Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1256/2020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1256 OF 2020
IN
L.C. SUIT NO.(St. No.3889 OF 2020)
Aakash Co-operative Housing Society (Proposed)
& Others …...Plaintiffs
Versus
Municipal Corporation of Greater Mumbai & Others
...... Defendants
Coram : S.C. Pathare, Judge
(Court Room no. 05)
(Incharge of CR No.11)
Date : 17th July, 2020
Appearance:
Ld. Adv. N.S. Acharya for the plaintiff.
Ld. Adv. Smt. Jyoti Mhatre for defendant/MCGM.
AD-INTERIM ORDER
1. The plaintiff by this notice of motion seeks ad-interim
injunction (or status quo) restraining the defendant corporation
from acting upon the notice issued under Section 354 of the
Mumbai Municipal Corporation Act, 1888 (hereinafter referred to
as 'the MMC Act') dated 3/6/2020 & 3/7/2020. On behalf of
defendant No.1 and 2 by submitting affidavit in reply the notice of
motion is strongly opposed.
2. Heard Learned Advocate for the plaintiffs and Learned
Advocate for the defendant No.1 & 2.
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3. The Schedule of the notice reads as under:-
''Suit building viz-chakkiwala building, New Hall Road,
Kurla(W), Mumbai-400070 consisting A & B wings + chawl”.
4. On behalf of plaintiffs, it is argued that previously
plaintiffs had filed civil suit and Notice of Motion in which trial
court had rejected to stay the effect, implementation and operation
of earlier notice issued by BMC u/s.354 of the MMC Act. However,
thereafter plaintiffs approached Hon'ble High Court in AFO529/19
CA no.604/19 in which Hon'ble High Court pleased to hold that it
was necessary to give an opportunity to the structural engineers of
the appellants- occupants to remain present in the meeting and be
heard by TAC. Hon'ble High Court inclined to set aside the order
passed by TAC dated 20/7/2018. Hon'ble High Court directed to
hold meeting on 1/8/2019. TAC was directed to consider the
matter as per policy guidelines and to take fresh decision in
accordance with the Law after hearing structural consultant M/s.
Spapati Designers and Consultants Pvt Ltd. Thus order of trial court
was set aside and appellants were directed to take steps to
withdraw the suit before the trial court within two weeks. It was
made clear by Hon'ble High Court that the occupants will be
occupying the suit premises on their own risk and will not hold
anyone responsible in case of any mishap.
5. On behalf of defendant, Ld Counsel accepted that
Hon'ble High Court had passed above directions. However, on
behalf of defendant No.1 and 2 it is pointed out that despite order
dated 25/7/2019 plaintiffs thereafter did not take any steps to
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withdraw suit pending before the trial court. Therefore,
subsequently on 13/3/2020 the trial court dismissed said suit. It
means according to defendant No.1 and 2 the plaintiffs obtained
relief from Hon'ble High Court but did not comply the order with
letter and spirit. Perusal of copy of roznama dated 13/3/2020
shows that the said earlier suit was dismissed by the trial court.
6. Perusal of pleadings of both the sides it shows that
according to orders of Hon'ble High Court TAC meeting was held
on 1/8/2019 in which it was observed that ND tests report
submitted by M.J. Mehta , Architectural & Structural Consultants
Pvt. Ltd. for wing B are poorer than for wing A. The TAC came to
the conclusion that wings A & B both are structurally deteriorated
and are in dilapidated condition. The buildings may collapse
without giving any warning and thereby endeagering life and
property of occupants etc. Defendant produced copy of TAC report
dated 15/5/2020. The said TAC report is also served upon the
plaintiffs.
7. Perusal of record it shows that as per the guidelines of
Hon'ble High Court in writ petition No.1135/14 the area statement
of the suit building was measured by the concerned officers and
was issued to the owner /occupier/tenants. Said area statement is
also placed on the record. According to plaintiffs there are some
lapses/shortcomings in the area statement. According to defendants
there is one school situated near said buildings. Therefore, apart
from occupants there is danger to the students of said school if said
dilapidated buildings are not demolished.
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8. On behalf of plaintiff it is argued that in view of
present situation of Covid-19 court should consider provisions of
Section 12, 25 & 30 of the Disaster Management Act and direct
corporation to provide alternative accommodation to plaintiffs.
However, present plaintiffs are not identified as vulnerable to said
disasters. Furthermore, said buildings are dangerous for human
dwelling therefore, MMC /BMC want to demolish the same by
following provisions of Law. Under such circumstances it cannot be
said that defendant Corporation wants the plaintiffs to vacate said
premises due to only pendemic Covid-19. Therefore, in my humble
view question of issuing directions to provide alternative
accommodation by MMC to plaintiffs cannot be considered by this
court. However, BMC or Government of their own may consider
said request of plaintiffs for providing them alternative shelter
during Covid-19 at their own discretion.
