Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 930/2019 IN SU 938/2019
1
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO.930 OF 2019
(CNR NO.MHCC010024702019)
IN
L.C. SUIT NO.938 OF 2019
(CNR NO.MHCC010020892019)
Mrs. Mina Kiran Doshi and Ors. ]... Plaintiffs
Versus
The Commissioner, M.C.G.M. and Anr. ]...Defendants
S.P. Shrivastava for Plaintiff
Arun Mehta for defendant Nos.3 and 4
MCGM Counsel Mr. Som Sinha with Adv. Smita Chavan for defendant
No.1 and 2 /MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 4)
DATED : 16th April, 2022
O R A L O R D E R
1. The plaintiff has taken out this Notice of Motion for
restraining the defendant / MCGM from demolishing the suit building
namely Amrut Kunj, consists of ground plus 4 upper floors containing
27 tenements (hereinafter called as suit structure for the sake of
brevity).
2. The plaintiff also prayed that the officer of the defendant /
MCGM be restrained from taking any action in pursuance to the notice
dated 08.02.2019 issued u/sec. 353 and 354 of MMC Act. The plaintiff
come up with a case that defendant / MCGM issued notice to him
u/sec. 353 and 354 of MMC Act is without jurisdiction, without
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application of mind notices were issued to 10 deceased members
therefore, they are void. The allegation of the plaintiff that the
Designated Officer, Assistant Engineers Nward has not complied with
the principle of natural justice and issued notice as per his whims which
is void and not binding on the plaintiff.
3. The contention of the plaintiff that the defendant / MCGM
before classifying the building under C1 category has to conduct their
own independent inspection and has to assess the suit building with the
help of their own engineer but they have not done so. It is alleged by
the plaintiff that the report submitted by the defendant No.3 and 4
through their structural engineer. This report itself shows that it is not
legal report, the report shows that it is a copy paste report of another
matter prepared in respect of some another building. There are several
elementary / glaring mistakes in the said report. Therefore, the
Technical Advisory Committee (TAC) could not have accepted the
report submitted by the defendant / landlord. On the contrary who
have accepted the report submitted by the plaintiff's structural engineer,
in this circumstance plaintiff prayed that defendant / MCGM be
restrained from taking any action in pursuance of notice dated
08.02.2019 and defendant be restrained from demolishing the suit
building.
4. The defendant / MCGM and defendant No.3 and 4 both
opposed the Notice of Motion by filing reply to the Notice of Motion on
record. The contention of the defendant that the suit building
admittedly more than thirty years old building. Therefore, defendant /
MCGM issued notice to the owner / occupier to submit the Structural
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Stability Certificate to defendant / MCGM. The defendant landlord
appointed the Structural Engineer to carry out the structural audit of
the suit building. The IIT Mumbai filed the detailed report and declared
the suit building is unsafe and falls under C1 category. The defendant /
MCGM conveyed the said audit report to the plaintiff and called their
say. The plaintiff / tenants also appointed their structural engineer, the
said structural engineer carry out the structural audit of the suit
building and according to him the suit building can be repaired and falls
under C2A category.
5. Because of the conflicting report matter was referred to the
Technical Advisory Committee (TAC). The Technical Advisory
Committee (TAC) members considered the audit report submitted by
both the parties and come to the conclusion that the suit building falls
under C1 category. Therefore, the TAC held that the suit building is
dangerous to live, dilapidated in condition therefore certainly plaintiff is
not entitled for any injunction and not entitled to reside in the suit
property. Hence, prayed for dismissal of the Notice of Motion.
6. On going through the Notice of Motion, reply filed by the
defendant / MCGM and defendant No.3 and 4. Heard all the advocates
at length 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 plaintiff prove prima facie
case in his favour ?
In the Negative
2. Whether balance of convenience lies in In the Negative
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favour of the plaintiff ?
3 Whether plaintiff prove that he will
suffer irreparable loss if injunction is
refused ?
In the Negative
4. What order ? Notice of Motion is
dismissed
R E A S O N S
AS TO POINTS NOS. 1 to 3:
7. The plaintiff has challenged the notice issued on
08.02.2019 and prayed for restraining the defendant / MCGM from
demolishing the suit property. The advocate for the plaintiff submitted
that the suit building namely Amrit Kunj premises ground plus four
upper floors consisting 27 tenants. The suit building has been
constructed in two phases but said fact is ignored by all the structural
engineers and defendants.
8. The advocate for the plaintiff submitted that the defendant
No.2 and 4 obtain structural audit report from Mr K Bajona, Professor of
IIT, Powai. The plaintiff tenant of Amriti Kunj, building were not aware
of the said report. The plaintiff later on come to know that the
structural engineer of the landlord who opined that the suit building is
dangerous to live and in dilapidated condition. The said auditor
categorized the suit building in C1 category. Thereafter, the plaintiff
also appointed structural engineer M/s. Ree Structure and obtain
structural audit report in November, 2018. The structural auditor of the
plaintiff carried out several tests and come to the conclusion that the
suit building falls under C2A category. Because of the conflicting report
matter was referred to the TAC. The TAC not followed the guidelines
and come to the wrong conclusion that the suit building is dilapidated
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in condition, dangerous to live and falls under C1 category.
