1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2131 OF 2009 IN SUIT NO.1475 OF 2009 Jamila Dawood Patel .. Plaintiff Versus Ahmed Ragique Mustafa & Ors. .. Defendants Mr.M.L.Palan i/b. M.K.Khatri & Co. for plaintiff Mr.C.G.Gavnekar i/b. G.S.Hiranandani for defendant Nos. 1, 2 & 5 Ms.Geeta Shastri, A.G.P. For defendant No.4. CORAM : S.C.DHARMADHIKARI, J. DATE : December 14, 2009. P.C.: 1] When this notice of motion was placed before me for ad-interim reliefs after hearing the learned Advocate appearing for plaintiff and being satisfied that the proceedings were served, an ad-interim order in terms of prayer clause (c) was passed on 22nd July 2009 for a limited period. The same has been continued till date. Thereafter, an affidavit in reply has been filed by Advocate for defendant Nos. 1, 2 and 5. They have justified the works at site by relying upon the permission and NOC of the Statutory Authorities. They have pointed out that the work is 2 carried out strictly in accordance with the permissions and approvals. Reliance is placed upon the fact that the stop work notice was not issued by MHADA on account of any complaints made by the plaintiff but because of the policy of the said authority. Thus, the policy was that the expenses for works at site would not be reimbursed by MHADA and if the defendant Nos. 1, 2 and 5 carry out the said works without seeking reimbursement, the same is permitted. Therefore, seeking that liberty an application was made and now a fresh NOC has been issued by MHADA. That is confirmed by a letter dated 24th July 2009, a copy of which is annexed as Exh.17 to the affidavit in reply. 2] The Housing Board has also filed an affidavit and it is pointed out by its Executive Engineer, who has issued the letter Exh.17, that defendant No.4 receved proposals from the Architects i.e. Defendant No. 6 vide letter dated 15th October 2007 for the purpose of carrying out structural repairs to the building No.17, Ali Umar Street under the provisions of MHADA Act. The Dy.Chief Engineer after perusing the proposal issued NOC with reimbursement under section 102 of the MHADA Act, that work was to be carried out on certain terms and conditions. It is stated that the NOC was issued to defendant No.1 and 3 the Architect. All approvals of the Municipal Corporation were to be obtained by the NOC holder. MHADA has thus justified in issuance of NOC. MHADA has also clarified that rear portion of the building 17 was in dangerous condition and therefore repair works were immediately undertaken. 3] While carrying out the said work, it appears that defendant Nos. 1, 2 and 5 have damaged adjoining building at 68, Ali Umer Street. A complaint was receivbed from the plaintiff through her Advocate. Before the complaint was received, MHADA had already issued stop work notice. That stop work notice was in force. It has been clarified by MHADA that the NOC holder and Architect are personally responsible for the work. The stop work notice was issued to these persons. There was a violation of the terms and conditions of NOC. However, MHADA justifies issuance of NOC. The NOC holder were not carrying out the work as per the NOC and, therefore, stop work notice was issued, is the stand of MHADA in para 14 of its affidavit. A reference is also made to the police complaint. Paras 14 and 15 of this affidavit refer to the letters to the police and the information under the RTI Act. 4 4] However in para 16 of the said affidavit of MHADA this is what is stated:- “16. I say that the NOC holder has got amended plan approved by the Municipal Corporation of Greater Mumbai on 13.3.2009 (Attac floor not shown in this plan, which was shown in previous plan dated 17.12.2007) and hence they have applied again by letter dated 7th July 2009 to carry out work as per the NOC but without reimbursement. The proposal is submitted to Deputy Chief Engineer, MBR & R Board for further approval vide letter dated 24th July 2009. The said NOC without reimbursement is approved by Dy.Chief Engineer, MBR & R Board by letter dated 4th September 2009 and the same is issued to NOC holder.” 5] The plaintiff reiterates in his rejoinder affidavit that defendant Nos. 1, 2 and 5 had caused damaged to plaintiff’s structure/ building. These buildings are adjoining to each other. While carrying out some repairs to the building of defendant Nos. 1, 2 and 5 plaintiff’s building has been damaged, is the complaint. The extent of damage is also indicated, for 5 which a monetary sum has been quantified. However, it is contended by Mr.Palan appearing for plaintiff that defendant Nos. 1, 2 and 5 have not taken any steps to repair the property of the plaintiff nor have they compensated the plaintiff. Inviting my attention to page 183 of the motion paperbook, which is nothing but an annexure to the MHADA affidavit, Mr.Palan submits that Mr.Gavnekar’s argument that there is no basis for the claim in the suit is fallicious. The Architect has pointed out in his report that the damage has been caused to the building. It is pointed out that the owner of Building 70 i.e. Defendant Nos.1 and 2 have carried out major constructions, additions and alterations and have embedded steel colums in the wall of building No.68, instead of providing in his own wall, to get more carpet area. 6] Mr.Gavnekar has contended that once the claim has been quantified and suit is for recovery of money, then, no preventive reliefs can be granted. The plaintiff can prove loss and only, thereafter, a decree in the sum prayed or such other sum can be passed. Presently, the plaintiff has not produced anything so as to substantiate even prima facie the claim. Therefore, no interim relief be granted and in any event, the ad-interim order should not be continued. 