Shree Arun Jakson James vs The Brihanmumbai Municipal ...
2016 Latest Caselaw 5607 Bom

    Dixit
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                                        CIVIL APPELLATE JURISDICTION
                         APPEAL FROM ORDER (STAMP) NO.23798 OF 2016




                                                             
            Arun Jakson James                                 ]
            Age : 45 years, Occ.: Service,                    ]
            R/at 118-A, 1st Floor, Sindhi Society,            ]
            Near Sai Darshan Building, Chembur,               ]            .... Appellant /




                                                            
            Mumbai - 400 071.                                 ]               Org. Plaintiff
                           Versus
            1. The Brihanmumbai Municipal Corporation,        ]
               A Body Corporate, registered and incorporated]
               under the provisions of B.M.C. Act, having its ]




                                                  
               registered address at Brihanmumbai             ]
               Mahanagarpalika, Mahapalika Marg, Fort,
                                        ig                    ]
               Mumbai - 400 001.                              ]
                                AND                           ]
               One of its Branch Office address at M/West     ]
                                      
               Ward, Mumbai, Office Building Sharadbhau       ]
               Acharya Marg, Chembur, Mumbai - 400 078. ]
            2. The Assistant Commissioner,                    ]
               M/West Ward, Mumbai, Office Building           ]
               Sharadbhau Acharya Marg, Chembur,              ]
              


               Mumbai - 400 078.                              ]
            3. Manjit Singh Jodh Singh Abrol                  ]
           



               Adult, Indian, R/at B-602, Tolaram Smurti      ]
               C.H.S. Ltd., Chembur Colony, Mumbai - 74. ]
            4. Mukesh Ramesh Bajaj                            ]
               Adult, Indian Inhabitant,                      ]





               R/at Flat No.1104, B-Wing, Hari Kunj-II,       ]
               Sindhi Society, Chembur, Mumbai - 71.          ]            .... Respondents

            Ms. P.M. Bhansali for the Appellant.





            Mrs. Madhuri More for Respondent Nos.1 and 2 - BMC.
            Ms. Deepa Pohuja for Respondent Nos.3 and 4.

                                      CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                      DATE     : 27TH SEPTEMBER 2016.



            AO-(St.)-23798-16==.doc





     ORAL JUDGMENT :
    1.      Admit.




                                                                          

2. Heard learned counsel for the parties finally at the stage of

admission itself. Learned counsels for the respondents waive service of

notice.

3. By this Appeal, the appellant-original plaintiff is challenging the

order dated 1st July 2016 passed by the learned Judge of the City Civil

Court, Mumbai in Draft Notice of Motion in L.C. Suit No.1427 of 2016. By

the impugned order, Trial Court has refused the ad-interim relief and

directed the appellant to implead both caveators as co-defendants in the

Suit and serve the writ of summons upon them.

4. As per the appellant, he is in possession of the suit premises as

tenant and his tenancy is already confirmed. The caveators, namely,

Manjit Singh Jodh Singh Abrol and Mukesh Ramesh Bajaj, respondent

Nos.3 and 4 herein, have purchased the said property. The notice under

Section 354 of the Mumbai Municipal Corporation Act, 1888, (for short,

"the MMC Act"), dated 1st April 2016 came to be issued and served on the

caveators, i.e. respondent Nos.3 and 4 herein, and also on the present

appellant on the count that the suit structure has become dilapidated,

dangerous and needs to be demolished. In view thereof, the appellant

AO-(St.)-23798-16==.doc

approached the Trial Court and sought the relief of injunction restraining

respondent Nos.1 and 2-the Municipal Corporation from taking any action

in pursuance of the said notice issued under Section 354 of the MMC Act.

5. Appellant, along with the Suit, has also sought the relief of interim

injunction by filing Notice of Motion. Trial Court rejected the said Notice of

Motion on the two counts; firstly, that the caveators/respondent Nos.3 and

4 were not joined in the Suit, though they were the necessary parties

being the owners of the suit premises. The second ground on which the

Trial Court rejected the Notice of Motion was that the Structural Audit

Report dated 4th April 2016 placed before the Assistant Engineer, who

forwarded the same to the Deputy Engineer for verification and who has,

after verification, on 30th May 2016 confirmed that the suit premises were

in ruinous condition, they fall under "C-1" category and, therefore, required

to be pulled down immediately. On these two facts, the Trial Court found

that the relief, which appellant was seeking, cannot be granted as it may

have the disastrous consequences.

6. Now the submission of learned counsel for the appellant is that the

appellant wants to have his own Structural Audit Report, which appellant

is not permitted to do. It is urged that the Structural Audit Report, on which

the respondent Nos.1 and 2-the Municipal Corporation is relying upon, is

AO-(St.)-23798-16==.doc

submitted by respondent Nos.3 and 4, who are the owners, and, naturally,

they being interested in demolition and pulling down of the suit premises,

that Structural Audit Report favours their case and not the case of the

appellant, who is actually in possession of the suit premises. It is urged

that, now the notice under Section 488 of the MMC Act is issued and the

suit structure is likely to be pulled down by the respondent Nos.1 and 2-

the Municipal corporation at any time and, therefore, urgent ad-interim

relief be granted.

