Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int - NM 3920-2019 in Su.No.116-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO.3920 OF 2020
IN
L.C. SUIT NO. 116 OF 2020
PREMA RAMNATH SHETTY ]
Wd/o. RAMNATH SHETTY, ]
AN ADULT, AGED ABOUT 59 YEARS, ]
INDIAN INHABITANT OF MUMBAI, ]
OCCUPATION:BUSINESS ]
SOLE PROPRIETOR OF SUMEET BAR ]
AND RESTAURANT, TENANT IN RESPECT ]
OF (I) SHOP NO.4 (II) BLOCK NO.13, ]
(III) BLOCK NO.15 AND 16, ]
(IV) STORE ROOM ON THE FRONT SIDE ]
i.e. PREMISES NO.25, TOTALLY ]
ADMEASURING ABOUT 1264 SQ.FT. ]
CARPET AREA SITUATED IN ]
UDAY BUILDING, J.N.ROAD, ]
OPP. APANA BAZAR, MULUND (WEST), ]
MUMBAI400080 ]... Plaintiff
Versus
1. MUNICIPAL CORPORATION OF GREATER ]
MUMBAI, A CORPORATION ]
ESTABLISHED UNDER THE MUMBAI ]
MUNICIPAL CORPORATION ACT, 1888, ]
AND HAVING ITS OFFICE AT: ]
MAHAPALIKA MARG, MUMBAI 400 001 ]
2. THE DESIGNATED OFFICERI 'T' WARD ]
T WARD, DEVI DAYAL ROAD, ]
MULUND (WEST) MUMBAI 400080 ]
3. AARAV DEVELOPERS, ]
A PARTNERSHIP FIRM, ]
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OCCUPATION:LANDLORD, HAVING ITS ]
ADDRESS AT:SHOP NO.2, 'A' WING, ]
AKRUTI ELEGANCE, 90 FEET ROAD, ]
GAWANPADA, MULUND (EAST), ]
MUMBAI400081 ]
4. THE ASSISTANT ENGINEER/ ]
DESIGNATED OFFICER ]
(BUILDING & FACTORY), TWARD, ]
OFFICE OF THE ASSISTANT COMMISSIONR ]
'T' WARD, DEVI DAYAL ROAD, ]
MULUND (WEST), MUMBAI 400080 ]....Defendants
Appearances:
Ld. Advocate Mr. Tanna for the Plaintiff.
Ld. Adv. Mrs.Hajare for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI U.J.MORE
(Court Room no. 8)
DATED : 22th January, 2020
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, Notice of Motion, documents annexed to
the plaint and heard Ld. Advocate for the plaintiff. The plaintiff has
prayed to stay the effect, implementation and operation of all the
impugned Notices bearing no. T/DOTI/B107/07A(2)
(4)/354/EVICTION of 201920 dated 16.08.2019 issued by the
Defendant No.2 and received by the Plaintiff on 16.08.2019 in the
evening alongwith the alleged Technical Advisory Committee's
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report/order dated 05.08.2019 bearing No. DyChe/BP/4512/ES
enclosed thereon.
2. It is prayed that, this court be pleased to pass a temporary
order and injunction restraining the Defendants, their agents and / or
servants and / or any other persons acting through or under them from
taking any coercive steps against the Suit premises in furtherance of the
impugned notices including disconnecting of water and electricity
supply to the suit premises.
3. It is prayed that, this court be pleased to pass a temporary
order and injunction thereby directing the Defendants, their agents
and / or servants and / or any other persons acting through or under
them to restore the water supply and electricity supply to the Plaintiff's
premises.
4. It is prayed that, this court be pleased to pass a temporary
order and injunction thereby allowing the Plaintiff to carry on her hotel
business from the suit premises without any interference or obstruction
of any nature whatsoever from the Defendants.
5. Perused all documents filed by the Plaintiff alongwith
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plaint and Defendant strongly objected by filing affidavit alongwith
documents.
6. Admittedly, at present the Notice Structure is demolished.
In spite of this, The plaintiff is claiming the adinterim relief be granted
in his favour keeping the possession of the suit premises as it is. The
photographs filed by the plaintiff on 21.01.2020 transpires that, the
Notice Structure is demolished by the developer and it is admitted by
the defendant No.1 and 2 i.e. Notice Structure is demolished. In view of
the speaking order by the developer i.e. Defendant No.3.
7. Adv.Tanna has submitted that the TAC committee report
dated 01.112019 has not considered order of Hon'ble High Court and
order of this court. The TAC report is without any concrete reasoning
the contractor of a developer i.e. Defendant No.3 has demolished
building at a day night only certain walls and still are standing. The
reply of the developer is necessary about status of the Notice Structure
action of the corporation u/sec. 354 of MMC Act is illegal. In order to
avoid right of plaintiff and not to give alternative accommodation to the
plaintiff the corporation with the help of developer has demolished the
building Notice Structure.
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8. On the otherside Ld.Adv. Mrs. Hajare for MCGM pithily
submitted that, the Notice was issued u/sec.354 of MMC Act. TAC
committee report was received. TAC Committee report is served on
plaintiff on 08.01.2020. Again notice to vacate the dilapidated building
i.e. Notice Structure was given to plaintiff on 13.01.2020. On
20.01.2020 demolition action was started. Why plaintiff has not
challenged of TAC report which is received on 08.01.2020.
9. Heard, both the sides at length.
10. TAC report transpires signature of Six members who
attended the meeting on 24.10.2019. The TAC report reveals on second
para "Mr. Mahajan as a structural auditor on behalf of the tenants told
that from last 5 years upper two floors are completely vacant as the
structure is in very dilapidated condition. Super structure totally
damaged so they did not recommend foundation check up earlier as
well as settlement did not notice at the plinth level.
11. It also transpires in TAC report the opinion of Mr.Anand
Kulkarni, representative of Structural Auditor from M/s. Apicons
Consultants Pvt. Ltd. is that for testing the durability, Strengthening and
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serviceability, some tests were not taken earlier by them as there is
threat o the life of the workers carrying out the tests in such a
dilapidated structure. Now they have done some NDT tests and the
reports of the same are very much in bad condition. To justify their
statement that the structure is in bad condition they have done the
foundation check up and the results are poor. After opening the Sample
foundation, corrosion was noticed, as well some cracks and hollowness
observed.
12. Thus, the TAC report is nut shell shows the over all
condition of a structure is beyond logical repairs as well the demolition
of upper floor may indanger the life of the occupants as well as the
passers thereby. The Notice Structure now identified under "C1"
category. At present considering the documents filed by the plaintiff, as
well as affidavit in support of documents by the defendant No.1 and 2,
specially TAC report of 01.11.2019 acknowledgment of TAC report. On
08.01.2020 affixing Notice dated 13.01.2020 to owner and tenant
affixing same notice on 13.01.2020 on Notice Premises and demolition
report dated 21.01.2020 etc. does not inspires my confidence to grant
adinterim relief in favour of plaintiff at present. Hence, I proceed to
pass following order:
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ORDER
Adinterim relief is rejected.
(U.J.More)
Judge,
City Civil Court,
Date : 22.01.2020 Gr. Mumbai.
Dictated on : 22.01.2020
Transcribed on : 22.01.2020
Signed by HHJ on : 22.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 24.01.2020 at 12.15 p.m.
NAME OF STENOGRAPHER : Mr.G.R.Suryawanshi
Name of the Judge (With Court
Room no.)
HHJ Shri. U.J.More
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
22/01/2020
JUDGMENT/ORDER signed by
P.O. on
22/01/2020
JUDGMENT/ORDER uploaded
on
24/01/2020
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