Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1477-19 in L.C.SUIT no.1577-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1477 OF 2019
(CNR no. MHCC010038982019)
IN
LONG CAUSE SUIT NO. 1577 OF 2019
(CNR no. MHCC010036012019)
1. Harnam Niwas Cooperative ]
Housing Society Ltd. ]
at Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
2. Mahesh Pinakin Bhai Dave ]
Residing at flat no. 1, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
3. Tejinder Singh Chatar Singh Kalha ]
4. Inderjit Singh Chatar Singh Kalha ]
5. Narinderjitsingh Chatar Singh Kalha ]
Residing at flat no. 2, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
6. Padmanabh S. Pai ]
Residing at flat no. 3, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
7. Kishore Dhirajlal Manilal Kamdar ]
Residing at flat no. 5, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
-- 1 of 8 --
2 NM no. 1477-19 in L.C.SUIT no.1577-19
8. Harshika J. Aiya ]
Residing at flat no. 6, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
9. Jaswanti M. Shah ]
Residing at flat no. 7, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
10.Triveniben Prabhuram ]
Residing at flat no. 8, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086. ]
11.Maltiben P. Shah ]
12.Kaminiben A. Turakhia ]
Residing at flat no. 9, Ishwar Niwas ]
Gamdevi Lane, Opp. Sant Gadge Garden, ]
Sanghani Estate, Ghatkopar West, ]
Mumbai 400 086 ]....Plaintiffs
V/s
1. The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan,Mahapalika ]
Marg, Fort, Mumbai400 001 ]
2. The Assistant Commissioner ]
"N" Ward office building ]
5th floor, Jawahar Road, Ghatkopar East, ]
Mumbai 400 077. ]
3. The Assistant Engineer (B&F) ]
"N Ward office building, ]
"N" Ward Municipal office, 5th floor, ]
Jawahar Road, Ghatkopar East, ]
Mumbai 400 077. ]
-- 2 of 8 --
3 NM no. 1477-19 in L.C.SUIT no.1577-19
4. M/s. Enrich Constructions ]
Builders & Developers, ]
E105, Kailas Industrial Complex, ]
Hiranandani Link Road, Vikhroli (W), ]
Mumbai 400 079. ]....Defendants
Appearances:
Ld. Advocate Mr. Hasin Lafde for the Plaintiffs.
Ld. Advocate Ms. Patil for defendants no. 1 to 3/BMC.
Ld. Advocate Mr. Alok D. Mishra for defendant no. 4.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 08th July, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiffs’ contentions in brief are as under:
Plaintiffs are challenging notice issued by defendant no. 1/MCGM
dated 25.03.2019 purported to be under section 354 of Mumbai
Municipal Corporation Act, 1888 (hereinafter referred to as "MMC Act"
for brevity) whereby plaintiffs are directed to pull down the suit
building namely ‘Harnam Niwas and Ishwar Niwas’ on the basis of
Technical Advisory Committee (TAC) decision in its meeting dated
22.01.2019 and its order dated 06.03.2019. Since, there is no dispute to
-- 3 of 8 --
4 NM no. 1477-19 in L.C.SUIT no.1577-19
the fact that the building is 30 years old, the averments regarding its
condition need not to be reproduced. After receipt of notice under
section 354(B) of MMC act, both the parties appointed their structural
auditors and their reports were tendered. After receipt of conflicting
reports of Retro fitters Consulting Engineers dated 11.07.2018(C1) and
M/s. SBT Engineers dated 29.08.2018(C2A), TAC meeting was held on
22.01.2019. In that meeting the Structural Engineers of both sides were
present. The order dated 06.03.2019 of the TAC speaks that hearing is
given to both the structural consultants and TAC has arrived at
conclusion that the suit building is structurally deteriorated and in
dilapidated condition and therefore, it is declared in C1 category and it
needs to be demolished. Pursuant to this meeting the impugned notice
under Section 354 of the MMC Act came to be issued.
3. Learned advocate for the plaintiff has pointed out that the
defendant MCGM has not followed guidelines in Writ Petition (L) no.
