Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 3389-19 in ST. no.9381-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 3389 OF 2019
(CNR no. MHCC010092632019)
IN
STAMP NO. 9381 OF 2019
Prema Ramnath Shetty ]
W/o Ramnath Shetty ]
Aged : 59 years, Occ. : Business ]
Sole Proprietor of Sumeet Bar And Restaurant, ]
Tenant in Respect of (I) Shop No.4 (II) Block No.13, ]
(III) Blocks 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. Apna Bazar, Mulund (W), ]
Mumbai400080. ]....Plaintiff
V/s
1. The Municipal Corporation of Gr. Mumbai, ]
having their Head office at Mahapalika Bhavan, ]
Mahapalika Marg, Fort, Mumbai400 001. ]
2. Designated Officer, ]
Office of the Assistant Commissioner ]
"T" Ward, Devi Dayal Road, ]
Mulund (West), Mumbai400 080. ]
3. Aarav Developers, ]
A Partnership Firm, Occ : Landlord, having its ]
address at Shop No.2, ‘A’ Wing, Akruti Elegance, ]
90 Feet Road, Gawanpada, ]
Mulund (E), Mumbai400081. ]
4. The Assistant Engineer / Designated Officer ]
(Building & Factory), T Ward, ]
Office of The Assistant Commissioner, ]
T Ward, Devi Dayal Road, ]
Mulund (W), Mumbai400080. ]....Defendants
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2 NM no. 3389-19 in ST. no.9381-19
Appearances:
Ld. Advocate Mr. Maulik K. Tanna for the Plaintiff.
Ld. Advocate Mrs. R. M. Hajare for defendants no. 1, 2 and 4/MCGM.
Ld. Advocate Mr. Sagar Joshi for defendant no. 3.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 15TH October, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. In this Notice of Motion, the plaintiff is challenging notice of
eviction dated 16.08.2019 under Section 354 of Mumbai Municipal
Corporation Act,1888 (hereinafter referred to as "MMC Act") issued by
defendant no.2, the Designated Officer of defendant no. 1/MCGM, and
he is also seeking stay to the operation of Report of Technical Advisory
Committee ( hereinafter ‘TAC’) dated 05.08.2019 which declared the
suit building in C1 category. I have carefully gone through the record
and heard both sides at length.
3. The instant suit results from the TAC Oder dated 05.08.2019
which was passed pursuant to order of Hon’ble Bombay High Court in
A.O. St. No. 11348 of 2019 with C.A. St. No. 11349 of 2019 dated
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19.06.2019. In that matter the order refusing adinterim relief against
TAC conclusion, declaring the suit building in C1 category, was
challenged. Hon’ble Single Bench of the Bombay High Court discussed
the reasons of the TAC for arriving at the conclusion and found the
same to be inadequate and interfered with the same by making
following observations in paragraphs no. 8, 9, 10 and 11 which reads as
under :
8. Heard learned counsel. No doubt the T.A.C. has in the
concluding portion of its report records that considering the
statements and reports of the both the Structural Engineers,
opinion given by the Committee Members, and having gone
through the details that the Committee is of the opinion that the
structure shall be categorized as C1, but in the earlier part of the
report it has expressed certain reservations about the structural
auditors reports that have been submitted by both the parties. It is
not as if the T.A.C. opined that despite not carrying out the tests as
observed by T.A.C., these reports can still be relied upon to
categorize the building as C1.
9. No doubt the T.A.C. is not supposed to give detailed reasons.
Having regard to the observations made by the T.A.C. and
especially in the light of the observations in the report that “none
of the Structural Engineers have checked the foundation. It was
possible to open foundation on the side of the building to check its
status. Also NDT tests could be carried out in the column in
foundation. It is very necessary to understand the type of
foundation whether it is footing or pile. Normally piles will not be
easy to repair, but at least status can be checked. There are no such
details worked out in the report for checking strength, durability
and serviceability”, the T.A.C. should have opined that it can still
proceed on the basis of the reports which are placed on record to
come to the finding that the building needs to be cateorised as C1.
10. In this view of the matter, I am of the opinion that the report
dated 17.09.2018 of the T.A.C. needs to be interfered with and is
accordingly set aside and so also the consecutive notice.
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11. The T.A.C. to proceed from the stage mentioned in directive
1.05. The appellants as well as respondent No.3 to appear before
the T.A.C. on 27.06.2019 at 11.00 a.m. Shri Walawalkar, learned
Senior Advocate is instructed by Shri C. M. Ghole, Assistant
Engineer (Building & Factory Department), ‘T’ Ward to state the
date and time when the parties are to appear before the T.A.C.
The T.A.C. on the basis of the structural auditors reports and in
terms with guideline 1.05 to submit a fresh report within a period
of eight weeks from 27.06.2019. After the report is submitted by
the T.A.C. the Corporation is free to take appropriate action in
accordance with directives and in accordance with law.
4. From the above order, it was expected from the TAC to give
emphasis on checking of the foundation and conducting NDT Tests in
the columns in foundation. After careful reading of the TAC order dated
05.08.2019, the expert committee has given brief reasons for arriving at
its conclusion but there is no whisper about checking of the foundation
and/or carrying out NDT Tests in the columns in the foundation. No
reasons are given by the TAC for not considering these aspects when the
TAC was expressly directed by Hon’ble Bombay High Court in the above
matter. Therefore, the order of TAC dated 05.08.2019 needs to be
interfered with in view of above observations of Single Bench of Hon’ble
Bombay High court in the matter. Hence, following order :
ORDER
1. Notice of Motion No. 3389 of 2019 is partly allowed.
2. The TAC shall convene meeting in presence of structural auditors
of both contesting parties and discuss the issues highlighted in
the order dated 19.06.2019 in A.O.(St.) No.11348 of 2019 as
mentioned in the earlier paragraph of this order.
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3. If the TAC comes to the conclusion that the NDT Tests in the
columns in foundation are not possible, brief reasons therefor be
assigned and the TAC will be free to take its decision
independently and submit fresh report within a period of four
weeks from today.
4. After the report is submitted by the TAC, defendant no. 1/MCGM
will be free to take appropriate action in accordance with the
directives and in accordance with the law.
5. Costs in cause.
sd/
(C. V. Marathe)
Judge,
Date : 15.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 15.10.2019
Transcribed on : 15.10.2019
Signed by HHJ on : 16.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 17.10.2019 at 5.40 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
15/10/2019
JUDGMENT/ORDER signed by
P.O. on
16/10/2019
JUDGMENT/ORDER uploaded
on
17/10/2019
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