Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order-NM-4739-19 in SU3211-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEFS ON
NOTICE OF MOTION NO.4739 OF 2019
(CNR no. MHCC010129592019)
IN
SUIT NO. 3211 OF 2019
(CNR no. MHCC010125142019)
Mr. Sumanbhai Ladhubhai Rosia ]
Aged : 75 years, Occupation : Business ]
Residing at Flat No. B3, Wing No. B, ]
Ground Floor, Kasturba Nagar CHS Ltd., ]
Thakkar Bappa Colony, Chembur, Mumbai 400071. ]... Plaintiff
Versus
1. Municipal Corporation for Greater Mumbai ]
having its address at Municipal Building, ]
Mahapalika Marg, Fort, Mumbai 400 001. ]
2. Kasturba Nagar CoOperative ]
Housing Society Limited. ]
Thakkar Bappa Colony, Chembur, Mumbai400071. ]....Defendants
Appearances:
Ld. Advocate Vincent X. D'silva for the Plaintiff.
Ld. Advocate Mr. S. C. Khandagale for Defendant No.1/MCGM.
Ld. Advocate Ms. Sarita Dhonde for Defendant No.2.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 13th December, 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, Notice of Motion, documents annexed to
the plaint, documents filed by the defendant no.1/MCGM and heard
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both sides on adinterim relief. The suit challenges proceeding initiated
by defendant no.1/MCGM under Section 354 of Mumbai Municipal
Corporation Act, 1888 (hereinafter referred as "MMC Act") claiming
that the suit building is in ruinous condition and needs to be evacuated
for repairs. It is pertinent to note that the defendant no.1/MCGM has
not yet declared the suit building in C1 category i.e. dilapidated
building which needs to be demolished immediately but the same is
declared C2A category which means the building needs structural
repairs after evacuation of the occupants therein. Ld. Advocate for the
plaintiff has alleged that the defendant no.1/MCGM issued notice under
Section 353B of MMC Act for obtaining Structural Audit Report in
2017 even though the building was not 30 years old and not special
reasons were assigned for issuing the notice. However, the notice issued
on 20.06.2017 was not the first notice under the said provision. Earlier,
similar notice was issued on 03.03.2016 to the Society. According to the
plaintiff, he never received such notice. However, the subsequent events
have to be considered in this matter to decide whether that aspect has
bearing on the matter.
In May, 2019, the defendant no.1/MCGM has received Structural
Audit Report of the suit building from Shashank Mehendale &
Associates wherein the building is categorized as C2A and it was
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advised that the building be evacuated during structural repairs.
According to the defendant no.1/MCGM, the plaintiff did not carry out
any such structural repairs till July, 2017 and therefore, notice under
Section 354 of MMC Act dated 17.07.2019 came to be issued for
evacuation of the suit building to carry out repair works as suggested by
registered Structural Consultant. Since, no repair work was started even
after issuance of said notice, the defendant no.1/MCGM obtained police
assistance and partially evacuated commercial rooms in the suit
building on 29.11.2019 and 30.11.2019 after issuing notice dated
22.11.2019 to the occupants. In this context it needs to be mentioned
that the plaintiff has come before the Court only after his premises was
sealed by defendant no.1/MCGM. This sequence of events shows that
the defendant no.1/MCGM has acted in consonance with Section 353B
and 354 of MMC Act and I do not find any mala fide act done by the
defendant no.1/MCGM.
2. From the written communications made by the defendant
no.1/MCGM, it is apparent that the defendant no.1/MCGM has taken
steps to safe guard the life of the occupants and passersby under
relevant provisions of MMC Act and for corrective repairs for securing
the structural stability of the suit building. Therefore, the defendant
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no.1/MCGM will have to act in accordance with the Section 353B
clause(6) to ensure that the suit building is repaired for securing
structural stability of the building.
3. During the course of arguments, it has transpired that the suit
building was allotted by the Collector, Mumbai for residential purpose
and he passed order for eviction of occupants on the ground of change
of user of suit building to commercial purpose. According to Ld.
Advocate for the defendant no.1/MCGM, the copy of said order is sent
to Municipal Commissioner for eviction of the occupants and since the
building is partially evacuated on 29.11.2019 and 30.11.2019, the
defendant no.1/MCGM will hand over the suit building to Collector. At
the cost of repetition, it needs to be mentioned that the defendant
no.1/MCGM has started evacuation for corrective repairs for securing
the structural stability of the building under relevant provisions of MMC
Act. The defendant no.1/MCGM has failed to show any authority to it to
get the building evacuated for corrective repairs under the provisions of
MMC Act and then hand over the same to the Collector for eviction
under the public premises (Eviction of Unauthorised Occupants) Act,
1971 (hereinafter ‘Act of 1971’). If the Collector is of opinion that the
occupants are liable to be evicted under the Act of 1971, then he has to
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follow the procedure under the said Act for Eviction of Unauthorised
Occupants. The proceeding under MMC Act and the Act of 1971 cannot
be mixed to get building evacuated for repairs and then take action
under the Act of 1971. Therefore, the Notice of Motion is partly allowed
with following order :
ORDER
Notice of Motion No.4739 of 2019 is partly allowed with following
order :
1) Prayer Clauses (a), (b), (c) and (d) of Notice of Motion are
rejected.
2) In the circumstances of the case, the defendant no.1/MCGM is
restrained from taking any further action pursuant to the
impugned notice except action for corrective repairs of the suit
building in accordance with the provisions of Mumbai Municipal
Corporation Act, 1888.
(C. V. Marathe)
Judge,
Date : 13.12.2019 City Civil Court, Gr. Mumbai.
Dictated on : 13.12.2019
Transcribed on : 13.12.2019
Signed by HHJ on : 13.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 16.12.2019 at 11.24 a.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
13/12/2019
JUDGMENT/ORDER signed by
P.O. on
13/12/2019
JUDGMENT/ORDER uploaded
on
16/12/2019
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