Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 359/2020 in Stamp No. 673/2020. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 359 OF 2020
(CNR NO. MHCC010008222020)
IN
STAMP NO. 673 OF 2020
Irfan A. Shaikh and others ...Plaintiffs
Versus
Municipal Corporation of Greater Mumbai and others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 28th JANUARY, 2020.
Mr. Vivek Shukla / Mr. Rajesh Kanojia, Advocate for Plaintiffs.
Mrs. Tondwalkar, Advocate for Defendants No.1 and 2 / MCGM.
Mr. Kalyaniwala, Advocate for Defendants No.3, 5, 6 and 7.
Mr. N.S.Kazi, Advocate for Defendant No.4.
ORDER
This is a motion taken out by plaintiffs 1 to 5, all are
residents of Garib Nawaz, CHSL, Pipe Road, Kurla. Plaintiffs have
challenged Commencement Certificate issued by MCGM dated
17/10/2019 and Stability Report dated 24/04/2019. It is also
requested to restore position of soakpit and septic tank as per its
previous position as per plan dated 09/01/1997.
2. Ld. advocate Vivek Shukla and Rajesh Kanojia for plaintiff
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submits that plaintiffs society has 30 members in total in a building of
three storied. It was completed in the year 199495. As per structural
stability report dated 24/04/2019 at Page No.99, it is observed that
present building is capable of additional two floors. Thereafter on
17/10/2019 permission is granted by defendant no.1 vide Page No. 82.
There is fire NOC issued by MCGM on 23/04/2019, however there is a
column (vi) at Page No. 73 that no addition or alteration shall be done
without consent of occupier as per Section 7 of MOFA. The
development agreement dated 23/08/2019 bear a specific clause in
respect of vacant possession to be handed over before commencement
of the work. Even though recovery of maintenance is due towards all
plaintiffs, defendants cannot erect additional two floors without consent
of all plaintiffs.
3. Ld. advocate Kanojia for plaintiff added that there is
structural change in the soakpit and septic tank of the society /
building. The water connection is illegal. The additional FSI allotted to
the plaintiff society has been given to the developer, for which no
benefits has been provided to the present occupier. There is a reference
of payment of Rs.1.5 Crores be paid to the society at Page No.34. It is
claimed that life of plaintiffs is at peril due to continuous construction
of additional two floors. It is prayed for temporary injunction.
4. Ld. advocate Tondwalkar for defendants 1 and 2 MCGM
submits that it is the dispute interse between society and members.
Defendants 1 and 2 has sanctioned the plan and approved the proposal
within fourcorners of the law. There are no connivance or joining
hands between plaintiff and MCGM. The proposal was proper and
valid, therefore commencement certificate was issued by the MCGM.
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5. Ld. advocate N.S.Kazi for defendant no.4 submits that
plaintiffs are not members of the society. There are huge dues of
maintenance and membership charges towards plaintiff. Admittedly,
building was completed in the year 1997, however no O.C.
(Occupation Certificate) was still received by the society. The society
has put the proposal of selfdevelopment and accordingly sanction plan
is submitted. It is added that the provisions of MOFA are not applicable
as there are no new purchaser. Everything done by the plaintiff society
with the help of developer and architecture was with a view to use F.S.I.
The development agreement dated 23/08/2019 is signed by 18
members. Plaintiff has avoided to become member of the society nor
they deposited regular maintenance charges. It is prayed to reject the
motion.
6. Ld. advocate Kalyaniwala for defendants 3, 5, 6 and 7
submits that defendant no.3 is a structural engineer. He is the
professional who holds a reputation. Upon completion of all tests and
inspection, stability certificate came to be issued by defendant no.3.
7. Ld. advocate Kalyaniwala continued that defendant no.5 is
a developer firm. Defendants 6 and 7 are partners of defendant no.5.
It is dispute between member and society, defendants 3, 5, 6 and 7 are
not necessary party in the present suit. No instance of connivance
between plaintiff and MCGM are narrated by the plaintiff in the plaint.
There are no instance of any damage to the flat of plaintiffs. In
compliance to order of this Court, defendant has filed various
documents alongwith photographs vide Exh.9 to show that how many
tests are carried out by defendant no.3. The resolution of the society
dated 30/06/2019 is not challenged by the plaintiffs. Defendants have
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uploaded all documents on the website of the MCGM and upon proper
scrutiny MCGM has sanctioned the plan. It is requested to reject the
motion.
REASONS FOR ORDER
8. At the outset, it is to note that it is dispute interse between
Garib Nawaz CHSL and its member. Defendant no.3 structural engineer
has acted as the expert. Defendant no.3 has provided his services to
remaining defendants being professional structural engineer. Therefore
defendant no.3 is not necessary party. Hence suit stands dismissed
against defendant no.3.
