Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 636-18 in L.C.SUIT no.387-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 636 OF 2018
(CNR no. MHCC010024392018)
IN
LONG CAUSE SUIT NO. 387 OF 2014
(CNR no. MHCC010000742014)
1. Vimlaben Vishnji Thakkar ]
Aged : 72 years, Occ : Housewife ]
Residing at Room No.3A ]
2. Velbai Shankargiri Goswani ]
Aged : 73 years, Occ : Housewife ]
Residing at Room No.4A ]
3. Sureshbai Bhulabai Desai ]
Aged : 68 years, Occ : Business ]
Residing at Room No.9A ](Deleted since Deceased)
3.a) Manjulaben Sureshbhai Desai ]
Occ : Housewife ]
Residing at Old Telegraph Office, ]
Opposite Manu Bhagatni Wadi, ]
Near New Post Office, Vapi Town, ]
Vapi, Gujarat Pin Code 396191. ]
4. Jetbai Gangji Visaria ]
Aged : 80 years, Occ : Housewife ]
Residing at Room No.11A ]
5. Tulsigauri Navinchandra Vyas ]
Aged : 80 years, Occ : Housewife ]
Residing at Room No.12A ]
6. Kirit S. Doshi ]
Aged : 58 years, Occ : Business ]
Residing at Room No.17A ]
7. Ratanshi Vishanji Thakkar ]
Legal Heir of Jamnabai Vishanji Thakkar ]
Aged : 58 years, Occ : Business ]
Residing at Room No.19A ]
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2 NM no. 636-18 in L.C.SUIT no.387-14
8. Mehul Uttamchand Sanghvi ]
Aged : 45 years, Occ : Business ]
Residing at Room No.26A ]
9. Paresh Hirji Sangoi ]
Aged : 40 years, Occ : Service ]
Residing at Room No.33A ]
10. Naresh Khantilal Sheth ]
Legal Heir of Khantilal Maganlal Sheth ]
Aged : 50 years, Occ : Business ]
Residing at Room No.5B ]
11. Praful Dalichand Doshi ]
Legal Heir of Hiralaxmi Dalichand ]
Aged : 55 years, Occ : Business ]
Residing at Room No.6B ]
12. Hariram P. Thakkar ]
Legal Heir of Shardaben H. Thakkar ]
Aged : 68 years, Occ : Service ]
Residing at Room No.7B ]
13. Arvindkumar Jamnadas Kothari ]
Aged : 65 years, Occ : Service ]
Residing at Room No.14B ]
14. Bhupendrabhai Jadavji Palan ]
Legal Heir of Jadavji Vaghji Palan ]
Aged : 68 years, Occ : Retired ]
Residing at Room No.15B ](Deleted since Deceased)
14.A)Madhuriben Bhupendra Palan ]
Aged : 69 years, Occ : Housewife ]
14.B)Ketan Bhupendrabhai Palan ]
Aged : 40 years, Occ : C. A. ]
14.C)Arpit Bhupendrabhai Palan ]
Aged : 35 years, Occ : C. A. ]
All of them residing at C/101, ]
Vasant Vihar, Off. Bal Rajeshwar Road, ]
Mulund (West), Mumbai 400 080. ]
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3 NM no. 636-18 in L.C.SUIT no.387-14
15. Nirmala Girish Vora ]
Aged : 60 years, Occ : Housewife ]
Residing at Room No.22B ]
16. Jaysukhlal Talakchand Doshi ]
Aged : 70 years, Occ : Retired ]
Residing at Room No.23B ]
17. Purshottam Laxmidas Thakkar ]
Aged : 65 years, Occ : Business ]
Residing at Room No.29B & 30B ]
18. Vinodrai Nandlal Mehta ]
Aged : 68 years, Occ : Business ]
Residing at Room No.31B ]
19. Minaben Vinodrai Mehta ]
Aged : 62 years, Occ : Housewife ]
Residing at Room No.32B ]
20. Harshad Dayalal Doshi ]
Aged : 58 years, Occ : Business ]
Residing at Room No.36B ]
21. Manilal Keshvji Rambhia ]
Aged : 60 years, Occ : Business ]
Residing at Room No.37B ]
22. Tarun Moolshankar Joshi ]
Legal heir of Moolshankar R. Joshi ]
Aged : 40 years, Occ : Business ]
Residing at Room No.38B ]
23. Bhanuben Wadilal Gandhi ]
Legal heir of Wadilal N. Gandhi ]
Aged : 78 years, Occ : Housewife ]
Residing at Room No.20A ]
All residing at Shree Krupa Building, ]
C.T.S. No. 1251, Ratanshi Hirjibhojraj ]
Road, Mulund (W), Mumbai400 080. ]....Plaintiffs
V/s
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4 NM no. 636-18 in L.C.SUIT no.387-14
1. The Municipal Corporation of Gr. Mumbai, ]
having their Head office at Mahapalika Bhavan,]
Mahapalika Marg, Fort, Mumbai400 001. ]
2. Pramod Waghmare, ]
Assistant Engineer, M. C. G.M., ]
"T" Ward, Mulund (W), Mumbai 400 080. ]
3. Nikhil Salia ]
Residing at Mulund (W), Mumbai400 080. ]....Defendants
Appearances:
Ld. Advocate Mr. Neel Gala for the Plaintiff.
Ld. Advocate Mr. Walawalkar with Advocate Mrs. Lanjekar for
defendants no. 1 and 2/BMC.
