Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 2566-19 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
GREATER BOMBAY
NOTICE OF MOTION NO. 2566 OF 2019
(CNR NO. MHCC01-007076-2019)
in
L.C. SUIT NO. 1940 OF 2019
Mr. Zulfikar Ali Shaikh
....Plaintiff
Versus
The MCGM .
... Defendants
CORAM: H.H.JUDGE & ASST.
SESSIONS JUDGE,
SHRI. K. P. KSHIRSAGAR,
(C.R. No.05).
DATE : 17th JUNE, 2021.
Appearance:
-
Shri. Rajguru; Ld Advocate for plaintiff.
Shri. Vyavahare; Ld Advocate for defendant/MCGM.
ORAL ORDER
1) Plaintiff has taken out this NM for temporary injunction for
restraining defendant from implementing, enforcing or acting upon
notice u/s. 354 of Mumbai Municipal Corporation Act bearing no. E/DO
2E/ 211/354 MMC Act/ E-77 N-01 dt. 14/05/2019 which is at Exh. H to
plaint, in respect of structure i.e. Gala no. A , in three parts on Ground
Floor and on attached building consisting Ground + 3 upper floors, both
forming part of “B” Wing of Sutterwala Chawl bearing CS NO. 1/1965,
43/45 Moreland Road, Mumbai – 400 008 ( For the sake of brevity and
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convenience above structure is hereinafter referred as suit structure and
above notice is hereinafter reffered as impugned notice).
2) Plaintiff's case in brief is that he is tenant/occupant of suit
structure. One Adamali Sutterwala was landlord of Sutterwala Chawl
and he expired in 1991. Defendant called upon him to pay municipal
assessment taxes. Suit structure is not in dilapidated or ruinous condition
and it is not likely to fall & it is not dangerous. In L.C. Suit no.
2464/2010 Hon'ble apex court by its order dt. 26/10/2018 directed
plaintiff and defendant to maintain status-quo as on 26/10/2018 in
respect of suit structure. Defendant has not followed guidelines before
issuing impugned notice nor served said notice to the plaintiff. Defendant
also did not recognize his occupation of suit structure and not followed
procedure of law. Therefore, impugned notice is illegal, void and not
enforceable. Prima facie case and balance of convenience lies in his
favour and he will suffer irreparable loss if the Notice of Motion is not
made absolute.
3) Defendant resisted the NM by filling affidavit in
reply/Written Statement. Defendant denied all the adverse allegation
aginst it. It is the defence of the defendant that suit is liable to be
dismissed for want of pre-suit notice u/s. 527 of MMC Act and this court
has no jurisdiction to try suit as per section 515 A of MMC Act. After
inspection of Notice structure as per procedure notice under section 353
B of MMC Act was given to the owner/occupier Shri A. K. Sutterwala.
Thereafter, said noticee submitted structural audit report of suit structure
prepared by Z.Z. Consultants to it on 15/03/2019. After following due
procedure of Law Exective Engineer approved issuence of notice u/s 354
MMC Act and issued impugned notice. Entire structure is in dilapidated
condition. It is not fit for human dwelling and declared in C-1 catagory. It
may collapse at any time. Present suit and L.C. Suit no. 2464-10 are
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NM No. 2566-19 3
totally different. Rights of tenants/occupants are protected u/s. 354 (5)
of MMC Act. Hence NM be dismissed.
4) Heard Ld. Adv. for plaintiff and defendant. The substance of
the argument of Ld Advocate for plaintiff is that notice u/s. 353 B and
354 was never served upon him. Defendant did not follow the guidelines
for declaring private structure in C-1 category and not followed proper
procedure. The Structural Audit Report submitted by him alongwith his
rejoinder reveals that suit structure comes within C-3 category. Technical
Advisory Committee had not carried independant structural audit and
therefore its report cannot be relied. As per the guidelines his name
ought to have been shown in the list of occupants. Therefore, Ld. Adv. for
plaintiff submitted that Notice of Motion be allowed. Court has gone
through the written notes of arguments submitted by plaintiff. Plaintiff
kept his reliance on the documents filed alongwith plaint & copy of
circular of MCGM dtd.01/01/2018.
5) Ld. Adv. for defendant argued that notice u/s. 353 B and
354 may be served either upon owner/occupier. Suit Structure and
structure in dispute in the matter pending before Hon'ble Supreme Court
is different. Remedy to initiate contempt proceding against defendant is
availble to the plaintiff. None of the other occupant in the suit building
challeged the impugned notice. Report of Technical Advisory Committee,
categorised suit structure in C-1 category and it is not challenged by the
plaintiff before Hon'ble High Court. Therefore, that report is final and
conclusive. Plaintiff did not comply requirement of section 527 of MMC
Act regarding pre-suit notice. Suit Structure and building may collapse at
any time. Hence, Notice of Motion be dismissed. Court has gone through
the written notes of arguments submitted by defendant. Defendant kept
his reliance on the following documents:-
a) Online print
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NM No. 2566-19 4
b) Notice dtd.8/3/19.
c) Structural audit report
d) letter for approval of C1 category
e) Notice dtd. 14/5/19.
f) TAC report.
6) Perused the Notice of Motion, affidavit in support of it,
Affidavit in reply, rejoinder, plaint and record.
7) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under.
Points Decision
(i) Whether primafacie case lies in favour of
plaintiff ?
No
(ii) Whether balance of convenience lies in
favour of plaintiff ?
No
(iii)Whether plaintiff will suffer irreparable
loss if Notice of Motion is not allowed ?
No
(iv) What Order ? As per final order.
