Final Order 1

Order Details: Other
Pdf Text: DRAFT NM 1 Su. No.3974 of 2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
DRAFT NOTICE OF MOTION
IN
L.C. STAMP N0. 3974 OF 2020
1.Lal Sharan Co-operative Housing Society ]
A Co-operative housing society registered under ]
The Maharashtra Co-operative Societies Act,1960 ]
Registration No. BOM/WM/HSG/TC/4103/88-89]
of 1989, Having address at Ram Tekadi Road, ]
Chembur Camp, Chembur, Mumbai - 400074 ]
2. Mr. Inderjit Singh Lamba ]
Hon. Chairman ]
Lal Sharan Co-operative Housing Soceity Ltd. ]
Having address at Shop No.3, Ram Tekadi Road, ]
Chembur Camp, Chembur, ]
Mumbai – 400074. ]…Plaintiff No. 1 & 2
Versus
1.Municipal Corporation of Greater ]
Mumbai, ]
Having office at ]
Mahapalika Marg, Mahapalika Road, ]
Mumbai 400001 ]
2.Technical Advisory Committee, ]
Municipal Corporation of Greater Mumbai ]
M-West Ward, Municipal Office, ]
Sharadbhau Acharya Marg, ]
Chambur, Mumbai - 400009 ] ...Defendant 1 & 2
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Appearances:-
Ld. Adv. Mr. Shailesh Pal with Dharmin Sampat for the Plaintiff.
Ld. Adv. Mr.Abhijit Mangade with Adv.Mrs. Chandramore for
defendant / MCGM.
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DRAFT NM 2 Su. No.3974 of 2020
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 13th AUGUST, 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 filed by the plaintiff against the
defendant corporation for injuctive relief that, still pending the hearing
and final disposal to the suit. This court to please to direct the
defendants not to disconnect the electricity and the water supply in any
manner whatsoever nature.
2. It is also requested still pending the hearing and final
disposal to the suit. This court be pleased to appoint one of the
structural auditors from the panel of this code to conduct the survey
and submit his report before this court and he be appointed as a court
Commissioner.
3. It is also prayed that still pending the hearing defendants
be directed to appoint independent structural auditor from the panel to
conduct NDT test of the cell structure and submit the report to court.
4. Per Contra the defendant has strongly objected to the
notice of motion filed by the plaintiff. It is contended that, notice under
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DRAFT NM 3 Su. No.3974 of 2020
section 353 of MMC Act dated 22nd January, 2019 was issued to
plaintiff. As per notice society has carried out structural audit through
Barve Consultants licensed structural engineer and submitted report on
19th March, 2019 to the defendant corporation.
5. According to structural report along with proforma B, that
building is categorized as C1 category as dangerous building ,the same
is required to pull down. It is further submitted that, report of
consultant Mr. Harshad Dholakiya who was second structural auditor
appointed by the plaintiff society states that, the building is C-2A type
which can be repaired.
6. Being conflicted two reports it was referred to technical
advisory committee (herein after called as TAC). TAC submits a report
on 19th June, 2020 which categories the building as a C-1 category. As
per TAC report of Mr Harsh Dholkiya is not proper as NDT test has not
been carried out as per plaintiff.
7. Plaintiff submits that, they are willing to execute an
indemnity bond cum undertaking from members to indemnity Mumbai
Municipal Corporation as regard to the structure of building and same
can be repaired. proper NDT test of consultants have been obtained and
copy of the same is enclosed at exhibit.
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DRAFT NM 4 Su. No.3974 of 2020
8. It is one of the ground a plaintiff that defendants ought to
have had given opportunity both the plaintiff to produce stability
certificate along with structure audit report by including interest but
TAC committee has neglected to do so even after also the building is in
sound condition. It is therefore prayed to declare that notice is illegal. It
is they prayed for above discussed injuctive relief.
9. Defendant filed affidavit cum reply and strongly objected to
the notice of motion. It is stated that, after issuance of notice under
section 353 B dated 22nd January, 2019 structural audit report along the
proforma-B of building filed by Barve Consultant on behalf of the
plaintiff society with the report of suit building categorized as a C1
category.
10. Second reports filed by Harshad Dholakia on behalf of the
plaintiff society on 26th November, 2019 and classified the Suit building
into C-2 category as partial evacuation and needs major structural
repairs. Due to conflicting report it was referred to TAC which
submitted its report on 19th June, 2020, which declared the suit
structure as a C-1 category.
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DRAFT NM 5 Su. No.3974 of 2020
11. As per guidelines provided by the order of Hon’ble High
Court in W.P. No.1135 of 2014 TAC has been Established and therefore,
it is a supreme authority in the process of classification of buildings
categorizing. After receipt of the decision designated officer has issued
intimation dated 23rd June, 2022 to all occupants along with the
amended corrigendum to all tenants including petitioner dated 13th
July, 2020 for a vacation of building.
