Prathibha Prabhakar Kulkarni And ... vs Shridhar Chandrakant Godase And ...
2023 Latest Caselaw 2168 Bom

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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION

                                              WRIT PETITION NO.14638 OF 2022

                           Pratibha Prabhakar Kulkarni & Ors.               .... Petitioners

                                            versus

                           Shridhar Chandrakant Godase & Ors.               .... Respondents
                                                       .......

                           •       Mr. Vivek V. Salunke, Advocate for Petitioners.
                           •       Mr. Vijay V. Nene, Advocate for Respondent Nos.1 to 5.
                           •       Mr. Rajat Dighe i/b. A. S. Rao Advocate for Respondent Nos.6
                                   & 7 (KDMC).

                                                     CORAM       : SARANG V. KOTWAL, J.

                                                     DATE        : 06th MARCH, 2023

                           P.C. :

1. Heard Mr. Vivek V. Salunke, learned counsel for the

Petitioner and Mr. Vijay V. Nene, learned counsel for the

Respondent Nos.1 to 5 and. Mr. Rajat Dighe, learned counsel for

KDMC.

Digitally signed by MANUSHREE MANUSHREE V

2. The Petitioners are the Original Defendant Nos.3 to 5 V NESARIKAR NESARIKAR Date:

2023.03.10 11:18:47 +0530 in Regular Civil Suit No.425 of 2022 before the 6 th Joint Civil

Nesarikar 2 / 13 21-WP-14638-22.odt

Judge, Senior Division, Kalyan. The Respondent Nos.1 to 5 were

the Original Plaintiffs and the Respondent Nos.6 and 7 were the

Original Defendant Nos.1 and 2. The original plaintiffs had filed

this suit for challenging the notice dated 07/07/2022 issued by

the Defendant No.2 i.e. the Respondent No.7 herein. According

to the plaintiffs, the structure was not dangerous for habitation.

The plaintiffs were the tenants in the said property.

3. In the said suit, an application under Order 26, Rule 9

of Code of Civil Procedure was filed by the original plaintiffs

praying for appointment of Nayan Dholkiya, Structural Engineer

registered with Kalyan Dombivali Municipal Corporation (for

short 'KDMC') on its panel for carrying out structural audit of

the property. It was submitted before the Trial Court that M/s.

Bhirud & Associates, who were also Structural Engineer,

registered with KDMC, had carried out structural audit of the

suit property on behalf of the Defendant Nos.3 to 5 i.e. the

Petitioners herein. According to the report made by M/s Bhirud

& Associates, the property falls in the C-1 category and was 3 / 13 21-WP-14638-22.odt

required to be demolished immediately. The original plaintiffs

wanted second opinion from another Structural Engineer

registered with KDMC and therefore a request was made that

Nayan Dholkiya be appointed as the Court Commissioner for the

purpose of carrying out the structural audit.

4. The Respondent Nos.6 and 7 herein (defendant Nos.1

and 2) pointed to the Court that in one of the matters before this

Court adverse observations were made against Nayan Dholkiya

and therefore he was not reliable for appointment as the Court

Commissioner. It was also submitted on behalf of the KDMC

that, if at all, the Court requires a second opinion, it can be

obtained from the experts from VJTI or IIT, Powai, as the Court

Commissioner for carrying out the structural audit of the suit

premises, instead of the appointment of Nayan Dholkiya. The

Petitioners had relied on the audit report submitted by M/s.

Bhirud & Associates and according to them, there was no need

to appoint Court Commissioner again for carrying out the

structural audit.

