Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 2492/19 AND 1029/2020 1 IN SU 2514/19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION 2492 OF 2019
(CNR NO.MHCC01-006856-2019)
AND
NOTICE OF MOTION 1029 OF 2020
(CNR NO.MHCC01-002917-2020)
IN
S.C. SUIT NO.2514 OF 2019
(CNR NO.MHCC01-006548-2019)
Premraj Chhaganlal Padiyar and Ors. ]... Plaintiffs
Versus
The Municipal Corporation of Greater Mumbai and Ors. ]...Defendants
Ld. Adv. Thakkar for the Plaintiffs
Ld. Adv. Smita Chavn for defendant /MCGM.
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 8)
DATED : 11th October, 2021
O R A L O R D E R
1. The Plaintiffs has taken out both, Notice of Motion and
prayed that defendant be restrained from taking coercive action against
the plaintiffs by pursuance to the decision taken out by the Technical
Advisory Committee (TAC) dated 10.12.2019. Plaintiffs also prayed that
defendant be directed to grant permission to plaintiffs to carry out
structural repairs of the suit building, by way of Notice of Motion
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No.2492/2019. Plaintiffs prayed that defendant be restrained from
evicting plaintiffs from the suit property and restrained from
disconnecting water and electricity supply of the plaintiffs.
2. Perused Notice of Motion, affidavit filed in support thereto,
reply filed by the defendant. Heard both the advocates at length. The
plaintiffs come with a case that plaintiffs are the tenant of Rama
Bhuvan ‘A’ Wing, Netaji Subhash Road, Mulund (w), Mumbai 400 080.
The above property is subject matter of the suit for the sake of
convenience (hereinafter called as suit property). Plaintiffs are the
tenant, occupant of the suit building. The defendant / corporation
issued notice to the plaintiffs by declaring that suit building has
dilapidated and falls under C-1 category. M/s. Maruti Shilp Pvt. Ltd.
claim ownership and the landlord of the suit property. They joining
hands with the defendant / corporation tried to demolish the suit
property. The plaintiff has appointed the structural auditor. He carried
out structural audit of the suit property and given its report by
contending that the suit building falls under C2-A category, means the
suit property can be repair. But the defendant / owner appointed the
structural auditor. He has not conducted all the required test and
submitted his audit report by contending that suit property falls under
C-1 category.
3. When the corporation received conflicting structural audit
report therefore, matter was referred to the Technical Advisory
Committee (hereinafter called as TAC) but the TAC not considered that
the structural auditor of the owner not carried out the required test. On
the other hand the structural auditor of the plaintiff carried out the
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entire required test and come to the conclusion that suit building can be
repaired then also the TAC accepted the report of the landlord and gave
its opinion that the suit building falls under C-1 category.
4. The report of TAC is totally irrational, arbitrary and based
on irrelevant material. Therefore plaintiff prayed that defendant be
restrained from taking action in pursuance to the TAC report by way of
both Notice of Motion.
5. The defendant opposed both the Notice of Motion by filing
reply on record. The contention of the defendant that the defendant /
corporation has followed the entire guidelines issued by the M.C.G.M.
and guidelines given in Writ Petition No.1080/2015. As the suit
building is very old therefore, both owners and occupant was directed
to carry out the structural audit of the suit property. The Plaintiffs
carried out the structural audit through its auditor Shri. Nayan
Dholakia. The plaintiffs submitted that building falls under C2-A
category on the other hand the owner has carried out audit of the suit
property through its auditor Mr. R.C. Tipnis and structural engineer
Shri. P.V. Kulkarni. They found that the suit building falls under the C-1
category. There are two conflicting report of structural auditor
therefore, there is no option rather than forwarding two reports to TAC
for the consideration. The structural auditor both tenant and landlord
heard by the TAC. The TAC committee member also visited the suit
building on 22.11.2019 and they found that the suit building is
dangerous, dilapidated and falls under C-1 category and needs to be
vacated and demolish immediately. Therefore, plaintiff is not entitled
for the relief prayed against the defendant. The defendant owner also
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opposed the Notice of Motion and submitted that the same facts which
was submitted to defendant / corporation for the want of repetation not
mentioned in detailed.
6. Perused Notice of Motion, reply filed by the defendant.
Documents filed on record by both the parties. Heard all the advocates
at length and therefore following points arose for my determination
alongwith my findings on those points for the reasons mentioned
thereunder are as follows:-
Sr.
No. POINTS FINDINGS
1. Whether plaintiff prove prima facie
case in their favour ?
In the Negative
2. Whether balance of convenience lies in
favour of the plaintiffs ?
In the Negative
Whether plaintiff prove that they will
suffer irreparable loss if injunction is
refused ?
