Final Order 1

Order Details: Notice of Motion
Pdf Text: 22/10/2021
SU.3342/19
CORAM : H.H.J. SHRI S.D. KULKARNI, (C.R.NO.08)
Adv Sarita Donde for plaintiff present.
Adv D.K. Vyas with Adv. Mrs. Tondwalkar for Defendant/MCGM is
present.
ORDER ON N/M NO. 4746/2019 AND N/M NO.1407/2021
Plaintiff has taken out both this Notice of Motion for
restraining the defendant / corporation for implementing or
enforcing the notices dated 22.11.2019 and 11.06.2021
respectively. By way of Notice of Motion No.4746/2019 plaintiff
prayed that defendant be restrained from taking forceable
possession of suit premises. By way of Notice of Notion
No.1407/2021 plaintiff prayed that defendant / corporation be
restrained from demolishing / pull down the suit premises.
The plaintiff contended that before issuing notice by
Designated Officer 'M' (west) ward had not considered the reply
filed by the plaintiff. The plaintiff further contended that they are in
lawful, legal and settled possession of the suit premises. The
plaintiff could not be removed without following due process of
law. The defendant corporation appointed a structural auditor of its
own. The said structural auditor categorized suit building in C2A
category. The suit building is in good condition repairable therefore,
plaintiff structure should be required to be protected by way of
order of injunction. Some vested person in joining hands with
defendant / corporation desires to remove the plaintiff from the suit
premises. The defendant / corporation could not dispossess plaintiff
from the suit premises. The audit report submitted by structural
auditor by the defendant / corporation is not believable. The
defendant corporation falsely submitted that most of the occupant
of the plaintiff society have already vacated their premises.
Therefore plaintiff prayed that defendant be restrained from
demolishing the suit property and dispossessing plaintiff from the
suit premises.
The advocate for the defendant submitted that the portion
of the suit building was collapsed on 25.10.2019. Therefore suit
building was again inspected. In that inspection it is found that the
condition of the suit building is deteriorated needs to be vacated
immediately. In the year 2020 M/s. Femstruct Consulting Engineers
LLP appointed as a structural auditor. The said structural auditor
conducted structural audit of the suit building and submitted the
report on 04.05.2021. As per the said report, the suit building has
been categorized as C1. The above audit report issued to the
plaintiff and opportunity was given to them to file their reply to the
report but plaintiff fails to filed reply, so also plaintiff has not
appointed any structural auditor to carry out the structural audit of
the suit building. The condition of the suit building is very
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dangerous to live, it is dilapidated in condition hence needs to be
demolish immediately. Therefore defendant prayed that both Notice
of Motion be rejected.
Perused both Notice of Motion, affidavit in support thereof,
reply filed by the defendant. I also gone through the documents
filed on record by both the parties. On perusal of the record it
reveals that the defendant / corporation issued notice of the
plaintiff u/s 353B on 19.12.2018. The documents also shows that
corporation wrote several letters to the Plaintiff and directed them
to submit structural stability certificate. The record also shows that
plaintiff had not carried out any structural audit of the suit
property. The defendant / corporation appointed Mr. Shashank
Mehendale qualified structural engineer to carry out structural audit
of the suit building. He categorized the suit building in C2A
category. In October 2019 one person got injured due to collapse of
slab of the first floor of the suit building therefore, the inspection of
the suit building was again carried out. At that time M/s. Femstruct
Consulting Engineer LLP appointed as a structural auditor, he
categorized the suit building in C1 category.
The advocate for the plaintiff submitted that the defendant / corporation
issued notice of the Plaintiff u/s 353-B in the year 2017 but nothing happened
within these 3 years. The Collector alloted suit property to the plaintiff, being
migrated persons from the Pakistan. The members have their own constructed
suit building therefore, defendant / corporation have no relevance in suit
building. The structural audit report submitted by the defendant are created only
with a view to dispossess the plaintiff from the suit property. The suit building is
repairable and in good condition. The plaintiff is talking with builders and
developers to redevelop the suit property. Therefore defendant be restrained
from taking action in pursuance of notice dated 22.11.2019 and 11.06.2021.
