Order 1

Order Details: Notice of Motion
Pdf Text: :1:Order on NM No.230018 in S.C. Suit No.152418
CNR No. MHCC010073182018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.2300 OF 2018
in
L.C. SUIT NO.1524 OF 2018
Ratnaprabha Sitaram Shetye ]...Plaintiff.
Versus
MCGM & another. ]..Defendant.
Mr. Uday Jagushte, advocate for the Plaintiff.
Mr. Rawade advocate for Defendant.
CORAM : M.S. Deshpande, Judge
(Court Room no.5)
DATED : 3rd July, 2018
O R D E R
1. Heard respective advocates. The plaintiff, a tenant in the
suit premises consisting of seven rooms on the 3rd and 4th floor of the
suit building located at 284 Narsi Mehta Street, Mandvi Estate, Mumbai
has prayed for adinterim relief that the defendant corporation be
restrained from acting upon four notices letters dated 28/06/2017,
28/06/2017, 18/05/2018 and a public notice pasted on the suit
building on 21/06/2018. By these notices the plaintiff is directed to
vacate the suit premises and accept the alternate accommodation. By
the last public notice it was informed that if plaintiffs fails to vacate,
water and electricity supply will be disconnected.
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2. It is primafacie undisputed that the suit building has been
acquired by the defendant corporation in pursuance of an action for
recovery of municipal taxes from the original landlord in or about 1965.
Since prior to that the plaintiff and other tenants were occupying the
suit building. On 26/07/1988, the plaintiff was directed to vacate the
suit premises on the ground that the suit building had become
dilapidated and dangerous. Thereafter, the tenants in 1990 carried out
repairs of the building on their own accord. On 26/06/1998 the
defendant again issued a notice to vacate the suit premises on the
ground that the suit building became dangerous.
3. On 08/06/2011, similar notice was issued with a direction
that if plaintiff fails to vacate, electricity and water supply would be cut
off and the plantiff would be forcibally removed from the suit premises.
The plaintiff instituted L.C.S. no. 1358 of 2011 in respect of the said
notice and also filed N.M. No. 1656 of 2011.
4. During the pendancy of that suit meeting of Technical
Advisory Committee (TAC) was held on 15/05/2014, in which it was
resolved that the suit building can be repaired by carrying out major
repairs as suggested by the consultant.
5. The plaintiff and other occupants appointed M/s. P. N.
Powale and Associates for structural audit of the suit building. The suit
building was inspected on 01/06/2015. It was certified that the suit
building was structurally safe, sound and stable with future life of 8
years , as the work of strengthening of the structure was carried out. It
was further observed that the material necessary for surviving purpose
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be kept in the suit building and it should be used for habitable purpose
and no single room should be used for godown purpose.
6. The ld. Predecessor of this Court by order dated
03/10/2015 passed in N.M. no. 1656/2011 in L.C.S.no. 1358 of 2011
held that the defendant did not inspect and conduct structural audit
and thus not in position to show that the suit premises were in
dilapidated condition and required major repairs by vacating the
building and thus, granted interim injunction to the effect that no action
should be taken against the plaintiff on the basis of notice dated
08/06/2011. Thereafter, the defendant by letter dated 28/12/2015
cancelled the said notice dated 08/06/2011 and consequently, the suit
was came to be disposed off.
7. Thereafter, the defendant by public notice announced that
if the suit building is not vacated, on 16/03/2016 the water and
electricity supply will be disconnected. The plaintiff and other
occupants appointed Mr. V. J. Joshi for structural audit. He filed the
report to the effect that as the entire building is strengthened, it will
have future life of 10 years if additional minor repairs as suggested by
him are carried out. According to him the structure was safe, sound
stable and needed no major repairs.
8. The Ld. Predecessor of this Court by order dated
07/04/2016 while disposing of the L.C. Suit no. 1358 of 2018 directed
the defendant to carry out structural audit and take action by following
due process of law. Thereafter, the defendant appointed Mr. Shashank
Mehandale for structural audit. He inspected the suit building in July,
2016. In his report he has pointed out that history of previous repair
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work was not shared with him. However, he observed that the condition
of the suit building is extremely critical and classified it in C2(A)
category by suggesting major structural repairs and immediate
propping. Accordingly, the work of propping was done. However, it was
observed that the work of repair would be about 55 % of the
reconstruction costs.
