Suresh Mohanlal Jain And 6 Ors vs Municipal Corporation Of Greater ...
2016 Latest Caselaw 4425 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                            
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                    
                 WRIT PETITION NO. 2437 OF 2014
                          ALONG WITH
              CHAMBER SUMMONS (L) NO. 226 OF 2016
                               IN




                                                                                   
                 WRIT PETITION NO. 2437 OF 2014

      Suresh M. Jain and Ors.                                                 ...            Petitioners




                                                             
                                               Versus


      and Ors.
                                       
      The Municipal Corporation of Gr. Mumbai
                                              ...                                            Respondents
                                      
      Mr. Swanand Ganoo with Ms.Neeta Solanki i/by M/s. Kiran Jain
      & Co. for the petitioners.

      Mr. A.Y. Sakhare, Sr. Advocate a/w Ms. Shobha Ajitkumar for
             


      respondent nos. 1 to 3.
          



      Mr. Sachin Dhakephalkar for the applicant in Chamber
      summons.
     




                                    CORAM : SHANTANU KEMKAR &
                                            MAKARAND KARNIK, JJ.

ORDER RESERVED ON : 29/07/2016 ORDER PRONOUNCED ON: 04/08/2016

ORAL ORDER (Per Shantanu Kemkar, J.):

Not on board. Mentioned for urgent production. Production

granted in view of urgency.

2. Petitioner Nos. 1 to 5 claim to be occupying the premises in

question for commercial purposes as tenant of the Municipal

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Corporation. They are doing business from the shop existing on the

ground floor. Petitioner no. 6 is having its hoarding erected on the

roof of the building with the permission of the Municipal

Corporation. The owner of the building in question is Municipal

Corporation of Greater Mumbai.

3. The Municipal Corporation had issued notices to the

petitioners for vacating the premises on the ground that the same

being dilapidated, it is required to be demolished. Undisputedly

after similar notices being ig issued, all the first floor occupants

residing in the building have vacated the premises.

4. As a dispute was raised by the petitioners about the claim of

the corporation that the building is dilapidated, this Court vide

order dated 23.2.2015 referred the matter to Technical Advisory

Committee (TAC) constituted in pursuance of the order dated

23.6.2014 passed by this Court in Writ Petition (L) No. 1135 of

2014. This Court also directed the petitioners to submit report of

their structural auditor and the Municipal Corporation was

directed to take further steps in accordance with the directions

issued by this Court in the aforesaid Writ Petition (L) No. 1135 of

2014.

5. In pursuance of the directions of this Court, TAC submitted its

report dated 3.7.2015. TAC after consideration of both the reports

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and after hearing the representatives of the petitioners as also of

the Municipal Corporation who had submitted their respective

structural audit reports recorded the following finding:

"Accordingly, in today's meeting representative of both the consultants have submitted their report in the prescribed format of "proforma B". Consultant for the

petitioners have submitted that they have carried out necessary NDT tests are not good and that are below average permissible values. The consultants further revealed that the internal plaster and external plaster,

plumbing arrangements and drains are in very bad condition. Structural steel is found exposed to

atmosphere at most of the structural members such as columns, slab, beams etc. Heavy seepages/Leakages are noticed all over in the building. Chajjas and slab in the common area and toilet blocks are in badly

distressed condition. Also there is huge rank vegetation seen on major parts of the building. Consultants for Corporation submitted that the structural distress could be inspected by naked eyes. Many of the RCC

structures show major cracks. Many of the Non- destructive tests could not be conducted on cracked

RCC members. Hence, NDT test is not conducted on the said structure. Both the consultants agreed that Core test cannot be conducted due to the deteriorated and distressed condition of the structural members. It is

also agreed that Ultrasonic pulse velocity test, rebound Hammer Test, Half Cell Potential Test are having below average values. Also, Dy. Ch. Eng. B.P. (City) has declared the said building in C1 category based on the site inspection reports of the Junior Engineer T.P., A.E.

T.P. (I), G/S & Ward executive engineer G/south Ward.

TAC CONCLUSION :

The High Court, Ordinary Original Civil Jurisdiction (O.O.C.J.) in Writ Petition No. 2437 of 2014 has given ad-interim relief to the Petitioners, subject to the condition that the petitioners will be occupying the premises in their possession at their own risk as to its consequence and also the petitioners will be responsible for the same, in case of any mishap.

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Both the consultants agreed that all the relevant

test reports shows below average results and the building falls under C-1 category. G/S Ward staff is also of the opinion that the building needs to be demolished.

Chajjas, columns beams are in worst condition, at many places, and chajjas has collapsed. Considering the above reports placed on record by both the Consultants and as the building is G+1 RCC structure

having life more than 60 years and 17 residential and 7 commercial tenements are occupied, TAC opined that the building under reference needs to be evacated immediately and demolished under the supervision of

Structural Consultant, as overall the building is in dilapidated condition and the same is not fit for human habitation.

Meanwhile, till such time, the ward staff has to take necessary preventive measures by providing

adequate propping etc. till evacuation of the building."

6. The petitioners have challenged this TAC report on the

ground that TAC has not conducted visual inspection of the

structure in question and in the circumstances, TAC report being

not in conformity with the directions issued vide order dated

23.6.2014 passed in Writ Petition (L) No.1135 of 2014, the same

cannot be taken into consideration. In support of the contention

that the building is reparable, petitioners have filed yet another

structural report.

7. Having considered the submissions made by the learned

counsel for the parties and having gone through the TAC report we

find that before the TAC, the representative of the petitioners did

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not dispute that the core test could not be conducted due to

deteriorated and distress condition of the structural members. It

is also agreed that Ultrasonic pulse velocity test, rebound hammer

test, half cell potential test are having below average values.

Therefore, if the TAC has not conducted visual inspection, that itself

cannot be made a ground to say that the building is not in a

dilapidated condition. The findings of the TAC is based upon

consideration of two structural reports and keeping in view the

fact that the petitioner's own consultant did not dispute that the

building is in dilapidated condition. In the circumstances, no fault

can be found with the TAC report merely on the basis that the

TAC has not conducted the visual inspection. When the

representative of the petitioners accepted the fact that the

building is in ruinous condition, there was no occasion for the TAC

to further have a visual inspection. We find that the TAC has

considered both the reports and has recorded a finding, which in

the absence of perversity, cannot be gone into by this Court in

exercise of its powers under article 226 of the Constitution of India.

As a result, petition fails and the same is dismissed. As regards yet

another report obtained by the Petitioner, suffice is to say that

after the TAC has recorded a finding which being based on a sound

appreciation of material placed before it, there remains no question

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to go on considering further structural report. The matter has to be

given finality. Undisputedly, all the other tenants of the first floor

have already vacated. In the circumstances, this Court is not

inclined to go in to the further structural report.

5. In view of the above order, Chamber Summons (L) No. 226 of

2016 also stands disposed of. It is needles to say that this order

will not affect the rights of the applicant of the chamber summons.

                                                           
    (MAKARAND KARNIK, J.)
                                      ig                        (SHANTANU KEMKAR, J.)
                                    

At this stage, learned counsel for the petitioner no. 7 submits

that the contention of the petitioner to continue the hoarding at

any other place be kept open. The prayer is accepted. The

contention regarding the putting the hoarding at other place since

not argued and dealt with, the same is kept open.

(MAKARAND KARNIK,J.) (SHANTANU KEMKAR,J.)