In the Negative
3. What order ? Both Notice of Motion
dismissed
R E A S O N S
AS TO POINTS NOS. 1 to 3:-
7. The advocate of the plaintiff taken my attention towards
the facts that how Technical Advisory Committee (TAC) not acted
unbiased and neutral. The advocate of the plaintiff submitted that the
structural audit conducted by its auditor has carried out the entire test
such as UPV, Rebound Hammer Test, Half Cell potential, Carbonation
depth test, Core test, Chemical test, PH Value, Chlorides content and
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Sulphates contents as per guidelines. The structural auditor of the
plaintiff carried out the entire test and then come to the conclusion that
the suit building can be repair and falls under C2-A category.
8. On the other hand the structural auditor of the defendant /
landlord only carried out UPV test, Rebound Hammer Test, Half cell
potential test. So the test carried out by the auditor of the plaintiff is
detailed and TAC should have accepted the report submitted by the
auditor of the plaintiff, but, surprisingly the TAC has accepted the report
of the landlord and come of the conclusion that suit building needs to
be evacuated and demolish.
9. The advocate for the plaintiff further submitted that in the
same land the structural auditor of the defendant / landlord carried out
the structural audit of ‘B’ Wing building. The auditor of the landlord
also submitted that ‘B ‘ Wing building also falls under C-1 category but
the TAC arrived at the different conclusion that ‘B’ Wing building is
repairable and no need to evacuated, demolish immediately.
10. The advocate of the plaintiff therefore submitted that the
inspection report is not provided to the plaintiff. The TAC visit was also
not intimated to the plaintiffs. The TAC relied upon its own visual
inspection without disclosing its observation. Therefore the TAC report
and recommendation are not acceptable. The suit building is in good
condition and can be repair therefore, prayed for allowing relief prayed
in both Notice of Motion.
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11. The advocate of the defendant submitted that there are two
conflicting structural audit report. Therefore as per the guidelines
matter needs to be referred to the TAC. The report of the TAC is binding
on the parties. The TAC is a Technical Advisory Committee and its
conclusion can not be interfering by the court. The members of TAC not
only heard both structural auditor but also visited the suit property and
carried out the visual inspection and then come to the conclusion that
suit building is dangerous to live. The committee member unanimously
decided that the suit building structure is deteriorated and is in
dilapidated condition. The TAC has heard both the structural auditor,
they remain present in the meeting of TAC therefore there is no merit in
Notice of Motion. Hence prayed for rejection of Notice of Motion.
12. I have perused the structural audit report submitted by the
plaintiff. The structural auditor on perusal of the said report. The said
auditor come to the conclusion that the suit building falls under C2-A
category. The term C2-A means to be evacuated or partially demolish
requiring the major structural repair and the repairs should be carried
out within two months. So the auditor also suggest for partial and
evacuation from the suit property. On the other hand structural auditor
of the landlord stated in his report that the building falls under C-1
category. The structural auditor in his report had stated that concrete
badly deteriorated hence taking core test is not possible. The auditor
further stated in his report that it was not possible to extract concrete
sample since concrete is badly deteriorated so the structural auditor
gave explanation why he had not carried out over test chemical analysis
and cement aggregate ratio. It is undisputed fact that suit building is
more than fifty years old.
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13. I have gone through the TAC report, on perusal of the said
report it reveals that the members of the TAC committee gave hearing to
both the structural auditor. The structural consultant of defendant and
structural engineer of plaintiff both present in the meeting. Both audit
report considered by TAC members. The TAC members also visited the
suit property, sufficient opportunity given to the structural auditor of
the plaintiff to explain his report and then unanimously come to the
conclusion that suit structure is dilapidated in condition, and needs to
be vacated and demolish immediately. Therefore in my opinion, the TAC
has not violated any major guidelines. The TAC is an independent
committee having expert in the said field. Therefore the opinion of TAC
can not be a question on the ground that they have accepted the
structural audit report submitted by the landlord. Therefore I answer
point No.1 to 3 in negative and pass the following order.
O R D E R
1. Prayer clause (a) and (b) of Notice of Motion No.1029/2020 and
Notice of Motion No. 2492/2020 are rejected.
2. Notice of Motion No.1029/2020 and Notice of Motion 2492/2020
stands disposed off accordingly.
(S.D.Kulkarni)
Ad-hoc Judge,
City Civil Court,
Date : 11.10.2021 Gr. Mumbai.
Dictated on : 11.10.2021
Transcribed on : 12.10.2021
Signed by HHJ on: 13.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 5.00 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
11.10.2021
JUDGMENT/ORDER signed by
P.O. on
13.10.2021
JUDGMENT/ORDER uploaded
on
14.10.2021
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