Ld. Advocate Mr. Manek for Defendant no. 3.
None for defendants no. 4 to 13.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 01st October, 2019
O R A L O R D E R
1. The Defendant No. 3 has taken out instant Notice of Motion to
direct Defendants No. 1 and 2 to implement the guidelines of Hon'ble
Bombay High Court in respect of demolition of dilapidated buildings
after Technical Advisory Committee (hereinafter "TAC") Order dated
18.01.2018 in respect of the suit building viz Shree Krupa Building,
C.T.S. No. 1251, Ratanshi Hirji Bhajraj Road, Mulund (W), Mumbai
400 080 and to vacate the interim order dated 04.05.2016 passed by
this Court. The defendant no. 3 has undertaken to provide same area to
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the tenants, make, sign and execute proper agreement in favour of
tenants as per law. It is argued by Ld. Advocate for defendant no. 3 that
the TAC has arrived at the conclusion that the suit building is in ruinous
condition after giving hearing to both parties.
2. The plaintiffs have strongly objected the Notice of Motion
contending that the TAC did not consider the aspect that the plaintiffs
took effort to repair the building by obtaining permission from the
landlord initially and after refusal by latter, from defendants no.1 and
2/MCGM but no such permission was granted and therefore, the
building reached to the present status. It is further contended that the
TAC has not considered all aspects in proper perspective and therefore,
the interim relief shall be continued till final disposal of the suit.
3. After going through rival contentions of the parties, application is
to vacate interim order dated 04.05.2016 whereby defendants no. 1 and
2/MCGM were directed not to demolish the suit building till further
order. The Ld. Advocate for the defendant no. 3 has pointed out that in
the same order direction was given to refer the matter to TAC, pursuant
to that order the matter was referred to the TAC and the TAC arrived at
conclusion on 18.01.2018 that the suit building was in dangerous
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condition and needed to be vacated immediately.
4. From the above order he has pointed out that the TAC has given
hearing to both parties, discussed the arguments / submissions of either
parties, considered the aspect of repair methodology and repair cost
suggested by Shri Mohan Galvankar of M/s. M. M. Consultants and
arrived at conclusion that the said suggestion was not practical and
therefore not acceptable.
5. Ld. Advocate for the plaintiff has vehemently submitted that the
instant Notice of Motion is not taken out by defendants no. 1 and
2/MCGM but the third party builder i.e. defendant no. 3 against whom
the interim relief was not granted. However it is not in dispute that the
defendant no. 3 intends to redevelop the suit building and is very much
interested in the out come of the TAC meeting. Therefore, the argument
that the defendant no. 3 is not entitled to file instant notice of motion is
without any merits.
6. Ld. Advocate for the plaintiff has tendered a chart consisting of
Comparative Scrutiny Remarks of 3 Audit Reports of M. M. Consultants,
SPCE and VJTI. After going through the said chart, Ld. Advocate for the
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7 NM no. 636-18 in L.C.SUIT no.387-14
plaintiff has pointed out that the technical aspect were not considered
by the TAC in proper perspective. As held in the case of Mahendra
Bhalchandra Shah & Ors. Vs. Municipal Corporation of Greater
Bombay & Ors. [WP (L) No. 1755 of 2019 dated 24th June, 2019],
the Court can only assess the vulnerability in law of demolition notices
or the TAC recommendation or order and the Courts address ourselves
not to the decision itself, but to the process by which it was reached. In
this matter, after careful reading of the TAC Report, it is clear that the
TAC has considered all the Structural Audit Reports in respect of suit
building. It is also pertinent to note that the TAC members visited the
suit building on 19.12.2017. Therefore, findings of the TAC in respect of
the suit building was neither perverse nor arbitrary and was clearly not
an outcome of mala fide intention on the part of the TAC.
7. Ld. Advocate for the plaintiff has invited my attention to Section
14 of Maharashtra Rent Control Act, 1999 which prescribes that the
landlord is duty bound to keep the premises in good and tenantable
repair. After reading said provision, it is not in dispute that landlord is
to keep the building in good and tenantable repair. However, Sub
Section (2) of said Section provides procedure for the tenants interested
in such repairs if the landlord neglects to make such repairs. In this
matter the plaintiffs have not taken any such steps to repair the suit
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8 NM no. 636-18 in L.C.SUIT no.387-14
building. Moreover, in view of the Section 354 and guidelines in WP (L)
no. 1135 of 2014 the rights of the tenants and/ or occupiers and/or
owners in respect of the suit building will not be affected by virtue of
evacuation or demolition carried out by defendants no. 1 and 2/MCGM
due to dilapidated and dangerous condition of building in exercise of
the power under Section 354 of the MMC Act.
8. For all the above reasons the order of interim relief dated
04.05.2016 till further order needs to be vacated forthwith. Hence,
Notice of Motion is allowed and following order :
ORDER
1. Notice of Motion No.636 of 2018 is allowed and made absolute in
terms of prayer clause (a).
2. The interim order dated 04.05.2016 passed by this Court is
vacated.
3. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 01.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 01.10.2019
Transcribed on : 03.10.2019
Signed by HHJ on : 03.10.2019
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9 NM no. 636-18 in L.C.SUIT no.387-14
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.10.2019 at 5.47 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
01/10/2019
JUDGMENT/ORDER signed by
P.O. on
04/10/2019
JUDGMENT/ORDER uploaded
on
04/10/2019
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