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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.467 of 2022

WITH

INTERIM APPLICATION NO. 3031 OF 2022

IN

APPEAL FROM ORDER NO. 467 OF 2022

Vimlaben Vishanji Thakkar & Ors

..

Appellants

Versus

Municipal Corporation of Gr.Mumbai

and ors

..

Respondents

…

Mr. Rajendra Haridas i/b Neel Gala for the appellants.

Ms.Mamta Sadh i/b S.T. Manek & Co. for respondent no.3.

Mr.Om Suryavanshi for respondent no.1. MCGM.

CORAM: BHARATI DANGRE, J.

DATED : 4^th MAY 2022

P.C:-

1

Heard learned counsel for the appellant and learned

counsel appearing for MCGM and the counsel for respondent

no.3.

2

The present Appeal is filed, being aggrieved by an

order passed by the City Civil Court, Gr. Mumbai on a Notice of

Motion No. 308/2020, filed by the respondent no.3 landlord,

seeking certain directions and on the Notice of Motion being

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made absolute, and the interim order in favour of the plaintiff

granted on 4/5/2016 being vacated, gave rise to the cause of

action in filing the Appeal.

3

In order to appreciate the said order, it is necessary to

delve into the bare minimum facts involved.

L.C. Suit No. 387/2014 came to be filed by 23

persons who are tenants of a building known as “Shree Krupa”

building situated at CTS No. 1251, Ratanshi Hirji Bhajraj Raod,

Mulund. The Suit, primarily challenged the action of the

Municipal Corporation to demolish the suit building, and also

sought several ancillary prayers, which included a declaration

against the Corporation, in not granting permission to the

plaintiffs to carry out repairs to the Suit building.

An order of permanent injunction was sought against

the defendants from carrying out any act of demolition of the suit

building or any part thereof, without following the procedure as

prescribed. The amended prayers in the Suit raise a challenge to

the Technical Advisory Committee (TAC) report dated

19/1/2018 which declared the building as C-1 category. This Suit

came to be contested, both by the Corporation as well as the

landlord.

Pertinent to note that upon a Notice of Motion taken

out by the plaintiff, (NM No.2252/2014), the City Civil Court

on 4/5/2016, recorded a prima facie case in favour of the plaintiff,

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in the background that the Corporation had issued a notice

u/s.354 of the MMC Act, and taking note of the contradictory

report regarding the condition of the suit building, one report

being prepared by the Structural Engineer appointed by the

plaintiff, and other being submitted by the Consultant appointed

by the landlord, the learned Judge expressed an opinion that the

building should be inspected through independent agency like

the Technical Advisory Committee (TAC) and expressing that the

MCGM may be required to carry out structural audit through

TAC, granted the Notice of Motion, holding a prima facie case

and balance of convenience in favour of the plaintiff. The

defendants i.e. the Corporation was directed not to demolish the

suit building till further order, subject to an undertaking being

submitted by the occupants of building that they will continue to

occupy the same at their own risk and consequences, and in case

of collapse of the building or part thereof, it is only the plaintiffs

who would be held liable.

Another

direction which was issued to the

Corporation was to refer the matter to the TAC for conducting

independent structural audit report and submitting the said report

by following guidelines issued by the Division Bench of this

Court in case of Municipal Corporation of Gr. Mumbai vs. State

of Maharashtra [WP(L) No.