6 7] In the alternative and without prejudice to the rights and contentions of defendant Nos. 1, 2 and 5, on instructions, Mr.Gavnekar makes a statement that these defendants are ready and willing to give an undertaking to this Court that they will carry out the works at site strictly in accordance with the NOC dated 17th March 2009 and will abide by all terms and conditions imposed by statutory authorities in that behalf. The repairs will not be beyond permissible limits. Further, the defendants are ready and willing to give a bank guarantee also so as to show their bonafides and in the event if the plaintiff ultimately succeeds, he will have the guarantee for encashment and enforcement. 8] With the assistance of the learned Counsel for parties, I have perused the plaint and annexures thereto, so also the affidavits on record. To my mind, this is a suit claiming monetary relief for the damage and loss caused to the plaintiffs property. Plaintiff claims to be owner of Building No.68. That building is also in need of immediate and urgent repairs. It is undisputed that Building No.70 is belonging to defendant No.1. Defendant Nos. 1, 2 and 5, through their Architect approached MHADA for permission to carry out repairs and that is how dispute 7 started. From a reading of the affidavits filed by MHADA and its annexres, it is apparent that initially a stop work notice was issued. Even after the stop work notice was issued, the work continued at site and that is how, plaintiff filed this suit. That was the basis upon which ad-interim order came to be granted. It was also to enable the parties to place their version on record. Further, the Court was awaiting affidavit from MHADA. 9] Now the position at site has been clarified by MHADA on affidavit. The Executive Engineer has filed his affidavit on behalf of the Statutory Authority. At this prima facie stage, there is no reason to disbelieve the statements therein. In the interest of the occupants and for their safety, it is necessary that both buildings are repaired. However, rights of both parties in their respective properties also need to be taken into account. Therefore, this is a case where the conflicting rights should be balanced and the defendant Nos. 1, 2 and 5 be permitted to continue their repair work strictly in terms of the NOC granted by MHADA on 17th March 2009, but by imposing on these defendants stringent conditions. To my mind, the plaintiff having prima facie demonstrated before the Court that there was some damage to his property, which fact is also stated by 8 MHADA in its affidavit, then, interest of justice would be served if the following order is passed. This order will continue till the hearing and final disposal of the suit. However, liberty is reserved to parties to seek modification of the same if the occasion so requires. Accordingly, following order:- 10] On the defendant Nos. 1, 2 and 5 filing an undertaking in this Court to the effect that they will carry out the repairs to their property strictly in accordance with the terms and conditions imposed by MHADA and not causing any damage to Building No.68 which is the adjoining property and depositing in this Court a sum of Rs.2.50 lakhs, the ad-interim order to stand vacated but that would be without prejudice to the rights and contentions of both sides in the suit. The undertaking and deposit be made within a period of four weeks from the date of receipt of copy of this order. If compliance is made with these conditions, ad-interim order to stand vacated and the work at site can continue in accordance with NOC and undertaking but without prejudice to the rights and contentions of both sides. Needless to state that in default, the motion will be made absolute in terms of prayer clause (c). 9 11] Needless to state that this order does not prevent plaintiff from repairing his property and for that purpose, he can seek such permissions from the Statutory authorities as are necessary in law. The concerned Authorities to consider this application and grant necessary permission without being influenced by pendency of these proceedings. 12] The Ad-interim to continue for four weeks for compliance as above. 13] Notice of Motion disposed off in the above terms. (S.C.DHARMADHIKARI, J)