Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1296/2020 in Stamp No. 3838/2020. 1 Order.
MHCC010040532020
Presented on : 21-08-2020
Registered on : 21-08-2020
Decided on : 10-09-2020
Duration : 0 years, 0 months, 20 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1296 OF 2020
IN
STAMP NO. 3838 OF 2020
Dattaram H. Mohite and Others ...Plaintiffs
Versus
Municipal Corporation For Greater Mumbai
and Another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 10th SEPTEMBER, 2020.
Mr. V.T.Dubey, Advocate for Plaintiffs.
Mr. Atik Shaikh, Advocate for Defendant No.1 / MCGM.
ORDER
This is a motion submitted by plaintiffs 1 to 45 challenging
the notices issued under Section 354 of MMC Act dated 02/06/2020
and 09/06/2020. Admittedly, there are 5 residential buildings i.e. A to
E. There are 51 residential premises and 44 commercial shops.
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N/m No. 1296/2020 in Stamp No. 3838/2020. 2 Order.
2. Suit property situate on C.T.S.No. 273, 273(1) to 70 at
Kurla known as ‘Manisha Plaza’. Perused documents supported with
affidavit of MCGM.
3. Ld. Adv. V.T.Dubey for plaintiffs submitted that there is
separate entrance for residential premises and commercial unit. In Suit
No. 4714/1994, the Court Receiver was appointed. However, neither
landlord nor Court Receiver has bothered about maintenance, therefore
the condition of building has been deteriorated. Suit No. 4714/1994
came to be dismissed and Court Receiver was discharged as per order
dated 25/10/2018. Ld. Adv. V.T.Dubey submits that plaintiffs do not
admit structural audit report submitted by the landlord which has
shown the building as ‘C1’. On the other hand, plaintiffs has submitted
structural audit report conducted by Mr. Sanklecha in June 2020 who
has categorized building as ‘C2-A’. Hence it is claimed to issue ad-
interim injunction, in the alternative, it is requested for appointment of
TAC.
4. Ld. Adv. Atik Shaikh submits that impugned building may
collapse at any time. There may be separate entrance for residential
and commercial, however entire structure stands on one foundation. It
is requested to peruse detail observations in report of M/s. Dimensions
Consultants dated 03/12/2019 and to peruse various photographs of
entire building. It is requested to reject the motion.
REASONS
5. On perusal of various photographs, it is clear that suit
property ‘Manisha Plaza’ comprises residential and commercial
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N/m No. 1296/2020 in Stamp No. 3838/2020. 3 Order.
structure. In view of condition appearing in various photographs, it
prima facie shows that there is no proper maintenance since various
years. Defendant MCGM has issued a notice under Section 353-B of
MMC Act on 17/05/2019 and public notice on 04/12/2019. On perusal
of report of Mr. Sanklecha, he visited the suit site on 19/06/2020 and
concluded that building is livable after required maintenance.
Therefore, he categorized it as ‘C2-A’ i.e. to be evacuated and/or partial
demolition requiring major structural repairs. In Proforma ‘B’ Column
7(v) in respect of additions / alterations, it is commented by Mr.
Sanklecha “in negative”. However he failed to comment on following
observations drawn by two engineers of M/s. Dimensions Consultants
which runs as follows :
7 v) Additions /
Alterations if any
It has been observed that some
of the Flat Owners have made
some internal changes, such as
removal / shifting of doors &
have removed the galary /
partition walls / galary walls.
The structure is old & (as per the
NDT report) Removal of such
walls may have & adverse effect
on the stability of the structure.
It is advised to restore such walls
in its Original position
IMMEDIATELY. The society
members are warned that not
Non-compliance to the above
recommendation may lead to
untoward incident / Mis – hap.
10 h) Staircase area /
Column condition
Cracks are observed over the
Plaster / Cover Concrete (over
the Walls, Pardies & Ceiling
Soffits) inside staircase area at
few some places; Structural
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N/m No. 1296/2020 in Stamp No. 3838/2020. 4 Order.
Repairs & re-plastering needs to
be undertaken over some areas
of the ceiling soffits of the
staircase; any delay, might lead
to untoward incidents.
6. It would be appropriate to refer guidelines issued by the
MMC dated 25/05/2018 in response to order in W.P.No. 1135/2014. It
is in respect of 2 conflicting structural audit report. The guideline 1.05
is reproduced as follows :
“1.05) If the owners and/or the occupants submit conflicting
structural audit report on the status of the building, the
matter shall be referred to the concerned Technical
Advisory Committee (T.A.C.) (Annexure-3) and decision
of T.A.C. will be final and binding on all the parties
concerned. The Technical Advisory Committee shall give
hearing to concerned structural consultants during the
meeting. As far as possible meetings of Technical
Advisory Committee (T.A.C.) shall not be adjourned. For
genuine reasons the meeting may be adjourned but in no
case more than two adjournments shall be granted.”
7. Ld. Adv. V.T.Dubey for plaintiffs admits that in the event of
any mishap, it will be sole responsibility of the plaintiffs. In view of
aforesaid guideline, it would be appropriate to call the report of TAC.
Hence the order :
- ORDER -
1. Notice of Motion No. 1296/2020 is partly allowed.
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N/m No. 1296/2020 in Stamp No. 3838/2020. 5 Order.
2. In view of abovementioned 2 conflicting reports i.e. M/s.
Dimensions Consultants and Mr. Sanklecha, MCGM is
directed to appoint TAC.
3. The representative of plaintiffs be intimated and allowed to
participate if TAC visits suit site.
4. TAC to submit report within 15 days i.e. on or before
24/09/2020.
5. N/M No. 1296/2020 stands disposed off. After receipt of
TAC report, parties are at liberty to submit fresh motion.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 10/09/2020. Mumbai.
1. Dictated on : 10/09/2020.
2. Transcribed on : 12/09/2020.
3. Signed on : 15/09/2020.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
15/09/2020. 1.53 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 10/09/2020.
Judgment/Order signed by P.O. on 15/09/2020.
Judgment/Order uploaded on 15/09/2020.
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