7.

At the outset itself, it has to be stated that both the grounds

mentioned by the Trial Court in its impugned order stand as on today also.

When, admittedly, the owners are also the interested party and they had

filed the caveat and not joined in the Suit, the Trial Court was justified in

holding that the Suit itself is apparently not maintainable for want of non-

joinder of necessary parties. Secondly, the Trial Court has also relied upon

the report of the respondent Nos.1 and 2-the Municipal Corporation

confirming that the suit premises are in ruinous condition, falling in "C-1"

category and, therefore, required to be pulled down. Hence, the discretion

exercised by the Trial Court in refusing ad-interim relief, being properly

exercised, does not call for any interference at this stage.

8. It is also pertinent to note that, in respect of the said notice dated 1 st

AO-(St.)-23798-16==.doc

April 2016, issued by the respondent Nos.1 and 2-the Municipal

Corporation, under Section 354 of the MMC Act, one Mr. Vishnu

Parmanand Shahani, claiming himself to be the owner of the suit

premises, has filed L.C. Suit No.1568 of 2016 before the Trial Court and in

that Suit, he has also filed Notice of Motion seeking ad-interim relief of

injunction restraining respondent Nos.1 and 2-the Municipal Corporation

from taking any action in pursuance of the said notice. After the Trial Court

refused ad-interim relief to him, he has preferred Appeal from Order

(Stamp) No.21118 of 2016 challenging the said order and this Court, vide

its order dated 11th August 2016, after considering the Structural Audit

Report relied upon by the Trial Court therein, was pleased to dismiss the

said Appeal, holding that the suit structure, being in ruinous condition,

needs to be demolished and the respondent Nos.1 and 2-the Municipal

Corporation, being the Planning Authority, has to take appropriate decision

and once it has taken such decision, no case was made out for

interference.

9. Needless to state that, once this Court has applied its mind to the

legality of the notice dated 1st April 2016, issued under Section 354 of the

MMC Act, and found that the said notice is issued legally, properly and no

interference is warranted therein, this Court cannot sit in appeal on the

said order and again decide legality and validity of the said notice.

AO-(St.)-23798-16==.doc

Therefore, on this very ground also, the present Appeal does not hold any

merit and hence liable to be dismissed.

10. Learned counsel for respondent Nos.3 and 4 have also produced

on record a copy of the order passed by the Division Bench of this Court

in O.O.C.J. Writ Petition (Lodging) No.2157 of 2016. The said Writ Petition

was filed by the father of the present appellant and in the said Writ Petition

also, he has challenged the same notice dated 1 st April 2016 issued by the

respondent Nos.1 and 2-the Municipal Corporation, under Section 354 of

the MMC Act. Subsequently, he was permitted to withdraw the said Writ

Petition, considering that already his son-the present appellant has filed

the Suit.

11. Learned counsel for the respondent Nos.1 and 2-the Municipal

Corporation has also pointed out that the notice was issued under Section

353-B of the MMC Act to the appellant also, for producing the Structural

Audit Report. However, the appellant has failed to do so. Learned counsel

for respondent Nos.3 and 4 then points out that the copy of the Structural

Audit Report was produced by the father of the appellant in the above-

said Writ Petition also. Thus, on this ground also, there remains no cause

or grievance for the appellant to contend that his Structural Audit Report is

not taken into consideration.

AO-(St.)-23798-16==.doc

12. Thus, looked at it from any angle, absolutely no case is made out

for interference in the impugned order passed by the Trial Court. The

Appeal, therefore, holds no merit and hence stands dismissed.

13. At this stage, learned counsel for the appellant requests the Court

to grant time of two weeks to the appellant for vacating the suit premises.

She submits that the appellant is ready to give his undertaking and also

the undertaking of his father, stating that they will vacate the suit premises

after expiry of two weeks from today and also withdraw both the Suits filed

by them in the Trial Court, subject to protection of their tenancy rights.

Respondent Nos.3 and 4 have no objection for the same.

14. In view thereof, it is directed that the time of two weeks is given, as

a last chance, to the appellant to vacate the suit premises, subject to

appellant filing the undertaking of himself and his father within two days,

stating that they will vacate the suit premises, without fail, before the

expiry of the two weeks period from today and they will also withdraw the

Suits filed by them and, further, subject to undertaking that they will be

occupying the suit premises at their own risk, costs and consequences

and respondent Nos.1 and 2-the Municipal Corporation and respondent

Nos.3 and 4 will not be held liable for any mishap, which may happen.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

AO-(St.)-23798-16==.doc