1135 of 2014 to the extent that it has not carried out scientific tests
independently as laid down in the said judgment. Learned advocate for
the plaintiff has also pointed out that adinterim relief was granted in
favour of the plaintiffs on 30.03.2019 after observing that the TAC had
not conducted scientific tests. According to him, after the said order was
passed the defendant MCGM or TAC has not carried out any scientific
-- 4 of 8 --
5 NM no. 1477-19 in L.C.SUIT no.1577-19
tests and therefore, adinterim relief granted earlier will have to be
continued till final disposal of the suit. However, the guidelines given in
Writ Petition (L) no. 1135 of 2014 were interim guidelines and they
were replaced by the policy guidelines of defendant/MCGM approved
on 23.02.2018 by Municipal Commissioner. Division Bench of Hon'ble
Bombay High Court in Municipal Corporation of Greater Mumbai
v/s. The State of Maharashtra and ors. [Writ Petition no. 1080 of
2015 judgment dated 28.02.2018] discontinued interim order dated
23.06.2014 in above Writ Petition (L) no. 1135 of 2014. Therefore,
after the latter judgment dated 28.02.2018 in Writ Petition no. 1080 of
2015 the TAC has to follow its own guidelines. After perusal of the said
guidelines the duty of TAC to conduct scientific tests independently as
directed in Writ Petition (L) no. 1135 of 2014 is done away. Guideline
no. 1.05 provides for hearing to be given to concerned structural
consultants during its meeting and thereafter, arrive at the conclusion
on the issue of structural stability of the building. In view of this legal
position, TAC need not conduct scientific tests independently and
therefore, the adinterim relief granted in favour of the plaintiff need
not be continued only on the basis of observations in the earlier order
dated 30.03.2019.
4. Learned advocate for the plaintiff has cited judgment in Goldie
-- 5 of 8 --
6 NM no. 1477-19 in L.C.SUIT no.1577-19
Sud v/s. The Municipal Corporation of Greater Mumbai & ors.
[2018 SCC Online Bom 1736] to point out that the designated officer
of the defendant/MCGM has to apply his own mind and notice only on
the basis of conclusion in the TAC report is liable to be set aside.
However, after careful reading of the facts of the said judgment, the
TAC had exceeded its jurisdiction by virtually directing that the repair
work of the entire structure should be carried out as per the
methodology proposed by M/s. Shashank Mehendale & Associates by
getting the building vacated. In that backdrop Hon'ble Bombay High
Court came to the conclusion that notice dated 03.11.2017 to repair the
building was without application of mind. In this matter there is no
material to either suggest non application of mind by Designated
Officer, "N" ward or the TAC exceeded its jurisdiction. The TAC is an
expert and independent committee to certify the structural status of the
building. In view of the judgment of Hon'ble Bombay High Court in
Pravinchandra Meghji Nisar and ors. v/s. Municipal Corporation of
Greater Mumbai and ors. [A.O. (Stamp) No. 23630 of 2018 along
with C.A. (Stamp) No. 23632 of 2018 judgment dated 21.08.2018]
the Civil Court is not expected to sit over the said TAC's report and take
any different view of the matter. For the reasons given above, I do not
find any illegality in the impugned notice under Section 354 of the
-- 6 of 8 --
7 NM no. 1477-19 in L.C.SUIT no.1577-19
MMC Act. Hence, Notice of Motion fails and following order is passed:
ORDER
1. Notice of Motion No. 1477 of 2019 is dismissed.
2. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 08.07.2019 City Civil Court, Gr. Mumbai.
Dictated on : 08.07.2019
Transcribed on : 08.07.2019
Signed by HHJ on : 08.07.2019
-- 7 of 8 --
8 NM no. 1477-19 in L.C.SUIT no.1577-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.07.2019 at 3.20 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
08/07/2019
JUDGMENT/ORDER signed by
P.O. on
08/07/2019
JUDGMENT/ORDER uploaded
on
09/07/2019
-- 8 of 8 --