4 / 13 21-WP-14638-22.odt

5. The learned Trial Judge after hearing the parties,

observed that section 265-A of Maharashtra Municipal

Corporation Act, 1949 provides for issuance of structural

stability certificate. As per clause 1 of that section, the building

had to be examined by a structural engineer registered with the

corporation for the purpose of certifying that the building was fit

for human habitation. In the suit, the plaintiffs had raised

objection regarding the earlier structural audit report. Therefore,

the Court observed that for the purpose of elucidating the

matter in dispute, second opinion in respect of the structural

stability was required. The Court observed that in view of the

objection raised by KDMC any other registered Structural

Engineer, than Nayan Dholkiya and M/s. Bhirud & Associates,

registered with KDMC, can be appointed as the Court

Commissioner.

6. Learned counsel for KDMC i.e. the Respondent Nos.6

and 7 herein, had filed the list of Structural Engineers on their 5 / 13 21-WP-14638-22.odt

panel. Learned Trial Judge selected Mr. Ganesh Parate,

registered Structural Engineer, to be appointed as the Court

Commissioner. The application was allowed in those terms.

7. I have heard the parties. Learned counsel for the

Petitioner submitted that, when there was already a report of

M/s. Bhirud & Associates, there was no reason for the Court to

have overruled that report. In any case, the plaintiff's suggestion

was for appointment of Nayan Dholkiya, whose appointment

was opposed by the KDMC itself and therefore learned counsel

for the Petitioners submitted that there was no occasion to ask

for the second opinion or second report. He submitted that the

learned Trial Judge should have relied on the report submitted

by M/s. Bhirud & Associates. He further submitted that in the

alternative the Court should have appointed Experts from IIT or

VJTI as the Commissioner.

8. Learned counsel for the Respondent Nos.1 to 5

submitted that in case Mr. Nayan Dholkiya, was not to be 6 / 13 21-WP-14638-22.odt

appointed as the Court Commissioner, then only, some other

Structural Auditor, who was on the panel of KDMC, could have

been appointed by the Court and therefore the Court has rightly

done so. There was no illegality or irregularity in such

appointment. Learned counsel for the Respondent Nos.6 and 7

has left the matter to the discretion of the Court.

9. I have considered these submissions. O.XXVI, R.9 reads

thus:

"9. Commissions to make local investigations - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

Provided that, where the State Government has made rules as to the persons to whom such 7 / 13 21-WP-14638-22.odt

commission shall be issued, the Court shall be bound by such rules."

10. Hence it is the discretion of the Court that is important.

Whenever the Court deems that such investigation is necessary

for elucidating any matter in dispute, Court can pass the order

under this provision.

11. Apart from that, section 265-A of the Maharashtra

Municipal Corporation Act, 1949, reads thus:

"265A. Structural Stability Certificate. -

(1) Notwithstanding anything contained in section 265, every owner or occupier of a building in respect of which a period of thirty years, from the date of,-

(i) issue of its completion certificate by the Corporation; or

(ii) issue of permission to occupy a building under section 263; or

(iii) its physical occupation of at least 50 per cent of its built up area, whichever is earlier, has expired, shall cause such building 8 / 13 21-WP-14638-22.odt

to be examined by a Structural Engineer registered with the Corporation for the purposes of certifying that the building is fit for human habitation (such certificate hereinafter referred to as "the Structural Stability Certificate"). The Structural Stability Certificate issued by such Structural Engineer shall be submitted to the Commissioner.

(2) The Structural Stability Certificate shall be submitted within one year from the expiry of a period of thirty years referred to in sub-section (1), and every ten years thereafter or such earlier period as the Commissioner may determine having regard to the condition of the building and the corrective repairs carried out by the owner or occupier.

(3) Notwithstanding anything contained in sub-section (1), the Commissioner may, at any time, after having recorded the reasons, in writing, direct the owner or occupier of a building, to cause such building to be examined by such Structural Engineer and to submit to the Commissioner, the Structural Stability Certificate as required under subsection (1.), within the period not exceeding thirty days as specified by the Commissioner in such direction.

9 / 13 21-WP-14638-22.odt

(4) If the Structural Engineer recommends any corrective repairs for securing the structural stability of the building, such corrective repairs shall be carried out by the owner or occupier of a building to the satisfaction of the Commissioner.

