Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2134-2018 1 St. No. 271-2018
MHCC010069082018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO 2134 of 2018
(CNR NO.MHCC01006908-2018)
IN
L.C. STAMP N0.271 OF 2018
1. Brahmajyoti B-Wing Tenants ]
Association (Proposed) and 2 Ors. ] ... Plaintiff
Versus
Municipal Corporation of Greater ]
Mumbai. ]...Defendant
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Appearances:-
Ld. Adv. Mr. Ashok Sarogi for the Plaintiff.
Ld. Adv. Mr.Abhijit Mangande defendant / MCGM.
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CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 19th September, 2020
O R A L O R D E R O N N O T I C E O F M O T I O N
1. This is a motion taken out by plaintiff for temporary
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injunction to restrain the defendant from taking action in view of notice
dated 15.01.2018 issued Under Section 354A of MMC Act.
2. Perused affidavit in reply-cum-written statement submitted
by defendants
Plaintiff's case is narrated as follows :
3. The plaintiff No.1 is an unregistered Association and is in
the process of registration and the Plaintiff No.2 and 3 are the
Chairman and the Secretary of the Plaintiff No.1. The suit property
known as “Brahmjyoti Building B” is consisting of ground floor plus two
upper floors and is having as many as 69 tenants within the said
building.
4. According to the plaintiffs there were 69 tenants residing in
the suit property. The owner Mirani family has started redevelopment of
the said property in phased wise manner and accordingly by utilizing
the services of the Municipal Corporation, have succeeded in getting
necessary notices under the provision of section 354 of BMC Act in
respect of buildings and thereafter under the guise of said notices, have
been successful in getting the building evicted and thereafter had
started construction of regular tower upon the said property.
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5. It is stated that, the purpose of carrying on construction of
the said tower, the said Mirani family had also used and prepared and
submitted forged and fabricated documents with office of the
Corporation. Accordingly, the office of the Corporation is hand in glove
with the said Mirani Family.
6. It is stated that, however, in the present case, instead of
making properly arrangements for the tenants, the said owners are
trying to utilize the services of the Defendants herein-above and in view
of thereof, all the tenants have formed their Association of the Plaintiff
No.1.
7. It is stated that, in continuation to the same, the said
owners had also engaged the services of the one M/s. System Structural
Consultants Pvt. Ltd., allegedly Structural Engineers. The Plaintiffs state
the that accordingly the owners of the said building, in collusion with
the said Structural Engineer obtained a certificate/report from the said
firm way back in the year 2007 or so mentioning therein that the
building in question is in dilapidated condition.
8. The Plaintiffs has objected to the reports of Structural Audit
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Report submitted by the landlord to the MCGM by objected by letter
dated 04/12/2017. The Plaintiffs have appointed independent
Structural Auditor by name M/s. N. S. Structural Consultant pvt. Ltd. to
carried out independent Structural audit in respect of said building. The
officers of persons from auditing the structure of the said property.
9. It is stated that, the building in question is very much in
repairable condition and despite the same, only because the landlord of
the said building in question intends to carry out redevelopment under
the guise of the notice under the provision of section 354 of BMC Act
and the tenants are sought to be evicted from the said premises.
10. It is therefore, prayed to issue temporary injunction order
restrain the defendant corporation from implementing the Notice dated
10/01/2018 issued Under Section 354 of BMC Act and also further
restrained from taking any action of evicting the members of the
plaintiffs and/or demolishing any part of the building in suit property.
11. Defendant corporation has strongly resisted the suit by
filing affidavit in reply submitted that prior Notice Under Section 557
given Under Section MMC Act, before filing this suit. Defendant
corporation is submitted that plaintiffs has not produce any name
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reservation certificate for the said proposed association. The impugned
notice is issued to the “Brahamjyoti Building-B wing” and they are
served with the same. Therefore, there is no question that impugned
notice is served on “Arunoday Building-A” which is no where related to
the “Brahmjyoti Building – B Wing” the notice was issued to the all
tenants. The Plaintiffs have no locus standee to file this in the
representative capacity.
