SRJ wp-4366-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4366 OF 2009 Dr. Pandurang B. Patil ) Age 74 yrs., Occ: Doctor, through ) C.s. Dr.Subhash P. Patil, ) Aged 45 yrs., Occ. Doctor, ) Addl. Nanibai/Kusum Koli Chawl, ) Datta Mandir Road, Near CIDCO Bus ) Stop, Chendani Koliwada, Thane ) .. Petitioner V/s. 1. M/s. Deal Well Developers ) Represented through ) Shri M.K.Rajpurohit, having ) office at :101/102, 1st floor, ) T.M.C.Ward Officer, Uthalsar, ) Thane (W). ) 2. The Municipal Commissioner ) Thane Municipal Corporation ) Panchpakhadi, Thane (W). ) 3. Smt. Nanibai Koli (deceased) ) R/o. At Nanibai/Kusum Koli Chawl) Datta Mandir Road, Near CIDCO ) Bus stop, Chendani Koliwada, ) Thane. ) .. Respondents. CORAM : A.S.OKA, J.. Date on which the Judgment is Reserved: 16.10.2009 Date of JUDGMENT : 10.11.2009 1] The Petitioner has invoked article 227 of the Constitution of India for challenging the judgments and orders passed by Courts below by which pending the suit filed by him, equitable relief of temporary injunction has been denied to the Petitioner. SRJ wp-4366-09.sxw 2 2] The Petitioner is the original first plaintiff. The suit was filed by him alongwith 5 others contending that they are the tenant of the 3 rd Respondent (3 rd defendant) in respect the premises in a Chawl more particularly described in paragraph 1 of the Plaint. It is alleged that the deceased third respondent is the landlady. It is alleged that the first Defendant (first Respondent herein) has entered into an agreement for development in respect of the chawl. It is alleged that the first Respondent has been pressurising the Petitioner and other tenants to enter into a transaction with him. The Second Respondent Municipal Corporation issued notice under section 268 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the said Act) alleging that the chawl is required to be demolished on the ground that the same has been in a dilapidated and dangerous condition. The substantive prayer in the suit is for declaration that the notices dated 20 th June, 2002 and 24 th January, 2008 issued by the Second Respondent are illegal and are against the principles of natural justice. The second prayer is for perpetual injunction restraining the respondents from demolishing the premises of the Plaintiffs. An application was made by the Plaintiffs for grant of SRJ wp-4366-09.sxw 3 temporary injunction. 3] The first Respondent filed Written Statement opposing the suit and application for temporary injunction. It is pointed out that the third Defendant died on 3 rd December, 1985. It is contended that the first Respondent has purchased the property in dispute by a Sale Deed. It is contended that the building in which the premises of the Petitioner are situated has been declared as a dangerous building and notice was issued by the Second Respondent on 30 th June, 1999 under section 268 of the said Act. 4] The Trial Court rejected the application for temporary injunction. The Trial Court referred to various notices issued by the 2 nd Respondent Corporation from June, 1999 under the provisions of section 264 as well as section 268 of the said Act. The Trial Court referred to the report of Fire Brigade dated 18 th July, 2007 regarding dangerous condition of the building. An appeal was preferred by the Petitioner before the District Court. The Appeal has been dismissed by impugned judgment and order. SRJ wp-4366-09.sxw 4 5] When the Petition appeared on board on 7 th July, 2009, this Court appointed M/s. Patwardhan & Associates, Architects on the panel of the Court Receiver of this Court to inspect the property and to submit a report as regards the structural stability of the building in question. Accordingly, a report dated 18 th September, 2009 has been placed on record by M/s.Patwardhan & Associates. 6] The learned counsel appearing for the Petitioner submitted that the 1 st and 2 nd Respondents have not placed on record any material to show that the structure of the building is in dangerous or dilapidated condition or that the same cannot be repaired. He submitted that the Petitioner had placed on record a Certificate dated 29 th January, 2008 issued by the Consulting Structural Engineer recording that the structure of the building was safe and stable. He submitted that the finding recorded by the learned Principal District Judge in paragraph 33 of the impugned Judgment is contrary to the said report placed on record. He submitted that though in paragraph 30 of the impugned judgment and order, the learned Principal District Judge has referred to the said report, he has not considered the effect of the SRJ wp-4366-09.sxw 5 said report. He submitted that the report indicates that the building is stable. He invited my attention to the report of M/s. Patwardhan & Associates. He submitted that the report is not that the building cannot be repaired, but it is opined that the structure being of joint ownership, a part of the structure cannot be repaired separately. He submitted that the said report does not show that the structure in question needs demolition. He submitted that on the contrary, the report shows that if at all there is any danger, the same has been created by demolition of a part of the building by co-owner. He submitted that the said report does not support the case of the 1 st and 2 nd Respondent. He submitted that as a substantive suit is pending, the suit structure in