9. At the inception, it is necessary to note admitted facts :
A) Suit premises Garib Nawaz CHSL situated at Patankar
Marg, building was completed before 25 years during 1995
to 1997. Previously it was three storied building. There
are in total 30 residents.
B) Plaintiffs 1 to 5 are not members of the society.
C) Plaintiffs 1 to 5 have not deposited the required
maintenance charges of the society as they are not
members of the society.
D) There are dues around 4 to 5 Lakhs of maintenance charges
towards each plaintiff.
E) Plaintiffs were not present for the general meeting of
members of Garib Nawaz CHSL dated 30/06/2019.
10. There is a development agreement dated 23/08/2019
which bear signature of 18 members of the society. As per clause (viii)
vide Page No.42, it is the undertaking of all members of the society to
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hand over vacant possession to the developer at the time of
construction. It is necessary to note that no instances of loss or damage
to the present structure came to be noted.
11. On perusal of stability certificate dated 24/04/2019, it is
supported with numerous documents submitted by defendant no.3 vide
Exh.9 that how many tests he has carried out, therefore it can safely
conclude that some reasons from the technical side has been given by
defendant no.3 to support stability certificate.
12. The reason behind extension of additional floor is
mentioned in Page No.10 and 11 of the development agreement to
utilize remaining FSI and to create corpus of 1.5 Crore be given to the
society. According to defendant no.4, huge dues of water and
municipal taxes are due towards the society. Defendant no.4 has
undertook that said corpus is to utilize to pay the dues of various taxes,
water bill and MCGM taxes. Therefore, there appear to be bonafide
intention of defendant no.4 in providing FSI to the developer.
13. There is no case of plaintiff that plaintiffs are not availing
common services, common passage, common water facility etc. There
is no case of plaintiff that water taxes and remaining property taxes to
the extent of plaintiff has been directly paid to the MCGM. There is no
case of plaintiff that they were denied to become member of the society
or to remain present in general meeting dated 30/06/2019. There is no
petition preferred by the plaintiffs that present body of defendant no.4
is illegal and plaintiffs have denied the access to become member of the
society.
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14. Ld. advocate Kanojia for plaintiff submits that present
water connection of society is illegal. Some extra benefits are received
from the developer are not provided to some of the residents in said
building, who are not members. However, the object to read in
between line is not clarified by ld. advocate Kanojia for plaintiff. This
appears to be the intention behind present suit.
15. In view of aforesaid discussion, following are the important
points to note :
A) Development Agreement dated 23/08/2019 is signed by 18
members. It appear that additional FSI and corpus of
Rs.1.5 Crores is to be used to clear water taxes and other
dues of MCGM.
B) Plaintiffs were absent in meeting dated 30/06/2019 when
common resolution has been passed for development.
C) There is no case of plaintiff that they were restrained to
become member of the society or participate in general
body resolution.
D) There were no steps on behalf of plaintiff in last 25 years to
establish the society or to challenge the registration of
society.
E) There are dues around 20 Lakhs towards plaintiffs. There
are no steps on behalf of plaintiffs to clear the dues nor
there are any steps on behalf of plaintiffs to pay water taxes
and property taxes to MCGM.
F) Structural engineer and developer has uploaded all
relevant documents on the website of MCGM, prior to
sanction. There are no steps on behalf of plaintiffs to
challenge the procedure at the relevant time before the
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MCGM.
16. There are prima facie grounds to believe that there appear
to be dispute between plaintiffs and present society. Considering
aforesaid discussion in total, there is no prima facie case in favour of
plaintiffs. Plaintiffs have avoided to become member, avoided to pay
the taxes and on the other hand, they have challenged the activities of
defendant no.4 society. It appear that plaintiffs are taking hot and cold
in one breath. In result, motion deserves to be dismissed.
17. There is no balance of convenience lies in favour of
plaintiffs. On perusal of photographs submitted by both side, there
appear to be construction almost near to completion. Obviously,
irreparable loss would cause to defendants, if injunction is granted. The
balance of convenience lies in favour of defendants. In view of
following order, copy of this order be given to ld. advocate for MCGM,
for service to Ward Officer, to look into issue of allegation in respect of
illegal water connection. Hence the order :
ORDER
1. Notice of Motion No. 359/2020 stands dismissed.
2. Defendant to file W.S. to expedite hearing.
3. Defendant/MCGM may verify water connection and if it is
illegal, MCGM may initiate action as per rule.
4. N/m No. 359/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge, City Civil & Sessions Court,
Date : 28/01/2020. Mumbai.
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N/m No. 359/2020 in Stamp No. 673/2020. 8 Order.
1. Dictated on : 28/01/2020.
2. Transcribed on : 01/02/2020.
3. Signed on : 03/02/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
03/02/2020. 3.03 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28/01/2020.
Judgment/Order signed by P.O. on 03/02/2020.
Judgment/Order uploaded on 03/02/2020.
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