Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 2300-18 in Suit No. 1524-18
CNR NO.MHCC01 00744318
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2300 OF 2018
IN
L.C. SUIT NO. 1524 OF 2018
Ms. Ratnaprabha Sitaram Shetye ....Plaintiff
V/s.
The Municipal Corporation of Greater Mumbai & Anr. ..... Defendants
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 8th August, 2019
Appearance:
Ld. Adv. Mr. U.G. Jaguste for the plaintiff.
Ld. Adv. Smt. Rawade for defendant/MCGM.
ORDER
1. The notice of motion was heard and order dated 03.07.2018
was passed, which is as follows:
Order: a) Adinterim relief in terms of prayer clause (a) is granted.
b) Mr. Amol Shetgiri 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.
c) 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
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2 NM 2300-18 in Suit No. 1524-18
for its costs and consequences.
d) It is made clear that this order will not prevent the defendant from
taking an appropriate action permissible under the law against the
plaintiff and the suit premises by following due process of law.
2. Heard Learned Advocate for the plaintiff and the Learned
Advocate for the defendant corporation.
The plaintiff had prayed for declaration and the injunction of the
four notices issued by the defendant corporation in respect of the suit
premises, i.e. Room Nos. 1 to 7 on 3rd and 4th Floor, Bldg. No. 284, Narsi
Natha Street, Mandvi Estate, Mumbai03.
The prayers in the suit are as follows:
a) This Hon'ble Court may be pleased to declare four Notices
issued by the Defendants in respect of the Suit Pemises i.e. Room Nos. 1
to 7 on 3rd and 4th Floor of Building No. 284, Narsi Natha Street, Mandvi
Estate, Mumbai03 viz. (i) Notice bearing outward No.
SA.AA.BI/25795/PRA.A. (Malmatta) dated 28.06.2017 U/s. 105B of
the MMC Act at Exh. ''N'' hereinabove, (ii) Notice informing allotment of
alternate accommodation at Mahul Chembur bearing Outward No.
ACB/5960/AO (Estate) dt. 28.06.2017 at Exh. ''O'', (iii) Notice dated
18.05.2018 without any outward number and bearing reference of
Notice No. SA.AA.BI/25795/PRA.A (Malmatta) dated 28.06.2017 at
Exh. ''S'' and (iv) ''JAHIR SUCHANA'' at Exh. ''U'' affixed on the wall of
the Suit Building informing disconnection of Water and Electricity
supply of the Suit Building on 21st June, 2018 at 11.00 a.m., as illegal,
badinlaw and not binding upon the Plaintiff and quash the same;
b) Pending the hearing and final disposal of the suit this Hon'ble
Court may be pleased to direct the Defendants, their servants, agents
representatives and / or any other person/s claiming through or under
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3 NM 2300-18 in Suit No. 1524-18
them not to act upon the four notices issued by the Defendants in
respect of the Suit Premises i.e. Room Nos. 1 to 7 on 3rd and 4th Floor of
Building No. 284, Narsi Natha Street, Mandvi Estate, Mumbai03, viz.
(i) Notice bearing outward No. SA.AA.BI/25795/PRA.A. (Malmatta)
dated 28.06.2017 U/s. 105B of the MMC Act at Exh. ''N'' hereinabove
and (ii) Notice informing allotment of alternate accommodation at
Mahul Chembur bearing Outward No. ACB/5960/AO (Estate) dt.
28.06.2017 at Exh. ''O'', (iii) Notice dated 18.05.2018 without any
outward number and bearing reference of Notice No.
SA.AA.BI/25795/PRA.A (Malmatta) dated 28.06.2017 at Exh. ''S'' and
(iv) ''JAHIR SUCHANA'' at Exh. ''U'' affixed on the wall of the Suit
Building informing disconnection of Water and Electricity supply of the
Suit Building on 21st June, 2018 at 11.00 a.m.,
3. It is an admitted fact that the Technical Advisory Committee
(TAC) in its meeting dated 15.05.2014, had come to the conclusion that
building is classified as C2 (A) category i.e. Major Structural Repairs are
proposed, immediate propping as shown in the enclosed propping plan
and evacuation of entire building prior to commencement of repair
work or prior to 6 months of the submission of this report, whichever is
earliest is proposed. Further, decision about repairs was to be taken is
depending on the basis of cost to benefit ratio.
The plaintiff seems to have carried out the structural audit. It
was certified that the suit building was structurally safe, sound and
stable with future life of 8 years. The strengthening of the structure
work was to be carried out and the building was advised to be used for
habitable purpose and no single room should be used for godown.
In the year 2016, the structural audit was carried by the
defendant corporation. The plaintiff again carried out structural audit
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4 NM 2300-18 in Suit No. 1524-18
through Mr. V.J. Joshi. The plaintiff was directed time and again to
vacate the suit premises. This Court in the order of notice of motion
had granted interim relief and directed to appoint the independent
agency for ascertaining structural stability of the building. Accordingly,
Mr. Amol Shetgiri was appointed to carry out the structural stability of
the building. He has opined that the building had outlived its economic
life. The structure needs to be restored so as to make it in satisfactory
condition. At some locations, immediate repairs to be undertaken on
top priority, as mentioned above which are strongly recommended.
He further opined the said building should be repaired as
mentioned above with the additional loading which needs to be
removed without delay. The building should be audited after three
years even post repairs. While carrying out the Repair works,
evacuation is not felt necessary.
4. On consideration of recent report of Mr. Amol Shetgiri, it points
out that the building had outlived. The life of structure needs to be
restored and should be repair immediately. It is pointed out that
evacuation is not necessary. The report of TAC shows that evacuation is
necessary and report of Amol Shetgiri shows that evacuation is not
necessary. It was for Amol Shetgiri and Associates to satisfactorily
explain as to why the building need not be evacuated for the repairs.
The Court is not an expert regarding the condition of the building
inspected in the report of TAC. The TAC provides the opportunity to
the corporation and the plaintiff to putforth its case. The findings of
the TAC cannot be dislodged unless it is arbitrary and malafide.
The prayer of the plaintiff in the suit, is only for declaration and
perpetual injunction. Assuming for a while the suit is decreed, the
plaintiff cannot be permitted to continue with injunction without there
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5 NM 2300-18 in Suit No. 1524-18
being prayer for repairs. On continuation of injunction without repairs
the condition of the building would remain the same. Admittedly it is
the finding in the structural audit the building need urgent repairs. In
the absence of prayers for repair the plaintiff is not entitled for
temporary injunction.
Considering the fact that the building needs for urgent repairs
and the report of TAC shows that the building be evacuated for urgent
repairs. The report of the TAC, a committee of experts would prevail
over the individual report. The plaintiff may be ready to reside in the
building at their own costs and consequences. The Court cannot permit
such action.
The notice of motion, therefore, cannot be entertained and
deserves to be dismissed. In the result, following order is passed.
ORDER
The Notice of Motion No. 2300/2018 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 08.08.2019 City Civil Court, Mumbai.
Dictated on : 08.08.2019
Transcribed on : 09.08.2019
Signed by HHJ on : 09.08.2019
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6 NM 2300-18 in Suit No. 1524-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.08.2019 at 12.15 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
08.08.2019
JUDGMENT/ORDER signed by
P.O. on
09.08.2019
JUDGMENT/ORDER uploaded
on
13.08.2019
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