Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.595 OF 2018
IN
LONG CAUSE SUIT NO.392 OF 2018
Jaisukhlal Shantilal Doshi
aged 78 years, an adult, Indian
Inhabitant of Mumbai, residing at
Flat No.7, Shastry Niketan, Behind
Telephone Exchange, Chembur,
Mumbai 400 071 ....Plaintiff
V/s
1. The Municipal Corporation of
Gr. Mumbai, a body corporate
duly constituted under the
provisions of B.M.C.Act,1888
having their head office at
Mahapalika Bhavan,Mahapalika
Marg,Fort,Mumbai400 001
2. M/s.Rishabh Enterprises,
A registered partnership firm
office at c/o Dimension Realty
office no.601, 6th floor, R.C.Marg,
Chembur Naka, Chembur (E),
Mumbai400 071. ....Defendants
Appearances:
Ld. Advocate Mr.B.P.Shukla for the Plaintiff.
Ld. Advocate Mrs.Vyavhare for defendant no.1/BMC.
Ld.Advocate Mr.Bhandari for defendant no.2.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
C.R.No.8
DATED : 30th March, 2019
ORAL ORDER
1. By instant application (Notice of Motion) the plaintiff has prayed
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for temporary injunction restraining the defendant no.1/MCGM from
pulling down the suit building namely Shastry Niketan, situated at
Survey No.401, C.T.S.No.1647, 1646 and 1646/1 to 7 of village
Chembur, Taluka Kurla, behind Telephone Exchange, Chembur,
Mumbai400 071 (hereinafter referred to as "Suit building") in
pursuance of notice dated 8/10/2015 under Section 354 of The
Mumbai Municipal Corporation Act,1888(hereinafter referred to as
"MMC Act") issued by Assistant Commissioner M(W) Ward of defendant
no.1 MCGM.
2. Ld.Advocate for the plaintiff has vehemently argued that
defendant no.1 MCGM is acting at the behest of defendant no.2/
developer who wants the plaintiff to vacate the suit building. He has
also pointed out that defendant no.2/developer has not provided
permanent alternative accommodation and unilaterally terminated
contract by his letter dated 11/9/2015. According to the Ld.Advocate
for the plaintiff such course of unilateral termination of contract is not
available to defendant no.2/developer and memorandum of
understanding dated 9/9/2011 with the plaintiffs and other tenant is
still in existence and defendant no.2/developer is bound by it.
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3. Regarding declaration of suit building as C1 category,
Ld.Advocate for plaintiff has stated that no structural audit is carried
out by defendant no.1 MCGM before making such declaration and it has
not followed guidelines issued in Writ Petition (L) No.1135 of 2014.
4. The defendant no.1 MCGM has filed on record reports of two
structural auditors. The first report dated 24/8/2015 of M/s.Barve
Consultants and the earlier report is of structural auditors Mr.R.C.Tipnis
in July 2014. In both the reports, the structural auditors have opined
that over all condition of the suit building is not very good and
reconstruction shall be carried out. M/s. Barve Consultants have
concluded that the suit building must be evacuated/demolished
immediately. Ld.Advocate for the plaintiff has tried to show that in the
report of M/s.Barve Consultants the rooms of all floors are not shown in
C1 category. But only one room of ground floor and one room of 3rd
floor are shown in "C1" and other rooms are not shown as C1 but
either C2 or B1 or B2. However, after careful reading of the whole
report, it transpires that the concrete of the building is deteriorated and
having poor strength, the structure is not livable. Therefore, results of
non destructive tests of respective rooms cannot be given much
importance. It is pertinent to note that the plaintiff or other tenant has
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not carried out any structural audit of the suit building. In other words,
there is no contrary report and therefore, question of referring matter to
Technical Advisory Committee does not arise.
