Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1617-2020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO 1617 OF 2020
IN
SUIT NO.1213 OF 2020
Hema Bhavesh Jain & Others ]...Plaintiffs
Versus
Municipal Corporation of Greater Mumbai
& Others ]..Defendants
Appearance:
Advocate Mr. P.D. Gandhy for Plaintiffs.
Advocate Mr. Walawalkar for defendant (MCGM) No.1 & 2
Advocate Mr. Lalit Jain for defendant No.3.
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 8th December, 2020
ORAL ORDER
1. Plaintiffs have taken out this notice of motion against the
notice/reminders issued u/s. 354 of the MMC Act.
2. Plaintiffs prayed to issue temporary injunction restraining
defendants etc from taking any action against the suit premises on the
basis of said notice/reminders.
3. Further, plaintiffs prayed to appoint an independent
architect or structural Engineer to conduct the various tests as required
to be conducted as per policy guidelines of MCGM in the suit premises.
4. Further, plaintiffs prayed to restrain defendant No.3
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(Landlord) etc, from obstructing plaintiffs in carrying out structural
audit report if ordered by this court.
5. Building No.163/165, plot bearing CS No.1401, Bhuleshwar
division, Shaikh Menal street, Zaveri Bazar, Mumbai is the subject
matter of this Notice of Motion, the same is hereinafter referred to as
notice structure.
6. Defendant No.1 and 2 (corporation) submitted reply and
opposed the above reliefs strongly.
7. Defendant No.3 (landlord) submitted reply and strongly
opposed the reliefs prayed for by the plaintiffs.
8. The Ld counsel on behalf of plaintiff, argued that the notice
structure is not from C1 category. According to him BMC issued notice in
collusion with the landlord unlawfully, hence court should grant the
notice of motion. On behalf of plaintiff written notes of arguments are
submitted those are running on the lines of contents of the plaint. On
the other hand Ld counsel of defendant No.1 and 2 argued that
admittedly said structure is C2A category however the same is danger to
the occupants of the suit property. Therefore the same needs urgent
repairs etc. On behalf of defendant No.3 it is vehementally argued that
there were total 10 tenants. Out of that 7 agreed for demolition and
reconstruction of said building and vacated it. However, plaintiffs i.e. 3
persons are not cooperating and not vacating the suit premises. On
behalf of defendant No.3 it is prayed to dismiss the Notice of Motion.
9. Alongwith list plaintiffs produced various documents from
pg No.32 to 466. Defendant No.1 and 2 alongwith list produced
nearabout 6 documents including colour and dated photographs of the
notice structure. Defendant No.3 alongwith reply produced various
documents from pg No.35 to 95 including xerox copies of photographs
of the notice structure. Further alongwith list defendant No.3 produced
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a compilation containing copy of writ petition alongwith colour and
dated photographs of the notice structure. I have perused above
documents produced by the parties.
10. Perusal of record it shows that after receipt of
notice/reminders of the MMC plaintiffs preferred writ petition
No.111/20 before Hon’ble High Court. On 3/7/2020 Hon’ble High Court
directed to maintain status quo. Thereafter on 16/7/2020 Hon’ble High
Court directed respondent No.1 to restore electricity connection to the
said premises within 24 hours, without fail.
11. On 21/7/2020 the Hon’ble High Court observed that 7
tenants out of 10 already vacated suit premises under their occupation.
However, 3 petitioners challenged the impugned notice in writ petition.
The advocate of the landlord submitted in the Hon’ble High Court that
the landlord is not desirous in constructing any additional area for the
purpose of sale etc, but has decided to reconstruct the building and
handover to the existing tenants the area currently occupied by them.
Hon’ble High Court held that, “in view of the above submission made on
behalf of the landlord the stand taken by the 3 petitioners(tenants) not
to vacate their respective premises, despite the building is being
categorised as C2A, prima facie appears unreasonable. Thereafter,
advocate of petitioners in the High Court sought time for taking
instructions of the concerned tenants. Hon’ble High Court made clear
that the premises in the new building shall be given to petitioner No.1
upon her finally succeeding in the litigation pending between her and
respondent No.3 Landlord and the respondent No.3. Landlord accepting
petitioner No.1 and 2 as the legal heirs of the deceased (Rajaji Megha
Sanghavi and Niranjanlal Dalmia) respectively. It further appears from
the order that the electricity supply of the said premises was not
disconnected by corporation, but the same was disconnected by the
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BEST in view of some short circuit in the building.
