Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 229518 in Stamp 745518 : 1 : Dt. 04.08.2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2295 OF 2018
(CNR NO. MHCC010074092018)
IN
STAMP NO. 7455 OF 2018
1. Pravinchandra Meghji Nisar
2. Meghji Malshi Nisar
3. Jayantilal Anandji Rita
4. Shah Nenshi Kanji & Co.
5. Shah Nenshi Kanji & Co. ...Plaintiffs
Versus
1. Municipal Corporation Of Greater Mumbai
2. The Assistant Engineer
Building & Factories, N Ward
3. Raghuwanshi Ventures ...Defendants
CORAM : HER HONOUR JUDGE
SANJASHREE J. GHARAT
(C.R. NO.08)
DATE : 04.08.2018.
Ld. Adv. Mr. Ashish Gatagat for Plaintiff.
Ld. Adv. Mr. Giri for Defendant nos. 1 & 2 / BMC.
Ld. Adv. Mr. Ansari for defendant no. 3.
ORAL ORDER
The present Notice of Motion is taken out by the plaintiff
for adinterim injunction restraining the defendants from acting upon
the notice issued u/s. 354 of MMC Act. It is the contention of the
plaintiff that the suit structure consist a building (ground + Four) needs
certain repairs. However, the defendant / corporation wrongly
classified the same as C1 and issued notice for vacating the same for
immediate demolition. It is further contention of the plaintiff that the
defendant corporation in collusion with the owner issued the notice
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u/s. 354 of MMC Act.
2. It is further submitted that though suit building is 60 years
old the structure is strong and stable. Therefore, there is no reason for
demolition of the suit structure. The defendant / Corporation issued
Notice dated 29.06.2013. The said Notice is challenged by the plaintiff
before the Hon'ble High Court by filing Writ Petition No. 39 of 2014 and
interim stay came to be granted in favour of plaintiff. Meanwhile,
plaintiff as well as defendants / carried out structural audit. However
the report of structural audit were conflicting. Therefore, in view of the
directions given in Writ Petition No. 39 of 2014 the matter was referred
to Technical Advisory Committee (TAC). The Technical Advisory
Committee (TAC) filed their report on 08.05.2018 and classified the
suit building in C1 category and opined that it needs immediate
demolition of entire building.
3. It is pointed out by plaintiff that initially the notice came to
be issued on 19.07.2011 calling upon to carry out certain repairs.
However, the defendant no. 3 purposely not carried out any repairs.
Thereafter, the defendant / corporation issued notice dated 29.06.2013.
In the said notice it is observed that 'portion' of the suit building is in
dilapidated condition and needs immediate demolition. However, the
impugned notice came to be issued for demolition of entire structure.
Therefore it is the grievance of the plaintiff that the building can be
repaired or portion of the suit building needs demolition. Therefore,
the Notice issued by Defendant / Corporation for demolition of entire
structure is not legal and proper. It is further pointed out that while
matter was referred to the Technical Advisory Committee even the
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Engineer appointed by the Defendant / corporation classified the
building as to C2A category. Therefore, the conclusion drawn by the
Technical Advisory Committee classifying the building as C1 is not
proper.
4. The defendant no. 3 filed reply to the present application.
It is submitted that the building is more than 65 years old and in a
dilapidated condition. The defendant no. 3 further claims that suit
building is unsafe for human habitation and is required to be
demolished immediately for reconstructing a new building in its place.
It is further pointed out the suit building consists 24 tenements
comprising of 16 shops and 8 rooms. It is further submitted that out
total 24 premises all other tenements have been vacated except the
shop no. 9 and 10 occupied by the plaintiff no. 3 and shop no. 8
occupied by one R.M. Kanojia. It is submitted that R.M. Kanojia not
challenged the order of Technical Advisory Committee. It is further
contention of defendant no. 3 that all the persons except plaintiff no. 3
and 8 vacated the suit building. Therefore, it shows that suit building is
not in habitable condition. The defendant no. 3 further pointed out
that all the occupiers of Edwin Villa which is adjacent to the suit
structure have vacated their respective premises for redevelopment in
the year 2013. It is the specific contention of defendant no. 3 that
plaintiff is deliberately obstructing the redevelopment so as to bring a
pressure upon defendant no. 3 for fulfilling their illegal and malafide
demands. It is pointed that Technical Advisory Committee filed a report
and classified the suit structure as C1. Therefore it needs immediate
demolition to save the life of people not only occupying portion of the
suit building but also passerby as the premises occupied by defendant
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nos. 3 and 8 are commercial premises.