5. From the allegations in the plaint, it can be gathered that the
grievance of the plaintiff is against defendant no.2/developer who has
not provided permanent alternative accommodation to the plaintiff so
that he can vacate his flat in the suit building. Ld.Advocate for the
plaintiff has pointed out that the malafide action of defendant no.1
MCGM is apparent from the fact that the defendant no.2 developer
issued notice of termination of contract on 11/9/2015 and within a
month the defendant no.1 MCGM issued notice under Section 354 of
MMC Act dated 8/10/2015. According to him this is sufficient to
conclude that the defendant no.1 is acting at the behest of defendant
no.2/developer. In this regard, the defendant no.1 MCGM has
produced on record minutes of meeting dated 3/5/2014, C1 category
list 201718 showing that suit building is declared as C1 category. It is
also important to note that the defendant no.1 initiated its proceeding
by issuing notice under Section 353B of MMC Act dated 19/6/2014.
Thereafter, the defendant no.2/developer appointed M/s.Barve
Consultants to carry out structural audit of the suit building.
Thereafter, on 7/9/2015 Assistant Commissioner, M(W) ward
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considered the said audit report and directed Deputy Chief Engineer
(B.P.)E.S. to visit the site and offer remarks regarding categorization of
building. Then, said officer inspected the suit building on 10/9/2015
and recommended to declare the suit building in C1 category. From
this it can be seen that these events happened prior to issuance of notice
dated 11/9/2015 by defendant no.2/developer terminating contract
with the plaintiff. Therefore, it cannot be said that the defendant no.1
MCGM initiated action at the behest of defendant no.2/developer.
6. It is not the case that the defendant no.1 MCGM is solely relying
upon report of one structural auditor. Both the structural auditors viz
M/s.Barve Consultants and R.C.Tipnis have in one voice recommended
evacuation of the building and reconstruction of the same. Therefore, I
do not find that defendant no.1 MCGM acted malafide at the behest of
defendant no.2/developer. After going through the documentary
evidence filed by defendant no.1 MCGM, I do not find any substance in
the contention of plaintiff that defendant no.1 has not followed
guidelines in Writ Petition (L) No.115 of 2014.
7. Even after declaration of suit building in C1 category, the
building is occupied by some of the tenants. The defendant
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no.2/developer has filed some photographs showing that some portion
of slab had fallen recently. From all the above circumstances, it is
apparent that the suit building in dilapidated condition and needs to be
evacuated immediately. It is true that the plaintiff has filed undertaking
taking responsibility for any mishap to the suit building. However, in
the entire plaint it is not stated that the plaintiff still residing in his flat.
Existence of such dilapidated building is not only dangerous to its
occupants but also to the persons in nearby locality and passers by. The
plaintiff has not taken responsibility of those who may get hurt in the
mishap. The issuance of notice under Section 354 of MMC Act is issued
to protect life of individuals due to ruinous condition of the building
and after taking into consideration degree of risk to public safety.
These aspects need to be considered while deciding an application for
temporary injunction.
8. The grievance of the plaintiff against defendant no.2/developer is
that he may evict the plaintiff and start construction by demolishing the
suit building. In that regard guideline no.1.15 in the latest guidelines of
defendant no.1 MCGM in respect of dilapidated buildings can be
reproduced as under:
1.15" The Corporation shall, while granting the
sanction for redevelopment, the zonal building
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proposal department shall include a condition
in intimation Of Disapproval (IOD) that "unless
and until an agreement either providing a
permanent alternate accommodation in newly
constructed building or a settlement is arrived
at by and between the tenants and/or occupier
and the landlord no Commencement
Certificate (C.C.)will be issued u/s 45 of MR &
TP act 1966".
The defendant no.1 MCGM will have to keep in mind the said guideline
before issuing commencement certificate in respect of suit building to
defendant no.2/developer. For that purpose, the life of the occupants
and other persons need not be put into risk.
9. For the discussion supra, the plaintiff is not entitled for interim
relief as prayed in the Notice of Motion. Hence, following order.
ORDER
1. Notice of Motion No.595 of 2018 is dismissed.
2. Costs in cause.
(C.V.MARATHE)
DATE: 30/03/2019 JUDGE
CITY CIVIL COURT
GRATER MUMBAI
Dictated on : 30.03.2019
Transcribed on : 01.04.2019
Signed on : 04.04.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
04.04.2019 at 01.35 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
30.03.2019
JUDGMENT/ORDER signed by P.O. on 04.04.2019
JUDGMENT/ORDER uploaded on 04.04.2019
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