Final Order 2

Order Details: Notice of Motion
Pdf Text: N/M 3730/19 IN SU 1047/2018
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IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO.3730 OF 2019
(CNR NO.MHCC010101372019)
IN
L.C. SUIT NO.1047 OF 2018
(CNR NO.MHCC010047822018)
Mrs. Janakben Ramniklal Joshi ]... Plaintiff
Versus
Municipal Corporation of Greater Mumbai and Anr.
]...Defendants
Adv Rubia Taneja for plaintiff
Adv. Kumawat with Adv. Rawade for defendant No.1 / MCGM
Adv. Dalal for defendant No.2
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 4)
DATED : 12th April, 2022.
O R A L O R D E R
1 . The plaintiff has taken out this Notice of Motion and
prayed that the alleged notice issued by the defendant / MCGM on
10.04.2018 u/sec.354 of MMC Act is illegal and not binding on the
plaintiff. The plaintiff also prayed for injunction for restraining the
defendant from pulling down the suit structure and restraining from
interfering the basic amenities like water, electricity of the suit building.
The plaintiff stated that the suit property which is situated at shop
No.28, Gopal Bhavan, L.B.S. Marg, Ghatkopar (w), Mumbai 400 008, is
the subject matter of the suit (hereinafter called as suit structure for the
sake of brevity).
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2. The plaintiff stated that the suit property was acquired in
the name of Jethalal Premji on rent, who run the business in the name
and style as National Chemist from the then landlord Parekh
Purshottam Jamnadas. It is further alleged that the ownership of the
building changed from time to time and since 1988 one M/s.
Yashodhan Developers used to collect the rent and issued rent receipt.
The plaintiff is running the business by obtaining proper license from
defendant / MCGM. The building consists of ground and two upper
floor and approximately forty tenants are in the suit building. The suit
building consists of commercial as well as residential premises. The
plaintiff learnt that one M/s. Sai Nidhi Developers has acquired the
rights in respect of the building from the said M/s. Yashodhan
Developers.
3. The landlord used to compel the tenant to vacate the suit
premises. Accordingly, defendant / MCGM at the instance of landlord
issued notice u/sec.354 of MMC Act. The condition of the building is
sound. It is not necessary to pull down the building but the landlord
who is having political influence was not maintaining the suit building
and tried to demolish the same. The landlord continuously threatened
the tenant to demolish the suit property and the defendant / MCGM
without hearing the plaintiff issued notice of demolition by telling that
the suit building is dilapidated condition. The defendant / MCGM has
not carried any structural audit of the suit building. The defendant /
MCGM has not followed the guidelines mentioned in Writ Petition
No.1135 of 2014. Therefore, the contention of the plaintiff that alleged
notice issued by the defendant / MCGM is bad, illegal and not binding
on the plaintiff. The defendant / MCGM be restrained from taking any
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action in pursuance of the alleged notice issued u/sec. 354 of MMC Act.
4. The plaintiff also prayed to discontinue and scratch the
records of the alleged proceeding initiated before the Technical
Advisory Committee (TAC) and the suit building will be removed from
C1 category.
5. The defendant No.1 / MCGM and defendant No.2 /
landlord opposed the Notice of Motion by filing reply and record. The
defendant come up with a case that plaintiff has seeks the final relief
which can not be granted in the Notice of Motion. The suit building is
occupied by the fortythree tenants out of it twenty tenants had given
the consent for redevelopment of the suit building. 50% of the
occupant have vacated the suit building and residing in the temporary
accommodation. The suit building being C1 category building,
dangerous to live in. The suit building is beyond the condition of repair.
The Technical Advisory Committee (TAC) inspected the suit building on
22.11.2017 and visually observed repairs carried out by the plaintiff.
The Technical Advisory Committee (TAC) therefore, called up on M/s.
Sachdev and Associates, structural auditor of the plaintiff to carryout
the test and submitted the structural stability certificate. But without
necessary and important N.D. Test the structural engineer of the
plaintiff categorized the suit building as C2B category.