REASONS
Point Nos. 1 to 3:-
8) As all these points are inter related with eachother they are
decided simultaneously in order to avoid repetition of facts.
9) Plaintiff has filed this suit for declaration that impugned
notice is illegal, void & not binding upon him & for perpetual injunction.
As per the plaintiff suit structure is not in dilapidated or ruinous
condition. On the other hand as per the defendant the suit structure is in
dilapidated & ruinous condition which requires immediate demolition
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NM No. 2566-19 5
and therefore impugned notice is issued to plaintiff. Therefore the
question which requires consideration is whether prima facie suit
structure is in dilapidated or ruinous condition which requires immediate
demolition. The above question requires technical evaluation.
10) In the present matter admittedly the noticee to notice
u/s.353(B) of MMC Act submitted the structural audit report of suit
structure which was carried out by M/s. Z.Z. Consultants & which
concluded that the suit structure comes within C-1 category. The
structural audit report carried out by plaintiff through Mahimtura
Consultants Pvt. Ltd. categorised suit structure in C-3 category. In view of
contradictory structural audit reports admittedly the matter was referred
to Technical Advisory Committte. The perusal of report of Technical
Advisory Committee reveals that it placed suit structure in C-1 category
(as a building that is dilapided & ruinous and requires immediate
demolition). From the matter on record it appears that the plaintiff has
not challenged the above report of Technical Advisory Committee.
Therefore, the report of TAC is final. Moreover, from the perusal of report
prima facie it appears that subjective satisfaction of TAC is based on
considerable material. As such prima facie there appears no substance in
the contention of plaintiff that TAC report needs to be set aside. From the
TAC report prima facie it is clear that suit structure is in C category.
Therefore, there appears no substance in the contention of the plaintiff
that suit structure is not in dilapidated, ruinous & dangerous condition.
11) Plaintiff challenged the impugned notice also on the ground
of non service of notice u/s.353 (B) & 354 of MMC Act which were
issued by the defendant to A.A. Sutterwala the owner of suit structure.
However, from the perusal of Section 353(B) & 354 of MMC Act it is
clear that suit notice can be served either to owner or occupant of the
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structure. Therefore, there appears no substance in the contention of the
plaintiff that the above notice ought to have been served upon him.
12) As per the guidelines No.1.08 for declaring private building
in C-1 category at Ex.I it appears that only copy of notice u/s.354 of
MMC Act is to be given to the tenants/occupants. Non serving of copy
may amount to procedural lapse only. It does not seriously affect
substantial right of the plaintiff. Therefore, in the opinion of this court
non serving of copy of notice u/s. 354 of MMC Act to the plaintiff prima
facie does not viliate the impugned notice.
13) The cause of action for earlier suit & present suit prima facie
appears to be different. From the sketch plan Ex.A & order of Hon’ble
Apex Court at Ex.G prima facie it appears that suit structure in the
present matter & above referred LC suit are different. Therefore, prima
facie there appears no substance in the contention of the plaintiff that
the said order Ex.G pertains to the suit structure. Moreover, remedy to
initiate proceeding for violation of the order Ex.G is available to the
plaintiff.
14) Section 354 (5) of MMC Act provides that action taken
under this Section shall not affect interese rights of the owners, tenants
or occupants. Therefore, procedural lapse on the part of the defendant if
any about making list of owners, tenants & occupants in the suit building
before issuing notice u/s.354 also does not affect substantial rights of the
plaintiff.
15) From the matter on record above discussion prima facie it
appears that impugned notice is not unreasonable and the decision of the
defendant to issue impugned notice prima facie does not appear to be
utterly perverse or in exess of authority or illegal.
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16) Moreover, object of MMC Act is to regulate the building
construction for safety, health & well being of public at a large. Section
354 is intended to protect the life of those who are occupants of
dilapidated & dangerous structure & also who may pass by said structure
& adjacent dwellers. Both the sections 353(B) & 354 are in the public
interest. The principles summarized by the Hon’ble Bombay High Court
on the subject in the judgment of
Inderjit Singh Sethi & Ors vs. MCGM &
Ors, 925-OWSP880-2018-j.doc relied by the defendant supported the
submissions of defendant.
17) From the matter on record & above discussion prima facie it
appears that there is no bonafide contest between the parties & there is
no clear question which requires to be tried. No irreparable or serious
mischief is likely to be caused to the plaintiff. On the other hand, it
appears that the suit structure is dangerous not only for the occupant of
the same but also for the passers by & neighbouring dwellers.
Considering TAC report the possibility of suit structure may fall at any
time cannot be ruled out. Nothing is precious than human life.
18) From the matter on record & above discussion this court
comes to the conclusion that prima facie case and balance of
convenience does not lie in favour of the plaintiff & plaintiff will not
suffer any irreparable loss if the notice of motion is not allowed.
Therefore, point Nos. 2 & 3 are answered in negative.
As to point No.4:-
19) In view of negative findings as to point Nos. 1 to 3 &
considering the facts & circumstances of the case the Notice of Motion
deserves to be dismissed. Hence, court proceeds to pass the following
order:-
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NM No. 2566-19 8
ORDER
1) The Notice of Motion No.2566/19 is dismissed with costs.
2) The Notice of Motion is disposed off accordingly.
Date:17/6/2021. (K.P. Kshirsagar)
Judge
C.R.No.5
City Civil Court
Gr. Bombay
Dictated on : 17/6/2021.
Checked on : 18/6/2021.
Signed by HHJ on : 18/6/2021.
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NM No. 2566-19 9
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/6/2021 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
17/6/2021.
JUDGMENT/ORDER signed by P.O.
on
18/6/2021.
JUDGMENT/ORDER uploaded on 18/6/2021.
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