which the Petitioner is running the dispensary ought to have been protected by granting temporary injunction. The learned counsel appearing for the 1 st Respondent invited my attention to the observations made by learned District Judge in paragraph 32 of the impugned judgment. He submitted that though the Petitioner purported to file the suit on behalf of the 2 nd to 6 th Plaintiffs, the 2 nd to 5 th Plaintiffs made an SRJ wp-4366-09.sxw 6 application before the Trial Court supported by an affidavit stating therein that the said Plaintiffs never signed Vakalatnama and the Plaint. He submitted that the Petitioner forged the signatures of the said Plaintiffs. He pointed out that 6 th Plaintiff was already dead. He submitted that the Petitioner has played a fraud upon Court. He submitted that right from year 1999, the 2 nd Respondent issued notices holding that the structure is dangerous and dilapidated. He submitted that the report of the Architect appointed by this Court by consent of the parties clearly defeats the case of the Petitioner. The learned counsel appearing for the 2 nd Respondent supported the impugned judgment and orders. 7] I have given careful consideration to the submissions. The challenge in the suit is to the notices dated 20 th June, 2002 and 24 th January, 2008 issued by the 2 nd Respondent Municipal Corporation, alleging that the building in question is in dangerous and dilapidated condition which requires immediate demolition. The Trial Court has referred to notice issued on 30 th June, 1999 by 2 nd Respondent-Corporation under section 264 of the said Act. The Appellate Court has made a reference to notice dated 24 th July, SRJ wp-4366-09.sxw 7 2007 issued to the tenants in the building. In paragraph 31 of the judgment, the learned Principal District Judge has noted that after the service of notice, all tenants except the Petitioner removed themselves from the building. 8] It is true that the Judgment of the learned Principal District Judge may not be happily worded. It is pertinent to note that the right from the year 1999, the 2 nd Respondent Corporation has issued notices stating that the structure was dangerous and the same is required to be pulled down. It is true that the Petitioner had filed on record a report of a structural Engineer dated 29 th January, 2008, stating that the structure was safe. 9] However, during pendency of this Petition, by consent of the parties, this Court appointed M/s. Patwardhan & Associates with a direction to visit the said structure and submit a report on the structural stability. In the report submitted by the said Architects, it is stated that the premises of the Petitioner is situated in a structure consisting of ground plus upper floor and second floor in the middle portion. He has noted that a part of the structure in SRJ wp-4366-09.sxw 8 which the premises are situated is owned by one Mr.M.K.Rajpurohit and except for the premises occupied by the Petitioner on the ground floor, rest of the portion is already vacated. It is recorded that half of the structure is owned by the another owner. He noted that the structure is not R.C.C. It is partly a load bearing structure and partly it is wooden framed. The Architect reported that exterior condition of the building is very poor. He has noted that the wooden posts which are exposed are found decayed. He noted that Manglore tile roofing and its members on the first floor are not in level and is sagged and cracked. He has observed that one side of the structure is excavated and the distance between the structure and the site excavated is approximately 1 6 to 2 . He has opined that due to excavation on the site, there is high risk of land sliding and collapse of structure any time. He has opined that it is advisable to vacate the structure as it is impossible to repair the same. In fact, on the last page of the report, the Architect has observed that it is necessary to provide props inside the structure to save the life of the occupant. This opinion is expressed by M/s. Patwardhan & Associates who are the Architects on the panel of the Court Receiver of this SRJ wp-4366-09.sxw 9 Court. 10] Right from the year 1999, the 2 nd Respondent Corporation has issued notices for stopping the use of the building. The report of the Architect appointed by this Court clearly shows that there is a threat of the collapse of the building. If this is the opinion of the Architect appointed by this Court, it is not possible to find fault with concurrent orders passed by the Courts below by which discretionary relief of temporary injunction was denied to the Petitioner. No case is made out for interference. Hence, the Petition is rejected. . The learned counsel appearing for the petitioner prays that time of six months be granted as the petitioner is running a dispensary in a suit premises. The courts below have prima facie accepted the case that the suit structure is in dilapidated condition and is required to be pulled down. Therefore, time of six months cannot be granted. Considering the fact that ad-interim relief operated for substantially long time, the ad-interim relief granted by this court will continue to operate for a period of eight weeks from today. It is made clear that ad-interim relief is SRJ wp-4366-09.sxw 10 continued at the risk of the petitioner and occupation of the structure by the petitioner will be exclusively at his risk. (A.S.OKA, J.)