12. On 30/01/2018 As per directions by Hon’ble High Court to
MCGM has file an affidavit regarding the compliance of the guildlines
envisaged in Writ Petition No.1135 of 2014. The defendant corporation
has received complaint from Shri. Sharad S. Jani, regarding informing
dilapidated condition of the building and to issue the notice Under
Section 353 (B) of MMC Act to the said building.
13. After inspection of the said building the defendant
corporation found that dilapidated condition of the said building and
accordingly notice issued Under Section 353-B of MMC Act is issued to
the owner of the said building. Which was received by the owner on
24/06/2017. After receiving Structural Audit Report dated 31/10/2017
the building was classified as C-1 category building and completing 58
years.
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14. Defendant corporation has issued a letter to each and every
tenants of the said building on 14/11/2017 regarding the Structural
Audit Report by giving fair opportunity of 15 days’ time against the
Structural Audit Report. The copy of said letter dated 14/11/2017
alongwith the acknowledgment is filed on record.
15. None of the tenants have filed any objection to the notice
dated 10/01/2018. The notice was also pasted in the said building
premises for the information to all residents. These plaintiffs have not
challenged the notice regarding the suit premises rather they have
challenged notice issue to the “Arunoday Building A wing.”
16. In view of aforesaid rival contention, following points arise
for determination and findings thereon are narrated as follows:
SR.NO. POINTS FINDINGS
1. Whether plaintiff prove a prima facie
case?
No.
2. Whether balance of convenience lies in
favour of plaintiff?
No.
3. Whether it will cause irreparable loss to
plaintiff, if injunction as claimed is
No.
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refused?
4. What order? N.M. is rejected
ARGUMENTS
17. Ld. Adv. Mr. Ashok Sarogi for plaintiffs has pithily
submitted that, the notice issued Under Section 354 of the MMC Act to
the suit premises is illegal. The Structural Audit Report filed by the
owner is not admitted by the plaintiffs and whereas, the Structural
Audit Report filed by the plaintiffs needs to be considered. The suit
building can be carried out the tenable repairs considered the Structural
Audit Report of plaintiffs and therefore, prayed for injunction against
the defendant corporation.
18. Ld. Adv. Mr. Abhijit Mangade pithily submitted that,
plaintiffs have challenged notice of “Arunoday Building A wing”. The
corporation never received Structural Audit Report of M/s. N. S.
Consultants Pvt. Ltd. Filed by the Plaintiffs “Tenants Association”. The
building is old more than 58 years which is need to be vacated,
demolish and pull down immediately.
REASONS FOR ORDER
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AS TO POINT NO.1 to 3:
19. After going through all the documents filed by the plaintiffs
alongwith the affidavit, it transpires that, plaintiffs come with the case
that the Structural Audit Report filed by the Structural Consultant
Private Limited is filed by the landlord with hand in gloves with the
corporation. The notice dated 10/01/2018 is illegal and therefore the
plaintiffs alongwith all the tenants has issued letter to the corporation
on 15/01/2018 Under Section 354 of MMC Act is invited notice at the
instance of landlord as per the say of the plaintiffs. I have gone through
the notice it transpires that further inspection of the building by the
corporation they found the dangerous condition of the building and
therefore, notice Under Section 353-B was issued on 22/06/2017 to the
landlord. Accordingly, the landlord carried out Structural Audit.
20. The Structural Audit Report of “Brahmjyoti Building B
wing, Mirani Nagar, T.J. Mirani Estate, transpires that,
“Classification of building – Category – C1 – Auditor's Final
conclusion – To be evacuated/demolished immediately”.