(5) Any owner or occupier, as the case may be, who fails to carry out corrective repairs for securing structural stability, within a period of six months from the date of report of the Structural Engineer, shall be punished with the fine as provided in section 398A.

(6) Notwithstanding anything contained in sub-section (5), the Commissioner may, after giving the owner or occupier, a notice in writing, require him to carry out, within the period specified in the notice, corrective repairs for securing structural stability of a building. If the owner or occupier fails to carry out such corrective repairs within the period specified in the notice, the Commissioner may carry out the same and the expenses incurred by the Commissioner on such repairs shall, on demand, if not paid within thirty days, be recovered from the owner or occupier as arrears of property tax.

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      (7)    If there is any dispute about the amount of expenses

for which demand is made under sub-section (6), an appeal may be preferred to the Judge, before whom an appeal may be filed under section 406 of this Act, but no such appeal shall be entertained by the such Judge, unless -

(i) it is preferred within twenty-one days from the date of receipt of notice of such demand;

(ii) the amount for which demand is made is deposited with the Corporation and a true copy of the receipt showing that the amount has been so deposited accompanies the appeal.

(8) In case the appeal is decided in favour of the appellant and the amount of expenses deposited with the Corporation is more than the amount payable by the appellant, the Commissioner shall adjust the excess amount with interest at 6.25 per cent. per annum from the date on which the amount is so deposited by the appellant, towards the property tax payable by the owner in respect of such building thereafter."

12. This sub-section (1) of section 265-A of Maharashtra 11 / 13 21-WP-14638-22.odt

Municipal Corporation Act, 1949 mentions that the building is required to be examined by a Structural Engineer, registered with the Corporation, for the purpose of certifying that the building was fit for human habitation. Thus, this particular section does mention that the person who carries out the structural audit has to be from the panel of the Municipal Corporation. In this view of the provisions, I do not find any error in the impugned order.

13. Learned counsel for Petitioner has relied on the

Judgment of Single Judge Bench of this Court passed in the case

of Dattatray Ramchandra Waikar Vs. Balutai @ Ranjana Suresh

Gavali, as reported in 2021 (4) Mh.L.J. 519. In paragraph No.17

of that judgment it was observed that the new Commissioner

was appointed without properly considering the contents of the

first Commissioner's report. It was observed that the Trial Court

should have taken into consideration the first Commissioner's

report and should have considered whether there was any

substance in the objections raised by both the parties. Only after

recording that the first Commissioner's report was required to be

discarded, then a fresh Commissioner could have been appointed.

12 / 13 21-WP-14638-22.odt

14. In the present case, it is not anybody's case that M/s.

Bhirud & Associates were appointed by the Court as Court

Commissioner under O-26, R-9. By the impugned order, for the

first time, the Court thought it fit to appoint a Commissioner.

Therefore, the observations made in this judgment is not

applicable in the facts of this case.

15. Learned counsel for the Petitioner, then relied on the

judgment of another Single Judge Bench of this Court in the

case of Pandurang Nandlal Chandak & Anr. Vs. Sandip

Mukundrao Pensalwar & Anr., as reported in 2009 (2) Mh.L.J.

487. Learned counsel referred to paragraph No.6 of the said

judgment, wherein it was observed that the provisions of O-26,

R-9, were directory in nature. Only when there are Court

findings that the local investigation is necessary for the purpose

of deciding the matter in dispute, it may exercise the discretion

for appointment of the Court Commissioner.

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16. In the present case, learned Trial Judge has expressed

his opinion that it was necessary that the Court Commissioner

was to be appointed. Therefore, even relying on ratio of this

judgment, it in fact supports the view taken by the learned Trial

Judge in the order impugned before this Court in the present

case.

17. In view of this discussion, I do not find any substance

in the Petition and the Petition is accordingly dismissed.

(SARANG V. KOTWAL, J.)