Interim Order 1

Order Details: Other
Pdf Text: 1 Order on Ad-Interim in SU 2220-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON ADINTERIM RELIEF
IN
LONG CAUSE SUIT NO. 2220 OF 2019
(CNR no. MHCC010081642019)
1. Mahendrakumar Ambalalji Sankhala ]
Aged 53 years, ]
Carrying on business at Shops no. 2, 12, ]
13 & 14, Ground Floor, Shree Jalaram Estate, ]
Kheraj Estate, M. G. Road, ]
Mulund West, Mumbai80. ]
2. Suknibai R. Jain ]
Aged 75 years, ]
Carrying on business at Premises no. C2, ]
Ground Floor, Shree Jalaram Estate, ]
Kheraj Estate, M. G. Road, ]
Mulund West, Mumbai80. ]
3. Hasmukhala Vasudev Joshi ]
Aged 68 years, ]
Residing at B20, first floor, ]
BuildingB, At Shree Jalaram Estate, ]
Kheraj Estate, M. G. Road, ]
Mulund West, Mumbai80. ]
4. Hansa Prakash Jain ]
Aged 51 years, ]
Carrying on business at C5 ]
First floor, Building C, Shree Jalaram Estate, ]
Kheraj Estate, M. G. Road, ]
Mulund West, Mumbai80. ]....Plaintiffs
V/s
1. Municipal Corporation of Gr. Mumbai ]
A staturatory body constituted under the ]
Mumbai Municipal Corporation Act, 1888 ]
Having its office at Mahapalika Marg, ]
Fort, Mumbai400 001. ]
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2. M/s. Mahaveer Developers ]
a firm carrying on business at ]
Plot No. 7/8A, M. G. Road, ]
Mulund (West), Mumbai 400 080. ]
3. M/s. Aryan Enterprises ]
A Partnership firm, having their office ]
at A/22, Oswal House, Junction of ]
S. L. Road & RRT Road, Mulund (West), ]
Mumbai 400 080. ]....Defendants
Appearances:
Ld. Advocate Mr. Bipin Joshi for the Plaintiff.
Ld. Advocate Ms. Manisha Salekar for MCGM/Defendants no. 1 to 3.
Ld. Advocate Mr. P. D. Gandhi for defendants no. 4 and 5.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 16th August, 2019
O R A L O R D E R
1. The plaintiffs are tenants in respect of B & C Wing. By instant
notice of motion the plaintiffs have prayed to grant temporary
injunction restraining defendant no. 1 / The Municipal Corporation of
Greater Mumbai (hereinafter collectively "MCGM") from enforcing or
implementing report of Technical Advisory Committee (hereinafter
"TAC") dated 23.04.2018 and the notice under Section 354 of Mumbai
Municipal Corporation Act,1888 (hereinafter "MMC Act") in respect of
the suit shops situated between buildings "B & C" of Shri Jalaram Estate
Ratanshi Kheraj Estate, Mulund (West), Mumbai 400 080. The orbit of
discretion in such matter is explained in the case of Mahendra
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Bhalchandra Shah & ors. V/s. Municipal Corporation of Greater
Bombay & Ors. [Writ Petition (L) No. 1755 of 2019) by the Division
Bench of The Hon'ble High Court of Bombay in following expressions
“the Court is not permitted or even capable of determining whether
building is truly so ruinous as to warrant its demolition. We do not
assess the structural condition of the building or its structural
vulnerability. We only assess the vulnerability in law of demolition
notices or the TAC recommendation or order”. After elaborate
discussion The Hon'ble High Court of Bombay has laid a proposition
that without a clear and specific prima facie finding that the TAC order
or a takedown notice are vitiated for the reasons of arbitrariness,
perversity, or mala fides, no pro tem order of status quo is ever
legitimate or permissible, it is only where that TAC is clearly
demonstrated to have acted arbitrarily, mala fide, or in a manner that
can fairly said to be perverse then the Court will intervene.
