Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1255-2020 1 St. No. 3791-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO 1255 of 2020
(CNR NO.MHCC01003536-2020)
IN
L.C. STAMP N0.3791 OF 2020
Dharmesh C. Mirani ]
Indian Inhabitant of Mumbai ]
having address at ]
Plot No.16, Nimbkar Co-operative ]
Housing Society Ltd. Malabar Hill ]
Road, Mulund Colony, (Near Pipe ]
Line), Mulund, Mumbai - 400082 ] ... Plaintiff
Versus
Municipal Corporation of Greater ]
Mumbai, ]
a statutory body formed under ]
the provisions of the BMC Act 1888 ]
and having its office ]
At 1 Mahapalika Marg, Fort, ]
Mumbai – 400 001 ]
] ...Defendants
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Appearances:-
Ld. Adv. Mr. K. Andrews for the Plaintiff.
Ld. Adv. Mrs.Chandramore for defendant / MCGM.
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CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 13th AUGUST, 2020
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NM 1255-2020 2 St. No. 3791-2020
O R A L O R D E R O N A D - I N T E R I M R E L I E F
1. This notice of motion has been filed by the plaintiff against the
defendant corporation for direction to take all such steps including
coercive steps as may be deemed necessary and feet to protect the lives/
limbs of the tenants illegally/possibly staying in the suit building i.e.
Divyajoyti building situated at Mirani Nagar, Ganesh Gawade Road,
Mulund (West) Mumbai 400080.
2. Defendant Corporation has filed affidavit cum reply to the notice
of motion. It is stated that the corporation as per Hon’ble High Court's
order dated 23 June 2017 in writ petition number 1135 of 2014 and As
per guidelines in Writ Petition number 1080 of 2015, this Defendants
action is legal, correct ,proper and same is binding on the plaintiff as
the same is in the interest of public safety and for saving the lives of
people.
3. Defendants officers inspected the suit building and observed that
the suit building is in the dilapidated condition. Accordingly, defendant
had issued notice under section 353 B of MMC Act for submitting
structural audit report on 22 June 2017. Owner of the Suit Property has
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submitted structural audit report on 3 November 2017. On 14
November 2017 notice was issued to the owner /occupier /all tenants
of Suit building calling objections in 15 days. Suit building was again
inspected by the dependent corporation on 08 January 2018 and found
in a highly dangerous condition.
4. Accordingly, notice under section 354 of MMC Act dated 10
January 2018 was issued to owner /occupier/ tenants to vacate and pull
down the suit building within a period of 30 days from the receipt of
this notice the notice is served to all owner occupier tenants.
5. The structural audit report of M/S. Ashwani Associate was
submitted on 23rd May, 2018 by classifying the building as a C2B. Due
to conflicting reports the matter was referred to Technical Advisory
Committee (hereinafter called as a TAC). TAC classified suit building in
C1 category that is in dangerous condition which needs to be pulled on
immediately.
6. Thereafter, eviction notices were issued to all the tenants on 22nd
October, 2018 under section 354 of MMC Act. In spite of issuance of
354 notice Tenants/ occupiers fail to vacate the premises. The
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defendant corporation has followed due process of law as per the
guidelines issued by the Hon’ble High Court WP. No. 1135 of 2014 and
1080 of 2015. Therefore, prayed for rejection of notice of motion.
7. Heard both sides.
8. Perused plaint along with all the document filed by the plaintiff.
Perused Affidavit cum reply alongwith all the documents filed by
defendant. It is admitted fact that the as there were the conflicted
structural audit reports filed by system structural consultant private
limited with proforma B on 3rd November, 2017 classifying suit building
in C1 category.
9. After going through all the documents filed by the defendant,
which transpires that the notice under section 353 b was issued on 22nd
June, 2017. Structural audit report file by structural consultant private
limited transpires that "Building needs to be vacated /demolished"
Whereas the letter dated 14th November transpires fair opportunity was
given to the owner/ occupier and all tenants of the suit building to
submit say, objection about the classification of a building in a C1
category.
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10. The Tenants Association of Suit building as requested to the
corporation by letter dated 5th December, 2017 requested to give some
time until clear policy of redevelopment is available. On this submission
no document is file on record by plaintiff which transpires that
redevelopment policy is implemented by the Tenant Association as this
letter belongs to the year 2017 and presently, we are in 2020, that is
lapse of three years.
11. The corporation officers inspected the suit premises as per the
inspection report dated 08th January, 2018 which also transpires the
building is in dangerous condition and needs to be vacated and
demolished. The eviction notice was received by all the land owner and
tenant as per letter dated 05th December, 2018.
12. This observation of inspection note transpires the condition of
building in a dangerous position which needs to be evacuated
immediately and demolished for the safety of the all the persons.
13. The highlights of the guidelines given by the Honourable division
bench of our Hon’ble High Court in Writ Petition number 1135 of 2014.
