corporation of Greater Mumbai, Writ Petition
No.1755/2019 dated 24.06.2019 therein the Hon'ble High Court held
that
(34) It follows therefore that without a clear and specific prima
facie finding that the TAC order or a takedown notice are
vitiated for the reasons we have mentioned earlier
(arbitrariness, perversity, or mala fides), no pro tem order of
status quo is ever legitimate or permissible. Consequently, it is
our considered view that there is no scope whatsoever in the
context of a dilapidated building subjected to a Section 354
notice for passing or continuing any such order of status quo
(whether or not subject to any undertaking).
7. On the same point the advocate for defendant No.3, further
relied on the ratio laid down in the case of Ramesh Nathubhai Patel
and Ors. V/s. State of Maharashtra and Ors. Writ Petition
No.1500/2016, Notice of Motion No.521/2017 therein also the
Hon'ble High Court held that the allegation of connivance between the
landlady and the officers of Municipal Corporation is nothing but a very
loose, generalized and non specific allegation of mala fides
8. In case in a hand also the allegation against the defendant
are generalized and non specific. There is nothing on record that the
landlord and defendant / MCGM in joining hands with each other try to
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demolish the suit property. There is no better particulars about their
collusion, conspiracy against the plaintiff.
9. The advocate for defendant No.3, further relied on the ratio
laid down in the case of Kutbi Manzil Tenants Welfare Association
V/s Municipal Corporation of Greater Mumbai and Ors. in Writ
Petition No.2451/2018 therein the Hon'ble High Court held that the
landlord approached the VJTI, we do not think VJTI is an institution
which obliges anybody, much less, the landlord. In case and in hand
also, the defendant / MCGM appointed VJTI as their structural auditor.
10. The advocate for the defendant No.3, further relied on the
ratio laid down in the case of Raichand Gasper Mathias and Ors. V/s.
The Municipal Corporation of Greater Mumbai and Ors. In Writ
Petition No.2108/2018 therein the Hon'ble High Court held that
(15) The structural audit report of the tenants, landlords and
inspection report of the TAC were material considerations, on
which the Committee concluded that structure is in ruinous
condition and required to be pulled down. This Court in the case
of Mahendra Shah (Supra), while dealing with the identical
arguments has held that it is not open to the Court, to sit in
judgment over that satisfaction of the Technical Advisory
Committee i.e. to substitute that opinion with its own.
11. The advocate for the defendant No.3, further relied in the
ratio laid down in the case of Vivek Shantaram Kokate and Ors. V/s.
Municipal Corporation of Greater Mumbai and Ors., therein the
Hon'ble High Court held that there is no requirement anywhere that the
TAC must necessarily commission an independent structural report or at
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audit or have fresh test carried out. After all, its composition is of technical
experts.
12. The defendant No.3 and defendant / MCGM relied on ratio
laid down in the case of Khalil Ahmed Mohd. Ali Hamdulay and Ors.
V/s. Municipal Corporation of Greater Mumbai and Ors. In Writ
Petition No.2417 of 2019 there in the Hon'ble High Court held that –
It is never sufficient merely to allege mala fides without particulars. While
direct evidence may not always be available as proof of mala fides, they
must nonetheless be established. In the words of the Supreme Court,
allegations of mala fides are more easily made than proved, and the very
seriousness of such allegations demands proof of high order of credibility.
13. On relying above citations the advocate for the defendant
No.3 and defendant / MCGM submitted that the Technical Advisory
Committee (TAC) members on going through all structural audit report,
and the committee members unanimously decided that the building is
structurally deteriorated and in dilapidated condition. The suit structure
falls under C1 category and needs to be vacated and demolish
immediately. It is also come on record that the Technical Advisory
Committee (TAC) members visited the suit building.
14. The advocate for the plaintiff submitted that the landlord in
joining hands with defendant / MCGM tried to demolish the suit
property. The occupant / plaintiff has sought the repair permission but
the owner neither himself repairs the suit building though it is the duty
of the landlord to keep the premises in a good condition. The defendant
/ MCGM not granted the permission to the plaintiff to get repair the suit
building therefore, proper opportunity was not given to the plaintiff.
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The principle of natural justice was not followed therefore, plaintiff is
entitled for the protection and it is not necessary to demolish the suit
building and to vacate the order pass previously in favour of the
plaintiff.
15. The advocate for the plaintiff relied on the ratio laid down
in the case of Ashok Kapil V/s. Sana Ullah (dead) and Ors. the
Supreme Court of India on 25.09.1996 therein the Hon'ble Supreme
Court held that – If the crucial date is the date of allotment order, the
structure was not a building as defined in the Act. But can the respondent
be assisted by a court of law to take advantage of the mischief committed
by him? The maxim “Nullus Commodum copere potest de injuria sua
propria” (No man can take advantage of his own wrong) is one of thee
salient tenets of equity Hence, in the normal course, respondent can not
secure the assistance of a court of law for enjoying the fruit of his own
wrong.