After careful reading of the plaint and documents annexed
thereto, the TAC Report dated 23.04.2018 was drawn up pursuant to
order of The Hon'ble High Court of Bombay dated 27.03.2018 in Writ
Petition (L) No. 730 of 2018. The operative part of the order reads as
under :
(i) We accept the statements made by the learned
counsel appearing for the first to third respondents,
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on instructions, that TAC (third respondent) will
reconsider the issue of structural status of A, B, C and
E Wings of the subject building and will submit a
fresh report within a period of one month from
today;
(ii) The appropriate authority of the first respondent will
consider the report and take a decision whether the
notice dated 18th July, 2016 (Exhibit D to the
Petition) needs to be implemented in respect of A, B,
C and E Wings of the subject buildings;
(iii) The decision taken by the first respondent Municipal
Corporation along with copy of the report of the TAC
shall be communicated to the petitioners and all
other occupants of A, B, C and E Wings. If the
decision of the Municipal Corporation is to act upon
the notice dated 18th July, 2016, the action on the
basis of the notice dated 18th July, 2016 shall not be
taken for a period of three weeks from the date on
which the decision is communicated to the present
petitioners. We make it clear that till that date, the
petitioners will continue to be bound by the
undertakings furnished by them in terms of the order
dated 7th March, 2018;
(iv) We make it clear that the TAC will consider all the
relevant issues including the issue whether it was
necessary for M/s. Shashank Mehendale and
Associates appointed by the Municipal Corporation to
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conduct all the tests which are required to be carried
out in terms of SubClause (d) of Clause (ii) of
paragraph 9 of the decision of this Court in the case
of Municipal Corporation of Greater Mumbai Vs. State
of Maharashtra and Ors.;
(v) We make it clear that we have not dealt with
conclusions recorded by the TAC in the impugned
report as regards Wing D in as much as it has been
held that Wing D can be repaired and there is no
challenge in this Petition to the said conclusion;
(vi) We make it clear that we have made no adjudication
on the structural status of the A, B, C and E Wings of
the building and the issue is left open to be decided
by the TAC and the Municipal Corporation.
(vii) The Petition is disposed of on above terms.
2. Ld. Advocate for the plaintiff has invited my attention to the word
"reconsider" in the operative order (i) and he submits that the TAC
should have given hearing to Structural Auditors of the plaintiff and
thereafter, the fresh report dated 23.04.2018 was to be prepared. After
going through the order of The Hon'ble High Court of Bombay, it can be
seen that the statement was made before Hon'ble High Court that the
TAC would reconsider the issue of structural status of Wings A, B, C and
E of the subject building and would submit the fresh report. Taking into
consideration the above aspects, Hon'ble High Court of Bombay
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accepted the statement and passed the aforesaid order. What the TAC
agreed was to "reconsider its report". It never made statement that it
will initiate fresh proceedings for structural status of the subject
building. The dictionary meaning of the word "reconsider" is "to think
again about (the decision or opinion) and decide whether you want to
change it". Another definition of the word as per Merriam Webster
Dictionary is " to consider something again". It is pertinent to note that
direction for fresh hearing to structural auditors was not given by
Hon’ble High Court but it directed the TAC to communicate the decision
to the petitioners. Therefore, after reading of the order of The Hon'ble
High Court of Bombay and the definition of "reconsider" given above, it
can be concluded that the fresh hearing to the structural auditors of
contesting parties was not required for the TAC to reconsider its report
and formulate a fresh report.
3. In the above order (iv) of Hon'ble High Court of Bombay it is
mentioned as under :
(iv) We make it clear that the TAC will consider all the
relevant issues including the issue whether it was
necessary for M/s. Shashank Mehendale and
Associates appointed by the Municipal Corporation to
conduct all the tests which are required to be carried
out in terms of SubClause (d) of Clause (ii) of
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paragraph 9 of the decision of this Court in the case
of Municipal Corporation of Greater Mumbai Vs. State
of Maharashtra and Ors.;
This order speaks that the TAC had to consider all relevant issues
including whether it is necessary for M/s. Shashank Mehendale and
Associates to conduct all the tests required to be carried out in terms of
judgment of The Hon'ble High Court of Bombay in Writ Petition (L) no.
