Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order- NM3730-19 in SU1047-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF IN
NOTICE OF MOTION NO. 3730 OF 2019
(CNR no. MHCC010101372019)
IN
SUIT NO. 1047 OF 2018
(CNR no. MHCC010047822018)
Mrs. Janakben Ramniklal Joshi ]
Age : 79 years, tenant in respect of Room no. 28, ]
in a building known as Gopal Bhuvan, ]
L.B.S. Marg, Ghatkopar(West), Mumbai400086. ]... Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai, ]
having its office at Mahapalika Bhavan, ]
Fort, Mumbai400 001. ]....Defendant
Appearances:
Ld. Advocate Ms. Rubia Taneja for the Plaintiff.
Ld. Advocate Mrs. D. D. Patil for defendant/MCGM
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 24th October, 2019
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 Notice of Motion, affidavit along with the same,
record of this case and heard both sides. This Court has granted
temporary injunction in favour of the plaintiff vide order dated
10.06.2019 and thereby temporarily restrained the defendant/MCGM
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from acting in pursuance of the notices dated 10.04.2018 and
05.04.2018 purported to be under Section 354 Mumbai Municipal
Corporation Act,1888 (hereinafter "MMC Act") till Technical Advisory
Committee (TAC) follows the guidelines issued by the
defendant/MCGM dated 23.02.2018 in respect of the buildings in
dilapidated condition. Ld. Advocate for the plaintiff has prayed for
urgent adinterim relief with the prayer to direct the defendant/MCGM
not to take any action in pursuance of the notice dated 18.10.2019
whereby the decision of the TAC is communicated to the plaintiff and
they are directed to vacate the suit premises immediately. Ld. Advocate
for the plaintiff has invited my attention to the TAC order dated
04.10.2019 wherein reference is made to structural audit report of M/s
Sachdev & Associates appointed by the plaintiff. According to Ld.
Advocate for the plaintiff when it was reported by the structural auditor
to the TAC that the occupants carried out repairs in the building and it
was now safe then the finding of the TAC that the building falls in C1
Category is baseless and contrary to the factual aspects. She has also
argued that the occupants of the building are at risk if the building falls
and therefore, they have no reason to give any false report to the
defendant/MCGM. However, after going through the order it transpires
that after discussion with structural auditors of contesting parties on
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08.03.2019, it was unanimously decided to carry out fresh NDT tests by
independent structural auditor, M/s. B. J. Mehta, Structural Consultant
was appointed for the same and he submitted NDT tests report on
27.08.2019. After scrutiny of the structural audit report of contesting
parties and NDT tests results of M/s. B. J. Mehta and Associates, the
TAC has categorized the building under C1 category. It is important to
note that the TAC is an independent body constituted pursuant to the
guidelines issued by Hon'ble Bombay High Court in Writ Petition (L) no.
1135 of 2014, the said authority consists of the experts in the field and
the Civil Court can not sit on the findings given by the TAC but it can
assess the process followed by the same in coming to its conclusion. In
this matter, after perusal of the order of TAC supported by reasons, I do
not find any infirmity in its conclusion. However, it can be seen that the
Designated Officer of defendant/MCGM issued the notice dated
18.10.2019 purported to be under Section 354 of MMC Act and asked
the plaintiff to vacate the suit premises immediately. This stipulation in
the notice is not in conformity with guideline no. 1.07 of the MCGM
Guidelines. Moreover such notice can be given after following the
procedure laid down in 1.09 and 1.08 of the guidelines which prescribe
for submission of statement signed by the owner stating therein names
of occupier of the building, the area of occupation and location of
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occupation and other details mentioned in those guidelines. Therefore
the defendant/MCGM is directed to follow the guidelines 1.07, 1.08 and
1.09 of guidelines of MCGM and take action in accordance with the said
guidelines at the earliest. Till then no coercive action to be taken in
respect of the suit building.
(C. V. Marathe)
Judge,
Date : 24.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 24.10.2019
Transcribed on : 24.10.2019
Signed by HHJ on : 24.10.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 24.10.2019 at 5.12 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
24/10/2019
JUDGMENT/ORDER signed by
P.O. on
24/10/2019
JUDGMENT/ORDER uploaded
on
24/10/2019
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