Final Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/m in Stamp No. 4295/2020. 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
DRAFT NOTICE OF MOTION
IN
STAMP NO. 4295 OF 2020
Shri. Sakib Hassan and Ors.
Railview Building, N.G. Acharya Marg,
Chembur (E), Mumbai-71. ..... Plaintiff
V/s.
The Municipal Corporation of
Greater Bombay (a Body
Corporate, incorporated under the
Provisions of M.M.C.Act, 1888) having
its Head Office at Annexe Building
Mahapalika Marg, Opp.C.S.T.Fort,
Mumbai-400001. ..... Defendants
CORAM : SHRI.G.G.BHANSALI.
(C.R. NO.11).
(IN-CHARGE OF C.R.NO.8).
DATE : 28th AUGUST, 2020.
Advocate Shri. B.P. Shukla, for Plaintiff.
Advocate Mr. Khandagale, for Defendant/Corporation.
ORDER
1 This is a motion preferred by plaintiffs challenging TAC
report and notice dated 20.08.2020 u/s 353-B of MMC, Act.
2. It is material to note that in response to notice u/s 354 of
MMC Act dated 12.06.2019, the landlord Mr. Yatin Dosa conducted
structural audit report through Engineer Mr. Sameer Mhate, who has
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categorized suit building as C-1 building. Thereafter, all tenants has
conducted similar audit through e-Cube Consultant, who has
categorized the building as C-2A. Thereafter, there was disconnection of
water and electricity. It was challenged by the plaintiffs before the
Hon'ble High Court.
3. In view of order in WP No. 592/2020 dated 24.02.2020,
upon consideration of aforesaid reports, it was directed to refer the
matter to TAC. In compliance to said directions, the MCGM has
appointed independent Agency VJTI as TAC. In view of report dated
28.07.2020 TAC has reaffirmed the building as C-1 category.
Accordingly issued a notice to evacuate the building to pull down the
structure. Plaintiff has challenged the said notice.
4. Learned Advocate B.P.Shukla for plaintiff submits that most
of tenants are residing over suit property since 30 years. Landlord is
failed to carry out the maintenance nor he permitted to repair the
property on their own. Therefore, the property got deteriorated.
However, it is a sound building with good structure. There is no need of
demolition and it can be continued by the tenants upon required
repairing. Therefore, on 28.01.2020 all tenants has submitted
application for permission to repair.
5. It is added that no proper tests are carried out by the TAC
nor the copy of said report is supplied to plaintiffs. It is requested for
injunction and mandatory direction for permission to repair.
6. Learned Advocate Khandagale for BMC submits that in
compliance to order in WP no. 592/2020, the MCGM has appointed
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TAC. Upon receipt of report from TAC, it was reaffirmed that impugned
building is C-1 category. There is affidavit of MCGM Engineer Ashwini
Jogi about service of notice in respect of TAC visit. Therefore, it is
requested to note nothing was concealed by MCGM. There are in total
32 tenants, amongst them 9 tenants has raised objection in respect of
Area statement. It is requested to dismiss the motion.
REASONS
7. For sake of brevity and appropriate discussion, following
events are enlisted in table.
Date Event
11.01.2019 Notice to submit structural audit report.
22.01.2019 Notice u/s 353-B of MMC Act
10.02.2019 Report of Engineer Samir Mhate
14.04.2019 Notice to all tenants by MCGM.
12.06.2019 Notice u/s. 354 of MMC Act.
28.01.2020 Application for repair filed by Tenants
14.02.2020 E-Cube Consulting Reports
24.02.2020 Order in W.P. 592/2020
17.03.2020 TAC visit-VJTI
03.07.2020 Report of TAC
8. It is important note at the inception that there are in total
three structural audit reports. Considering directions in WP 592/2020,
Water and Electricity came to be restored and TAC was appointed to re-
assess previous reports. Accordingly TAC has re-conducted the tests
namely
1. Ultrasonic Pulse Velocity Tests (UPV),
2. Rebound Hammer Test,
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3. Half-Cell Potential Test,
4. Carbonation Test,
5. Core Test.
9. It is not disputed that there are in total 32 tenants and 9 has
objected the area statement. Prima facie it appears to be dispute
between landlord and tenants in respect of area in possession of tenants,
which plays vital role for possession after development. It is not
disputed that various tenants are enjoying the property since 25 years.
10. In first report of structural engineer Sameer Mhate on page
no. 91 above mentioned five tests has been carried out by him. On page
no, 116 of plaint it is concluded that building is categorized as C-1. The
critical observations made by him runs as follows:
1. Structure is Very Close to Busy R.C. Marg and
N.G. Aacharya Marg of Chembur.
2. Structure is surrounded by Stalls inside
Compound.
3. 5 Nos of Columns were found with Major
Longitudinal Cracks.
4. Third Floor Flats no. 09, 10 & 12 are in very Bad
Structural State.
11. On perusal of TAC report, on page no. 208 the VJTI has
considered previous two reports and also drawn independent
conclusion. It is appropriately shown in tabulation form on page no. 208
alongwith plaint.
12. It is categorically mentioned that all the structural audit
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report reflects that the structure is in distressed condition. It is alarming
to note that during the visit and while conducting NDT test by VJTI, in B
Wing cover of waist slab of staircase, suddenly collapsed at 3rd floor
level; cognizance of the same is reflected in structure audit report of
VJTI.
13. In conclusion of TAC / VJTI report it is specifically observed
that building is abutting to the railway track, therefore, due to jerk and
vibration, any mishap may take place without any further notice.
Accordingly it is categorized as C-1 building.
14. It is pertinent to note in the report of Mr. Vikas Ghokale, e-
Cube consultants, appointed by tenants the building is categorized as C-
2A, however on page no. 155 it is observed that “Major structural cracks
and exposed steel were observed. It required to be evacuated and
repaired.”
15. It is not explained by tenants that why landlord is not joined
as party in present suit. In short there is no prima facie case in favour of
plaintiff. It may cause injury and danger to residents in building and
passerby from nearby, including various vendors and shopkeepers.
Therefore, balance of convenience do not lie in favour of plaintiff.
16. Summarizing following important points, motion deserves to
be rejected.
a) Two structural Audit reports categorized the
building as C-1 category.
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b) One slab was collapsed during NDT tests
conducted by VJTI.
c) Prima facie appears to be dispute of area
statement between landlord and tenants.
d) Both previous two reports came to considered by
VJTI and compared in tabulation form.
e) For the interest of public at large, it is necessary
to evacuate and pull down the building.
In short there is no merit in motion. Hence, it is dismissed.
ORDER
1. Draft Motion in ST no. 4295/2020 stands dismissed.
2. It be registered for statistical purpose.
(Note:- At the request of learned advocate for plaintiff, twenty days time
is given to prefer appeal from the date of uploading the order. No
further extension be sought from this court.)
(G.G. Bhansali)
Judge
City Civil Court,
Date : 28/08/2020. Gr, Mumbai.
1. Dictated on : 28/08/2020.
2. Transcribed on : 28/08/2020.
3. Signed on : 04/09/2020.
4. Delivered to Certified :
Copy Section on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/09/2020. 2.09 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28/08/2020.
Judgment/Order signed by P.O. on 04/09/2020.
Judgment/Order uploaded on 05/09/2020.
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