AO. 484, 485, 486, 487-11 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 484 OF 2011 Kantaben Rasiklal Shah … Appellant Vs. The Municipal Corporation of Greater Mumbai & Anr. … Respondents AND APPEAL FROM ORDER No. 485 OF 2011 Pravinchandra M. Bhatt … Appellant Vs. The Municipal Corporation of Greater Mumbai & Anr. … Respondents AND APPEAL FROM ORDER No. 486 OF 2011 Vinod Dharamshi Thakkar … Appellant Vs. The Municipal Corporation of Greater Mumbai & Anr. … Respondents AND APPEAL FROM ORDER No. 487 of 2011 Ms. Sonal Kantilal Joshi … Appellant Vs. The Municipal Corporation of Greater Mumbai & Anr. … Respondents AO. 484, 485, 486, 487-11 - 2 - *** Mr. Deepak Luliya i/b Mr. Devang H. Shah, for the Appellants. Mrs. K. K. Soran, for Respondent No. 1 Corporation. Mr. R. A.Thorat i/b Mr. P. J. Thorat, for Respondent No.2. *** CORAM : J. H. BHATIA, J. DATE : AUGUST 1, 2011 PC. 1. Heard the learned counsel for the parties. 2. The original plaintiffs have preferred the appeals against the rejection of the Notice of Motion, whereby they sought permission to carry out the repairs of the respective flats which are part of the ground floor of Dariyalal Niwas, S. V. Road, Kandivali (W), Mumbai-67. 3. The building consists of ground plus one floor. The respondent Corporation issued a notice dated 10th June, 2010 to the defendant/ respondent No.2 to carry out certain repairs in the said building. The details of the required repairs are mentioned in the said notice. According to the plaintiffs, defendant No.2 had entered into an agreement with them in 2003 for the purpose of redevelopment of the building. In the building to be constructed after redevelopment they were to be provided with AO. 484, 485, 486, 487-11 - 3 - accommodation equivalent to what they are presently occupying and the additional area, which they would require would be sold to them at certain agreed price. According to them, it was also agreed that during the period of construction, they would be provided alternate accommodation. However, in spite of the said agreement, till 2009 defendant No.2 did not take any steps for implementing the said agreement for redevelopment. Thereafter the said notice came to be issued by the Municipal Corporation for the repairs. According to the plaintiffs, recently, defendant No. 2 has also filed a suit for eviction in the Small Causes Court on the ground of bona fide requirement and for reconstruction. 4. According to defendant No.2, repairs cannot be carried out and whole of the building needs to be demolished and reconstructed. The learned counsel appearing for respondent No. 2 also could not deny that some agreement was entered into in 2003 for redevelopment but due to escalation of prices parties are not in a position to settle the price for the additional area to be given to the occupants. Anyhow, the learned counsel for defendant No. 2 contends that at present the building cannot be repaired as per the report received by them from some structural engineer and hence, defendant No.2 is neither in any position nor AO. 484, 485, 486, 487-11 - 4 - inclined to carry out the repairs. According to him, it is necessary for the defendant No.2 to vacate the premises and the building may be demolished for the new construction. 5. Perusal of the notice dated 10th June, 2010 shows that building is not required to be demolished. It says that the building is in dangerous condition and needs certain repairs. Said requirements are as follows- 1. To immediately remove all rank vegetations from external walls of Building. 2. To immediately shift all the residents/Tenants to safer place and to evict the entire premises immediately & to stay away from the premises to avoid any accident/mishap/loss of lives & property due to collapse of any part of portion of the said building. 3. To immediately provide adequate number of props & supports to entire building having Ground plus One upper floor to give stability to the building, in consultation with and under the supervision of licensed Structural Engineer, so as to safeguard the building & to avoid any accident/mishap/loss of lives & property due to collapse of any part or portion of the said building. 4. To carry out necessary structural repairs such as Jacketing/strengthening to all R.C.C. members such as columns, beams, chajjas, staircases, staircase landing slab, etc. in consultation with & under the supervision of licensed Structural Engineer so as to avoid any accident/mishap/collapse. AO. 484, 485, 486, 487-11 - 5 - 5. To carry out necessary repairs to broken brick Masonry Walls & toilet blocks of building. 6. Replastering to the walls of entire building externally & internally. 6. If these directions are perused carefully, it would appear that the major repairs are as per Clause (3) and (4) only. Whether the residents/occupants are required to be shifted for the purpose of repairs, is a question in dispute. The plaintiffs have filed a report dated 27th July, 2010 of Hasmukh M. Parmar, a Consulting Engineer and Architect. That report shows that the repairs/strengthening of the structure can be achieved in stage by stage manner without vacating the entire premises/tenants/ occupants at a time. 7. There is no material from the respondent Municipal Corporation to show that building is really in such a dilapidated condition, that it cannot be repaired and needs to be demolished. It is difficult to accept the contention of respondent No.2 that building cannot be repaired and needs to be demolished. In any case, from the above circumstances and the stand of the respondent No.2, it has become clear that he is not inclined to obey the directions to make repairs because he is more AO. 484, 485, 486, 487-11 - 6 - interested in demolition and redevelopment. It is also material to note that respondent No.2 is a sole proprietor of M/s. Siddhi Constructions and purchased this building some time in the year 2003 from the previous owners, naturally for the purpose of redevelopment. If permission is granted for repairs, his purpose may not be served. Therefore, looking to the facts and circumstances, it appears that repairs can be carried out without removing or evicting the plaintiffs from their respective premises in the ground floor. The learned counsel for the plaintiffs/ appellants makes a statement that appellants are willing to carry out the internal repairs of their respective premises at their own costs. As far as external and other repairs are concerned, it will be the responsibility of respondent No.2, owner of the building as per the notice issued by respondent No.1 Corporation. 8. The learned counsel for the appellants after taking instructions makes a statement that the appellants/plaintiffs shall give undertaking before the trial court that if any mishap happens accidentally and they sustain any damages due to loss of property, death or injury, they will not claim any compensation from respondent No.1 Corporation or the State. 9. In view of the above, the appellants are allowed to AO. 484, 485, 486, 487-11 - 7 - carry out the internal repairs of their respective premises in the ground floor of the building at their own costs without vacating the same, subject to their filing the undertaking before the trial court within two weeks as indicated above. The other repairs to the building may be insisted by the respondent No.1 Municipal Corporation against respondent No.2, who is owner of the building, as per the notice dated 10th June, 2010. . All the appeals are disposed of accordingly. [ J. H. BHATIA, J.]