Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 271519 IN ST 783419
CNR NO.MHCC01-007460-2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.2715 OF 2019
IN
STAMP NO.7834 OF 2019
1. MAHFOOZ MANZOOR ALI SHAIKH & ORS. ]...Plaintiffs.
Versus
1. The Municipal Corporation for ]
Greater Mumbai & Anr. ]...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 7th August, 2019.
Mr. Pratap Singh, Advocate for plaintiffs.
Ms. Mhatre, Advocate for MCGM/Defendant.
ORAL ORDER
1. Heard finally with consent.
2. By this Notice of Motion the plaintiffs have sought temporary
injunction to restrain defendants from acting upon the impugned Notice
under Section 354A of the MMC Act and the consequent speaking Order
dated 3.7.2019.
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3. In brief plaintiffs’ case is that, they are some of the tenants of
building known as Ayesha Manzil comprising of ground plus two floors
situated opposite Wahid Hotel, Pipe Road, Kurla bearing House No.177
(hereinafter to be referred as “Suit Premises”). The suit premises is
constructed in the year 1962. It exists since prior to the year 1962. The
plaintiffs have produced rent receipts and various other documents to
indicate that they are residing in the suit premises. It is duly assessed
since prior to the datum line. In view of the directions in Writ Petition
Lodging No.1173/2014 issued by the Hon'ble Bombay High Court, the
structural audit was directed to be carried out. Therefore, the defendant
has issued a notice under Section 353B of the MMC Act. The Landlord
got the building examined and submitted the structural audit report. The
structural Auditor had declared the building in C2A category opining
that it needs to be vacated and repaired. Therefore, defendant has
granted permission to repair the building vide letter dated 27.8.2018.
There is no unauthorized construction carried out. However, the
landlord lodged false complaint. Consequently, defendant issued a
Notice under Section 354A dated 30.5.2019. A speaking order dated
03/07/2019 is passed by the defendant. However, no notice is served
upon the plaintiffs. On 5.7.2019, the plaintiffs came to know about the
proposed demolition of the suit premises. The suit premises is being
repaired in accordance with the permission granted by the defendant
itself. However, the landlord purposely did not reply the Notice under
Section 354A as she is interested in getting the suit premises demolished.
The landlord has carried out essential repairs. The complainant
however, have lodged false complaint. The Notice under Section 351
dated 2.2.2019 alleging unauthorized structure of ground plus 3 floors at
House No.38, Ramzan Gani Building is illegal.
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4. Defendant has opposed the Notice of Motion contending that it is
false and baseless. The defendant had issued a Notice under Section
353B dated 17.4.2018. The owner has submitted a structural Audit
report in which the building was declared as C2A category. The
defendant published said report on the Notice Board of suit premises.
The tenants, vide letter dated 4.8.2018 accepted the structural report
and requested to grant permission for repairs. The defendant granted
permission vide letter dated 27.8.2018. One of the tenants, Shaikh
Farha Ameer Basha filed Writ Petition Lodging No.3424 of 2018 claiming
that two upper floors of the building are demolished. On inspection
dated 24.12.2018 it was found that the rear side of ground plus two
structure is demolished, the front side shop was still occupied and repairs
of structure were going on under the grab of permission for repairs
granted to carry out repairs strictly in accordance with suggestions in
structural audit report and under supervision of the structural Engineer.
The officer prepared inspection report and took photographs
respectively. The plaintiffs thus violated the conditions in permission for
repairs granted on 27.8.2018. The defendant therefore, revoked repairs
permission. The owner refused to accept revocation letter. Again on
30.5.2019 defendant visited the suit site and found on going erection of
structure using I Section and intermediate ladi coba, ladi slab at first
floor and sipores blocks as wall. The inspection report was prepared and
photographs were taken obtained. In view of it the Notice under Section
354A was issued. The Notice was not complied and therefore, a
Speaking Order dated 3.7.2019 was passed. The plaintiffs have come
with a false case.
5. Following points arise for determination against which findings are
recorded for the reasons to follow:
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Sr. No. POINTS FINDINGS
1. Does plaintiffs prove a prima facie case
in his favour?
In the negative.
2. Whether the balance of convenience lies
in plaintiffs’ favour?
In the negative.
3. Whether the plaintiffs will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What order ? Notice of motion is
dismissed.
REASONS
As to point Nos.1 to 4.
6. Admitted position is that, considering the condition of the building
a Notice under Section 353B was issued by the defendant. In view of
the said Notice the structural audit of entire building was carried out.