This report was also sent to all tenants on 14/11/2017. The permission
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to seek additional time to file reply ask by the plaintiffs with letter
dated 15/01/2018 and the question is whether the second Structural
Audit Report of M/s. N. S. Consultant Pvt. Ltd. is filed on record. As per
the plaintiffs they have send M/s. N. S. Consultant report. Whereas it is
denied by the defendant corporation. The officers of the defendant
corporation have filed the affidavit on 16/09/2020 which transpires
that the defendant has received one letter dated 31/10/2018 submitted
to the MCGM informing submition of Structural Audit Report. But this
letter without any Structural Audit Report. He has also relied on the
copy of defendant corporation letter dated 27/11/2018 informing that
no Structural Audit Report has been receive alongwith plaintiffs letter
dated 31/10/2018. The letter is supported by the postal
acknowledgment dated 27/11/2018. It is to be narrated that the BMC
officers also state on solemnly affirmation that, plaintiff has carried out
repairs presently and approached this Court with unclean hands. In
support he has filed photographs.
21. Roznama dated 12/02/2018 transpires that, the rejoinder
to draft Notice of Motion was filed by the advocate for the plaintiff but
no where reveals that the copy of Structural Audit report attached to
rejoinder was received by defendant corporation. It seems that, the copy
of Structural Audit Report of attached to copy of rejoinder of plaintiff is
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not Exhibited or taken on record as per roznama. It is surprising that,
the plaintiffs kept mum since last two year. As the ad-interim injunction
order is in favour of plaintiffs against the defendant corporation nobody
has raised existence of second Structural Audit Report filed on behalf of
the plaintiffs.
22. It is mandatory as per the guideline observed by the our
Hon’ble High Court in Writ Petition No.1135 of 2014 that if there are
contradictory Structural Audit Reports. The matter should be referred to
the Technical Advisory Committee (TAC) but in this case considered the
roznama and the letter issued by the defendant corporation specifically
transpires that no Structural Audit Reports were received by the
defendant corporation which were allegedly submitted by the plaintiffs
to the corporation. The plaintiff's act is suspicious as no efforts taken to
make complaint to court also for referring matter to TAC in last 2 years
if having second Structural Audit Report.
23. Therefore, I am of the opinion that the Structural Audit
Report of the M/s. N. S. Consultant Pvt. Ltd cannot be considered at this
stage. Considering the fact and the circumstances of the case of
dilapidated building.
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24. It is well settled that the discretionary powers have to be
used judiciously. The discretion of the court is exercised to grant a
temporary injunction only when the following requirements are made
out by the plaintiff:
(I) existence of a prima facia case as pleaded, necessitating
protection of plaintiff's rights by issue of a temporary
injunction;
(II) When the need for protection of plaintiff's rights is
compared with or weighed against the need for protection
of defendant's rights or likely infringement of defendant's
rights, the balance of convenience tilting in favour of
plaintiff; and
(iii) clear possibility of irreparable injury being caused to
plaintiff if the temporary injunction is not granted. In
addition, temporary injunction being an equitable relief,
the discretion to grant such relief will be exercised only
when the plaintiff's conduct is free from blame and he
approaches the court with clean hands.
25. In Seema Arshad Zaheer & Ors. V/s. Municipal Corporation
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of Greater Mumbai & Ors. (Special Leave Petition (civil) No. 9479 of
2005 dated 05/05/2006), in Para 30, it is observed as follows:
"It is true that in cases relating to orders for
demolition of buildings, irreparable loss may occur
if the structure is demolished even before trial, and
an opportunity to establish by evidence that the
structure was authorized and not illegal. In such
cases, where prima facie case is made out, the
balance of convenience automatically tilts in
favour of plaintiff and a temporary injunction will
be issued to preserve status quo. But where the
plaintiffs do not make out a prima facie case for
grant of an injunction and the documents
produced clearly show that the structures are
unauthorized, the court may not grant a temporary
injunction merely on the ground of sympathy or
hardship. To grant a temporary injunction, where
the structure is clearly unauthorized and the final
order passed by the Commissioner (of the
Corporation) after considering the entire material
directing demolition, is not shown to suffer from
any infirmity, would be to encourage and
perpetuate an illegality. We may refer to the
following observations of this Court in M.I.
Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999(6)
SCC 464] made in a different context :
"This Court in numerous decisions has held that no
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consideration should be shown to the builder or
any other person where construction is
unauthorized. This dicta is now almost bordering
the rule of law. Stress was laid by the appellant
and the prospective allottees of the shops to
exercise judicial discretion in moulding the relief.
Such a discretion cannot be exercised which
encourages illegality or perpetuates an illegality.
Unauthorized construction, if it is illegal and
cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be
guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in
accordance with law. Judges are not entitled to
exercise discretion wearing the robes of judicial
discretion and pass orders based solely on their
personal predilections and peculiar dispositions.
Judicial discretion wherever it is requires to be
exercised has to be in accordance with law and set
legal principles."
26. Considering aforesaid discussion, there is no balance of
convenience lies in favour of plaintiff. Plaintiff has abused the process
of law. There are no sufficient grounds to believe that photographs and
documents filed about Notice Structure shows the buildings needs to be
demolished and evacuated immediately.
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27. This observation of inspection note as well as Structural Report
transpires the condition of building in a dangerous position which needs
to be evacuated immediately and demolished for the safety of the all the
persons.
28. The highlights of the guidelines given by the Honourable division
bench of our Hon’ble High Court in Writ Petition number 1135 of 2014.
6 Section 354 of the said Act reads as under-
"Dangerous Structures
354 Removal of structures, etc., which are in ruins or
likely to fall. - (1) If it shall at any time appear to the
Commissioner that any structure (including under this
expression any building, wall or other structure and
anything affixed to or projecting from, any building,
wall or other structure) is in a ruinous conditions, or
likely to fall, or in 6 wpl1135-14-24.6.2014.sxw any
way dangerous to any person occupying, resorting to
or passing by such structure or any other structure or
place in the neighbourhood thereof, the Commissioner
may, by written notice, require the owner or occupier
of such structure to pull down, secure or repair such
structure, subject to the provisions of section 342, and
to prevent all cause of danger therefrom.
The Commissioner may also if he thinks fit, require
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the said owner or occupier, by the said notice, either
forthwith or before proceeding to pull down, secure or
repair the said structure, to set up a proper and
sufficient hoard or fence for the protection of passers
by and other persons, with a convenient platform and
handrail, if there be room enough for the same and
the Commissioner shall think the same desirable, to
serve as a footway for passengers outside of such
hoard or fence."
The Corporation will, before classifying a building
under category C-1, conduct their own independent
inspection and assessment with the help of the
Engineers of their Department and carry out a survey
of such building(s). The report of Structural Audit
shall be taken into account.
The Corporation shall consider the report of Structural
Engineer appointed by the owners and/or occupants
classifying the building as dilapidated and dangerous.
If the owners and/or the occupants bring conflicting
reports on the status of the building, the Corporation
shall refer the matter to Technical Advisory Committee
(TAC) under the Chairmanship of Director (ES&P)
with at least 3 other members, viz. City Engineer,
Chief Engineer (DP) and Chief Engineer (P&D).
The TAC shall:
i) Carry out a visual inspection of the state of the
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internal and external plaster, plumbing, drainage,
whether the doors and windows close properly,
whether steel in columns is exposed, whether there is
settlement in the foundation, deflections/ sagging,
major cracks in columns/beams, seepages/leakages,
staircase area and column condition, lift well walls,
U.G. tank, O.H. tank column condition, parapet at
terraces, chhajas, common areas, terrace water
proofing.
ii) Carry out specific tests like ultrasonic pulse velocity
test, rebound hammer test, half cell potential test,
carbonation depth test, core test, chemical analysis,
cement aggregate ratio as may be considered by TAC
as necessary.