6. The structural auditor appointed the landlord opined that
the suit building falls under C1 category because of the conflicting
report. The matter was referred to the Technical Advisory Committee
(TAC). The B.J. Mehta structural auditor was appointed by the
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defendant / MCGM and he was directed to carried out the test and
submitted the report. The said M/s. B.J. Mehta categorized the suit
building as C1 category. Therefore, plaintiff without challenging the
Technical Advisory Committee (TAC) report only prayed for removing
the suit building from C1 category. The defendant further contended
that the defendant / MCGM followed the guidelines in the year 2010,
its suit building was declared as dilapidated and categorized in C1
therefore, now the condition of the building is very bad and reach at the
stage of collapse at any time. Therefore, plaintiff is not entitled for the
relief prayed and prayed for dismissal of the Notice of Motion.
7. Perused Notice of Motion, reply filed by the defendant No.1
/ MCGM, defendant No.2 Landlord. Heard all the advocates at length,
following points arose for my determination alongwith my findings on
those points for the reasons mentioned thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether plaintiff prove prima facie
case in his favour ?
In the Negative
2. Whether balance of convenience lies in
favour of the plaintiff ?
In the Negative
3 Whether plaintiff prove that he will
suffer irreparable loss if injunction is
refused ?
In the Negative
4. What order ? Notice of Motion
dismissed.
R E A S O N S
AS TO POINTS NOS. 1 to 3:
8. I have gone through the documents filed on record by the
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parties. I have also gone through the structural audit report by M/s.
Sachdev and Associates. The structural audit report submitted by the
landlord / defendant No.2, and the Technical Advisory Committee
(TAC) report. The structural engineer of the plaintiff come to the
conclusion that building is not extremely critical, only requires minor
structural repairs. The advocate for the plaintiff submitted that the suit
building is in good condition and only requires minor repairs. The
structural engineer of the plaintiff carried out the entire test. He has
mentioned the percentage of the N.D. test carried out in his
observation. Therefore, it is necessary for the Technical Advisory
Committee (TAC) to consider the report submitted by his structural
engineer. But without considering the said report, the Technical
Advisory Committee (TAC) considered the suit building in C1 category.
9. The advocate for the plaintiff further submitted that the
Technical Advisory Committee (TAC) members have threatened the
structural engineer of the plaintiff at the instance of landlord. The
Technical Advisory Committee (TAC) member ought to have called the
structural engineers of the plaintiff and give him an opportunity for
fresh structural audit of the suit building. The plaintiff has carried out
the repairs work in the year 2018 under the supervision of Senior Civil
Engineer. The Senior Civil Engineer issued stability certificate therefore,
the contention of the defendant that building is dilapidated, dangerous
to live is totally false. At the time of filing of the suit no structural audit
was carried out either by the plaintiff, defendant / MCGM or landlord.
Therefore, there is no question of referring the matter to the Technical
Advisory Committee (TAC). The referring of the matter to the Technical
Advisory Committee (TAC) is totally unwanted. Hence, advocate for the
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plaintiff submitted that defendant No.1 / MCGM be restrained from
taking any action in pursuance to the Technical Advisory Committee
(TAC) report and restrained from taking any action against the basic
amenities and it is required that the suit building be removed from C1
category.
10. The advocate for the defendant No.1/ MCGM submitted
that in this case the Technical Advisory Committee (TAC) members
visited the suit property and carried out the visual inspection. The
advocate for the defendant taken my attention over the fact that here in
this case the defendant No.1 / MCGM has also appointed the structural
auditor. Accordingly, M/s. B.J. Mehta carried out the fresh N.D. test and
assess the actual structural condition of the suit structure. The plaintiff
tenants has carried out the structural audit of the suit building through
M/s. Sachdev and Associates. The landlord / defendant no.2, appointed
M/s. Retro Fitters Consulting Engineers as a structural Auditor. The
defendant No.1 / MCGM after receiving the conflicting report from both
the tenants and owners, appointed their third structural consultant who
has independently carried out the entire test and submitted the report.