The Structural Auditor has reported that the building needs to be
evacuated and major repairs are to be carried out. He had classified the
building in C2A category. Consequently, the Structural Audit Report
was forwarded to the owner and tenants. The tenants have accepted the
Structural Audit Report and have requested for the permission to carry
out the repairs. The defendant has vide letter dated 27.8.2018 has
directed the owner, occupier and the tenants to vacate the building
immediately and to carry out the repairs under Supervision of registered
Structural Engineer and as suggested by Structural Engineer under his
supervision. It was also directed to submit the fresh Structural Audit
Report after completion of repairs.
7. In view of this admitted position, the controversy is narrowed
down only to the aspect whether the building is being repaired as
permitted by the defendant Corporation or in breach of it. The
Structural Audit Report produced on record by the plaintiffs nowhere
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suggests demolition of the walls of the building or the upper floors of the
building.
8. The plaintiffs have produced on record a Certificate by Mr.
Niranjan Patra certifying that existing Ground + upper Floors are being
repaired as suggested in the Structural Audit Report to External Facade
of the Ground + Upper floors. It is also certified by him that said repairs
are under progress as permitted by the defendant M.C.G.M.. Later his
Affidavit at Exh.5 with similar statements is filed by the plaintiffs.
9. The defendants have produced on record documents with list
Exh.4. The Order in Writ Petition Lodging No.3424 of 2018 dated
29.10.2018 is produced. The plaintiffs did not dispute that said Writ
Petition is filed by one of the tenants of Ayesha Manzil that is building in
question. In said order the Hon'ble Bombay High Court has noted the
grievance of the Petitioner that though the building is categorized as C2
A, the upper two floors have been demolished.
10. Since the filing of said Writ Petition by one of the tenants is
undisputed, it is prima facie evident that the two upper floors of the
building in question have been demolished.
11. The inspection Reports dated 24.12.2018 and 14.1.2019 further
reveal that the rear portion of the entire building is demolished. The
photographs produced by the defendant dated 14.1.2019 and 28.5.2019
clearly reveal that only ground floor structure is existing and upper two
floors have been demolished. These photographs are not disputed by the
plaintiffs. On the contrary relying upon these photographs, the Advocate
for plaintiffs submitted that the repairs are being carried out as
suggested by the defendant Corporation. However, looking to the facts
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revealed in the photographs it is not at all acceptable that the repairs are
being carried out much less as directed by the defendant.
12. In view of these photographs, it is crystal clear that the plaintiffs
have gone much beyond suggested repairs and have demolished two
upper floors, an action which was never suggested or directed by the
defendant. This appears to be an effort on the part of plaintiffs and
probably their landlord, to erect two new floors on the existing ground
floor by using altogether different material which was not used for
construction of the original building. The plaintiffs have suppressed the
demolition of two upper floors from this Court and thus have played
fraud upon this Court. They are in blatant breach of the principles of
equity. In such circumstances, it is not at all acceptable that the plaintiffs
are carrying out the repairs suggested or directed by the defendant.
13. It also needs to be mentioned that the plaint pleadings are also
contradictory wherein once the plaintiffs claimed that the building is
constructed in the year 1962 and on the other hand they claimed that it
is existing since prior to the year 1962. They have also pleaded about a
Notice under Section 351 issued to some another building which is not at
all the subject matter of the suit.
14. Above circumstances, do indicate that the plaintiffs have not at all
made out a prima facie case. The balance of convenience can never lie in
favour of the plaintiffs as they are acting in breach of the repair
permission as well as the principles of equity. They cannot make out a
case of irreparable loss in such a situation.
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15. In view of above discussion the Certificate and the Affidavit
submitted by Mr. Niranjan Patra claiming that the repairs as suggested
by the defendant are being carried out also are unacceptable and prima
facie appear untrue. The fate of said action on his part, will be
considered at the relevant stage in the suit. In the light of above
discussion, I record negative findings on point Nos.1 to 3 and in response
to point No.4 pass following Order:
ORDER
1. Notice of Motion 2715 of 2019 is dismissed.
2. Costs in cause.
Sd/
(A.N. MARE)
Judge,
07/08/2019 City Civil Court, Mumbai.
Dictated On : 07.08.2019
Transcribed on : 08.08.2019
HHJ Signed on : 09.08.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF
THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
09/08/19 03.00 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE
(CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
07.08.2019
JUDGEMENT /ORDER signed by
P.O. on
09.08.2019
JUDGEMENT /ORDER uploaded
on
09.08.2019
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