Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.458 OF 2018
IN
LONG CAUSE SUIT NO.526 OF 2018
Dr.Omprakash Jhumerlal Tavri
aged 70 years, adult Mumbai Indian
Inhabitant, Occupation Doctor,
Having office at Diamond Imaging
Centre, Bala Bhavan, 1st floor,
296A, Central Avenue Road,
Opp.Diamond Garden, Chembur,
Mumbai 400 071. ....Plaintiff
V/s.
1. The Municipal Corporation of
Gr.Mumbai, a body corporate,
incorporated under the provisions
of M.M.C.Act,1888, having its
offices at Mahapalika Bhavan,
Mahapalika Marg,C.S.T.Fort,
Mumbai 400 01.
2. The Designated Officer
Asst.Engineer (Building and
Factories) Department, office
of the M/West Ward, Municipal
Office, Sharadbhau Acharya Marg,
Chembur, Mumbai400 071.
3. Mrs.Ravi Radha Alias Ramadori
Radha Alias R.Radha
Adult Indian Inhabitant, age 47 years
Occ.Housewife, residing at 4, Anju
Mansion, K.A.Subramanium Road,
Matunga, Mumbai 400 019. ....Defendants
Appearances:
Ld. Advocate Mr.Pratap Singh for the Plaintiff.
Ld. Advocate Mrs.Vyavhare for defendants no.1 & 2/BMC.
Ld.Advocate Ms.Bhakti Patwardhan for defendant no.3.
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CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
C.R.No.8
DATED : 18th December, 2018
ORAL ORDER
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiff's case in nutshell is as under:
The plaintiff, a Doctor by profession, is a tenant in respect of the
premises having carpet area admeasuring 550 sq.ft. situated at
Diamond Imaging Centre, Bala Bhavan, 1st floor, 296A, Central
Avenue Road, Opp.Diamond Garden, Chembur, Mumbai400 071 being
CTS Plot No.296A of S.S.III, City Survey No.1611 (hereinafter referred
to as "suit premises" for brevity) since 1978 and doing his professional
business in the name and style of "M/s.Diamond Imaging Centre". He
has obtained necessary licenses/permissions from the concerned
competent authority alongwith the requisite electricity connection,
telephone connection and water connection. The suit premises was let
out by erstwhile landlord Dr.R.Krishnamurthy. The new landlord
Mrs.Ravi Radha, who is sister of Dr.R.Krishnamurthy, wants to evict the
plaintiff from the suit premises and she filed false and frivolous L.E.&
C. Suit No.122/154 of 2011 in the Court of Small Causes, Mumbai on
the basis of leave and license agreement dated 31/01/1978 executed by
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her brother. The suit premises is in existence since prior to datum line.
The new landlord (Defendant no.3) is not taking care of the building
nor allowing the plaintiff and/or other tenants to carry out the essential
repairs. She has taken mischievous steps to approach the defendant
Municipal Corporation and the latter issued notice bearing no.ACM/W
566B&F dated 4/10/2017 under Section 354 of Mumbai Municipal
Corporation Act,1888 (hereinafter referred to as "MMC Act" for brevity)
for demolition of the suit premises. The said building is old but in a
habitable condition and there is no such eminent danger and therefore,
the notice under Section 354 of MMC Act is mischievous and requires to
be set aside. Moreover, the said notice came to be issued without
categorizing the said suit premises as C1. Therefore, the plaintiff has
prayed for temporary injunction restraining the defendant no.1
Corporation from taking any action pursuant to the notice under
Section 354 of MMC Act till final disposal of the suit.
3. The defendant no.3 has filed affidavit in reply to the said Notice
of Motion contending as under:
The contents of Notice of Motion are false. The building in
general became uninhabitable and as such could not be used and/or
occupied by the occupants starting from the year 2013. On 6/9/2013
defendant no.1 Corporation notified defendant no.3 for carrying out
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structural audit as the building had crossed the threshold limit of 30
years. Therefore, defendant no.3 appointed M/s.Supremo (India)
Pvt.Ltd. to make structural audit and the latter prepared report. Latter
submitted report in January 2014 and pursuant thereto the defendant
no.1 issued notice to defendant no.3 to vacate the building
immediately.
4. Thereafter, defendant no.3 engaged Structural Engineer
Mr.Manoj V.Sathe, licensed Structural Engineer of defendant no.1
Corporation, to inspect and prepare report. The latter submitted report
dated 27/10/2016 certifying that the suit premises was belonging to
Category C/1. The plaintiff and other occupants of the 1st floor
approached another Structural Engineer Mr.Barve who certified
wrongly that the building belonged to class C/2/B category. As there
were two contradictory reports before defendant no.1, it decided to
refer the matter to the Technical Advisory Committee (hereinafter
referred to as "TAC" for short). The said committee convened meeting
on 7/9/2017. In that meeting representative of Mr.Barve was
convinced and he agreed, accepted and confirmed to modify his
classification from C/2/B to C/1. As such notice under Section 354
issued by defendant no.1 Corporation is valid. Other occupants of the
building have already vacated the respective premises long back.
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Therefore, Notice of Motion be dismissed.
5. The defendant no.1 Corporation has supported the case of
defendant no.3.
6. Considering the rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.No. POINTS FINDINGS
1. Whether Technical Advisory Committee
(TAC) followed guidelines given in Writ
Petition (L) No.1135 of 2014.?
In the negative
2. Whether plaintiff has made out
ingredients required for grant of
temporary injunction in his favour ?
Does not survive
3. What order ? Notice of Motion is
allowed.
