Bombay High Court
Vijaykumar Angrish And Others vs The Municipal Corporation on 16 December, 2022
Bench: Anuja Prabhudessai
P.H. Jayani 30 AO1098.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 1098 OF 2022
WITH
INTERIM APPLICATION NO. 20369 OF 2022
IN
APPEAL FROM ORDER NO. 1098 OF 2022
Vijaykumar Angrish and ors. .... Appellants
v/s.
The Municipal Corporation of
Greater Mumbai and ors. .... Respondents
Mr. Ghanshyam Upadhyay a/w. Mr. Vijay Jha, Mr. Suhail
Singh, Mr. Aakash Mishra, Mr. Hemang Upadhyay
i/b. Res Juris for the Appellants.
Mr. R.Y. Sirsikar for Respondent No.1 - MCGM.
Mr. Chirag Balsara a/w. Gaurangi Patil and Mr. Parth Mehta
i/b. GP and Associates for Respondent No.2.
Mr. Swapnil Bangur, Mr. Aditya Miskita, Ms. Neha Mehta,
Ms. Aayushi Gohil i/b. M/s. M.T. Miskita and Co. for Respondent No.3.
CORAM: SMT. ANUJA PRABHUDESSAI, J.
DATED : 16th DECEMBER, 2022.
P. C. :-
. Learned counsel for the Appellant seeks leave to file additional
affidavit. Leave is granted. To be filed in the Registry within a period of
one week.
2. The Appellant herein has challenged the order dated 25/11/2022
passed by the learned City Civil Court, Borivali Div., Dindoshi, Mumbai
dismissing the Notice of Motion No.2188/2022 in L.C. Suit
No.1576/2022.
P.H. Jayani 30 AO1098.2022.doc
3. Heard learned counsel for the Appellants and learned counsel for
the Respondents. I have perused the records and considered the
submissions advanced by the learned counsel for the respective parties.
4. The Appellants herein have filed a suit challenging the notice dated
01/07/2022 issued by the Corporation under section 354 of MMC Act,
1888. The records prima facie indicate that the occupants of the building
had agreed for re-development. However, there was dispute amongst the
members regarding validity of the re-development agreement. The
Appellants who are the members of the society as well as the developer
has filed suits which relate to the re-development agreement. It is stated
that the said suits are pending before this Court. During the pendency of
the said suits, the Corporation issued notice under section 354 of MMC
Act.
5. The notice under section 354 was issued on the basis of the report
submitted by the Respondent No.2 - Society classifying the structure as
C-1 category. The Appellant had also submitted a structural report which
classifies the structure in C-2B category. Since the validity of the said
report was of one year, the Appellant submitted 2 nd report dated
19/08/2022, which once again classified the building into C-2B category.
P.H. Jayani 30 AO1098.2022.doc
The learned Judge has observed that in the 2 nd report, measurement of
ultrasonic Pulse Velocity Test is shown as 2.10 k.m./sec. The Trial Court
therefore inferred that there is no conflict between both the reports.
6. As noted above, in the 2nd report dated 19/08/2022, for the reasons
stated, the structure was classified as C-2B category. The Trial Court
could not have drawn inference on the basis of some random observations
in the report and substituted its own view for that of technically qualified
experts. Considering that both the reports have given conflicting findings
viz. that the building is in C-1 category and the 2 nd report stating that it is
in C-2B category, in my considered view, it is necessary to refer the matter
to the TAC Committee. The TAC shall prepare a report after carrying out
usual inspection and upon conducting specific tests as per the judgment of
the Division Bench of this Court in Original Side Writ Petition (L)
No.1135/2014 dated 23/06/2014 and upon following the guidelines of
the Corporation. The TAC report shall be submitted within four weeks
from the date of the order. Ad-interim relief, if any granted earlier, to
continue till the next date of hearing. Learned counsel for the Petitioner
states that undertaking given earlier shall continue till the next date.
7. Stand over to 20/01/2023.
Digitally
signed by (SMT. ANUJA PRABHUDESSAI, J.)
PREETI PREETI
JAYANI
H Date:
JAYANI 2022.12.20
17:17:10
+0530