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6 Section 354 of the said Act reads as under-
"Dangerous Structures
354 Removal of structures, etc., which are in ruins or
likely to fall. - (1) If it shall at any time appear to the
Commissioner that any structure (including under this
expression any building, wall or other structure and
anything affixed to or projecting from, any building,
wall or other structure) is in a ruinous conditions, or
likely to fall, or in 6 wpl1135-14-24.6.2014.sxw any
way dangerous to any person occupying, resorting to
or passing by such structure or any other structure or
place in the neighbourhood thereof, the Commissioner
may, by written notice, require the owner or occupier
of such structure to pull down, secure or repair such
structure, subject to the provisions of section 342, and
to prevent all cause of danger therefrom.
The Commissioner may also if he thinks fit, require
the said owner or occupier, by the said notice, either
forthwith or before proceeding to pull down, secure or
repair the said structure, to set up a proper and
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sufficient hoard or fence for the protection of passers
by and other persons, with a convenient platform and
handrail, if there be room enough for the same and
the Commissioner shall think the same desirable, to
serve as a footway for passengers outside of such
hoard or fence."
The Corporation will, before classifying a building
under category C-1, 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.
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)
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with at least 3 other members, viz. City Engineer,
Chief Engineer (DP) and Chief Engineer (P&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.
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If it is found after due notice that the building(s) is in
a highly dangerous or in dilapidated condition, then in
that event, the Corporation shall also make a list of
the names of the tenants and/or occupiers in the said
building and the carpet area of the premises in their
respective occupation and possession including the
floor at which the same has been occupied.
A copy of such list will be furnished to the landlord
and/or owner/builder of the said building. The
Corporation thereafter, will issue a notice under
section 354 of the said Act calling upon such tenants
and/or occupiers to vacate the said premises and if
such notice under section 354 of the said Act has
already been issued, then in that event the
Corporation will give 7 days' notice to such
tenants/occupiers, copies whereof will be furnished to
the landlord for vacating the said building(s). If such
tenant and/or occupier is not available, the
Corporation shall affix such notice or Letter of
Evacuation on any part of such premises.
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The Corporation shall then take steps to turn off the
water, supply, electric power and gas to such building
immediately before the removal of occupiers.
In the case of a municipal owned building(s), the
Corporation will issue Letter of Evacuation to every
person in occupation of the said building or part
thereof to vacate the said building along with their
belongings within the said period of 7 days from date
of issuance of such notice of Letter of Evacuation in
respect of municipal owned building(s). The notice
issued to such occupiers shall contain the name of the
occupier and the area in his occupation and also the
floor at which the premises are located. In case, if
such tenant and/or occupier is not available, the
Corporation shall affix such notice or Letter of
Evacuation on any part of such premises.
In the event, a person occupying such tenement
whether of the privately owned building(s) or
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building(s) owned by Corporation or any other
authority refuses to vacate the said premises, then the
police shall remove such person from the said
premises by using nominal force if required for the
same.
The police may use such force as is reasonably
necessary to remove such person and/or occupiers
and/or allottee along with their belongings from the
said premises, without causing damage to their
movables.
The Corporation may then demolish such dangerous
and dilapidated building.
The rights of the tenants and/or occupiers and/or
owners in respect of the said premises/property will
not be affected by virtue of evacuation or demolition
carried out by the Corporation of such dilapidated and
dangerous building in exercise of the power under
section 354 of the said Act or by virtue of the fact that
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the Corporation is the owner of the premises. Such
tenant and/or occupier and/or owner will be entitled
to re-occupy the premises in respect of the same area
after the reconstruction of the building, subject to the
prevalent provisions of law pertaining to
redevelopment of the property or subject to any
arrangement or agreement arrived at by and between
such tenants and/or occupiers with the owner of the
building.
	Any
	action
	of
evacuation/removal/demolition will not affect the
inter se rights of owners if there be more than one
owner or there is a dispute as to the title of the
property.
If there are any pending suits/proceedings and there
are any restraint orders passed, the Corporation shall
be free to apply for vacating and/or modifying such
orders, which applications shall be decided on its own
merits and in accordance with law.
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In respect of the private owned buildings, if such
building falls in cessed category as contemplated
under the provisions of the Maharashtra Housing and
Area Development Act, 1976, then in that event, it
will be the duty of MHADA/ MBR&RB to provide
temporary alternate arrangement in a transit camp for
transit accommodation, in accordance with law, as
early as possible.
In case privately owned buildings are demolished by
the Corporation in exercise of power under Section
354 read with the present order, then the Corporation
shall, while granting sanction of redevelopment,
impose a condition in IOD (Intimation of Disapproval)
that no Commencement Certificate will be issued
under section 45 of the MRTP Act, 1966 unless and
until an Agreement either providing a Permanent
Alternate Accommodation in a newly constructed
building or a settlement is arrived at by and between
the tenants and/or occupiers and the landlord in
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respect of the said demolished premises, is filed with
the Corporation at the earliest.
