Interim Order 1

Order Details: Order
Pdf Text: :: 1 :: Draft NMSU1401/19
IN THE BOMBAY CITY CIVIL COURT AT DINDOSHI
(BORIVALI DIVISION), GOREGAON, MUMBAI
DRAFT NOTICE OF MOTION
IN
L.C.SUIT NO.1401 OF 2019
(CNR No.MHCC040045412019)
Shri Rajendra Bhailal Sanchaniya & Ors. ..Plaintiffs
Versus
The Mumbai Corporation of
Greater Mumbai & Anr. ..Defendants
Adv. Mr. N.B. Shukla for the plaintiffs.
Adv. Mr. Santosh Mhatre for defendant No.1.
None for defendant No.2.
Coram : His Honour Judge
Shri H.B. Gaikwad
(C.R.No.8)
Date : 24th December, 2019
ADINTERIM ORDER
By way of adinterim relief, the plaintiffs seeks to refer the
matter to the Technical Advisory Committee and to restrain the
defendants from acting upon the notice dated 14.01.2019 and
13.12.2019, till the decision of the Technical Advisory Committee.
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2. The learned advocate for the plaintiffs submits that the
structural audit of the suit building has been done on 20.06.2019 by V S
Tech and Associates on behalf of the plaintiffs, according to which the
suit building has been classified C2/A category. The said report has
been submitted to defendant No.1 by one of the tenant Uday J. Kapadia
on 26.06.2019 and requested to refer the matter to the Technical
Advisory Committee (for short 'the TAC'). Initially, the said structural
audit report was submitted at the time of deciding the earlier Notice of
Motion No.2093/2019, however, the same was not considered as there
was no pleading to that effect in the plaint or in the supporting
affidavit. He submitted that as now the plaintiffs have amended the
plaint and incorporated these facts on record and has filed the present
Notice of Motion, the matter needs to be referred to the TAC as there
are two conflicting reports. He thus, submits that no prejudice will be
caused to the defendants, if the matter is referred to the TAC and till its
decision the suit building is protected.
3. As against this, the learned advocate for defendant No.1
strongly opposed for referring the matter to the TAC, as plaintiffs have
not submitted the structural audit report within the prescribed time and
even till filing of the suit. He submitted that only after filing of the suit,
the structural audit report has been submitted to defendant No.1, which
is not permissible as per the guidelines laid down by defendant No.1.
He urged that the plaintiffs have slept over their rights till filing of the
suit for appointing structural auditor. He canvassed that the plaintiffs
cannot act as per their whims and caprices and submit the structural
audit report, as per their convenience. Thus, according to him, as
already Notice of Motion No.2093/2019 claiming similar relief has been
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dismissed by this court on 5.07.2019 on merits, the same relief cannot
be again considered. He, thus, prayed for refusal of adinterim relief.
4. It is the case of the plaintiffs that they are the tenants in
the building known as 'Zainab Baugh Building', which consist of ground
plus four floors, situated at Bharucha Road, Dahisar (East), Mumbai
(for short 'the suit building'). There are total 68 tenants in A and B
Wing of the suit building. Defendant No.2 is the owner and their
landlord. They are paying rent and rent receipts are also issued to them.
Ration Cards are also issued to the plaintiffs at the address of the suit
building. The plaintiffs have also obtained electricity connection at their
respective flats.
5. On 29.11.2018, the Assistant Commissioner, R/North Ward
issued notice, stating that the suit building is classified in C1 category
and requires propping for the protection of the suit building. One of the
tenant has replied the said notice on 11.12.2018, stating that the said
notice is illegal and the suit building is wrongly classified as C1
category and requested to grant repair permission of the suit building.
Thereafter, the Assistant Engineer (B&F), R/North WardII Office issued
a notice bearing No.RN/DO2RN/006/354MMC ACT/RN15N01 dated
14.01.2019 (for short 'the impugned notice') at the instance of
defendant No.2, stating that the suit building is in a dilapidated
condition, which needs to be demolished. The impugned notice has
been issued without conducting any structural stability audit of the suit
building and without complying the directions given by the Hon'ble
High Court in Writ Petition No.1135 of 2014. The suit building is stable
and in habitable condition, however, defendant No.2 wants to get the
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suit building vacated, with the help of defendant No.1, without
providing the redevelopment benefits to the plaintiffs and other tenants.
6. As defendant No.2 failed to get the suit building vacated,
he instigated the officer of defendant No.1 and got the notice dated
28.05.2019 issued. By the said notice, the plaintiffs were threatened to
disconnect their water and electricity supply on 11.06.2019, with the
help of the police. The said notice was served upon the plaintiffs on
10.06.2019. Defendant No.1 acted highhandedly and disconnected
the water and electricity supply to the suit building on 11.06.2019,
without complying the directions given in the Writ Petition No.1135 of
2014. Defendant No.1 without carrying any structural stability audit has
initiated action under Section 354 of the Mumbai Municipal
Corporation Act (for short 'the Act'). Defendant No.2 started to compel
and force the occupants to vacate the suit building by using the
machinery of defendant No.1, by disconnecting the water, electricity
and other amenities. Defendant No.2 is not ready to execute any
agreement with them and other occupants in respect of redevelopment
and its benefits. Defendant No.2 wants to throw the plaintiffs out of the
suit building. In this background, they were constrained to file the
present suit challenging the impugned notice to be illegal.
7. Initially, the plaintiffs have filed Notice of Motion
No.2093/2019 claiming protection of the suit building in pursuance of
the notice dated 14.01.2019 issued under Section 354 of the MMC Act
and for restoration of water supply. The said motion was partly allowed
on merits only to the extent of restoration of electric and water supply
that too till one day prior to their eviction.