The advocate for the defendant submitted that suit building is in dilapidated
condition, dangerous to live and categorized as C1 by the independent structural
auditor. Most of the occupants of the plaintiff society have already vacated their
premises. The advocate for the defendant filed on record the photographs and
pointed out the factual condition of the suit building. The advocate for the
defendant further submitted that plaintiff fails to appoint structural engineer to
carry out the structural audit of the suit building. The only one structural audit
report is on record which shows that suit building falls under C1 category.
Having heard both the sides and on perusal of entire record it reveals that
since 2017 corporation repeatedly directed the plaintiff to carry out structural
audit of the suit building. In the year 2018 corporation has appointed Mr.
Shashank Mehendale as a structural engineer. He carried out structural audit of
the suit building. In the year 2019 the part of the slab was collapse and one
person got injured. Therefore the officers of the corporation carried out
inspection of the suit building. During inspection they found suit building is
dangerous to live, dilapidated in condition. Therefore, corporation again
appointed M/s. Femstruct Consulting Engineer LLP as an independent
structural engineer. He carried out the structural audit of the suit building and
categorized as C1.
Defendant has filed on record Proforma 'B' of structural audit carried out
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by M/s. Femstruct Consulting Engineer LLP. I have gone through the said
report therein it is observed that a medium grown tree has been growing from
RCC column of 'C' wing due to likages from plumbing. Therein it is also
observed that sudden action of falling entire plaster and cover concrete of slab
has been noticed which could have been proven dangerous to human life. The
structural auditor concluded that the suit building needs to be evacuated /
demolished immediately. It is unsafe / dangerous / inhabitable structure needs to
be vacated. The structural engineer categorized the suit building in C1 category.
On going through the entire documents on record especially both structural
audit reports, then it reveals that the suit buildings is dangerous to live, in
dilapidated condition. Considering all above discussion I am of the view that the
plaintiff failed to prove prima facie case in its favour. The balance of
convenience also not lies in favour of the plaintiff. I also don't think that if
injunction is refused plaintiff will suffer irreparable loss. Therefore in my
opinion plaintiff is not entitled for the relief prayed. Considering this passed the
following order :
O R D E R
1. Prayer clause (a) in Notice of Motion No.4746/2019 is rejected.
2. Prayer clauses (a) and (b) in Notice of Motion No.1407/2021 are rejected.
3. Accordingly Notice of Motion No.4746/2019 and Notice of Motion
No.1407/2021 stands disposed off.
Authenticated copy of Roznama be given to both the parties.
Adjd. to /2021 for W.S.
L.O.
Adv for plaintiff tendered application for stay of operation of above order in
NM. Said application is TOR and marked as Exh.6.
O- Other side to say.
Adv for defendant has given say on Exh.6 itself.
Heard both sides on Exh.6
ORDER ON EXH.6
Adv for the plaintiff filed application vide Exh.6 by contending that
plaintiff wants to challenge said order before Hon'ble High Court, hence prayed
that execution of this order be stayed for four weeks.
Adv for the defendant / MCGM strongly opposed the application by
contending that suit building is in dilapidated condition, most of the occupants
have already vacated the suit premises.
Heard both advocate at length.
On perusal of record it shows that previously protection was given to the
plaintiff and it is continued till today, therefore, two weeks time is granted to the
plaintiff, to challenge this order till then the execution and operation of this
order be stayed. Accordingly application filed vide Exh.6 is partly allowed.
Authenticated copy of Roznama be given to both the parties.
F.R.S.R. following order is passed on N/M NO.1494/2021
O R D E R
1. Prayer clause (a) stand rejected.
2. Notice of Motion No.1494/2021 stands disposed off.
Adjd. To 22/11/2021 for W.S.
AdHoc Judge
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