If it is found after due notice that the building(s) is in
a highly dangerous or in dilapidated condition, then in
that event, the Corporation shall also make a list of
the names of the tenants and/or occupiers in the said
building and the carpet area of the premises in their
respective occupation and possession including the
floor at which the same has been occupied.
A copy of such list will be furnished to the landlord
and/or owner/builder of the said building. The
Corporation thereafter, will issue a notice under
section 354 of the said Act calling upon such tenants
and/or occupiers to vacate the said premises and if
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such notice under section 354 of the said Act has
already been issued, then in that event the
Corporation will give 7 days' notice to such
tenants/occupiers, copies whereof will be furnished to
the landlord for vacating the said building(s). If such
tenant and/or occupier is not available, the
Corporation shall affix such notice or Letter of
Evacuation on any part of such premises.
The Corporation shall then take steps to turn off the
water, supply, electric power and gas to such building
immediately before the removal of occupiers.
In the case of a municipal owned building(s), the
Corporation will issue Letter of Evacuation to every
person in occupation of the said building or part
thereof to vacate the said building along with their
belongings within the said period of 7 days from date
of issuance of such notice of Letter of Evacuation in
respect of municipal owned building(s). The notice
issued to such occupiers shall contain the name of the
occupier and the area in his occupation and also the
floor at which the premises are located. In case, if
such tenant and/or occupier is not available, the
Corporation shall affix such notice or Letter of
Evacuation on any part of such premises.
In the event, a person occupying such tenement
whether of the privately owned building(s) or
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building(s) owned by Corporation or any other
authority refuses to vacate the said premises, then the
police shall remove such person from the said
premises by using nominal force if required for the
same.
The police may use such force as is reasonably
necessary to remove such person and/or occupiers
and/or allottee along with their belongings from the
said premises, without causing damage to their
movables.
The Corporation may then demolish such dangerous
and dilapidated building.
The rights of the tenants and/or occupiers and/or
owners in respect of the said premises/property will
not be affected by virtue of evacuation or demolition
carried out by the Corporation of such dilapidated and
dangerous building in exercise of the power under
section 354 of the said Act or by virtue of the fact that
the Corporation is the owner of the premises. Such
tenant and/or occupier and/or owner will be entitled
to re-occupy the premises in respect of the same area
after the reconstruction of the building, subject to the
prevalent provisions of law pertaining to
redevelopment of the property or subject to any
arrangement or agreement arrived at by and between
such tenants and/or occupiers with the owner of the
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building.
	Any
	action
	of
evacuation/removal/demolition will not affect the
inter se rights of owners if there be more than one
owner or there is a dispute as to the title of the
property.
If there are any pending suits/proceedings and there
are any restraint orders passed, the Corporation shall
be free to apply for vacating and/or modifying such
orders, which applications shall be decided on its own
merits and in accordance with law.
In respect of the private owned buildings, if such
building falls in cessed category as contemplated
under the provisions of the Maharashtra Housing and
Area Development Act, 1976, then in that event, it
will be the duty of MHADA/ MBR&RB to provide
temporary alternate arrangement in a transit camp for
transit accommodation, in accordance with law, as
early as possible.
In case privately owned buildings are demolished by
the Corporation in exercise of power under Section
354 read with the present order, then the Corporation
shall, while granting sanction of redevelopment,
impose a condition in IOD (Intimation of Disapproval)
that no Commencement Certificate will be issued
under section 45 of the MRTP Act, 1966 unless and
until an Agreement either providing a Permanent
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Alternate Accommodation in a newly constructed
building or a settlement is arrived at by and between
the tenants and/or occupiers and the landlord in
respect of the said demolished premises, is filed with
the Corporation at the earliest.
It is reiterated that this order covers only C-1 category
buildings which are unsafe and declared as
dangerous, and the demolition, if any, shall be carried
out by the Corporation in accordance with law and in
no manner pre-empts/curtails the rights of any
person/s from objecting and/or approaching the Court
and if a case is made out to pass appropriate orders on
its own merits and in accordance with law. It is also
clarified that during the interregnum, in appropriate
cases, the Corporation would be at liberty to take all
safety measures, including propping up, etc., of the
buildings/premises and enclose/fence the surrounding
area in accordance with law.
