Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft N/M 1 Dt. 19/09/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
DRAFT NOTICE OF MOTION
IN
LONG CAUSE SUIT NO. 1406 OF 2018
Mr. Bhupesh Chittaranjan Sen ].. Plaintiff.
V/s.
The Municipal Corporation of Greater
Mumbai & Anr. ].. Defendants
Shri Sachin Kadam Ld Advocate for the Plaintiff
Mrs. Kamble Ld Advocate for MMC/ Defendants
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(C.R.NO.08)
DATE : 18th September, 2018
ORAL ORDER
1. Plaintiff`s case in nutshell is as under.
The plaintiff is owner of the plot City Survey No. 810A/1 at 90
Feet Road, Navghar Village, Mulund(E), Mumbai 400 081 and the
building standing on the said plot known as Chittashree building
(hereinafter referred to as "suit building" for brevity )
2. The defendant no.1 corporation issued notice dated 5/3/2018
purported to be under Section 354 of The Municipal Corporation Act,
1888 (hereinafter referred to as "MMC Act" for brevity ). Thereafter, on
7/6/2018 the defendants corporation again issued notice under Section
354 of The MMC Act directing the plaintiff and other occupants to
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vacate the suit building immediately and threatened to cut off water
connection and electricity supply. However, on the same date the water
supply of the plaintiff was disconnected. This act of the defendant
corporation is contrary to the principles of natural justice, hence, till
final disposal of the suit the defendant corporation be directed to
forthwith restore the water connection in the suit building and the
defendant corporation be restrained from disconnecting electric supply
of the suit building.
3. Defendant corporation has filed affidavit of reply to the said
notice contending that the building is in dilapidated condition whereby
there is danger to the life of the occupants of the said building, the
defendant corporation received complaint from Corporator Ward No.
101 Smt. Sujata Rajesh Pathak on 14/05/2014 and also from Naru Roy
on 22/08/2016 informing that the suit building is in dilapidated
condition. It is further contended that after inspection, notice under
Section 353B of The MMC Act was issued to the plaintiff on
4/12/2015, the plaintiff submitted structural audit report on
11/8/2017 wherein it is specifically mentioned that the building falls
under category C1 (to be evacuated/demolished immediately) and
reconstruction of the building is advisable. It is also averred that after
receipt of this structural audit report the defendants issued notice to
each and every occupant of the said building on 25/9/2017 informing
the aforesaid status of the building and directed them to submit their
say/doubt/objection /suggestion within 15 days from the date of
receipt of the said letter, on 5/3/2018 notice under section 354 of The
MMC Act was issued to owner and occupiers and it was served on
8/3/2018, the plaintiff has not filed another structural audit report,
therefore, the matter need not be referred to TAC Committee. Lastly, it
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is submitted that the MCGM has followed all the directions given in
Writ Petition No. 1135/2014 and disconnected water supply after
issuance of notice dated 7/6/2018, the action initiated by the defendant
is for the safety of the residents of the said building as well as for the
safety of passers by also, the defendant has followed due process of law
and guidelines of the Hon`ble Bombay High Court and therefore notice
of motion be dismissed.
4. Considering the rival contentions and after going through the
pleadings, arguments advance by both the sides, following points arise
for my determination. I have recorded findings thereon alongwith the
reasons as stated below:
No. POINTS FINDINGS
1 Whether the act of the defendant
disconnecting water connection of the
suit building is illegal ?
In the negative
2 Whether plaintiff has made out three
ingredients required for granting
temporary injunction
In the negative
3 What Order ? Notice of motion is
dismissed.
REASONS
AS TO POINTS NO. 1 TO 3
5. Exchange of notices , structural audit report dated 11/8/2017 are
not in dispute. It is also not challenged by the plaintiff that the suit
building is in dilapidated condition. His grievance is that defendant
corporation has hastily and high handedly disconnected water supply
on the same date i.e on 7/6/2018 when notice under Section 354 of
the The MMC Act was issued by them. In support of his contention, he
has relied upon judgment of Hon`ble Bombay High Court in Manjul
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Darshan Building Tenants Welfare Association & Anr. Vs. Municipal
Corporation of Gr. Mumbai & Ors.[dated 21/12/2013 in AO
No.1377/2013] wherein the Hon`ble Bombay High Court observed
that the disconnection of water supply and electricity is totally unjust,
unacceptable and shows inhuman approach of local body. However, in
Municipal Corporation of Greater Mumbai Vs. State of Maharashtra
& Ors. [2014(6)Bom.C.R.860] Division bench of the Hon`ble Bombay
High Court has issued guidelines in paragraph no.9. Said guidelines are
applicable to highly dilapidated and dangerous buildings classified in
category C1 by the Corporation. In this matter, the suit building is
classified as C1. The guidelines prescribed for issuance of notice under
Section 354 of The MMC Act calling upon the tenants and occupants to
vacate the premises. The guide lines (f) and (g) are relevant for this
matter and they are reproduced as under :
(f) 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 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.
(g) 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.
These guide line issued by Hon`ble division bench in the year 2014
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provided for 7 days notice to the occupiers for vacating the building and
thereafter for steps to turn off the water supply, electric power and gas
to such building immediately before the removal of occupiers. In the
instant matter corporation issued notice under Section 354 of The MMC
Act on 5/3/2018. In that notice time of 30 days is given to the
occupants to vacate the suit building. The water connection is not
disconnected till 7/6/2018 when the second notice under Section 354 is
given . It means the period of around 90 days is given to the occupants
to comply with the notice under Section 354 of The MMC Act dated
5/3/2018. In view thereof, I do not find any merit in the submission
that the act of the defendant corporation is hasty act and against the
principles of natural justice. Therefore, the plaintiff has failed to make
out prima facie case and other two ingredients required for grant of
temporary injunction. As such notice of motion fails, hence order.
ORDER
1. Draft notice of motion is dismissed.
2. Costs in cause.
3. Draft notice of motion be registered for statistical purposes.
(C.V.MARATHE)
Judge,
Date: 18.09.2018. City Civil Court,
Gr. Bombay.
Dictated on : 18/09/2018
Transcribed on : 19/09/2018
Signed on : /09/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
21/09/2018 At 1.40 pm. MRS. R.R.HATE
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SHRI C.V.MARATHE
(C.R.NO.08)
Date of pronouncement of
Judgment/Order
19/09/2018
Judgment/Order signed by P.O. on 21/09/2018
Judgment/Order uploaded on 21/09/2018
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