Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order-NM-4260-19 in SU2845-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEFS ON
NOTICE OF MOTION NO.4260 OF 2019
(CNR no. MHCC010116842019)
IN
SUIT NO. 2845 OF 2019
(CNR no. MHCC010112322019)
1. Mr. Arjan Gangji Gada ]
Age : 75 years, structure holder/ occupier in respect ]
of Room No.15, situated in building known as ]
Patel Bhuvan, Gangawadi, L.B.S. Marg, ]
Ghatkopar (West), Mumbai 400 086. ]
2. Mrs. Ramuben Punjalal Shah (Gada) ]
Age : 80 years, structure holder/ occupier in respect ]
of Room No.11, situated in building known as ]
Patel Bhuvan, Gangawadi, L.B.S. Marg, ]
Ghatkopar (West), Mumbai 400 086. ]
3. Mrs. Mohini Chelaram Bhojwani ]
Age : 85 years, structure holder/ occupier in respect ]
of Room No.5, situated in building known as ]
Patel Bhuvan, Gangawadi, L.B.S. Marg, ]
Ghatkopar (West), Mumbai 400 086. ]
4. Mr. Chetan Salamatrai Punjabi ]
Age : 61 years, son and legal heir ]
Mrs. Lilawanti Salamatrai Punjabi ]
structure holder/ occupier in respect of ]
Room No.16, situated in building known as ]
Patel Bhuvan, Gangawadi, L.B.S. Marg, ]
Ghatkopar (West), Mumbai 400 086. ]
5. Ms. Bharati Pelajrai Kakar ]
Age : 53 years, daughter and legal heir of ]
Mrs. Saraswati Dhamanmal Kakar ]
structure holder/ occupier in respect of ]
Room No.12, situated in building known as ]
Patel Bhuvan, Gangawadi, L.B.S. Marg, ]
Ghatkopar (West), Mumbai 400 086. ]
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All members of an association of persons known as ]
M/s. Patel & Co. ]... Plaintiffs
Versus
Municipal Corporation for Greater Mumbai ]
having its office "N" Ward, ]
Ghatkopar (East), Mumbai. ]....Defendant
Appearances:
Ld. Advocate Ms. Rubia Taneja for the Plaintiffs.
Ld. Advocate Mrs. D. D. Patil for Defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 19th November, 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 Plaint, documents annexed thereto, Notice of
Motion and heard both sides on adinterim relief. The plaintiffs, mostly
Senior Citizens, have challenged notice issued by defendant/MCGM
dated 24.09.2019 requesting the plaintiffs not to undertake any sort of
repairs to the structure of the suit building. Ld. Advocate for the
plaintiff has vehemently argued that this notice is contrary to the notice
of defendant/MCGM dated 21.06.2019 whereby plaintiffs were directed
to get examined the suit building through licensed Structural Engineer
and to get the repair work done as suggested by Structural Engineer.
Ld. Advocate for the plaintiff has informed the Court that the Structural
Engineer Sanchdev & Associates has concluded that the suit building is
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3 Ad-Int Order-NM-4260-19 in SU2845-19
repairable, it is classified as C2B category and therefore, the plaintiffs
have purchased material for repair work and thereafter the
defendant/MCGM is illegally asking them to stop the repair work. Ld.
Advocate for the plaintiff has argued that the defendant/MCGM has not
issued notice under Section 354 of MMC Act, it has not declared the suit
building in C1 category and therefore, the notice dated 24.09.2019 is
per se illegal. Ld. Advocate for the defendant/MCGM has stated that the
defendant/MCGM received conflicting Structural Audit Reports and
therefore, the matter is being referred to Technical Advisory Committee
(hereinafter "TAC") for decision in the matter. According to her, the
plaintiffs have not obtained any permission from defendant/MCGM for
carrying out the repairs and this local authority is acting in accordance
with the guidelines issued by it in respect of dilapidated buildings.
2. After going through the record, it can be seen that the plaintiffs
are allegedly carrying out repairs pursuant to the notice under Section
353(B) of Mumbai Municipal Corporation Act, 1888 (hereinafter
referred as "MMC Act"). Admittedly, plaintiffs have not obtained
permission of defendant/MCGM before carrying out such repairs and
they are under belief that the notice under Section 353(B) of MMC Act
itself is the permission to carry out such repairs. However, there is note
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4 Ad-Int Order-NM-4260-19 in SU2845-19
below the said notice under Section 353(B) dated 21.06.2019 which
reads as under :
"This notice is issued without prejudice to the authorization
of structure & rights of MCGM to take legal action against you
in the event of you having committed any breaches of provisions
of Section 342 of MMC Act."
Therefore, it is clear from this rider that the plaintiffs are
duty bound to carry out structural repairs only after permission from
defendant/MCGM under Section 342 r/w Section 347 of MMC Act.
Moreover, the guidelines issued by defendant/MCGM clearly stipulate
that if the said local authority receives conflicting report on the
structural stability of the building then the matter needs to be referred
to TAC. It is pertinent to note that if the TAC comes to the conclusion
that the building is in ruinous condition then the procedure under
Section 354 of MMC Act will have to be followed by defendant/MCGM.
The said action may be in the form of pulling down, securing or
repairing the suit building. Therefore, once the plaintiffs and the other
party have filed conflicting structural audit report then they cannot start
repair work without permission of defendant/MCGM and there is no
infirmity in the defendant/MCGM’s directions to refer the matter to TAC
and to the plaintiffs to refrain from repair work. For the reason given
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above plaintiffs are not entitled for adinterim relief. Hence, adinterim
relief is liable to be rejected and following order:
ORDER
Adinterim reliefs in terms of the prayers is rejected.
(C. V. Marathe)
Judge,
Date : 19.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 19.11.2019
Transcribed on : 19.11.2019
Signed by HHJ on : 20.11.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 20.11.2019 at 5.07 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
19/11/2019
JUDGMENT/ORDER signed by
P.O. on
20/11/2019
JUDGMENT/ORDER uploaded
on
20/11/2019
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