Bombay High Court
Mehta Mahal Commercial Cooperative ... vs Drishti Hospitality Company Pvt. Ltd on 9 December, 2022
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2022.12.14
14:07:39 +0530
1/5 06 IA(L)-37447.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.37447 OF 2022
IN
WRIT PETITION NO.4901 OF 2022
Mehta Mahal Commercial Co-operative ]
Premises Society Limited. ] ... Applicant
Vs.
Drishti Hospitality Company Pvt. Ltd. ]
& Anr. ] ... Respondents
...
Dr. Birendra Saraf, senior counsel with Mr. Karl Tamboly, Mr.
Hrushi Narvekar, Ms. Aneesha Cheema, Mr. Anuj Sarla i/b M/s.
DSK Legal for the applicant.
Mr. Aspi Chinoy, senior counsel with Mr. Manoj Agiwal for the
petitioners.
Ms. Vandana Mahadik i/b Mr. Sunil Sonawane for respondent-
MCGM.
...
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
DATED : 09TH DECEMBER, 2022.
P.C.:-
1. By this interim application, the applicant seeks recall of order dated 17/11/2022 passed by this Court in Writ Petition AJN 2/5 06 IA(L)-37447.22.doc No.4901 of 2022 thereby allowing the writ petition filed by the original petitioners and permitting the original petitioners to carry out the structural audit.
2. Dr. Saraf, learned senior counsel for the applicant vehemently urged that the applicant was not impleaded as party- respondent, though the petitioners were fully aware that the Technical Advisory Committee had declared the building under C-2B category and the Municipal Corporation had granted permission to carry out partial structural repairs vide sanction dated 08/7/2021 in favour of the appellant. He submitted that the repair work is still going on. He submitted that on the basis of an incorrect statement made in the said letter dated 02/08/2022 addressed by the Municipal Corporation to the petitioners that the repair work was not going on, the petitioners obtained this order for carrying out the structural audit.
3. It is submitted by learned senior counsel that since the repairs are going on and there are serious disputes between the parties, which are pending in several courts, this Court ought not to have passed the order permitting structural audit, in the midst of the applicant carrying out the repair work.
4. The interim application is opposed by Mr. Chinoy, learned senior counsel for the petitioners.
AJN
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5. We have perused the communication dated 02/08/2022 from the Corporation to the original petitioners stating that the last structural audit was conducted on 14/09/2020 and ongoing structural repairs had come to a halt, except superficial plastering and waterproofing work, leaving the building in dangerous condition. By the said letter, the Municipal Corporation made it clear that the petitioners should carry out fresh structural audit of the building through I.I.T., Mumbai or Veermata Jijabai Technological Institute (V.J.T.I.). It also records that after receipt of the fresh structural audit report, further needful will be done on its merits, if required.
5. Mr. Chinoy, learned senior counsel invited our attention to the notice dated 28/10/2022 issued by the Municipal Corporation under Section 68 of the Mumbai Municipal Corporation Act (Exh.Q to the petition) informing the applicant-Society that the officer of the Municipal Corporation would inspect the said premises and to carry out the structural audit of the said building.
6. In view of these correspondences, the petitioners filed the said writ petition, inter alia, praying for an order and direction to permit the petitioners to carry out the structural audit.
AJN
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7. On 17/11/2022, when this matter was heard by this Court, after perusing the records produced by the petitioners, including the correspondences between the Municipal Corporation and the structural auditor appointed by the Municipal Corporation and the petitioners, this Court passed the said order recording the statement made by the Municipal Corporation that the officer of the Municipal Corporation had instructed the structural auditor orally to stop carrying out structural audit. This Court also made it clear that this Court was not proposing to pass any order, at that stage, whether the Municipal Corporation shall consider such report and to pass a fresh order or not. This Court recorded the statement made by learned senior counsel that, if the structural audit is permitted, it would not hamper the ongoing repair work. This Court recorded the statement and directed not only the Municipal Corporation to depute its officer at the time of structural audit, but also directed the petitioners to communicate this order to the Society to depute its representative to remain present at the time of structural audit.
8. In our view, in view of the statement made by learned senior counsel before this Court and the statement made by the Municipal Corporation in their correspondence, no prejudice of any nature whatsoever is caused to the applicant. Whether the report that would be submitted by the structural auditor can be relied upon or not, and to what extent and for what purpose, is kept open. As and when the petitioners relies on the said report, AJN 5/5 06 IA(L)-37447.22.doc the applicant would be at liberty to oppose the said report on its own merits before the Technical Advisory Committee or any other authority.
9. In our view, no case is, thus, made out for recall of the order dated 17/11/2022.
10. Interim application is accordingly dismissed. No order as to costs.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.] AJN