Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1867/2018 in Suit 1185/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1867 of 2018
IN
L.C. SUIT NO.1185 of 2018
Mr. Karman Rantanshee Nishar ..Plaintiff
V/s.
Municipal Corporation of Greater Mumbai ..Defendant
Coram : H.H. JUDGE SHRI C.V.MARATHE
Date : 10th June, 2019 (C.R.No.8)
Advocate Ms. Rubia Taneja for the plaintiff.
Advocate Mrs. Bhoir for the defendant/MCGM.
ORAL ORDER
1. This is an application by Notice of Motion under Order 39 Rule 1
of the Code of Civil Procedure, 1908.
2. The plaintiff's contentions in brief are as under :
The plaintiff is carrying on his business in the name and style
"M/s. Nishar Paper Mart" at shop no.126, Gopal Bhuvan, LBS Marg,
Ghatkopar (West), Mumbai 400 086 (hereinafter referred to as "suit
premises" for brevity). The suit building i.e. Gopal Bhuvan consists of
ground and two upper floors with commercial and residential premises.
M/s. Yashodhan Developers, a private limited company, vide its letter
dated 13/10/2012 informed the plaintiff and other tenants that said
company purchased the suit building from erstwhile owner/landlord
and wanted to redevelop the same with the cooperation of the tenants.
Prior thereto, the defendant MCGM, issued notice on 10/11/2010
under section 354 of the MMC Act to vacate the suit building.
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Subsequently, M/s. Sai Nidhi Developers acquired rights in respect of
the suit building from M/s. Yashodhan Developers. The plaintiff was
hoping and expecting for redevelopment and extended full support but
nothing was done to repair the suit building from 2010. No alternate
accommodation was provided to the plaintiff.
3. On 10/04/2018 and 05/04/2018, the defendant MCGM, at
the behest of the landlord, issued notices under section 354 of the MMC
Act directing them to vacate the suit building and to close the trade
with immediate effect. Guidelines issued by the Hon'ble Bombay High
Court in Writ Petition (L) No.1135/14 are not followed by the
defendant MCGM. Structural audit of the building is not carried out by
the Technical Advisory Committee (TAC). No hearing is given to the
plaintiff and other tenants and thereby principles of natural justice are
violated. Therefore, temporary injunction be granted restraining the
defendant MCGM from taking action in pursuance of the two notices
dated 05/04/2018 and 10/04/2018 till final disposal of the suit.
4. The defendant MCGM has filed reply to the Notice of
motion contending inter alia as follows :
Defendant MCGM initiated action against the suit building, which
is in ruinous condition, as per the guidelines issued in the aforesaid Writ
Petition. Officers Devendra K. Bhangre and Suresh Poyarekar visited
the suit building on 27/03/2010 and submitted inspection report on the
same day to the Executive Engineer, N Ward, for further order. The
latter sent proposal to the Deputy Chief Engineer (B.P.) E.S. and
requested to initiate action under section 354 of the MMC Act on
30/03/2010. The Deputy Chief Engineer offered his remark to arrange
for inspection on 06/04/2010. On 27/04/2010, he visited the suit
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building and found the same in dilapidated condition and made his
remarks accordingly. On 24/04/2010, the Assistant Commissioner, N
ward, initiated action under section 354 of the MMC Act to avoid any
loss to life and property and protecting rights of the
occupants/residents. Again notice was issued on 22/06/2013 directing
the tenants/occupants to vacate the suit building. Evacuation notice
under section 489 was also issued on 05/09/2014. The suit building is
categorised as C1 in the year 2010 and the condition thereto has
deteriorated in the last 7 years with passage of time. Therefore, caution
notice was pasted on the suit building on 13/06/2017 and notice under
section 488 was issued to the occupiers on 17/03/2018. Area
certificate to each occupier was issued on 09/04/2018. Thereafter, the
impugned notices are issued. As per the guidelines given in the Writ
Petition (L) No.1135/14, the defendant MCGM has followed the
procedure and therefore the application is liable to be rejected.
5. Considering rival contentions, following points arise for
determination and my findings on these points for the reasons
mentioned thereunder are as follows :
Sr. No. Points Findings
1.
Whether the defendant MCGM has
followed the guidelines issued in Writ
Petition no.1135/14 in respect of
dilapidated suit building or its own
guidelines ?
In the negative.
2.
Whether the plaintiff has made out 3
ingredients required for grant of
temporary injunction ?
In the affirmative.
3. What order ? Notice of motion is
partly allowed.
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REASONS
6. From the allegations and counter allegations of both
parties, it is not in dispute that the condition of the building is
deteriorated due to the dispute between the landlord and the plaintiff
and other tenants in respect of alternate accommodation during the
redevelopment of the building. It is pertinent to note that the
defendant MCGM initiated action under section 354 of the MMC Act
initially in the year 2010 but the building was never demolished after
vacating the occupiers thereof for many years. The notice issued by the
defendant MCGM to the landlord and the occupants reiterated the fact
that the building was in dangerous condition. The opinion is framed by
the defendant MCGM on the basis of visual inspection carried out by its
officers in the year 2010 and subsequently. Scientific tests were not
carried out till the suit was filed. During the pendency of the suit, the
landlord and the tenants filed conflicting reports categorising the suit
building as C1 and C2B category respectively. After receipt of the said
conflicting reports, the defendant MCGM was duty bound to follow its
own guidelines approved on 23/02/2018. The TAC did not conduct
any scientific tests on its own or under its supervision prior to
28/02/2018, when the operation of interim guidelines in
W.P.No.1135/2014 ended by judgment in W.P. No.1080/2015.
Moreover, there is nothing on record showing that TAC meeting was
held with structural auditors of the landlord and the tenants to discuss
and arrive at conclusion about the status of the building and to protect
life and property. Section 354 of the MMC Act contemplates notice for
dilapidated building after satisfaction about ruinous condition of the
building. In this matter, it is clearly seen that without carrying out
scientific tests the defendant MCGM has arrived at conclusion that the
building is in dilapidated condition. Therefore, the plaintiff is entitled
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for temporary injunction. Accordingly, I answer point no.1 in the
negative and point no.2 in the positive and pass the following order :
ORDER
1. Notice of Motion is partly allowed in terms of prayer clause
(a) and the defendant MCGM is temporarily restrained from
acting in pursuance of the notice no.CAN/037/GEN/B&F
dated 9/10.04.2018 and notice no.CAN/15/MCH N/DATED
05.04.2018 purported to be under section 354 of the MMC
Act till the Technical Advisory Committee follows the
guidelines issued by the defendant MCGM which are
approved on 23/02/2018 in respect of buildings in
dilapidated condition and passes order in accordance with the
same Policy.
2. Notice of motion is disposed off accordingly.
3. Costs in cause.
10/06/2019 (C. V. MARATHE)
Judge,
City Civil Court, Mumbai.
Dictated on : 10/06/2019
Transcribed on : 11/06/2019
Signed by HHJ on : 13/06/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer : Mrs. Varsha D. Chowdhri
Upload date and time : 13th June, 2019 (At 12.55 p.m.)
Name of the Judge H.H. JUDGE SHRI C. V. MARATHE
(C.R.No.8)
Date of Pronouncement of Order 10th June, 2019
Order signed by P.O. on 13th June, 2019
Order uploaded on 13th June, 2019
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