Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2872 OF 2019
IN
SHORT CAUSE SUIT NO. 2135 Of 2019
Salim Yasin Nirban
an adult Indian Inhabitant of Mumbai,
Age 63 years, Occupation : Business.
Having his address at Office No.1,
4th Floor, 237, Abdul Rehman Street,
Barar House, Mumbai – 400 003,
through his Constituted Attorney
Mr. Mohammed Arshad Ali. .. Plaintiffs
V/s
1. Maharashtra Housing and Area
Development Authority, a statutory body,
having its office at Griha Nirman Bhavan,
Kalanagar, Bandra (East), Mumbai 400 051.
2. Mumbai Building Repairs and
Reconstruction Board, having its office at
3rd floor, Griha Nirman Bhavan,
Kalanagar, Bandra (East), Mumbai 400 051.
3. the Municipal Corporation of Greater
Mumbai, a local statutory body, having
its office inter alia at Mahapalika Building,
Next to C.S.T. Railway Station,
Mumbai-400 001 and particularly, “B” Ward
Office, 121, Ramchandra Bhatt Marg,
Noor Baug, Dongri, Umerkhadi,
Mumbai, Maharashtra – 400 009. ..Defendants.
-- 1 of 9 --
2
Appearance:
Advocate Mr. A. R. Pandey for the plaintiff.
Advocate Mr. Chandrashekhar for defendant Nos.1 and 2 MHADA.
Advocate Mrs. Chandramore for defendant No.3/MMC.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 9th NOVEMBER, 2020
ORAL ORDER
This Notice of Motion is taken out by the plaintiff seeking
three interim reliefs. Firstly, that the defendants be directed by way of
interim mandatory injunction to carry out the structural repairs to the
attic floor of the suit building i.e. Building Nos.95-97-99 having
Cadastral Survey No.69, Mandvi Division situated at Sarang Street, B-1
Ward, Carawford Market, Mumbai 400 003. Secondly, the defendants
be temporarily restrained by an order of injunction from stopping,
interfering with obstructing or preventing the plaintiff from carrying out
the tenantable repairs such as plastering, plumbing, water proofing,
tiling, flooring and electrical wiring work in the suit building. Thirdly,
the defendant No.3 be restrained by an order of interim injunction from
taking any action against the suit building. The question whether the
defendants are liable to carry out structural repairs of the suit building
is the substantive question involved in the suit. Therefore, the first
relief cannot be considered at this stage. Thus, this Notice of Motion is
to be considered for the rest two reliefs.
2. The facts as emerged from the plaint averments made in
the affidavit and additional affidavit of the plaintiff are that the plaintiff
-- 2 of 9 --
3
is the owner and landlord of the suit building which consist of ground
floor, mezzanine floor and five upper floors + attic floor.
3. The defendant No2 however, treated the attic floor as the
seventh floor and also treated the mezzanine floor as separate floor.
The ground floor, mezzanine floor and the first floor are being used for
commercial and office purpose and the upper floors are being used for
residential purpose. They are eight tenements on each floor occupied
by the tenants. The building is cess building and is subject to repair by
the defendant Nos.1 and 2 and the plaintiff is paying the repair cess to
the defendant Nos.2 and 3.
4. The defendant No.2 found that the suit building requires
the structural repairs and accordingly, started repairing the same by
getting vacated it from the tenants. The repair work carried upto the
fifth floor and the defendant No.2 declared that the entire building has
been completely repaired. The repair work of the sixth and seventh
floors were not actually carried out and therefore, the tenants in those
floors were not ready to occupy their respective premises. The plaintiff
repeatedly approached the defendant No.2 for getting completed the
said work, but the defendant No.2 refused to carry out the same stating
that the attic floor of the suit building is non-tallying portion and
therefore, they are not bound to carry out the repairs of that portion.
5. Under such situation, according to the plaintiff, he being
landlord of the suit building undertook the repairs of the un-repaired
portion of the suit building. The plaintiff was doing only the tentable
repairs and not carrying out any sort of addition and alternation or any
structural changes. The defendant No.2 however, issued letter dated
-- 3 of 9 --
4
22.07.2019 to the plaintiff alleging that the plaintiff is carrying out the
repairs without obtaining necessary permission from the concern
department and therefore, he was asked to stop the repair works. The
plaintiff brought the notice that the defendant No.2 that the repair work
of the suit building is incomplete and the plaintiff is completing it at his
own cost which is in the nature of tenantable repairs and it requires no
permission and therefore, the letter issued to the plaintiff is incorrect.
6. According to the plaintiff, after considering the
representation of the plaintiff, the defendant No.2 realized its fault and
it assured to withdraw the said letter. However, instead of withdrawing
the same, the defendant No.2 informed the “B” Ward Officer i.e.
defendant No.3 to inspect the suit building and take legal action, if any,
on the basis of such inspection. Accordingly, the defendant No.3 visited
the suit building on 22.07.2019. On inspection, the plaintiff was
instructed by the defendant No.3 to stop the work immediately
otherwise, the drastic action will be taken against him. The defendant
No.3 was incorrectly assuming that the construction of attic floor as
illegal. By letter dated 23.06.2019, the plaintiff clarified the fact with
required documents.
7. Thus, according to the plaintiff, he is carrying out the
tenantable repairs in the suit building which he is entitled to carry out
under sections 342 and 347 of the Mumbai Municipal Corporation Act.
The letter to stop the work issued by the defendant Nos.2 and 3 is bad-
in-law. Considering the urgency to repair the un-repaired portion of the
building, the plaintiff is himself repairing the same and the defendants
are unnecessarily causing obstruction to the said work.