9. Thereafter, on 28/06/2017 the defendant issued a notice to
the plaintiff to vacate the suit premises on the ground that it is
dangerous for residence, with a further direction that if plaintiff fails to
vacate the suit premises, an action u/s. 105B of the MMC Act will be
taken. By another letter dated 28/06/2017 the defendant informed the
plaintiff that room no. 507, building no. 71, Mahul Chembur, Evershine
Construction is allotted to her.
10. Mr. V. J. Joshi again inspected the suit building on
03/07/2017 and observed that as the repair work was done two years
ago, now the suit building requires minor repairs without vacating the
tenants. He classified the suit building in C3 category. All these facts
were putforth by the plaintiff through her advocate before the
corporation with a request to allow the tenants to carry out minor
repairs. Again by another letter it was requested to give hearing to the
plaintiff. The same are not responded by the Defendant Corporation.
11. By letter dated 18/05/2018 defendant again directed
plaintiff to vacate the suit building immediately as it is dangerous.
Plaintiff replied the same on 06/06/2018. Thereafter, a public notice
was pasted on the suit building directing that if, the plaintiff and the
other occupants failed to vacate the suit building by 21/06/2018
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electricity and water supply will be cut off.
12. The defendant filed reply to this motion to the effect that in
L.C. Suit no. 1358 of 2011 order of injunction restraining the defendant
from taking any action was granted till disposal of that suit, and upon
disposal of said suit on 07.04.2016 there is no order of injunction. Mr.
Shashank Mehandale has carried out the structural audit and classified
the suit building as C3 category. The TAC recommended immediate
evacuation of the residence of the suit building for urgent repairs.
According to defendants it followed due process of law. Reconstruction
of the building is not possible as there is no side margin etc. The
plaintiff is given an alternate accommodation, however she is not
vacating the suit premises.
13. Considering the rival submission it appears that the
defendant has canceled the earlier notice dated 08.06.2011. There are
two reports of structural auditors Mr. Powale and Mr. Joshi in support
of the plaintiff's case, whereas the report of Mr. Mehandale supports the
defendant's contention that the suit building is dangerous. The TAC
recommended urgent repairs, however the defendant does not wiosh to
repair the suit building on the ground that it is zero margin building
and the costs for repairs would be about 55% of reconstruction cost.
However the defendant is continuing with issuance of notices to vacate
the suit premises/suit building and threats to cut off essential supplies
like water and electricity, and that too, without taking proper action
contemplated under section 105B of M.M.C. Act. The defendant has
not taken action under section 354 of M.M.C. Act even.
14. Considering the aforesaid facts and circumstances, it is
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necessary to grant adinterim relief and also to appoint an independent
structural auditor to inspect the structural stability of the suit building
and report. Advocate for plaintiff submitted that plaintiff will bear and
pay fees for structural audit. It is also necessary to inform the plaintiff
to take care of her person and belongings. The action taken by the
defendant Corporation is not prima facie legal. The suit premises and
the suit building are “corporation premises” within the meaning of
Section 105 A(b) of the M.M.C. Act and therefore recourse of an action
contemplated under section 105 B of M.M.C. Act if available may be
taken against the plaintiff, who is in possession of the suit premises for
years together since the time of her father and prima facie she can not
be evicted without following due process of law, else she would face
irreparable loss and injury, Thus, the following order is passed :
ORDER
1. Adinterim relief in terms of prayer clause (a) is granted.
2. Mr. Amol Shetgeri and Associates are appointed for structural
audit with direction to report about structural stability of the suit
building returnable on 17.07.2018. The plaintiff to bear and pay
the fees of structural auditor.
3. The plaintiff to take care of life, limb and property of herself and
her family members. The plaintiff to file undertaking on affidavit
that in case of any mishap, the defendant corporation will be not
responsible for its costs and consequences.
4. It is made clear that this order will not prevent the defendant
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from taking an appropriate action permissible under the law
against the plaintiff and the suit premises by following due
process of law.
(M.S. Deshpande)
Adhoc Judge
City Civil Court
Direct typed on : 03.07.2018
Checked on : 03.07.2018
Signed by HHJ on : 04.07.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.07.2018 at 5.30 p.m. Mrs. Rupali S.Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI M. S. Deshpande (Court
Room No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
03.07.2018
JUDGEMENT/ORDER signed by
P.O. on
04.07.2018
JUDGEMENT/ORDER uploaded on 04.07.2018
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