Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2048-19 in Suit No. 1338-19
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2048 OF 2019
IN
L.C. SUIT NO. 1338 OF 2019
Bijoy Binoy Jhaveri .....Plaintiff
Versus
Designated Officer, Asst. Engr.
(B & F), 'D' Ward, MCGM & Ors. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 15th June, 2019
Appearance:
Ld. Adv. Mr. P.D. Gandhy for the plaintiff.
Ld. Adv. Mr. Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks temporary injunction
restraining the defendants corporation from taking any action pursuant
to the notice under Section 354 of the Mumbai Municipal Corporation
Act, 1888 (hereinafter refereed to as 'the MMC Act').
2. The plaintiff claims to the owner of Shop No. 2, Ground Floor,
Parekh Sada, 512, S.V.P. Road, Mumbai. The plaintiff got knowledge of
a letter dated 04.10.2018 that the building in which the shop of the
plaintiff is located was issued the notice under Section 354 of the MMC
Act, dated 16.07.2017 and also learnt that the building was dilapidated
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2 NM 2048-19 in Suit No. 1338-19
in CI category. It is alleged that the building is under the management
of an Administrator. It is contended that the notice was not issued to
the occupants. It is stated that he enquired about the structural audit
report of the disputed building.
The plaintiff had appointed a Structural Engineer and had sought
documents from the defendants corporation under R.T.I. The plaintiff
had challenged on the ground that the notice that the individual notice
is not issued. So also Structural audit report is not provided to the
notice of the plaintiff. The plaintiff desires to carry out the inspection of
the structural audit. The plaintiff, therefore by this notice of motion
had prayed for temporary injunction retraining the defendants from
taking any action pursuant to the notice under Section 354 of the MMC
Act.
3. The defendant corporation had filed the say to the application. It
is contended that the structural report dated 28.11.2017 from Mr.
Navneet Goenka in respect of the structural audit report carried out by
M/s. S.P. Consultants in which he opined that the entire building is
least maintained since long back, also has ageing problem and affected
by white ants and concluded that the entire building is weak and
dilapidated condition. The building was inspected by the Officers of the
defendant corporation and found that the building was ruinous
condition and may collapse. The building is categorized in C1 category
by Ex. Engineer 'D' Ward. Further, proceedings were taken in the light
of 'Guidelines for declaring Private and Municipal buildings as C1
category.' With approval from the Deputy Chief Engineer notice was
issued to the defendant under Section 354 of the MMC Act.
It is contended that the L.C. Suit No. 3230/18 filed by Navneet
Goenka challenging the notice under Section 354 of the MMC Act, after
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hearing, adinterim relief was rejected. It is stated that the notice of
motion need not be entertained and deserves to be dismissed.
4. Heard the Learned Advocate for the plaintiff and Learned
Advocate for the defendant corporation.
The plaintiff had also carried out structural audit report filed at
page no. 36 in the plaint. It points out in paragraph no. 2, reads as
under:
''Building was inspected from outside and Part of Ground floor
(Shops/office) and 3rd floor was inspected from inside and also the
terrace above third floor. It is observed that building is neglected from
periodical repairs and maintenances even the external plaster is not
been attended and at places plaster is missing and brick are exposed.
On Ground floor at places the additional steel support are given to Jack
Arch ceiling and on 3rd floor ceiling (Terrace), which was made
available for inspection and it has been noticed that steel flange section
visible was highly corroded. The terrace is covered with tarpolin sheet
from sides and top but no measures of providing waterproofing has
been taken. The cracks are observed in staircase area in walls and
lintels.''
It is further observed that pursuant to the external and part of
internal inspection, same is repairable of extensive nature.
Going by this findings in paragraph no. 2, the condition of the
building does not appear to be satisfactory. It is the plaintiff's case that
only who has occupying the premises, all other occupants have vacated
the building.
5. At this juncture, there is noting to infer that the conclusion
reached by the defendant corporation that the building is dilapidated
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condition and is dangerous and can fall at any time is not correct.
Considering the prayer of the plaintiff, the plaintiff appears only
individual who had challenged the notice under Section 354 of the
MMC Act. It is the specific findings of the corporation that the building
is danger and may fall at any time and is vacated by the other
occupants.
It primafacie goes to suggest that the building is in dangerous
condition. The building is dangerous not only to the occupants but also
to passerby. The interest of the plaintiff is pitted against the interest of
the society at large. The interest of individual cannot be considered
against the interest of the society. So also, there is nothing to infer that
building is not in dangerous condition. The plaintiff had not produced
any concrete evidence to show that the building is for occupants.
Contrary, the findings we reached by the defendant corporation to show
the building is in dilapidated condition. As discussed earlier the
individual interest of the plaintiff cannot be considered against the
society at large. It risks to lives of people.
The plaintiff has failed to make out the primafacie case. The
balance of convenience does not lies in favour of the plaintiff. The
plaintiff is not entitled for the injunction as prayed for. The plaintiff
would not be put to irreparable loss, if the temporary injunction is
refused. In the result, following order is passed:
ORDER
The Notice of Motion No. 2048/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 15.06.2019 City Civil Court, Mumbai.
Dictated on : 15.06.2019
Transcribed on : 17.06.2019
Signed by HHJ on : 18.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.06.2019 at 4.25 pm.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
15.06.2019
JUDGMENT/ORDER signed by
P.O. on
18.06.2019
JUDGMENT/ORDER uploaded
on
18.06.2019
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