Interim Order 1

Order Details: Notice of Motion
Pdf Text: - 1 - N/m 2691/18 in 1714/18
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 2691 OF 2018
IN
L.C. SUIT NO. 1714 OF 2018
Pravin Kunj and Sharad Villa Association .. Plaintiff
Versus
Municipal Corporation of Gr. Mumbai .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 28th September, 2018
Mr. Upadhyay, ld. adv. for plaintiff.
Ms. Tondvalkar, ld. adv. for defendant/BMC.
O R D E R
1. This N/m is moved by plaintiff praying for temporary injunction
restraining defendant, their agents, servants and any person claiming
through them or under them from taking any action in any manner
against suit property in pursuance to the notice bearing No.
ACS/BF/108/35402/ 2015. Further plaintiff has prayed for temporary
injunction restraining defendants from disconnecting water supply of
suit premises and to reconnect electric supply in the suit building.
Affidavit is filed in support of this motion in which it is mentioned that
above referred notice issued under sec. 354 of MMC Act by defendants
for eviction and demolition of suit premises i.e. Pravin Kunj and Sharad
Villa situated at Sardar Pratap Marg, Bhandup (West), Mumbai is
illegal, in operative, bad in law and not binding upon plaintiff. Further
it is mentioned in the affidavit filed in support of motion that if
temporary injunction as prayed will not be granted, plaintiff will suffer
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from grave and irreparable loss, harm, injury which cannot be
compensated in terms of money. On the contrary, no loss or prejudice
will be caused to defendant if equitable reliefs prayed for will be
granted. In affidavit it is mentioned that balance of convenience lies in
favour of plaintiff. In plaint it is mentioned that plaintiff is member of
registered Association of tenants of Pravin Kunj and Sharad Villa. Said
Association is having registration No. MH 526/2016. As such plaintiff
and other members of said Association are tenants in Pravin Kunj and
Sharad Villa described above. Officers of defendants have issued notice
under sec. 354 of MMC Act. Said notice is issued at the instance of
landlord. Further said notice is filed without complying guidelines
given in the order of Writ Petition No. 1135/2014. After receiving
letter dated 06.04.2015 meeting was held between tenants and landlord
on 25.04.2015 and in said meeting it was agreed that redevelopment of
building shall be proceeded and meanwhile landlord should carry out
some repairs in the building. However instead of carrying out repairing
landlord started pressurising members of tenants Association and
landlord issued letter dated 15.05.2015 to tenants under the guise of
notice under sec. 354 of MMC Act. It is contended that members of
tenants Association appointed Structural Engineer who has carried out
inspection of suit premises on 30.05.2015. Further members of tenants
Association are ready for repairing building at their own costs. Inspite
of it officers of BMC visited suit premises on 02.06.2015, measured suit
premises and gave threats to occupants for disconnection of electric
supply and water supply of suit premises. It is alleged that landlord is
not ready to repair the building he is also not ready to provide alternate
accommodation in lieu of existing tenements. Therefore members of
tenants Association replied notice under sec. 354 of MMC Act and
submitted structural report of building. Those members requested for
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sending the matter to Technical Advisory Committee as per guidelines
referred in above referred Writ Petition. It is contended that in the
structural report submitted by plaintiff repairing of suit premises is
recommended. However, Technical Advisory Committee report is
contradictory.
2. In support of plaint, plaintiff has filed various documents
including disputed notice under sec. 354 of MMC Act, structural audit
report of suit premises prepared by Concord Consulting Engineers and
Architects. Said report shows that structural Engineer has advised to
get building painted which will take care of small hairline cracks, minor
porosity etc. Further said report shows that minor cracks are noticed
on the top and bottom of chhajja and waterproofing treatment on the
top of chhajja is recommended. In said report it is mentioned that
cracks are noticed on parapet and wall of building. Further some
cracks and leakages are shown on the terrace slab. Therefore crack
filling treatment and chemical coating required on terrace floor is
recommended. Structural Engineer also noticed minor cracks on beam
of staircase, head room and above RCC grill area. Further cracks/
bulging are noticed at ground floor and first floor, seepage are noticed
on wall at all places. Therefore repairing and minimum structural
strengthening is recommended. It is observed that cracks are noticed
on external side all overhead water room, rest on staircase headroom,
terrace slab. The leakages are noticed on bottom portion of building.
