Abid Sheikh S/O. Ibrahim Sheikh vs The City Of Nagpur Corporation, ...
2023 Latest Caselaw 927 Bom

                                                          1                            55.WP.3207-2021.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 3207 OF 2021
                      ( Abid Sheikh s/o Ibrahim Sheikh
                                     Vs.
       The City of Nagpur Corporation, Nagpur, Maharashtra Municipal
           Corporation, Thr. Its Commissioner, Nagpur & Anr. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. R.B. Khan, Advocate for the Petitioner.
                                  Mr. R.D. Chhabra, Advocate for the Respondent No.1.
                                  Mr. S.P. Kshirsagar, Advocate for the Respondent No.2.




                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 30th JANUARY, 2023

Heard Mr. Khan, learned counsel for the petitioner, Mr. Chhabra, learned counsel for the respondent No.1 and Mr. Kshirsagar, learned counsel for the respondent No.2.

2. The petition challenges the judgment dated 19.01.2021 passed by the District Judge- 5, Nagpur in Misc. Civil Appeal No. 62/2020, whereby the order dated 18.02.2020 passed by the Joint Civil Judge Junior Division, Nagpur below Exh. 13, an application under Section 151 of the Code of Civil Procedure seeking restraining of the respondent No.1/Corporation from demolishing the suit property, which was rejected has been allowed (page 66).

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3. Mr. Khan, learned counsel for the petitioner, by inviting my attention to the photographs on record filed by the respondent No. 1/Corporation indicates, that the suit property is in a totally dilapidated condition, and therefore, there is a possibility of it collapsing and causing hurt to the inmates who are the respondent No. 2 and his family members, and therefore, the impugned judgment which prohibits the respondent No. 1/Corporation from demolishing the suit property needs to be quashed and set aside. It is not disputed by Mr. Kshirsagar, learned counsel for the respondent No.2, that the two steps of staircase, had fallen down on account of the same being demolished by the petitioner illegally, as a result of which, the daughter of the respondent No.2 was injured. The allegation of intentional demolition of the steps has been denied by the learned counsel for the petitioner and it is submitted, that the steps collapsed on their own on account of their dilapidated condition.

4. Mr. Kshirsagar, learned counsel for the respondent No.2, by relying upon the report of the Structural Engineer Mr. M.A. Baig (page 125) submits, that the report would indicate that the structure is in a good condition and merely requires some repairs, and therefore, the impugned judgment is required to be maintained.

5. Mr. Chhabra, learned counsel for the respondent No.1/Corporation, has invited my attention to the additional affidavit filed on behalf of the 3 55.WP.3207-2021.odt

Corporation vide Stamp No. 08/2022, to which, a report of the structural Engineer is annexed and based upon it, it is submitted, that the suit property, is in a very dilapidated condition and requires demolition.

6. R.C.S. No. 1209/2015 Sk. Shabbir Vs NMC and Abid Sheikh, was filed by the respondent No.2 seeking declaration, permanent injunction and a further declaration that the notice issued by the NMC under Section 264 of the Maharashtra Municipal Corporation Act, be declared as illegal null and void. An application below Exh. 5 seeking a relief for temporary injunction came to be allowed by the order dated 10.01.2017 (page

112), whereby the defendants therein i.e. the present petitioner and the respondent No. 1 were restrained from taking any action of demolition of the suit property on the basis of the above mentioned notice.

7. R.C.S. No. 1209/2015 came to be dismissed in default by the order dated 02.12.2019 and all the interim orders passed therein, stood vacated (page 19). For restoration of R.C.S. No. 1209/2015, M.J.C. No. 574/2019 came to be filed by the present respondent No.2, in which an application was filed at Exh. 13 under Section 151 of the Code of Civil Procedure for restraining the present respondent No. 1 from demolition of the suit property, which came to be dismissed by the order dated 18.02.2020 (page 37). Against this dismissal, Misc. Civil Appeal No. 62/2020 came to be filed by the present respondent No. 2, which has been allowed by the judgment dated 19.01.2021 (page 67) and the 4 55.WP.3207-2021.odt

respondent No. 1 is restrained from demolition of the suit property till disposal of the M.J.C. No. 574/2019. The M.J.C. No. 574/2019 is said to be still pending and is at the stage of recording of evidence.

8. A perusal of the impugned judgment indicates, that in para 12, it has been observed by the Court, that there is no evidence filed by the present respondent No.2 to indicate that the NMC is disturbing the possession and right of the respondent No. 2, and therefore, injunction cannot be granted in favour of the respondent No. 2 in that regard. It however, goes on to hold, that if the interim relief is not granted the M.J.C. would be rendered infructuous (para 14 page 66), considering that, during the pendency of the suit Exh. 5 was allowed.

9. Surprisingly, the impugned judgment does not taken into consideration the nature or condition of the suit property. Though Mr. Kshirsagar, learned counsel for the respondent No.2, has placed reliance upon the report of Structural Engineer Mr. Baig, to submit that the structure was in a good condition and required some repairs only, it is necessary to note, that this report is dated 29.09.2015 (page 125) and except for the one and half page of the report, there is nothing annexed thereto, as to on what basis the said report has been given. Though the report indicates a map, the map is not made a part and parcel of the report nor has filed independently in this Court.

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10. The additional affidavit of NMC indicates, that a structural stability report was sought in respect of the suit property and Sagar Balani a Chartered Engineer was appointed as a person to submit the report by the letter of the NMC dated 17.05.2022. The said person, has submitted his report on 01.06.2022 (page 85). A perusal of this report would indicate, that the suit property was more than 70 years old and was showing serious distress signals, thus making it dangerous to live in and in order to avoid any risk to life, it was recommended to dismantle the structure as early as possible. The report encloses Annexure 1, which is the Schmidt Rebound Hammer Test Results of the suit property and so also encloses at Annexure 2 various photographs. A perusal of the photographs would indicate that the slab of the ground floor is broken, not only this the iron bars inside the slab and columns have been exposed on account of the covering plaster having fallen of; the staircase is also broken, the overall picture portrayed by the photographs as annexed to the report dated 01.06.2022, depicts that the suit property is in a very dilapidated condition. It is also not in dispute, that the daughter of the respondent No. 2 had suffered an injury, due to collapse of two of the stairs and though there are allegations and counter allegations regarding the nature of collapse, what remains is to be seen is that even if it is considered an intentional act still, the strength of the structure is so weak that it can collapse by an intentional act. The report is dated 01.06.2022 and depicts the current position of the structure. The report being subsequent to 6 55.WP.3207-2021.odt

the impugned judgment and having a material bearing upon the nature of the construction and its structural stability is something which can be definitely taken into consideration by this Court while considering the challenge raised herein.

11. In light of the report dated 01.06.2022 and the nature of construction as depicted therein, in my considered opinion, the impugned judgment dated 19.01.2021, cannot be sustained, as it does not taken into consideration the structural instability of the suit premises. That being the position, the impugned judgment dated 19.01.2021, passed by the learned District Judge-5, Nagpur in Misc. Civil Appeal No. 62/2020, is hereby quashed and set aside.

12. The Petition is accordingly allowed in the above terms. No costs.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:31.01.2023 17:00