Jitendra Brahmadutt Singh Thakur +1 moreVsMCGM +3 more

Date: 28-06-2019
Business: Mentioned by precipe. NOB. TOB.
Adv. D. A. Thorat for plaintiff present and tendered draft NM with affidavit.  Leave is granted to register the NM r/o next date.
Adv. for plaintiff tendered 8 photographs.
Adv. Mukhee def. no. 4 present.
Adv. Mrs. Hajare for MCGM/Deft. present and tendered affidavit of documents.  Copy served to other sides.
Heard arguments of both sides.
Adjd to 29.06.2019 for order on ad-interim relief.
Next Purpose: AD-INTERIM ORDER
Next Hearing Date: 29-06-2019

Date: 29-06-2019
Business: Adv. D\''sa h/f Adv. Bipin Joshi for plaintiff present.
Adv. Khandagle h/f Adv. Mrs. Hajare for MCGM/Deft. 1 to 3 present.
Adv. Oorail Panchal for defendant no. 4.
Order on ad-interim relief.
Perused NM, plaint, documents annexed to the plaint, documents filed by defendants no. 1 to 3/MCGM along with affidavit and heard both sides.  By instant application plaintiffs have prayed to grant temporary injunction restraining defendants no. 1 to 3/MCGM from implementing/acting upon Technical Advisory Committee (TAC) report dtd. 16.05.2019 in respect of the suit premises, entire building known as Deep Mandir situated at L. B. S. Marg, Mulund (West), Mumbai 400080.  They have also prayed for mandatory injunction to direct defendants no. 1 and 2 to issue repair permission to the plaintiffs.
     Ld. Adv. for the plaintiffs has assailed TAC report on the grounds that the TAC members do not possess sufficient expertise to take decision on the issue of structural stability of a building, hearing was not given to structural consultant of the plaintiffs, final order passed by TAC is not in consonance with directions issued by Division Bench of Hon\''ble Bombay High Court in W. P. (L) No. 1135/14 and there is no whisper in the TAC order about pending applications by plaintiffs for permission to repair the suit building.  Without admitting the defence, Ld. Adv. for the plaintiffs has suggested that the suit building, being a two storied building, can be kept intact by removing second floor if it is found in dilapidated condition.
  Ld. Adv. for the defendants No. 1 to 3/MCGM has pointed out that structural engineer Mr. Samir Mhate of plaintiffs had issued letter dtd. 06.05.2019 expressing his inability to attend the TAC meeting to be held on 07.05.2019 and permitted the TAC to proceed with the meeting.  She has also invited my attention to letter of said structural engineer dtd. 30.04.2019 wherein he has tried to escape from his responsibility by stating I should not be held responsible for any un-eventuality occurring at structure due to non attendance of structure from structural restoration point as our audit report is not valid indefinitely.
  Ld. Adv. for defendant no. 4, the landlord, has submitted that if the plaintiffs are making allegation against the said defendant that he did not carry out repairs of the suit building or allowed the plaintiffs to do the same then they have remedies in law to obtain permission to carry out such repairs and that itself cannot be ground to challenge proceeding u/s 354 of MMC Act.  He has also invited my attention to the fact that TAC is constituted as per directions of Hon\''ble Bombay High Court and the plaintiffs have no authority to raise issue of expertise of members of the TAC.  All the defendants have prayed to dismiss the NM.
    After going through the plaint and documents annexed thereto, it can be seen that notice u/s 353(B) of MMC Act came to be issued to owner/occupant of the suit building to carry out structural audit from the structural engineer registered with defendants/MCGM or reputed institutes.  It is also not in dispute that the plaintiffs and defendant no. 4 submitted their respective structural audit reports, which were conflicting with each other, and therefore matter was referred to TAC. It is also clear from letter of plaintiffs\'' structural engineer that he had raised his concerns in his letter dtd. 30.04.2019 and permitted TAC to conduct hearing on 07.05.2019 in his absence. Therefore, the plaintiffs cannot claim that hearing was not given to their structural consultant.  After the meeting dtd. 07.05.2019, the impugned order dtd. 16.05.2019 came to be passed by the TAC.  From this sequence of events the TAC has followed guidelines issued by defendants/MCGM.
        Ld. Adv. for the plaintiffs has argued that the TAC should not have proceeded without deciding applications by plaintiffs for repairs of the suit building.  In that regard, the TAC is constituted to decide issue of  structural stability of the building.  Permission for repairs is granted/rejected by AE (B and F) of the concerned ward.  Therefore, the above argument of ld. Advocate for plaintiffs fails.
    Ld. Advocate for plaintiffs has also made suggestion that possession of plaintiffs on the lower floors can be protected by removing second floor of the building and entire building need not be demolished.  In that regard, TAC is an independent expert committee appointed as per directions given by Hon\''ble Bombay High Court and the Trial Court is not expected to sit over the said TAC\''s conclusion and take any different view of the matter.  Considering all the above, I do not find prima facie case in favour of the plaintiffs that the findings of TAC dtd. 16.05.2019 suffer from illegality.  As such ad-interim relief is liable to be rejected.  Hence rejected.
Plaintiff is directed to register the NM on or before next date.

Adjd to 13.09.2019 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 17-07-2019

Date: 17-07-2019
Business: Mentioned by precipe. NOB. TOB.
Adv. Bipin Joshi for plaintiff present and tendered registered NM No. 2537/19 with affidavit.
Adv. Samkash Basut for defendant no. 4 present and tendered vakalatnama.  TOR at Exh.
Adv. Khandagle h/f Adv. Hajare for MCGM/Deft. 1 to 3 present.
ORDER
Plaintiff has filed pursis to withdraw the suit with request to permit him to file fresh suit in view of order dtd. 09.07.2019 in A. O. (St) 18623/19 by Hon\''ble Bombay High Court.  In view of the pursis, suit is disposed off as withdrawn with liberty to plaintiff to file fresh suit for the subject matter.   In view of disposal of suit NM no. 2537/19 also stands disposed off.
Nature Of Disposal: WITHDRAWL
Disposal Date: 17-07-2019

NOTICE OF MOTION/102537/2019

Filing Number: 107028/2019
Filing Date: 27-06-2019
First Hearing Date: 28th June 2019
Decision Date: 17th July 2019
Court Number And Judge: 8-COURT 08 ADDL SESSIONS JUDGE