3. Officers of defendants have filed their reply to the N/m and
written statement of suit and denied all contentions raised in the plaint
and N/m. It is contended that mandatory notice under sec. 527 of
MMC Act is not given prior to filing of suit. Further no cause of action is
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shown in the plaint hence suit and N/m is not maintainable. It is
contended that suit building is comprised of ground plus 3 floors. At
the time of usual round inspection by Jr. Enginner Varkute, it was found
that external plaster of suit premises is pilled of and having major
cracks at many places. Structural members like beems columns and
ceiling of slabs are exposed. Further internal plaster is pilled off at
many places, growth of rank vegetation is also observed. After the
report of Jr. Enginner, Assistant Engineer of S Ward came to conclusion
that suit premises is in dilapidated condition and it is necessary to pull
down. Hence notice under sec. 354 of MMC Act dated 23.05.2013
came to be issued and was served upon landlord of suit premises.
Inspite of issuing said notice landlord failed to comply notice within
stipulated time of 30 days hence officers of defendant sent letter dated
08.07.2013. It is contended that building under reference was
deteriorated and it has become dangerous to occupants hence notice
under sec. 354 of MMC Act dated 26.05.2014 was sent to landlord and
he was directed to carry out structural audit and to submit report.
Thereafter landlord has appointed Structural Engineer Mr Amzed Khan
of M/s Concept Engineers and submitted report of said structural
Engineer in which it is mentioned that building under reference is in
dilapidated condition and structurally unsafe. On 07.07.2014 landlord
again submitted report alongwith N.D. test report carried out by M/s
B.J. Mehta, Architectural and structural consultant Pvt Ltd wherein it
was stated that overall condition of concrete reinforcement is severely
deteriorated. Said report was submitted before Deputy Chief Engineer
and on the basis of said report suit premises was jointly inspected on
07.07.2014. Thereafter by letter dated 15.07.2014 Deputy Chief
Engineer informed Assistant Engineer about observations made by
Executive Engineer S Ward to be correct. In said letter it was informed
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that building under reference was necessary to be vacated and propping
should be done. Accordingly building was again inspected by officers of
defendant on 11.02.2015 and report about dilapidated condition of the
building was submitted to Executive Engineer S ward for approval and
for issuing notice under sec. 354 of MMC Act to pull down the building.
Thereafter Executive Engineer issued notice dated 16.04.2015 to legal
heirs of landlords of Pravin Kunj and Sharad Villa. Again suit site was
inspected and it was observed that landlord has not complied notice.
That time defendant received letters of tenants. It is contended that
directions of the Hon'ble High Court given in Writ Petition No. 1135 of
2014 was followed and water and electric supply of the building was
disconnected. However water supply and electric connection of one of
the tenant namely Sunithi Chandrakant Rao was reconnected.
4. It is mentioned in the reply that two different reports were
submitted by Structural Engineers of landlords and tenants. Hence
Assistant Engineer of S ward submitted report dated 06.10.2015 o TAC
for further action and accordingly both structural engineers were
informed to submit their report in proforma B to TAC. However
Architect appointed by landlord failed to submit report in proforma B
hence penalty of Rs. 25,000/ was also imposed on said structural
engineer. It is mentioned in the report that as per reports filed by
different structural auditors building is unsafe for occupation and hence
Court has directed to refer conflicting structural report to TAC.
Therefore matter was referred to TAC and TAC has conducted meeting
with structure Engineers Mr. Dholkiya and Rahul Mehta and TAC has
filed its report. On the basis of said report defendant has prayed to
dismiss N/m.