9. On behalf of plaintiffs action of defendant No.1 and 2
is strongly opposed. However, now rainy season is going on and
perusal of documents /photographs it shows that said buildings
wing A and B are not safe for plaintiffs, etc. , these aspects cannot
be ignored. On behalf of plaintiffs Ld counsel submitted that
plaintiffs be allowed to stay in the said buildings at their own risk.
However, when there is threat to life of plaintiffs in that event due
to above various reasons plaintiffs cannot be permitted to reside in
such type of ruinous buildings even at their own risk and cost.
10. On behalf of plaintiffs Ld Counsel is seeking permission
that plaintiffs be allowed popping of said building. Perusal of
record it shows that previously popping was allowed and now
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when report of experts is showing that said buildings are in C-1
category (dilapidated) in that event there is no question of granting
such permission by this court.
11. On behalf of plaintiff, it is argued that MMC is
unnecessarily insisting plaintiffs to vacate said premises. However,
provisions of Section 354 show that the word 'shall' is used therein.
Said section deals with removal of structures etc, which are in ruins
or likely to fall. Therefore, it is found that MMC is doing its
statutory/legal duties. Therefore, they cannot be prevented from
doing their lawful duty.
12. On behalf of plaintiff, reliance is placed on Section
354-C of MMC Act, by stating that if landlord is not coming
forward in that event MMC should come forward and the
Commissioner should make a draft of improvement scheme.
However, said provision says that “if” it shall appear to the
Commissioner then guidelines regarding improvement scheme can
be followed. It shows that Section 354-C is not mandatory but
discretionary. Therefore, this Court cannot compel Commissioner to
make draft improvement scheme as prayed by plaintiffs.
13. On behalf of plaintiffs, the Ld Counsel invited my
attention on various documents annexed with plaint. Perusal of the
same also goes to show that the said buildings are unsafe for
human dwelling. On behalf of plaintiffs, it is argued that in July
2019 plaintiffs submitted representation for acquiring the entire
property to MMC but the same is not decided yet. Therefore, order
of status quo should be given. However, it is the function of MMC
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whether to allow or to reject said representation. Therefore, for
that reason alone status quo cannot be granted. Perusal of record it
shows that the experts have issued report against the plaintiffs. In
the conclusion of the report it is observed that wing A and B of said
structure is structurally deteriorated and are in dilapidated
condition. The building may collapse without giving any warning.
Furthermore, as per the experts said structure falls under C-1
category. Therefore, this court cannot give different opinion than
the said experts. Moreover, Section 354(5) of MMC Act and
Maharashtra Rent Control Act have taken due care of tenants this
cannot be forgotten.
14. On behalf of defendant No.1 and 2 reliance is placed
on the case of '
Joginder Moksha V/s. MCGM AFO No.1732/19 CA
No.1734/19 dtd 7/2/2019', wherein Dindoshi Court had dismissed
Notice of Motion and appellant had challenged the said order
before Hon'ble High Court. In that matter initially corporation had
not referred matter to TAC. Subsequently matter was referred to
TAC and report was received as dilapidated condition. Therefore,
trial court dismissed Notice of Motion. The Hon'ble High Court
considered the TAC report and held that those appellants cannot be
allowed to reside in such dilapidated condition of the building even
at their own risk, because said building was unsafe for human
habitation which can collapse at any time. It is further laid down by
Hon'ble High Court that corporation cannot be restrained from
discharging its statutory duties. Hon'ble High Court held that such
building not only pose danger to the life of appellants and other
habitants of the building but will also lead to loss of lives and
property of passerby /pedestrians and other members of public.
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Even in the present case also the experts have held that said
building is dilapidated and dangerous. Therefore, in view of above
guidance the present plaintiffs are also not entitled to the reliefs
prayed for.
15. In view of above peculiar facts, circumstances,
documents and discussion, I proceed to pass following order in the
interest of justice.
ORDER
1) The Notice of Motion No.1256/2020 is hereby dismissed.
2) The Ld counsel of plaintiffs produced orders passed by
Hon'ble High Court on its own motion in Re: Extension of
interim orders during pendemic Covid-19 dated 26/3/2020,
15/4/2020 and 15/7/2020. Therefore, defendants to follow
said orders with letter and spirit.
3) Authenticated copy of this order be given to parties.
(S.C. Pathare)
Judge,
Incharge of CR No.11
Date : 17/7/2020 City Civil Court,
Mumbai.
Dictated on : 17/7/2020
Transcribed on : 17/7/2020
Signed by HHJ on : 17/7/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 31/7/2020 & 11.24 a.m.
NAME OF STENOGRAPHER : Mrs. S.A.Shekade
Name of the Judge (With Court
Room no.)
HHJ Shri. S.C. Pathare
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
17/7/2020
JUDGMENT/ORDER signed by
P.O. on
17/7/2020
JUDGMENT/ORDER uploaded on 31/7/2020
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