12. Thereafter on 5/8/2020 Hon’ble High Court appointed Mr
Amol Shetgiri & Associates as an independent architect to hold a
meeting with landlord as well as tenants and after going through all the
sanction plans to submit the report setting out the approximate cost of
construction that will have to be incurred if the old structure is
demolished and reconstructed in accordance with earlier plans
sanctioned by MMC. It was also directed to verify and report about the
alleged unauthorized construction carried out by some of the tenants.
The said order was passed without prejudice to the contention of the
landlord that the applicant/petitioner No.1 is liable to be evicted for
carrying out unauthorized construction in her premises and that the
applicants/petitioners have till date not established that they are the
heirs of the respective deceased tenants. Parties were directed to pay
50% each charges of said architect.
13. Thereafter on 15/10/2020 petitioner sought to withdraw
said writ with liberty to file a fresh suit. Accordingly writ was disposed
of in the Hon’ble High Court. The corporation was directed not to take
any coercive action qua subject structure for a period of 2 weeks.
14. Plaintiff produced the following citations:-
a)
Vasant Naik Vs MCGM, CRA 244/1919 dated 18/3/2008 (H.C. Bom.)
It is conviction order (u/s. 381 of MMC Act) passed by the Metropolitan
Magistrate against which revision was preferred before Hon’ble High
Court u/s. 401 of the Cr. P. C. In that criminal case the point of
delegation of power came to be considered. The said petitioner was
acquitted. (However, plaintiffs party could not convince how ruling of
Cr.P.C. can be made applicable to civil suit).
b)
Inderjeet Singh Sethi Vs MCGM, (H.C. Bom.) 9/7/2019 wherein the
notice structure was from the category of C1. In that matter technical
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advisory committee report was challenged in the writ. In that citation
scope of Article 226 of the Constitution of India regarding notice u/s.
354 of the MMC Act was under consideration of the Hon’ble High Court.
However, the writ came to be dismissed with cost.
c)
Ambalal Patel Vs MCGM, Appeal No.372-2016 (H.C. Bom.) dated
25/4/2016, wherein appellant was the landlord. The respondents were
tenants/occupants and were opposing ND tests in the suit structure. It is
held that unless and until ND tests are carried out by owner/occupier
from their structural consultants alongwith proforma B and if the
opinion found contradictory on the basis of structural audit report then
only TAC comes in the picture to give specific order in such case. Thus
the appellants were permitted to undertake appropriate inspection by
carrying out all the requisite tests so as to ascertain the structural
stability of the building and prepare a report thereof for further action to
be taken in accordance with law. In that matter respondents/occupants
were directed to permit the representatives of corporation and also the
representatives of the appellant to undertake such inspections and tests
for the purpose of structural audit to be undertaken. The occupiers were
directed to fully cooperate for said tests/inspection. The occupants were
also permitted to have their own independent assessments by
approaching the Indian Institute of Technology and to submit structural
audit report to the corporation. Further Hon’ble High Court directed all
the parties including corporation to undertake structural audit and place
their respective reports on the file of the corporation within 6 weeks,
etc. (In the present matter also there is no reliable material to show that
N.D. tests are carried out in said premises. There is also no evidence
whether suit building comes in category. Hence, these guidelines
appearing applicable in this Notice of Motion.
15. On behalf of defendant No.1 and 2 Ld counsel relied on the
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case of
Tushar Guru Salian Vs State of Maharashtra,PIL 67-2017 (H.C.
Bom.) 28/8/2019 and 4/10/2019, wherein it is held that merely
pointing out deficiency in the notice or the authority of the person
issuing the notice is neither here nor there. Thus, technicality or hyper-
technicality cannot be given much weightage in each and every Notice
of Motion.