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5. I have heard plaintiff's adv. Mr. Upadhyay and defendant's
adv. Ms. Tondvalkar at length. Plaintiff's adv. Mr. Upadhyay has
strongly argued that report of TAC cannot considered because ALO who
is representing BMC before this Court has signed TAC report. It is
argued on behalf of plaintiff that building in question is not in
dilapidated condition but at the instance of landlord BMC has prepared
TAC report and issued notice to plaintiff. It is argued that notice issued
by defendant is contrary to the provisions of law. Hence injunction is
necessary to be granted against defendant. In support of his arguments
adv. Mr. Upadhyay placed reliance on order passed by the Hon'ble High
Court in Writ Petition No. 1080 of 2015 with Notice of Motion No. 394
of 2017 in which it is observed that " we make it clear that in view of
the policy guidelines which are placed on record, it is not necessary for
us to continue interim order dated 23.06.2014 as the Municipal
Corporation is bound to follow its own policy guidelines."
6. After referring said case law plaintiff's adv. argued that
defendant/BMC has not placed on record before this Court its own
policy guidelines hence injunction is necessary to be granted.
7. Defendant's adv. Ms. Tondvalkar argued that when there
are two conflicting reports of two structural auditors, matter become
necessary to be referred to TAC and hence while granting ad interim
relief this Court has referred matter to TAC and TAC has observed that
major repairs were to be carried out in 6 to 8 months. Said 6 to 8
months have already lapsed from inspection dated 12.05.2017. Hence
TAC is of the opinion that building be categorised as C1 because
structural engineer who is licensed with STR/K/40 has not done
detailed analysis and also not given the complete engineering scheme
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which will make the builing structurally stable and he has also not given
scheme to make the soil stable which will in turn support the building.
Thus from TAC report it becomes clear that suit premises is categorized
as C1 by TAC.
8. After referring TAC report defendant's adv. Ms. Tondvalkar
referred the order of Hon'ble High Court passed in Appeal From Order
(Stamp) No. 23630 of 2018 with Civil Application (Stamp) No. 23632
of 2018 in the case between Pravinchandra Mehgji Nisar and Ors vs.
Municipal Corporation of Gr. Mumbai and Ors dated 21.08.2018. In
said order the Hon'ble High Court was pleased to observe that
"Moreover the TAC is an independent 'Expert Committee', which is
appointed as per the directions given by this Court in Civil Writ Petition
No. 1135 of 2014, which is supposed to take independent decision in all
these matters, wherein there are conflicting reports submitted by the
occupantstenants and the landlord. Therefore, being totally in
impartial and independent 'Authority' and especially when the
'Technical Advisory Committee' is consisting of the 'experts', neither this
Court, nor the Trial Court is expected to sit over the said TAC's report
and take any different view of the matter.".
9. I have given serious consideration to the arguments
advanced at bar. It is admitted fact that in this suit as there were two
conflicting reports of suit premises submitted by structural auditors of
landlord and tenants, this Court has referred the matter to TAC and
TAC has categorized suit premises as C1. As TAC has categorized suit
premises as C1 it becomes clear that suit premises has become
dangerous for human inhabitation. Further in the light of observations
of the Hon'ble High Court in Pravinchandra Meghji Nasar (supra) it
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becomes clear that this Court cannot sit over TAC's report and cannot
take any different view of the matter. Hence TAC being expert, its
report has to be accepted and implemented and this Court cannot take
different view that from report of TAC. Hence considering
recommendations of TAC, I find that temporary injunction as prayed by
plaintiff cannot be granted. Hence I proceed to pass following order.
O R D E R
1. N/m No. 2691/18 stands disposed of.
2. Interim order granted by my learned predecessor on
18.07.2018 stands vacated.
(K.P.Nandedkar)
Judge,
City Civil Court,
28/09/2018 Gr.Bombay
Dictated on : 28.09.2018
Transcribed on: 01.10.2018
Signed by HHJ on: 04.10.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
4.10.2018 04.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 28/09/2018
Judgment/order signed by P.O on 04/10/2018
Judgment/order uploaded on 04/10/2018
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