5. The defendant further submitted that he is ready to give
the premises equivalent to the area in possession of respective tenant.
Therefore no prejudice will be caused to the plaintiff. On the other
hand, if suit building is not demolished then irreparable loss will be
caused to the Defendant No. 3 as he has to compensate for loss of other.
It is submitted by filing undertaking the plaintiff can be held responsible
for individual loss or injury. However, Defendant No. 3 has to
compensate each and every aggrieved person. Therefore balance of
convenience is in favour of defendant no. 3.
6. The Defendant no. 1 and 2 not filed say. The Adv. Giri for
Corporation argued the matter at length.
7. It is submitted by the defendant no. 1 and 2 that the
interim order passed in Writ Petition No. 39 of 2014 filed by the
plaintiff came to an end after the said Writ Petition is finally disposed
of. It is further submitted that the TAC classified the suit building as
C1 and therefore it needs immediate demolition. It is further pointed
out by the Corporation that they are duty bound to accept the report of
Technical Advisory Committee. Therefore corporation strongly objected
to grant ad interim prayer in favour of the plaintiff.
8. Heard learned counsel appearing on behalf of the parties.
9. Considering the rival submissions made at bar following
Points arise for my determination. I answer the same together with
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reasons thereon as under :
POINTS FINDINGS
1. Whether Plaintiff made out prima facie
case ?
In the Negative.
2. Whether balance of convenience lies in
favour of Plaintiff ?
Does not Survive.
3. To whom irreparable loss will be caused ? Does not Survive.
REASONS
As to Point Nos. 1 to 3 :
10. Before going through the pleadings made on behalf of both
the parties it is necessary to bring on record that the defendant /
corporation issued notice u/s. 354 of MMC Act. The said notice is
challenged by the plaintiffs in Writ Petition 39 of 2014. While deciding
Writ Petition 39 of 2014 conflicting report of structural audit were
brought on record by the plaintiff and defendant. Therefore, Hon'ble
Bombay High Court directed to refer the matter to Technical Advisory
Committee. Accordingly, the matter was referred to Technical Advisory
Committee. The Technical Advisory Committee submitted the report on
08.05.2018. In view of the directions given in the above Writ Petition
after receipt of report of Technical Advisory Committee the Municipal
Corporation shall forward the copy of the report to the parties to the
petition. It is specific contention of the plaintiff that they received the
report of TAC on 15.05.2018. While disposing said Writ Petition
directions were given that ad interim relief granted will remain
continued for a period of four weeks from the date on which report of
TAC is supplied to the petitioner. Therefore protection is available to
plaintiff for four weeks from 15.05.2018.
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11. The matter was referred to the TAC in view of the
directions given in Writ Petition 1135 of 2014. In the said judgment
elaborate order is passed pointing out the procedure to be followed in
case of conflict in structural audit report. In view of the directions
given in the said judgment in case TAC classifies the building in the C1
category and opines that the suit structure is highly dangerous or in
dilapidated condition then in that event the corporation shall also make
the list of names of the tenants and / or occupiers in the said building
mentioning the carpet area in possession of the respective tenant. In
the present matter the Corporation complied the said part.
12. In Para 'F' of the judgment it is clarified that after receipt of
the TAC Report the Corporation has to issue notice u/s. 354 of MMC
Act. However, in case the notice is already issued then corporation has
to give seven days notice to tenants / occupiers for vacating the
building. Plaintiff claims that the said Notice of 7 days is not given to
the occupiers / tenants for vacating their respective premises. The
Report of TAC was supplied.
13. The TAC Report dated 08.05.2018 is given to the owner,
occupier and respective Structural Audit or directing to vacate the suit
building. The said report is received by the Plaintiff on 15.05.2018. By
the said Notice / letter owner / occupier was directed to vacate the suit
structure. However no period of 7 days is mentioned. But it is a matter
of record that no action is initiated within 7 days. The reason for not
mentioning any reason appears to me is the directions / protection
given in Writ Petition No. 39/14.
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14. In view of the order passed in Writ Petition No. 39/14 the
protection was given for the four weeks from the date of
communication of order. Therefore no specific period is mentioned in
the Notice issued by the TAC. However facts remains that Notice is
issued.
15. It is grievance of Plaintiff that the protection available to
the Plaintiff is for four weeks i.e. till 12.06.2018. However the Plaintiff
pointed out that before 12.06.2018 the Corporation initiated action of
disconnection of Electric Supply .
