Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4428/19 in Suit No. 1411/19. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4428 OF 2019
(CNR NO. MHCC010121262019)
IN
SUIT NO. 1411 OF 2019
(CNR NO. MHCC010059352019)
Ms. Malti Ganesh Poojari ...Plaintiff
Versus
Municipal Corporation Of Greater Mumbai and another ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 11th DECEMBER, 2019.
Mr. S.S.Kudalkar, Advocate for Plaintiff.
Mr. Sanjay Gholve, Advocate for Defendant No.1 / MCGM.
Mr. Omkar Khanvilkar, Advocate for Defendant No.2.
ORDER
This is a motion taken out by plaintiff to restrain
defendants from providing effect to the notice dated 03/07/2018 issued
under Section 354A of MMC Act and to pull down the suit property i.e.
'B' Wing, Geetanjali Building, Village Road, Bhandup, Mumbai.
2. Perused reply submitted by defendants no.1 and 2.
3. Ld. advocate Kudalkar for plaintiff submits that there are in
total six flats in 'B' Wing and plaintiff is owner of two flats. There are
two buildings named as 'Geetanjali Building' containing two wings i.e.
'A' and 'B'. It is not disputed that construction of 'A' Wing was
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N/m No. 4428/19 in Suit No. 1411/19. 2 Order.
completed in 1960, it was a load bearing building. However, 'B' Wing
was approved in 1982, constructed in 1984 and occupied in 1987. The
'A' Wing was initially ground plus two floor in the year 1962. It was
extended by additional two floors and at the same time 'B' Wing was
constructed in 1982. Plaintiff is no way concerned with 'A' Wing, which
is in dilapidated condition.
4. According to plaintiff, the structural audit completed by
M/s. Powle & Associates on 28/07/2018. Building 'B' require minor
repairs which may extend life of the building by additional 20 years. It
is alleged that defendant has completed structural audit by M/s.
Pioneer, it is with malafide intention to pull down both buildings as
defendant no.2 is intending to redevelop the area. It is claimed for
temporary injunction.
5. Ld. advocate Sanjay Gholve for defendant no.1 MCGM
submits that structural audit report of plaintiff and defendant no.2 both
came to be considered by defendant no.1. Thereafter a TAC Committee
came to be appointed. As per TAC Report, both buildings became
dangerous. Therefore, defendant no.1 has issued notice to demolish
both buildings.
6. Ld. advocate Omkar Khanvilkar for defendant no.2 submits
that defendant no.2 is not necessary party, however defendant no.2 is
landlord of Building Wing 'A'. Defendant no.1 MCGM has served a
notice on 29/11/2018 to plaintiff. Plaintiff is a tenant of Mr. Bhatia.
Mr. Bhatia is lessee of defendant no.2. Therefore, plaintiff has illegally
occupied the suit property. According to defendant no.2, it is
specifically mentioned in TAC Report that building 'B' cannot be a
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N/m No. 4428/19 in Suit No. 1411/19. 3 Order.
separate structure. It is admitted that 'A' Wing is in dilapidated
condition and it is necessary to pull down. It is requested to pull down
both building.
ADMITTED FACTS :
7. It is necessary to narrate the admitted facts at the inception
i.e.
a) Suit property Geetanjali Building consists of two wings 'A'
and 'B'.
b) 'A' Wing is totally possessed and owned by defendant no.2.
According to defendant no.2, both buildings needs to be
pull down being in dilapidated condition.
c) Initially in 1960 'A' Wing consists of ground plus two floors,
standing on load bearing structure. In 1982, at the time of
construction of 'B' Wing, additional two floors were erected
on 'A' Wing. Therefore in 1984 'A' Wing became ground
plus four.
d) In 1982 'B' Wing came to be erected consists of ground plus
two floors. The construction of 'B' Wing was completed in
1984 and occupied in 1987.
REASONS FOR FINDING
8. According to ld. advocate Khanvilkar for defendant no.2,
there is no dispute that condition of Geetanjali Building is dangerous
and fatal to public at large. It is necessary and urgent to pull down. Ld.
advocate Kudalkar for plaintiff submits that plaintiff has no objection to
take appropriate action against 'A' Wing as plaintiff is concerned with 'B'
Wing i.e. ground plus two structure.
9. Defendant no.2 has completed structural audit through Mr.
Vinayak Chopdekar which suggests that both buildings are in dangerous
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N/m No. 4428/19 in Suit No. 1411/19. 4 Order.
condition and it is necessary to pull down. Defendant no.1 relied on
various photographs and category list of C1 Buildings. He relied on
inspection report dated 23/06/2018. However plaintiff has carried out
structural audit through M/s. Powle & Associates, who categorized 'B'
Wing as category C3 which needs no eviction but only minor repairs.
Therefore matter was forwarded to TAC Committee. In TAC Report it is
observed that both buildings are necessary to pull down and building 'B'
cannot be a separate structure.
10. On perusal of various photographs submitted by plaintiff
and sanction plan of both buildings, it is crystal clear that both
buildings are independent structure standing on separate columns.
However both buildings are attached only for purpose of convenience
for approaching from building 'A' and 'B'. The conclusions drawn by
M/s. Powle & Associates on Page 30 of the plaint are reproduced as
follows :
16 Conclusion of consultant
Whether structure is livable or it is
to be evacuated & pull down
Livable.
Whether structure could be repair
under tenantable repairs/major
structural repairs & its time frame
Structure can be repair
under tenantable repairs.
Repair period will be 2
months.
Enhance in life of structure after
repairs/frequency of repairs
required in extended life period.
Without repair structure's
life is about 20 years. After
repair life of structure will
enhance by 10 years.