It is reiterated that this order covers only C-1 category
buildings which are unsafe and declared as
dangerous, and the demolition, if any, shall be carried
out by the Corporation in accordance with law and in
no manner pre-empts/curtails the rights of any
person/s from objecting and/or approaching the Court
and if a case is made out to pass appropriate orders on
its own merits and in accordance with law. It is also
clarified that during the interregnum, in appropriate
cases, the Corporation would be at liberty to take all
safety measures, including propping up, etc., of the
buildings/premises and enclose/fence the surrounding
area in accordance with law.
14. The above discussion seems that the defendant corporation has
complied of the circular dated 25th May, 2018 as per point wise 1.02,
1.03, 1.04 (Tenants occupants structural audit report) 1.05 (if there are
conflicting audit reports the matter shall be referred to TLC and TLC
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report is mandatory), 1.07, 1.08 (issuance of notice under 354 MMC act
to pull down the building). Therefore, it is crystal clear that the
corporation has complied in view of the direction of bounded Hon’ble
High Court Writ Petition number 1135 of 2014 and the MCGM circular
dated 25th May, 2018 the compliance is covered by the corporation till
point number 1.08.
15. As far as regarding point number 1.09, it is bounden duty of an
owner to submit Area Statement in writing including the names of the
occupants of the building from his record the area in occupation and
location of premises in occupation position of each of the respective
occupiers or tenants as the case may be alongwith the supporting
document the list submitted by the owner shall be certified by the
assistant commissioner.
16. In failure the officer of the corporation shall make a list of the
name of the tenants /occupiers in the said building and the carpet area
of the premises in there is their respective occupation and position
including the floor at which the same has been occupied and copy shall
be given to the tenants occupiers. Honours the inspection report
alongwith the inventory report photographs, video shooting shall be
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kept on record the corporation can take help of the approved plans and
then certified the area as per approved plan in absence of approved
plan the existing area in occupation of tenants occupants shall be
certified by the municipal officer and it will be final.
17. On this point the corporation has not complied as a document file
on record that is bound and duty of the corporation to prepare the Area
Statement and certified it if it is not complied by the owner. The failure
on the part of the owner can be subject to the action taken by the
corporation as per law but the Area Statement is mandatory for the
rights of the tenants’ occupiers in the building.
18. Lastly notice dated 05.12.2018 to cut-off light supply and
vacation has been given to the tenant occupiers landlord and copies
were served on the police station as well as MSEDCL. The suit is filed
for relief of declaration accompanied by relief of mandatory injunction
seeking order to direct defendant corporation to demolish the suit
building.
19. I am the opinion that such direction cannot be sought by the
landlord against the defendant corporation under any provision of the
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law. The plaintiff has failed to prove that the corporation failed in
compliance of the guidelines issued by Hon’ble Bombay High Court and
the MCGM circular dated 25th May, 2018.
20. The corporation has acted bonafidely and lastly issued notice
under 354 for the evacuation of suit premises being in a dangerous
position for the safety of tenant/ occupants and plaintiff also. I am of
the concrete opinion that the plaintiff has not come with clean hands.
He cannot avoid responsibility to coordinate with the corporation for
safe evacuation of a tenant's/ occupier from the suit building. It is
bounden duty of the plaintiff to protect the rights of the tenants and
occupiers which doesn't seems that it is compiled in this case.
21. It is settled principle of law that one who seek equity shall stand
on his own legs therefore the relief of mandatory injunction cannot be
granted in these circumstances of the case in favour of the plaintiff.
Accordingly, I pass the following order.
ORDER
1) The prayer (a) notice of motion is rejected being devoid of merit.
2) The defendant corporation would be at liberty to take all safety
measures, including propping up, at etc. Of the building
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/premises and enclose/fence the surrounding area in accordance
with law.
3) The defendant corporation is at liberty to take effective steps as
per the guideline given by the Hon’ble High Court in Writ Petition
number 1135 of 2014 and shall act in accordance with law.
4) The inter se rights of the tenants/ occupiers /owners will not be
affected by virtue of evacuation order or demolition carried out
by the corporation of such dilapidated and dangerous building in
excess of the power under section 354 of the MMC Act.
5) N.M.No.1255 of 2020 is disposed of accordingly.
(U.J.More)
Judge,
City Civil Court, Gr. Mumbai.
Date: 13.08.2020
Dictated on : 13.08.2020
Transcribed on : 13.08.2020
Signed by HHJ on : 13.08.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.12.2020 at 04.00 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
13.08.2020
JUDGMENT/ORDER signed by
P.O. on
13.08.2020
JUDGMENT/ORDER uploaded
on
28.12.2020
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