16. He further relied on the case of
Inderjeet Singh Sethi whch
is already relied by plaintiffs too as above. The present suit structure is
not shown from C1 category, this aspect cannot be ignored.
17. On behalf of plaintiff the Ld counsel strongly opposed the
notice/reminders of MMC. On the other hand Ld Counsels on behalf of
defendant No.1 to 3 strongly supported the action of the corporation.
Perusal of structural audit report dated 25/8/18 prepared at the
instance of plaintiffs by the Joshi Associates (consulting structural
Engineer) goes to show that said structure is categorised as C2B by
stating that no eviction only structural repairs are required. on page
No.55 to 58 Joshi Associates shown defects/damages/cracks
/deterioration etc found in the said structure.
18. Perusal of pg No.59 to 78 of the plaint it shows that at the
instance of Mr. Kirtikumar i.e. defendant No.3 structural Engineer Mr.
Gandhi prepared structural audit of said existing building. According to
his visual inspection the said building comes in C2A category. According
to him building to be evacuated and/or partial demolition requiring
major structural repairs. He has also annexed copies of photographs at
pg No.71 to 78.
19. Structural audit report dated 25/8/18 obtained by plaintiffs
denotes that said structure comes under C2B category whereas
structural audit report dated 25/11/19 obtained by defendant No.3
Kirtikumar indicates that said structure comes in C2A category. Thus, it
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shows that said both reports are not in consonance with each others
perhaps due to time gap. It is also to be noted that MMC carried out
correspondence by using words as if said structure comes in C1 category.
20. Perusal of record it shows that as per the order of Hon’ble
High Court Shetgiri & Associates prepared technical report dated
25/9/20. According to him the construction cost of demolition and the
construction of said structure would be approximately 3.35 Crores. He
has pointed out measurements of the areas under occupation of the
tenants and set out whether any area under occupation of any tenant is
not as per the sanction plan/s and therefore unauthorized. Said chart
regarding unauthorized construction from item No.1 to 12 are on pg
No.433 and 434 of the plaint which shows that some of the tenants have
carried out a huge unauthorized construction.
21. It is the well settled position of law that in such matters
court need not see whether building is repairable, but court has to focus
its mind on whether building is safe for human dwelling/human
habitation. Perusal of above said two structural audit reports, technical
reports of Shetgiri & Associates, documents and photographs produced
by the parties shows that there are various cracks/deterioration/defects/
damages etc in the said structure. Therefore, it became imperative on
the part of this court to carefully ascertain whether said structure is safe
for habitation of plaintiffs etc.
22. In view of guidance provided in the case of Ambalal Patel
(supra) it would be just and proper to have structural audit report on
the basis of ND tests, on record. However, in order to avoid future delay
in the suit it appears necessary that not only plaintiffs but also
defendants should be permitted to submit their structural audit reports,
if any.
23. Considering peculiar facts and circumstances, I proceed to
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pass the following order in the interest of justice:
ORDER
1) Notice of Motion No.1617 of 2020 is partly allowed.
2) Plaintiffs are hereby permitted at their costs to
appoint an independent Architect or structural
Engineer to conduct said tests in the notice premises,
who shall submit the report within eight weeks from
today.
3) Similarly MMC and defendant No.3(Landlord) at their
own costs are hereby given liberty to appoint their
Architect or structural Engineer independently who
would also carry said tests and submit their reports
respectively as above within the same period.
4) Parties or anybody on their behalf shall not interfere
in the functioning of structural audit report of each
others.
5) Parties to maintain status quo regarding said structure
till next eight weeks.
6) Parties shall avoid delay on their parts.
7) Architect/structural Engineer shall submit said report
within prescribed time as above.
8) This Notice of Motion stands disposed off accordingly
with permission to file fresh one after receipt of said
reports, if required.
(S.C. Pathare)
Ad-hoc Judge
City Civil Court
Typed on : 08/12/2020
Checked by PO : 08/12/2020
Signed by HHJ on : 08/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/12/2020 Mrs. S.A. Shekade.
Name of the Judge (With Court
room no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
08/12/2020
JUDGEMENT/ORDER signed by
P.O. on
08/12/2020
JUDGEMENT/ORDER uploaded on 16/12/2020
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