R E A S O N S
AS TO POINTS NO.1 & 2:
7. The dispute seems to have arisen in respect of building which
according to the plaintiff is old but in a habitable condition and
according to the defendant no.3 is in dangerous and dilapidated
condition which requires to be urgently vacated or to be demolished.
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Both parties are not disputing that structural audit report of Mr.Sathe
and Mr.Barve gave different opinions about status of the building as the
former certified that it was coming under C/1 category and the latter
certified that it was to be classified as C/2/B category (which means
required structural repairs). The record further reveals that the
defendant no.1 Corporation referred the matter to the Technical
Advisory Committee and the TAC convened meeting on 7/9/2017 at
5.15 p.m. wherein Mr. Sathe and Mr.Mahadev Birajdar, authorized
person of Mr.Barve, were present. The minutes of the said meeting
display that the representative of Mr.Barve produced reassessment
report of the said building whereby he changed the category of the
building from C2B to C1 category. Placing reliance upon this aspect,
Ld.Advocate for defendant no.3 has vehemently argued that in the
meeting convened by TAC both structural Engineers gave same finding
that the building was to be categorized as C/1 and therefore, the TAC
rightly arrived at conclusion that both of them had no difference of
opinion and the matter was returned to Assistant Commissioner
M(West) Ward for taking necessary action at their end. It is pertinent
to note that Mr.Barve had carried out structural audit prior to
27/12/2016 and he made reassessment on the premises that no minor
repair was carried out as suggested by him during period from
26/12/2016 to 7/9/2017. From this it can be gathered that when
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matter was referred to TAC, there was difference of opinion between
two structural consultant Mr.Sathe and Mr.Barve. In such situation the
TAC was expected to follow procedure laid down in the judgment of
Hon'ble Bombay High Court in Writ Petition (L) No.1135 of 2014. It
will be appropriate to reproduce relevant guidelines issued by Hon'ble
Bombay High Court in the said case:
"9. Accordingly, for the present, in the absence of any
policy in that behalf, the following guidelines are issued:
(a) The present order will be applicable only in respect of
those buildings which are highly dilapidated and dangerous and/or
classified in Category C1 by the Corporation, whether owned by a
private party or by the Corporation or any other authority and in
respect of which building, either a notice under section 354 has been
issued or the Corporation has issued a Letter of Evacuation to their
tenants and/or occupiers of the buildings.
(b) The Corporation will, before classifying a building under
category C1, conduct their own independent inspection and
assessment with the help of the Engineers of their Department and
carry out a survey of such building(s). The report of Structural
Audit shall be taken into account.
(c) The Corporation shall consider the report of Structural
Engineer appointed by the owners and/or occupants classifying the
building as dilapidated and dangerous. If the owners and/or the
occupants bring conflicting reports on the status of the building, the
Corporation shall refer the matter to 'Technical Advisory Committee
(TAC) under the Chairmanship of Director (ES &P) with at least 3
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other members, viz.City Engineer, Chief Engineer (DP) and Chief
Engineer(P&D).
(d) The TAC shall:
(i) Carry out a visual inspection of the state of the internal and
external plaster, plumbing, drainage, whether the doors and
windows close properly, whether steel in columns is exposed,
whether there is settlement in the foundation, deflections/sagging,
major cracks in columns/beams, seepages/leakages, staircase area
and column condition, lift well walls, U.G. tank, O.H. tank column
condition, parapet at terraces, chhajas, common areas, terrace
water proofing.
(ii) Carry out specific tests like ultrasonic pulse velocity test,
rebound hammer test, half cell potential test, carbonation depth
test, core test, chemical analysis, cement aggregate ratio as may be
considered by TAC as necessary."
8. From perusal of these guidelines, it is clear that TAC is an
independent body and the matter is referred to it if conflicting reports
about the status of the building are submitted to the defendant no.1
Corporation. The Hon'ble High Court has given direction to the TAC as
mentioned in sub para (d) of paragraph 9 of the said order to carry out
visual inspection as well as specific tests. In this matter, the minutes of
meeting dated 7/9/2017 show that the TAC called two structural
consultants, discussed the status of the building with them. There is
nothing on record to show that the TAC carried out visual inspection
and did carry out specific tests mentioned in the aforesaid order. It is
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not the case of the defendant no.1 Corporation that any of the two
structural consultants had carried out tests under supervision of TAC.
Therefore, it is clear that the TAC has not followed guidelines given in
the said writ petition. TAC is not called upon to adjudicate the
conflicting reports. It has to carry out the tests independently.
Therefore, the finding of TAC is not in consonance with the guidelines
in Writ Petition (L) No.1135 of 2014. As such, Notice of Motion will
have to be granted with following directions.
ORDER
1. Notice of Motion No.458 of 2018 is allowed and made absolute in
terms of prayer clause(a) till further order.
2. The defendant no.1 Corporation is directed to refer the matter to
Technical Advisory Committee (TAC) and the latter is directed to follow
guidelines in Writ Petition (L) No.1135 of 2014 before arriving at any
conclusion.
3. Notice of Motion No.458 of 2018 stands disposed off.
(C.V.MARATHE)
DATE: 18/12/2018 JUDGE
CITY CIVIL COURT
GRATER MUMBAI
Dictated on : 18.12.2018
Transcribed on : 27.12.2018
Signed on : 28.12.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
28.12.2018 at 1.00 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI C.V.MARATHE
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
18.12.2018
JUDGMENT/ORDER signed by P.O.
on
28.12.2018
JUDGMENT/ORDER uploaded on 28.12.2018
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