16. As stated earlier 7 days Notice is to be given after
communication of Order. The TAC Report is communicated on
15.05.2018 and letter issued to Reliance Infrastructure on 06.06.2018
i.e. after expiry of 3 weeks. So far as protection of four weeks is
concerned though letter is dated 06.06.2018 the Reliance Infrastructure
was directed to disconnect Electricity on 13.06.2018 i.e. after expiry of
Four weeks. Therefore the Corporation followed proper procedure
before issuance of Notice.
17. Per contra it is submitted on behalf of Defendant No. 3
instead of giving importance to the technicalities the safety of people
has to be taken into consideration. It is pointed that it is the grievance
of the Plaintiffs that Defendant No. 3 purchased the suit property with
sole intention of redevelopment. However, there is nothing wrong in
purchasing the property for redevelopment. It is pointed out that for
redevelopment of the property it is not necessary that building should
be in dilapidated condition. I found force in the submission made by
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the learned advocate appearing on behalf of Defendant No. 3. In view
of Amendment in Maharashtra Rent Control Act, the owner of the
property can seek eviction and possession for redevelopment. The
intention of legislation for amendment in Section 16 of Maharashtra
Rent Control Act is to encourage redevelopment.
18. It is also pointed out that except Plaintiff rest of the tenants
vacated their respective premises. The learned advocate appearing on
behalf of Defendant no. 3 gave the chart in his affidavit in reply with
details of name of tenants. As per the said Chart out of 25 tenants 13
tenants vacated and handed over possession and 9 tenants vacated but
yet not handed over possession. Moreover only 3 shop premises are
occupied out of which one of the tenant namely Ramsevak Kanojia not
challenged the order of TAC. Therefore, it is submitted that majority of
tenants handed over the possession and only Plaintiffs are disputing
TAC Report. However the individual tenant can challenge the action to
protect his right. However he has to point out the action initiated by
Corporation is illegal. The learned advocate appearing on behalf of the
Defendant no. 3 attracted my attention towards the letter issued by the
Plaintiff no. 3 to the Defendant / Corporation in the year 2010 for
repair of the suit building in which he has stated that suit building
needs urgent repairs. He narrated the condition of building as
"
vkEgh l/;k jkgr vlysY;k bekjrhph voLFkk gh Qkjp
fcdV vlwu bekjr ttZjhr >kysyh vkgs- bekjrhP;k fHkarhuk
tkxkstkxh rMs xsysys vkgsr o ikolkps ik.kh R;ke/kwu ?kjkr IkMrs
v'kk voLFksr ?kjkr jkg.ks gs vo?kM vkgs- rkRdkG tj dk
bekjrhph nq#Lrh >kyh ukgh rj R;kiklwu HkfZOk";kr thohrgkuh
fdaok foRrgkuh gh gksow 'kdrs-"
19. In the said letter plaintiff no. 3 alleged that there is every
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possibility of danger to life in the said building. However, as on today
the Plaintiff came with the case that suit building is in good condition.
By the said letter the Plaintiff no. 3 pointed out that suit building needs
urgent repairs in the year 2010. Admittedly, no repair was carried out
till today. Therefore, the condition of the suit building can not be
improved. It is further submitted on Defendant no. 3 that suit building
consist residential as well as commercial premises, however all the
residential premises are vacated. In support of the said contention the
advocate appearing on behalf of Defendant no. 3 attracted my
attention towards Para 1 of the Plaint in which Plaintiffs themselves
have mentioned that they are occupying commercial premises. It is
submitted that tenants of suit building are very well aware about the
condition of building therefore, they have vacated their residential
premises. Moreover in the commercial premises the plaintiff can run
business through his agent / employee. Therefore, his life is not at
danger and therefore, he is opposing the demolition. It is pointed out
that the majority of tenants vacated the suit building with the hope of
redevelopment. It is further submitted suit building in 60 years old and
in a dilapidated condition. So far age of the building is concerned, it is
admitted by the Plaintiff.
20. In reply to the contention made by the Plaintiff as regards
to the Structural Audit Report it is pointed out that Plaintiff is giving
much emphasis on Structural Audit Report of Defendant / Corporation
certifying that suit building is C2A category. However, the learned
Advocate appearing on behalf of Defendant no. 3 pointed out the Retro
fitters Consulting Engineers appointed by the Defendant / Corporation
in their Structural Audit Report in the Introduction Column mentioned
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that “Retrofitters Consulting Engineers is thankful to the tenants of
Denis Villa for having trust and giving the work of preparation of
Structural Audit Report to assess the condition of the Building.”
