Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.4260/19 (LCS No.2845/19)
MHCC010116842019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.4260 OF 2019
IN
LONG CAUSE SUIT No.2845/2019
Mr. Arjan s/o. Gangji Gada
And 4 Ors. … Plaintiffs
- Versus -
Municipal Corporation of
Greater Mumbai ... Defendant
Appearance :-
Ms. Rubia Taneja, Advocate for plaintiffs.
Mrs. Mhatre, Advocate for defendant/M.C.G.M.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 13/09/2023.
O R D E R
. This suit is to challenge notice issued by defendant/B.M.C.
dated 24/9/2019 whereby the plaintiffs are advised not to undertake
any sort of repair to the structure, failing which further action as deem
fit will be initiated and the plaintiffs have taken out present Notice of
Motion for temporary injunction under Order-XXXIX Rule-1 of The Code
of Civil Procedure (in short the C. P. C.) from implementing and/or
executing the impugned notice.
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2 N/M. No.4260/19 (LCS No.2845/19)
2] In short, the plaintiffs’ case is that :-
The plaintiffs are the occupiers of the building known as
Patel Bhuvan, Gangawadi, L. B. S. Marg, Ghatkopar. Defendant/B.M.C.
issued notice on 21/6/2019 to carry out structural audit of the building
and to submit structural stability certificate. Accordingly, the plaintiffs
carried out structural audit and started carrying out necessary repairs as
suggested by structural auditor. Then, the plaintiffs received letter from
Mr. Samir J. Mhate, Structural Engineer, stating that he has carried out
structural audit of the building, for M/s. Yashodhan Developers, who
claims to be the owner of the building. It is further stated that building
is load bearing and is in very sound condition and falls in C-2/B
category as per structural audit report carried out by senior Civil
Engineer. However, M/s. Yashodhan Developers under some forged and
fabricated documents managed to get impugned notices issued through
defendant/B.M.C. Then the plaintiffs received impugned letter from the
Corporation directing them to stop repair work as the matter is referred
to Technical Advisory Committee (in short the T. A. C.). It is further
stated that defendant/B.M.C. has not followed due process of law and
not carried out structural audit of the building. The impugned notice
has been issued without application of mind. Therefore, the plaintiffs
prayed for temporary injunction.
3] Defendant/B.M.C. did not file reply, therefore, Notice of
Motion is heard without reply of defendant/B.M.C.
4] Points for determination alongwith findings thereon for the
reasons are as under :-
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3 N/M. No.4260/19 (LCS No.2845/19)
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
5] Perused Notice of Motion, affidavit in support thereto,
record and proceeding. Heard learned advocates for both sides.
6] The plaintiffs have taken out present Notice of Motion
restraining defendant/B.M.C. from implementing notice dated
24/9/2019 whereby they were requested not to undertake any sort of
repair to the structure. It is contention of the plaintiffs that notice issued
by defendant/B.M.C. is contrary to the notice dated 21/6/2019
whereby the plaintiffs are directed to carry out structural audit and get
the repair work done as suggested by structural engineer.
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4 N/M. No.4260/19 (LCS No.2845/19)
7] It is further submitted that as per the letter dated
21/6/2019 the plaintiffs carried out structural audit through Sachdev
And Associates, who classified the building as repairable i.e. C-2/B
category and, therefore, the plaintiffs started repair work as per the
suggestions of structural auditor. It is further submitted defendant/
B.M.C. vide notice under challenge requested the plaintiffs not to carry
out repairs as the matter is referred to the T. A. C. However, as per
notice under Section 353-B of the M. M. C. Act dated 21/6/2019 the
plaintiffs are directed to carry out structural audit and to carry out
repairs as suggested by structural auditor. It appears that above said
notice dated 21/6/2019 has been issued without prejudice to the
authorization of structure and right of the M.C.G.M. to take legal action
against the plaintiffs, in the event of having committed any breach of
the provisions of Section 342 of the M. M. C. Act. Thus, it is clear that
the plaintiffs are directed to carry out only structural repairs after
obtaining permission from the Corporation under Sections 342 and 347
of the M. M. C. Act.
8] Moreover, as per the guidelines of the B.M.C. if there are
conflicting reports on structural stability of a building, then matter
needs to be referred to T. A. C. and after receipt of T. A. C. report further
course of action is to be taken. If T. A. C. comes to the conclusion that
building is dangerous for human habitation and in dilapidated
condition, then procedure under Section 354 of the M. M. C. Act will
have to be followed by the M. C. G. M. In the case on hand, as the
matter is referred to the T. A. C. due to conflicting structural audit
reports, the plaintiffs cannot initiate repair work without permission of
defendant/B.M.C. or till receipt of T. A. C. report.
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5 N/M. No.4260/19 (LCS No.2845/19)
9] In the facts and circumstances of the case, I hold that the
plaintiffs have not made out
prima facie case. Balance of convenience
does not tilt in their favour. Accordingly, I answer points No.1 to 3 in the
negative and in answer to point No.4 pass following order :-
O R D E R
Notice of Motion No.4260/2019 is dismissed.
Date : 13/09/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
16/09/2023 11:25 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 13/09/2023
ORDER Typed on 14/09/2023
ORDER signed by P.O. on 15/09/2023
ORDER uploaded on 16/09/2023
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