11. The advocate for the defendant further submitted that the
structural engineer of landlord come to the conclusion that the suit
building is dilapidated in condition, dangerous to live and falls under C
1 category. Considering the structural audit report, the Technical
Advisory Committee (TAC) member visited the suit building and they
found that the suit structure falls under C1 category. Therefore,
plaintiff is not entitled any relief hence, prayed for dismissal of the
Notice of Motion.
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12. I have gone through the structural audit report submitted
by the tenant that is M/s. Sachdev and Associates. I have also gone
through the report submitted by the M/s. Retro Fitters Consultancy
Engineer. I have also gone through the Technical Advisory Committee
(TAC) report. On perusal of the Technical Advisory Committee (TAC) it
reveals that meeting was held on 30.09.2019 and the members of the
committee has perused the structural audit report submitted by the
plaintiff and defendant No.2. On going through the Technical Advisory
Committee (TAC) report the Technical Advisory Committee (TAC)
members observed that post repair N.D. Tests reports show drastic
reduction in corrosion in reinforcement and drastic improvement in
concrete strength. Such drastic changes cannot be achieved by the
Polymer treatment as stated by Shri. Sachdev and hence N.D.T. Tests
results submitted by Shri. M.P. Sachdev appear to be misleading and
cannot relied upon. The structural audit report submitted by the M/s.
Retro Fitters and B.J. Mehta concluded that the suit structure falls
under C1 category. B.J. Mehta is an independent structural auditor
gave findings that the percentage of the strength of the structure are
well below the permissible limit said by the I.S. Standards. Therefore,
the suit structure falls under C1 category. The member also observed
that during the second site visit it was observed that there are still
structural cracks and rank vegetation despites the recent structural
repairs.
13. The advocate for the plaintiff submitted that the Technical
Advisory Committee (TAC) has not followed the guidelines. On the
other hand the Technical Advisory Committee (TAC) report shows that
the report submitted by the plaintiff was considered and opportunity
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was given to the plaintiff engineer to explain his report. Therefore, I
have not agreed with the arguments of the plaintiff that defendant No.1
/ MCGM joining hands with the landlord wrongly referred matters
towards the Technical Advisory Committee (TAC). And the Technical
Advisory Committee (TAC) has not considered the audit report
submitted by the plaintiff.
14. For proving the prima facie case the plaintiff ought to have
brought on record that he is having strong prima facie case in his
favour. The plaintiff has to bring on record that the suit building is good
and habitable condition. It required only minor repairs but the
photographs and audit report specifically speaks that the suit building is
dilapidated in condition and falls under C1 category. The structural
audit report submitted by the landlord and defendant No.1 / MCGM is
in consonance and categorized the structure even in C1 category. Both
the auditor's comes to the conclusion that overall condition of the
building is dilapidated, dangerous and is unfit and unsafe for
occupation. The Technical Advisory Committee (TAC) comes to the
conclusion that the suit building is falls under C1 category and needs to
be vacated and demolish immediately. Therefore, in my opinion
plaintiff is not brought on record strong prima facie case in his favour
therefore, balance of convenience also not lies in favour of the plaintiff.
So I came to the conclusion that in my opinion if the injunction is not
granted plaintiff will not suffer irreparable loss which cannot be
compensated in money. Therefore, plaintiff failed to brought on record
sufficient material and strong prima facie case to grant injunction in his
favour. Considering this I answer point No.1 to 3 in negative and
accordingly pass the following order :
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ORDER
1. Notice of Motion No.3730 of 2019 in L.C. Suit No.1047/2018 is
dismissed.
2. Notice of Motion No.3730 of 2019 is disposed off accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 12.04.2022 Gr. Mumbai.
Dictated on : 12.04.2022
Transcribed on : 13.04.2022
Signed by HHJ on: 13.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 4.30 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
12.04.2022
JUDGMENT/ORDER signed by
P.O. on
13.04.2022
JUDGMENT/ORDER uploaded
on
21.04.2022
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