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8. Now the plaintiffs have taken out fresh Notice of motion
and are claiming adinterim relief for referring the matter to the TAC
and till that time for protecting the suit building. The only ground
raised in the present notice of motion is pertaining to referring the
matter to the TAC and till that time for protection of suit building.
9. Admittedly, the plaintiffs have not carried out the structural
audit of the suit building, till filing of the suit. At this stage, the
plaintiffs seek to refer the matter to the TAC on the grounds that now
the structural audit of the suit building has been done on their behalf
and there being two contrary structural audit reports. As per Guidelines
for declaring the private and municipal buildings as C1 category
(dangerous, unsafe) dated 25.05.2018 framed by the MCGM, which has
been accepted by the Hon’ble High Court in the case of Municipal
Corporation of Greater Mumbai Vs. The State of Maharashtra & Ors.,
decided on 28.02.2018 in Writ Petition No.1080/2015, the
owner/occupier has to submit their structural audit report, within 30
days from the receipt of the notice under Section 353(B) of the MMC
Act.
10. The notice dated 29.11.2018 filed by defendant No.1 on
record shows that it was served upon the occupants of the suit building
including the plaintiffs whereby they were informed about the
structural audit report submitted for and on behalf of defendant No.2
and directed the occupiers to submit their objections for structural audit
report within 30 days. The signatures of the occupiers and the said
notice being pasted on the respective flats, is also seen from the said
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notice. The photographs filed by defendant No.1 dated 30.11.2018 also
shows that the said notice has been affixed on the suit building.
11. Even the plaintiffs themselves have admitted in para no.7
of the plaint that one of the tenant has replied the said notice on
11.12.2018. The perusal of the said letter filed by the plaintiffs shows
that one Subhashchandra Vyas has issued the said letter to the
Assistant Commissioner for permission to carrying out reconstruction of
the building. This letter also prima facie shows that the said tenant has
sought permission for reconstruction and not for repair. The reason for
reconstruction has not been stated in the said letter. Thus, there is
nothing on record to show that the plaintiffs have either replied the
notice dated 29.11.2018 or submitted any structural audit report to
defendant No.1. The plaintiffs though, were aware about defendant
No.1 calling upon them to submit the structural audit report, they failed
to appoint any structural auditor and did not submit any report within
30 days.
12. Even till filing of the suit the plaintiffs did not appoint any
structural auditor. It is during the pendency of the suit, the plaintiffs
appointed the structural auditor and submitted the structural audit
report to defendant No.1 on 26.06.2019 through one of the tenant. This
shows the inaction and negligence on the part of the plaintiffs.
13. The structural audit report prepared on behalf of the
plaintiffs was placed before this court at the time of hearing of Notice
of Motion No.2093/2019, wherein also the plaintiffs have sought
temporary injunction for restraining the defendants from implementing
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the notice dated 14.01.2019 issued under Section 354 of the MMC Act.
This court after hearing both the parties has partly allowed the said
Notice of Motion. By the said order, only the prayer for restoration of
water and electricity supply of the plaintiffs was granted, while the
other reliefs were rejected. Now by way of present Notice of Motion, the
plaintiffs again seeks temporary injunction to restrain the said
defendant No.1 from enforcing the notice dated 14.01.2019 and also
the notice dated 13.12.2019.
14. The notice dated 13.12.2019 has been subsequently, issued
by defendant No.1 directing the plaintiffs to vacate the suit building and
for disconnection of water and electric supply on 19.12.2019, as per the
order dated 5.07.2019 passed in this case. Thus, it appears that the
plaintiffs are claiming the same relief only by stating that now the
matter needs to be referred to the TAC. As already observed the
plaintiffs have slept over their rights and did not appoint the structural
auditor till filing of the suit. Thus, as no violation of the guidelines of
the MCGM laid down in this regard has been prima facie shown and as
already the Notice of Motion No.2093/2019 has been decided on merits
on 5.07.2019, no case is made out by the plaintiffs for grant of any ad
interim relief.
15. As a sequel to the above discussion, the plaintiffs have not
made out any prima facie case. The structural audit report submitted by
defendant No.2 and the photographs of the suit building prima facie
shows that the same is in a dilapidated condition and the possibility of
the building being collapsed, at any point of time putting the
occupiers/tenants of the suit building and the public at large at risk,
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does not warrant any interim protection. An irreparable loss at this
stage will naturally, be caused to the public at large, as their lives are
always at risk, looking to the condition of the suit building. Therefore,
comparative injury, which the defendants and public at large may suffer
is more than which may be caused to the plaintiffs. All these aspects are
already being dealt with, while deciding the Notice of Motion
No.2093/2019. Hence, I pass the following order:
ORDER
Adinterim relief claimed by the plaintiffs is refused.
Date: 24.12.2019 (H.B.Gaikwad)
Judge,
City Civil & Sessions Court,
Borivali Division, Dindoshi
Goregaon, Mumbai
Dictation given directly on computer on : 24.12.2019
Checked and signed by HHJ on : 24.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE ATUL SURYAKANT BHOGTE
AND TIME : 26.12.2019 3.50 P.M. NAME OF STENOGRAPHER
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Name of the Judge (with Court Room No.) HHJ Shri H.B.Gaikwad
(Court Room No.8)
Date of Pronouncement of Judgment/Order 24.12.2019
Judgment/Order signed by P.O. on 24.12.2019
Judgment/Order uploaded on 26.12.2019
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