18 Classification of building
C1 To be evacuated/demolish
immediately,
C2 A To be evacuated and or
partial demolition require major
structural repairs.
C3 No eviction needs
minor repairs only.
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N/m No. 4428/19 in Suit No. 1411/19. 5 Order.
C2 B No eviction only structural
repairs.
C3 No eviction needs minor
repairs only.
11. The Structural Stability Certificate issued by M/s. Powle &
Associates at Page No.40 is reproduced as follows :
'This is to certify that building known as Gitanjali
Wing B, Near Bhatiya Hospital, Village Road,
Bhandup West, Mumbai 400078, situated on
C.T.S.No. 416 of Bhandup Village & which
ground plus two upper floor was inspected on
24/07/2018 at about 11.30 pm and is found
structurally SAFE, SOUND & STABLE for the
period of next 15 years without carrying any
repair work & if repair as per our procedure its
life will enhance by additional 10 years.'
12. In Mahendra Shah V/s. MCGM W.P.No. 1755/2019 in
Para 19 it is observed that,
'As a general principle we note that the entire
scheme of reference to a TAC was simply to
ensure transparency and accountability in the
recommendation and assessment process of the
ultimate fate of structure.'
'It categorizes structures into those in private
hands and those owned by the MCGM. Where
privately owned buildings are more than 30
years old, or where there are complaints about
the condition of a building of less vintage and
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N/m No. 4428/19 in Suit No. 1411/19. 6 Order.
the MCGM is of the view, on a visual inspection,
that it is indeed dilapidated, a notice is to be
issued requiring the owners, occupiers or tenants
to carry out a structural audit. There are specific
tests mentioned. There are default provisions.
The structural audit is to be made known by
displaying it on the premises.
Tenants/occupants who object to the audit are at
liberty to obtain their own structural report
within 30 days, which can be extended by
another 15 days. If there are conflicting reports,
the matter is referred to the TAC. Its decision is
final and binding. The TAC must give a hearing
to the contesting structural consultants. Then
there are a series of steps set out to be followed
if the TAC concludes that the building is unsafe
and needs to be brought down. There are
parallel provisions for MCGMowned buildings.'
13. It is to note that in some of the reports submitted on behalf
of defendant no.2, it is shown as building 'A' consists of ground plus five
floors and building 'B' consists of ground plus three floors. Therefore, it
appear that the visit of concerned engineer on behalf of defendant no.2
over the suit property is doubtful.
14. It is true that MCGM has issued a notice to Mr. P.N.Powle
to attend TAC meeting on 04/10/2018. However it was informed by
Mr. Powle that he is not available and requested to postpone the TAC
meeting. However despite said intimation TAC visit was completed in
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N/m No. 4428/19 in Suit No. 1411/19. 7 Order.
absence of Mr. Powle.
15. On perusal of TAC Report, it bears signature of Chairman
of TAC Committee dated 03/11/2018 alongwith signature of Ward
Engineer on 11/10/2018. However, A.L.O. of 'S' Ward and E.E.
(B.P.)E.S.II being member of the Committee were absent. It means
two members were absent when report was completed. It shows that
the person having grievance in respect of building B was absent
including two members. Therefore the report of TAC prima facie
appears to be doubtful.
16. Admittedly Mr. Powle, representative of 'B' building was
not present. On perusal of sanction plan, building 'B' appear to be
independent structure. The entry and exit of 'B' building is separate,
there is no connection or common foundation or common pillars
between both buildings. If building 'A' is in dilapidated condition, it is
necessary to pull down. However, it would be unjustified to pull down
'B' Wing, as 'A' Wing is in dilapidated condition which came to be
constructed 25 years prior to the 'B' Wing.
17. In view of various documents, it is admitted by defendant
no.2 that he intends to redevelop Wing 'A' to erect new building. As per
report of M/s. Powle & Associates, 'B' Wing comes in the category of C3
which require minor repairs and it may enhance life of the structure.
Obviously, there is a strong prima facie case in favour of the plaintiff.
18. According to defendant no.2, plaintiff is tenant of Mr.
Bhatia, who handed over the suit premises to the plaintiff. According to
plaintiff, there is no discussion between plaintiff and defendant no.2
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about plan of redevelopment and protection of interest of protected
tenant. It appear that defendant no.2 has not discussed with plaintiff in
respect of protection of rights of 'B' Wing. It appears that for the
development of 'A' Wing, there is vested interest of defendant no.2 in
pulling down of both wings. Resultantly, it will cause irreparable loss to
the plaintiff.
19. There is no objection on behalf of plaintiff if defendant no.1
and 2 pull down the structure of 'A' Wing. There is expert opinion on
record that both buildings are independent structures. There is
independent underground water tank below 'B' Wing. As discussed
above, Wing 'A' completed in 1960 and Wing 'B' completed in 1984.
Obviously, the life span of both buildings would be different. Hence the
balance of convenience lies in favour of plaintiff. Hence the order :
ORDER
1. Notice of Motion No. 4428/2019 is allowed.
2. Defendant No.1 and 2 are restrained from taking further
action in view of notice dated 03/07/2018 to pull down 'B'
Wing of Geetanjali Building, Bhandup.
3. Defendant No.1 and 2 may take appropriate action against
'A' Wing of Geetanjali Building, Bhandup.
4. N/m No. 4428/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 11/12/2019. Mumbai.
1. Dictated on : 10/12/2019.
2. Transcribed on : 12/12/2019.
3. Signed on : 13/12/2019.
4. Delivered to Certified :
Copy Section on
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N/m No. 4428/19 in Suit No. 1411/19. 9 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/12/2019. 5.46 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 11/12/2019.
Judgment/Order signed by P.O. on 13/12/2019.
Judgment/Order uploaded on 13/12/2019.
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