1135 of 2014. After perusal of TAC report dated 23.04.2018, it has
reproduced earlier TAC conclusion vide its report dated 30.01.2018 and
thereafter, recorded its conclusion about structural status of Wings A, B,
C, D, E. In the entire discussion, there is no whisper about the issue
"Whether it was necessary for M/s. Shashank Mehendale and Associates
to conduct all the tests required to be carried out in terms of SubClause
(d) of Clause (ii) of paragraph 9 of the decision in Writ Petition (L) no.
1135 of 2014". Even though, there is no word about this issue, the TAC
has categorically stated in its report that both Wings B and C were
combination of load bearing and R.C.C. frame structure and there was
no need to carry out N.D. tests and Core tests on the R.C.C. members as
they would further reduce its strength and stability. Therefore, the TAC
has substantially complied order of the the Hon'ble High Court of
Bombay while reconsidering its report and the plaintiff/s cannot allege
that there was an illegality committed by the TAC in reconsidering its
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report without giving opportunity to the structural audits of contesting
parties.
4. The plaintiff has not produced any sanctioned plan or approved
plan showing that the suit shops are independent structures. Even
through naked eyes it can be seen that they are located between the
building Wings B & C with common wall. Therefore, I do not find any
merit in the submission that structural audit of the suit shops was never
carried out. It is pertinent to note that initially notice under Section 354
was issued to occupants/owners on 18.07.2016. Thereafter, the matter
traveled to The Hon'ble High Court of Bombay twice in Writ Petition (L)
No. 1949 of 2017 and again in Writ Petition (L) No. 730 of 2018. The
matter was referred to TAC vide order dated 11.10.2017 in the first
Writ Petition and the impugned report of TAC dated 23.04.2018 was an
upshot of deliberations in pursuance of directions given in the latter
Writ Petition. All the contentions about the TAC procedure made in this
plaint were raised in both these Writ Petitions. Therefore, after having
elaborate discussion by the TAC members on four structural audit
reports, the said authority has come to the conclusion that the subject
building is in dilapidated condition and needs to be demolished. In view
of the above, citations relied upon by the plaintiff are not applicable to
the present set of facts. The object of Section 354 of MMC Act is to
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protect occupiers and passersby and other persons from probable
mishap to the structure causing human loss. In the case of
Pravindchandra Meghji Nisar and Ors. V/s. Municipal Corporation
of Greater Mumbai and Ors. [A. O. (St.) No. 23630 of 2018] The
Hon'ble High Court of Bombay has held that the TAC is an independent
'Expert Committee' appointed as per directions given in Writ Petition (L)
No. 1135 of 2014 and being totally an impartial and independent
'Authority' and consisting of the 'experts', neither The Hon'ble High
Court of Bombay nor the Trial Court is expected to sit over the said
TAC's report and take any different view of the matter. Therefore, it will
not be in the interest of the occupiers and justice to question the report
of the TAC on technical grounds which will further delay the
process/procedure under Section 354 of MMC Act causing more danger
to occupiers, passersby and other persons. For the reasons given above
I do not find any prima facie case in favour of the plaintiff to grant
temporary injunction as prayed. Hence, the following order is passed:
ORDER
1. Adinterim relief is rejected.
sd/
(C. V. Marathe)
Judge,
Date : 16.08.2019 City Civil Court, Gr. Mumbai.
Dictated on : 13.08.2019
Transcribed on : 14.08.2019
Signed by HHJ on : 16.08.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.08.2019 at 4.25 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
16/08/2019
JUDGMENT/ORDER signed by
P.O. on
16/08/2019
JUDGMENT/ORDER uploaded
on
16/08/2019
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