Therefore it is pointed out that though the said Structural Audit Report
is submitted by the Defendant / Corporation it is the Structural Audit
Report of the tenants. The Corporation not commented on the said
point. However, at the time of argument the Learned Advocate of
Plaintiff produced the letter which is alleged to be issued by the
Assistant Commissioner to Retro Fitters informing that they have
engaged them by a way of Lottery System.
21. The learned advocate appearing on behalf of Defendant
No. 3 pointed out even the observations made in the Structural Audit
Report of the Corporation which is relied by the Plaintiff. It is pointed
out that the Retorfitters who carried out the structural Audit is aware
that partial evacuation is not possible. Therefore in Proforma B he had
mentioned that structure is vacant.
22. It is further pointed out that Structural Audit is not exact
science. Therefore, there is scope of speculations. Hence, it is not
possible to comment the exact day and time when the suit structure
will pose any trouble therefore, safety of the people be given more
importance rather giving importance to technicalities. It is submitted
that if any mishap happens resulting into endangering life and limb of
humans, then it can not be compensated in terms of money. Moreover,
the TAC Report is final and can not be challenged.
23. In view of the directions given in the judgment cited supra
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after compliance of the directions given in Para 'E' and 'F' the
corporation has to take steps to turn of the water supply, electric power
and gas. The plaintiff produced on record the letter issued by Reliance
Infrastructure dated 06.06.2018 intimating disconnection of Electric
supply on 13.06.2018. The Reliance Infrastructure Ltd. also enclosed
the letter issued by defendant / corporation with prayer to disconnect
the electric supply on 13.06.2018. In view of the directions given by
Hon'ble High Court in Writ Petition 39 of 2014 ad interim relief is
continued for a period of four weeks from the date of service of TAC
Report. The Corporation not initiated any action before expiry of four
weeks.
24. Considering the pleadings and documents produced on
record the expert evidence is produced on record i.e. Report of the TAC
shows that suit building is classified as C1. Therefore the Corporation
issued the impugned Notice. The Report of the TAC Committee is final.
Moreover majority of the tenants already vacated the suit building.
Therefore even balance of convenience not lies in favour of Plaintiff.
The area in possession of respective tenant is already noted. The
Corporation followed due process of law. The Plaintiff failed to make
out primafacie case.
25. The learned Counsel appearing on behalf of Defendant
no. 2 placed reliance on observations made by Hon'ble Bombay High
Court in case of Baumont Foods Private Ltd. And Ors. Vs. Municipal
Corporation in which in Para 33 of the Judgment the Hon'ble
Bombay High Court observed that “The building in question is
situated in a busy / crowded locality of South Bombay. Considering
the ensuing monsoon season efforts have to be taken to see that no
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danger to public / passerby is caused. The public safety in the
matter would be of paramount consideration. This is one more
reason why the relief as claimed by the Appellant cannot be
granted.”
26. In the present matter also the safety of the public needs to
be taken into consideration. Therefore, Plaintiff failed to make out
primafacie case for grant of adinterim injunction. The balance of
convenience also not lies in favour of Plaintiff. Moreover, no
irreparable loss will be caused to the Plaintiff. It is submitted by the
Plaintiff that suit shop is the only source of income, however, the
impugned notice was issued in the year 2013. Therefore, ample
opportunity was available to the Plaintiff to search for alternate
accommodation. Hence, no irreparable loss will be cause to the
Plaintiff. Hence, I record my findings at Point No. 1 in Negative and
Point Nos. 2 and 3 as does not survive. As a result I proceed to pass
following Order :
ORDER
1. Notice of Motion No. 2295 of 2018 stands rejected.
2. Adinterim relief granted earlier stands vacated.
(SANJASHREE J. GHARAT)
Judge
City Civil Court
Date : 04.08.2018. Gr. Mumbai.
Typed on : 04.08.2018.
Signed on : 10.08.2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.08.2018 at 2.50 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SMT. SANJASHREE J. GHARAT
(C.R. NO.08)
Date of Pronouncement of
JUDGMENT/ ORDER
04.08.2018
JUDGMENT/ORDER signed by P.O.
on
10.08.2018
JUDGMENT/ORDER uploaded on 10.08.2018
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