-- 4 of 9 --
5
8. The defendant Nos.1 and 2 contested this Notice of Motion
by filing reply contending that as per record the suit building is ground
+ mezzanine + fourth + attic floor = six floors building as is shown in
repair plan of the defendant No.2 dated 18.08.2018. The defendants
have asked the plaintiff to stop only non-tallying portion of the suit
building as per the block plan. The defendant No.2 has carried out the
structural repairs of the suit building as per the Work Order dated
09.01.2018. The tenants on the 7th floor of the building were requesting
to repair their premises, but the 7th floor was not reflecting in block
plan and repair plan of MHADA and therefore, their premises could not
be repaired. The defendant No.3 visited the suit building on
19.07.2019 and at that time, it was noticed that the construction of the
7th floor was not tallying. It was found that the tenants were carrying
out the repairs in the non-tallying portion without permission and
therefore, the letter to stop the work was issued on 22.07.2019.
9. It is further case of the defendant Nos.1 and 2 that the
documents submitted by the plaintiff were forwarded to the M.C.G.M.
for verification. The Executive Engineer ( B & F), B Ward of M.C.G.M.
informed to A.A. and C Department of Survey to verify the assessment
measurement sheet and plant submitted by the landlord of the building
to MHADA. According to the plaintiff, after due verification vide letter
dated 11.03.2020, the M.C.G.M. has withdrawn the notice issued to the
plaintiff under section 354(A) of M.M.C. Act dated 25.07.2019.
10. In view of rival contentions of the parties and the
submissions made on their behalf, the following points arise for my
determination with my findings thereon for the reasons recorded
thereunder;
-- 5 of 9 --
6
S.No. POINTS FINDINGS
1 Do the plaintiff prove the
prima-facie case ? Partly Yes
2 Whether balance of convenience lies in his
favour ? Partly Yes
3 Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
Partly Yes
4 What Order? As per Final Order.
R E A S O N S
Point Nos.1 to 3:
11. At the outset, Mr. Pandey, the learned advocate for the
plaintiff makes it clear that the plaintiff is asking temporary injunction
only to restrain the defendants from obstructing the work of tenantable
repairs as stated in the Notice of Motion by the plaintiff. Considering
this scope of the relief, it is not in dispute that the plaintiff is the
landlord of the suit building, the suit building is cess building, the
defendant Nos. 2 and 3 have carried out structural repairs of the suit
building to some extent, they issued impugned letter dated 22.07.2019
to stop the repair work undertaken by the plaintiff and the plaintiff
clarified the position after receipt of that letter.
12. The dispute as it reflect from the rival contention is
regarding the structure of 7th floor. According to the defendant Nos.1
and 2, it is not tallying and according to the plaintiff, it is in existence
-- 6 of 9 --
7
since the year 1951. The plaintiff has satisfied the M.G.C.M. with that
position and consequently, by letter dated 11.03.2020, the M.G.C.M. has
withdrawn the notice dated 25.07.2019 issued under section 354-A of
the M.M.C. Act. A copy of the said letter is produced on record. The
defendant Nos.1 and 2 do not dispute the said letter.
13. Under the circumstance, there is no issue of any illegal
construction by the plaintiff at this stage. The plaintiff has mentioned
in the Notice of Motion what type of repair work he is going to carry
out. The defendant Nos.1 and 2 do not dispute the fact that all those
works come under the purview of tenantable repairs. Admittedly, the
defendant Nos.1 and 2 have not carried out the structural repairs of the
said portion on the ground of it is not tallying. Now, the plaintiff is
carrying out and completing the said tenantable repairs to
accommodate his tenants in their premises without delay. Therefore, in
my view, there is no scope of objection by the defendant Nos.1 and 2 to
carry out such tenantable repairs. Needless to say, what are the
tenantable repairs. They are mentioned in the M.M.C. Act and they are
also mentioned by the plaintiff in this Notice of Motion. The plaintiff
shall confine to the tenantable repairs and if, he is carrying out any
structural changes while carrying out tenantable repairs, the defendants
are free to take an appropriate action in respect of it in accordance with
law. Therefore, the blanket prayer made in clause (c) of this Notice of
Motion cannot be granted.
14. Thus, the defendant No.3, M.G.C.M. has withdrawn its
notice dated 25.06.2019, I hold that the plaintiff is entitled to carry out
the tenantable repairs as mentioned in this Notice of Motion.
Therefore, I find
prima-facie case in favour of the plaintiff. The balance
-- 7 of 9 --
8
of convenience lies in his favour and irreparable loss would be caused
him, if he is not allowed to carry out such repairs to accommodate his
tenants, who are waiting for the same.
15. In view of these reasons, point Nos.1 to 3 are answered
accordingly and as a result of this, the following order.
O R D E R
1. The Notice of Motion No.2872 of 2019 is made
partly absolute in terms of prayer clause (b).
2. The defendants are temporarily restrained
from causing obstruction to the plaintiff from
carrying out the tenantable repairs of the suit
building as mentioned in clause (b).
3. In the circumstance, no order as to cost.
4. The Notice of Motion No. 2872 of 2019
stands disposed of accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 09/11/2020. Gr. Bombay.
Dictated on : 09/11/2020
Transcribed on : 09/11/2020
Signed on : 09/11/2020.
-- 8 of 9 --
9
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/11/2020 At 12.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
09/11/2020
Judgment/Order signed by P.O. on 09/11/2020
Judgment/Order uploaded on 10/11/2020
-- 9 of 9 --