9. The advocate for the plaintiff further submitted that there
is no lift facility in the suit building but the structural auditor of the
landlord mentioned in his report that the lift walls of the building are in
poor condition. The said structural engineer of the landlord wrongly
mentioned that there is an underground water tank which is in poor
condition but basically there is no underground water tank existing in
the suit building. Therefore, the structural audit report submitted by the
landlord seems to be copy paste report. He never visited the suit
property and because of the major defects in the report it seems to be
no jenuine and reliable but all these facts are ignored by the TAC
therefore, plaintiff is entitled for the injunction as prayed. As the suit
building is reparable one and only minor repairs would survive the
performance and stability of the building.
10. On the other hand the advocate for the defendant
submitted that the defendant / MCGM has followed the entire
guidelines. The suit building is more than 30 years old therefore, notice
was issued to the owner / tenants and occupier of the suit property to
submit the structural stability certificate. The report submitted by the
landlord shows that the condition of the suit building is deteriorated,
dilapidated, unsafe to live and falls under C1 category. When tenants
came to know that the structural engineer of IIT, Professor K.M. Bajona
filed his audit report. Tenants are also appointed their structural
auditor. He has shown the suit building falls under C2A category.
Because of the conflicting structural report matter was referred to TAC.
The TAC after consideration of both rival structural audit report and by
visual inspection come to the conclusion that the suit building is
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dilapidated structure needs to be demolish immediately. Hence,
defendant / MCGM prayed that Notice of Motion taken by the plaintiff
be dismissed.
11. The parties are filed on record the structural audit report
submitted by the defendant No.3 and 4 dated 25.07.2017 of the Indian
Institute of Technology, Mumbai IIT. I have also gone through the
structural audit report dated 24.11.2018 of M/s. Ree Structure. I have
also gone through the TAC report, it is matter of record that the IIT
Mumbai firstly carried out the structural audit of the suit building. In
the report the structural engineer of IIT Mumbai stated that the
residential structure of suit building i.e. Amrut Kunj situated near Doshi
Nursing Home, M.G. Road, Ghatkopar (East) having RCC foundation,
beams and columns, walls are of brick internal and external plaster of
the building is damage, plumbing is also damaged, drain lines /
chambers are in non functional condition. The columns and steels are
exposed, major cracks in columns / beams are observed. Staircase area
also damaged. The building structural members are highly deteriorated.
There is average concrete grade due to ageing building.
12. The structural auditor of the plaintiff namely Shri. Bhavesh
Patel M/s. Ree Structure is also observed the same thing but he shown
the building in C2A category. Here in this case the members of TAC
inspected the suit building on 26.12.2018. Hearing was also held on
03.01.2019. The advocate for the plaintiff submitted that the structural
auditor of the defendant / landlord wrongly recorded that the lift walls
of the building are in poor condition. So, also there is underground
water tank which is poor in condition. The structural auditor of
defendant No.3 and 4 and its staff never inspected the flats of all the
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tenants. He never inspected the exterior part and common area of the
building. On the other hand structural auditor of the plaintiff carried
out all the tests required for preparing the ProformaB but the TAC has
given the decision without giving any importance to the structural audit
report submitted by the plaintiff.
13. The structural auditor report submitted by the defendant
No.3 and 4 in July 2017 and TAC has categorized the suit building in
C1 category in the year 2019. Thereafter, till date i.e. for more than 3
years the suit building is standing unaffected. In support of no repairs
whatsoever are carried out to the suit building. It shows that the
landlord officer of the defendant / MCGM in joining hands with each
other deliberately fallen the suit building in C1 category. The TAC has
without verifying the record, without going into the details of the
report, without observing the factual position of the building wrongly
accepted the report submitted by the structural auditor of the defendant
No.3 and 4.
14. But in my opinion the TAC report is self sufficient to state
that the members of the TAC inspected the suit building, meeting was
held at the time of Shri. Umesh Shah structural engineer of M/s. Ree
Structure Consultant was present. Professor K.M. Bajoria Structural
Engineer of IIT Mumbai alongwith Shri. R.P. Kadam, Executive
Engineer, 'N' Ward was present in the meeting. The committee member
satisfied themselves and observed that considering the statement and
record of both the structural engineers the committee is of the opinion
that the structure shall be categorized as C1. Therefore, the TAC come
to the conclusion that the suit building is dilapidated in condition,
dangerous to live and falls under C1 category. The committee also find
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that the suit building is unsafe to live and needs to be demolish
therefore in my opinion plaintiff is not entitled for the protection as
prayed. The TAC has not violated any major guidelines.
15. The opinion of the TAC can not be question on the ground
that they have not accepted the structural audit report submitted by the
plaintiff. The plaintiff has not brought on record sufficient material to
give protection from demolition of the suit building. The plaintiff has
not brought on record sufficient material to come to the conclusion that
the suit building can be repair and there is no likely that it is unsafe to
live, balance of convenience lies in favour of the defendant rather than
plaintiff as defendant sufficiently brought on record that the suit
building is dangerous to live, dilapidated in condition and chances of
collapsing the building without any prior notice. Therefore, I am of the
opinion that plaintiff is not entitled for the relief as prayed. Considering
this I answer point No.1 to 3 in negative and accordingly pass the
following order :
ORDER
1. Notice of Motion No.930/2019 in Suit No.938/2019 is
dismissed.
2. Notice of Motion No.930/2019 is disposed off accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 16.04.2022 Gr. Mumbai.
Dictated on : 16.04.2022
Transcribed on : 19.04.2022
Signed by HHJ on: 19.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.30 a.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
16.04.2022
JUDGMENT/ORDER signed by
P.O. on
19.04.2022
JUDGMENT/ORDER uploaded
on
27.04.2022
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