12. The defendant has issued a notice under section 354 MMC
Act dated 14th July, 2020 in name of Chairman/ Secretary/ Tenants i.e.
all occupants of the suit building be linked to put down the Suit
building and to prevent all cause of danger therefore and setup proper
and sufficient board or fence for the protection of passers by another
person’s within 7 days as mentioned therein, in order to prevent all
cause of danger.
13. The defendant has proposed an action for discontinuation
of electricity and water supply to suit building after preparing the “Area
Statement” for the suit building and submitting the same all occupants.
Dependent undertake to bound and oblige to follow the guidelines of
W.P. No.1135 of 2014 while executing notice under section 354 and
hence the demolition action will be initiated only after the completion
of Area Statement activity.
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DRAFT NM 6 Su. No.3974 of 2020
14. However, before initiating any action about demolition and
compliance of guidelines the plaintiff has moved before this court and
praying for injunction against the defendant for quashing the notice and
TAC report which has been legal in our respect and no question of any
violation of provisions of MMC act and guidelines and it's prayed for
rejection of a notice of motion.
15. Heard both sides.
16. 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 M/s Barve consultant with proforma B
on 21st February, 2019 classifying suit building in C1 category. Second
report filed by Harsh Dholkiya on behalf of plaintiff society dated 19th
March, 2019 classifying Suit building in the category of C2B that is
repairable building.
17. After going through all the documents filed by the defendant,
which transpires that the notice under section 353 B was issued on 22nd
January, 2019. Structural audit report file by M/s Barve Consultant
transpires that, "Building needs to be vacated /demolished" Whereas the
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DRAFT NM 7 Su. No.3974 of 2020
letter dated 27th July attached with rejoinder of defendant transpires
request made by Mr. Harshad Dholkiya structural auditor to the MCGM
corporation “So as safety measures have been erected the risk to the
building on the overall has reduced and the state of the building is also
not that bad that needs immediate evacuation and requires to be
immediately be pull-down”
18. As per guidelines for declaring private building as a seven
category dated 22nd August, 2016 in reference with W.P. No. 1135 of
2014 and W.P. No. 1080 2015,
“The point 2.06 States if the equipment’s
tenants submit conflicting reports on the status of the building, the
matter shall be referred to one of the concern technical advisory
committee (T.A.C.) and decision of TAC will be final and binding on all
the parties concerned.”
19. Whereas plaintiff is trying to cover his own case with other
ways by appointing structural auditor for making additional support to
the existing building which is not permitted by the law when as per the
Hon’ble High Court W.P. No. 1135 of 2014 and the MCGM guideline
dated 25.05.2018 when the conflicting structural audit reports have
been considered categorically by the technical advisory committee on
merit by giving a proper hearing within the purview of principle of
natural Justice again plaintiff cannot appoint structural auditor for
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DRAFT NM 8 Su. No.3974 of 2020
erection of props are making any work in the building which is declared
as a dilapidated building which needs to be pulled on immediately for
the safety of the 12 unit holders residing in the suite building and the
passer by also.
20. There is no substance in the argument advanced by the
learned advocate for the plaintiff that the one more chance be given by
sending matter for structural auditor and to carry out there NDT it test
in the building when the TAC report is received by the plaintiff and
others.
21. Plaintiff being registered society also requested to the
corporation by letter dated 24th September, 2019 to give some time
until clear policy of redevelopment is available. On this submission.
Developer is Bajaj Construction. This document is file on record by
plaintiff which transpires that, Bajaj constructions has withdrawn from
the redevelopment policy with the plan to society and giving NOC to
make agreement with another developer. plaintiff failed to file on record
any document that redevelopment policy is implemented by the Tenant
Association at present period. As this letter belongs to the year 2019
and we are in August 2020 building is the categorized as a C1 category
by TAC.
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DRAFT NM 9 Su. No.3974 of 2020
22. The corporation officers inspected the suit premises as per the
inspection report which also transpires the building is in dangerous
condition and needs to be vacated and demolished. The notice of TAC
committee received by all the land owner and tenant as per letter dated
23rd June, 2020.
23. Accordingly, the committee passed the observation as follows:
"Lal Sharan Co-operative Housing Society, Ramtekadi Road,
Chembur Camp, Mumbai-74 is structurally deteriorated and is in
dilapidated condition. The building may collapse without giving any
warning thereby endangering life and property of occupants of the
building and also the occupants of the adjoining properties and passes
thereby.
In View of above it is anonymously declared that the above cited
structure falls under C1 category under the circumstances the structure
under reference needs to be vacated and demolished immediately.
to avoid any untoward incidents in future, urgent necessary
action shall be taken by M /West staff as per policy guidelines issued in
this regards"
This observation 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.
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DRAFT NM 10 Su. No.3974 of 2020
24. The highlights of the guidelines given by the Honourable division
bench of our Hon’ble High Court in Writ Petition number 1135 of 2014.