16. The advocate for the plaintiff further relied on the ratio laid
down in the case of Sulabhai Jagannath Vharkate V/s. Jagannath
Sonaji Vharkate 1971 DGLS (BOM) 35 on relying above citation the
advocate for the plaintiff submitted that adverse inference can be drawn
against the defendant because of non giving sufficient opportunity to
plaintiffs structural engineer and the TAC members neglected the
infirmities in their report. The advocate for the plaintiff submitted that
it is the duty of landlord to keep premises in good repair. So, it is duty
of landlord to carry out tenantable repair and keep premising a good
condition but here in this case neither landlord carried out tenantable
repairs nor defendant / MCGM given permission to the plaintiff to carry
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out permissible repair though sought repeated permission towards
them. Therefore, the contention of the advocate for the plaintiff that
adverse inference can be drawn against the defendant.
17. On going through the pleadings all the parties as well as
the structural audit report submitted by M/s. M.M. Consultants, Sardar
Patel College of Engineering and VJTI. On going through the
comparative study of all the three audit reports on the technical aspects,
it is observed that there are similar condition of the building mentioned
in the N.D.T. test. The comparative study shows that though the
structural auditor of the tenants classified the building in C2B category
and come to the conclusion that the structural repair should be taken on
the urgent basis. The Technical Advisory Committee (TAC) has analysis
the structural audit report of each auditor and come to the conclusion
that the suit building falls under C1 category and is dangerous to live
and needs to be vacated and demolish immediately. In the report it is
mentioned that the committee members during the joint side visit by
TAC members observed that
“the structural members of both wings like column, beam and
slab are in highly distressed condition. Longitudinal Cracks were
seen on exterior columns and columns are highly distressed
condition. Reinforcement of columns, beams and slabs are
exposed at many places are in highly corroded condition.
Canopy slab at entrance of the staircase at ground floor of the
both wings are seen in distressed condition. The cantilever
Chajjas on backside of the wingA are seen in distressed
condition. The reinforcement of the chajjas were exposed and
seen corroded. Terrace was locked and could not be inspected.
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The observations of the site visit were discussed in the meeting in
detail.
18. On going through the TAC report it also shows that all the
structural consultants / representative of structural auditor were
present. The TAC member analyze the structural audit report submitted
by all the parties. On going through the audit report TAC arrive at the
conclusion that many of the assesses structural members like columns,
beams, and slabs are in highly distressed condition. Major flats are seen
in beams, columns and slabs are beyond repair. The TAC members
opined that the building known as Shree Krupa is in severally
dilapidated condition, dangerous to live and may collapse without
giving any warning and thereby in danger to human life and property.
In such a situation it is very risky to continue with the protection given
to the plaintiff. The defendant No.3, have brought on record sufficient
change in circumstances after passing of order on 04.05.2016. While
passing the order on 04.05.2016. Matter was not referred to TAC and
TAC report is not available on record. Therefore, in my opinion as per
the provisions of law the injunction can be granted, set aside or varied,
if party is sufficiently proved change in circumstances after passing of
order.
19. Therefore, in my opinion the Technical Advisory Committee
(TAC) report shows that sufficient opportunity was given to each party
to put up their case. Therefore, the Technical Advisory Committee
(TAC) report could not say that it is arbitrary or bias one. No Mala fides
of the Technical Advisory Committee (TAC) members seems to be in
favour of the landlord or defendant and their interest in demolishing
the suit property. Therefore, the record shows that suit building is not
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safe for continued human habitation. So once the Technical Advisory
Committee (TAC) comes to the conclusion that the suit property needs
to be evacuated and demolish, it falls under C1 category. Therefore,
protection given to the plaintiff needs to be vacated. The plaintiff has
not filed on record sufficient material so, as to continue with the
protection hence, I answer point No.1 in affirmative and accordingly
pass the following order :
ORDER
1. Notice of Motion No.308/2020 in L.C. Suit No.387/2014 is
allowed and made absolute in terms of prayer clause (a)
2. The interim order passed in favour of the plaintiff dated
04.05.2016 is vacated and set aside.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 12.04.2022 Gr. Mumbai.
Dictated on : 12.04.2022
Transcribed on : 13.04.2022
Signed by HHJ on: : 13.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 01.00 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
12.04.2022
JUDGMENT/ORDER signed by
P.O. on
13.04.2022
JUDGMENT/ORDER uploaded
on
19.04.2022
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