29. Considering the above ratio of W.P. No.1135 of 2014 seems
that the defendant corporation has complied of the circular dated 25th
May, 2018 as per point wise 1.02, 1.03, 1.04 (Tenants occupants
structural audit report) 1.05, 1.07, 1.08 (issuance of notice under 354
MMC act to pull down the building). Therefore, it is crystal clear that
the corporation has complied in view of the direction of bounded
Hon’ble High Court Writ Petition number 1135 of 2014 and the MCGM
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circular dated 25th May, 2018 the compliance is covered by the
corporation till point number 1.08.
30. As far as regarding point number 1.09, it is bounden duty
of an owner to submit Area Statement in writing including the names of
the occupants of the building from his record the area in occupation
and location of premises in occupation position of each of the respective
occupiers or tenants as the case may be alongwith the supporting
document the list submitted by the owner shall be certified by the
assistant commissioner.
31. In failure the officer of the corporation shall make a list of
the name of the tenants /occupiers in the said building and the carpet
area of the premises in there is their respective occupation and position
including the floor at which the same has been occupied and copy shall
be given to the tenants occupiers. Honours the inspection report
alongwith the inventory report photographs, video shooting shall be
kept on record the corporation can take help of the approved plans and
then certified the area as per approved plan in absence of approved
plan the existing area in occupation of tenants occupants shall be
certified by the municipal officer and it will be final.
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32. On this point the corporation has not complied as a
document file on record that is bound and duty of the corporation to
prepare the Area Statement and certified it if it is not complied by the
owner. The failure on the part of the owner can be subject to the action
taken by the corporation as per law but the Area Statement is
mandatory for the rights of the tenants’ occupiers in the building.
33. The corporation has acted bonafidely and lastly issued
notice under 354 for the evacuation of suit premises being in a
dangerous position for the safety of tenant/ occupants and plaintiff also.
I am of the concrete opinion that the plaintiffs have not come with clean
hands. They cannot avoid responsibility to coordinate with the
corporation for safe evacuation of a tenant's/ occupier from the suit
building. It is bounden duty of the plaintiffs to protect the rights of the
tenants and occupiers which doesn't seems that it is compiled in this
case.
34. It is settled principle of law that one who seek equity shall
stand on his own legs therefore the relief of temporary injunction
cannot be granted in these circumstances of the case in favour of the
plaintiffs. Accordingly, I pass the following order.
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ORDER
1) The prayers (a) and (b)notice of motion is rejected being devoid
of merit.
2) The defendant corporation would be at liberty to take all safety
measures, including propping up, at etc. Of the building
/premises and enclose/fence the surrounding area in accordance
with law.
3) The defendant corporation is at liberty to take effective steps as
per the guideline given by the Hon’ble High Court in Writ Petition
number 1135 of 2014 and shall act in accordance with law.
4) The inter se rights of the tenants/ occupiers /owners will not be
affected by virtue of evacuation order or demolition carried out
by the corporation of such dilapidated and dangerous building in
excess of the power under section 354 of the MMC Act.
5) N.M. No.2134 of 2018 is disposed of accordingly.
(U.J.More)
Judge,
City Civil & Sessions Court,
Mumbai.
Date : 19/09/2020.
1. Dictated on : 19/09/2020
2. Transcribed on : 19/09/2020
3. Signed on : 19/09/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/09/2020. at 5:00 p.m. Mr.G.R.Suryawanshi
Name of the Judge (with Court Room no.) HHJ Shri U.J.More.
(Court Room No.08).
Date of Pronouncement of Judgment/Order 19/09/2020.
Judgment/Order signed by P.O. on 19/09/2020.
Judgment/Order uploaded on 21/09/2020.
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