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 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
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DRAFT NM 11 Su. No.3974 of 2020
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) 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/
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DRAFT NM 12 Su. No.3974 of 2020
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.
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'
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DRAFT NM 13 Su. No.3974 of 2020
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.
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.
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DRAFT NM 14 Su. No.3974 of 2020
In the event, a person occupying such tenement whether of the
privately owned building(s) or 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 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
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DRAFT NM 15 Su. No.3974 of 2020
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.
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
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DRAFT NM 16 Su. No.3974 of 2020
(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 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.
25. 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
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DRAFT NM 17 Su. No.3974 of 2020
there are conflicting audit reports the matter shall be referred to TLC
and TLC 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.
26. 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.
27. 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. The inspection report alongwith the
inventory report photographs, video shooting shall be kept on record
the corporation can take help of the approved plans and then certified
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DRAFT NM 18 Su. No.3974 of 2020
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.
28. On this point the corporation has not complied as a
document file on record that is bounden 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.
29. Lastly notice is proposed 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 that, the defendants shall not disconnect the electricity and
water supply in any manner.
30. It is also prayed to appoint structure auditor from the panel
of the court to conduct survey. It is also prayed independent structure
auditor to conduct NDT test of suit property. It is permitted by law
advocate for the plaintiff that the report filed by the way consultant is
not on the plaintiff.
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DRAFT NM 19 Su. No.3974 of 2020
31. The report attached with the letter dated 19th March, 2019
issued by the plaintiff society to the corporation which specifically
mentioned that we are submitting our structure audit report done by
"Barve Consultants". Therefore, there is no substance in the submission
that, this structure audit report is not file on behalf of the plaintiff
society.
32. It is always by the plant that no NDT test has been carried
out by the “Barve Consultant.” Where is the report dated 21st February,
2019 at column 7C. It is specifically mentioned about the carrying out
NDT test. It is law settled by the Hon’ble our High Court that the TAC
report is a final and it has binding force on the both the parties.
33. At the time of making order on Notice of Motion today
defendant has filed Structural Audit report prepared by Techno
Consultants. It revels from the report
“As there are no buckling of
columns and also no settlement of foundation and propping has been
done at ground floor wherever there is cracks in structural members,
the building can easily sustain six to eight months, the building can be
said to be in C2-A Category.” Ld. Advocate for the plaintiff pithily
submited that one chance be given to the plaintiff as the redevelopment
process is going on and this new Structural Audit Report is in favour of
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DRAFT NM 20 Su. No.3974 of 2020
plaintiff. Categorizing suit building C-2A category which can be
repairable.
34. Per contra, Senior Counsel for the MCGM strongly objected
to consider this report after TAC. It is argued that already TAC has pass
the order by classifying suit property into C-1 category. NDT test already
done by Barve Consultant appointed by society itself. This report filed
by Techno Consultant is false report at the stage of passing of N.M.
order to delay the matter. I have gone through again carefully the
observation of Hon’ble High Court in W.P. No. 1135 of 2014 and W.P. No.
1080 of 2016 and the MCGM order dated 25.05.2011 it nowhere
permits to allow occupants/landlord/tenants to file new Structural
Audit Report when TAC committee has formed opinion. Therefore, this
report cannot be consider at this stage. I have gone through the
observation of this report which shows “prop placed at various
locations. There were cracks on external walls at many places. There
many major cracks in columns and beems also. Photographs filed by
plaintiff in this new report also transpires the support is given to the
building which itself seem in ruinous condition and hence, needs to be
pull down immediately as per TAC report according to law.
35. I have gone through a photographs filed on record by both
the parties; the photographs filed by the defendant corporation
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DRAFT NM 21 Su. No.3974 of 2020
transpires that, the poor condition of the building which does not
support the contention of the plaintiff that this building can be prop and
with support it can be repaired. Therefore, at this stage considering the
dilapidated condition of a building the plaintiffs is theory to give one
more chance for above reasons by appointing structural auditor again
referring the matter before the TAC which is not permissible by law.
36. Plaintiff society want to redevelopment cannot be ground
in a condition of the dilapidated building to wait for building to be
collapse and search and cause any casualties. Therefore plaintiff has
failed to prove prima facie case that he is entitled for the injunctive to
relief by considering the document file on the record at this stage.
37. 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.
38. 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
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DRAFT NM 22 Su. No.3974 of 2020
building. It is bounden duty of the plaintiff to protect the rights of the
tenants and occupiers which doesn't seems that it is complied in this
case.
39. It is settled principle of law that one who seek equity shall
stand on his own legs. Therefore, the relief of 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) (b) and (c) notice of motion are 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
/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) Draft N.M. disposed off accordingly.
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DRAFT NM 23 Su. No.3974 of 2020
(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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DRAFT NM 24 Su. No.3974 of 2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 19.10.2020 at 12.50 a.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
19.10.2020 (Because of order is on
draft motion and draft motion
registered on 15/10/2020)
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