Haji Mohamed Sussain vs The State Of Maharashtra And 4 Ors
2016 Latest Caselaw 3455 Bom

                                                 1                  WP.879/2015(S-907)

    mnm

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                 ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                               
                            WRIT PETITION NO. 879 OF 2015

    Hari Mohd. Husain Haji Yusuf Merchant                            ...Petitioner
          Vs.




                                                              
    State of Maharashtra & Ors.                                      ...Respondents

    Mr. A.G. Damle, Senior Advocate a/w. Mr. S.S. Prabhune
    Advocate for the Petitioner 




                                                    
    Mr. Anil Singh, Senior Advocate a/w. Ms. Shobha Ajitkumar
    Advocate for BMC, Respondent No.2  
    Mr. J.S. Saluja, AGP for Respondent No.1 State

                                   CORAM : SHANTANU S. KEMKAR &
                                      
                                                M.S. KARNIK, JJ.

DATED : 29TH JUNE, 2016

ORDER: (PER JUSTICE SHANTANU S. KEMKAR):

With consent heard finally. By filing this Petition under

Article 226 of Constitution of India the Petitioner has

challenged the notice dated 30th December, 2014 asking the

Petitioner to vacate the premises in question on the ground

that the same is in dilapidated condition.

2. According to the Petitioner the building in question is

not in a dilapidated condition and it is repairable, to that

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effect he had submitted a structural report indicating that the

building is repairable. During the pendency of the Petition

noticing that there waere conflicting reports one obtained by

the Petitioner / tenant and other one given by the officers of

the Municipal Corporation, the Municipal Corporation

referred the matter to the Technical Advisory Committee in

confirmity of the directions issued by this Court in similar

matter in the case of Municipal Corporation of Greater

Mumbai Vs. State of Maharashtra & Ors. (Writ Petition (L)

No. 1135 of 2014) decided on 23rd June, 2014.

3. The said report of the TAC has been filed by the

Respondent Corporation before this Court. By way of

rejoinder, the Petitioner has challenged the said report.

4. We have gone through the said report dated 6 th April,

2016 of the TAC. We find that the TAC after considering both

the reports and after visiting the site and considering the

various technical aspects of the structure gave the impugned

report. The TAC report recorded the finding, which is as

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follows:

TAC CONCLUSION:

The TAC held on 29th January, 2016 at 3.30 p.m when both the consultants were present, test reports submitted by them were taken on record by TAC

members.

The site was inspected by the Ward and Estate staff.

In the TAC meeting they appraised to TAC members that

the structure under reference is Gr.+ 5 storied and is a municipal property, constructed in 1960. Propping is

done by the Ward staff and two shops on the ground floor are occupied, while rest of the building is evacuated and the said structure needs to be demolished. The site was

also inspected by TAC members on 21.3.2016 as per the

direction of Hon. High Court vide W.P. No.1135 of 2014.

Further, it was informed that the tenants of the structure under reference had filed W.P.No.879 of 2014

restraining MCGM from taking any coercive action towards evacuation of the premises.

The site was also inspected on 21.03.2016 by TAC

members when ward staff, Estate dept. staff and post graduate engineers appointed by MCGM were present. The observations made by ward and Estate staff in TAC meeting were found correct. TAC members also observed

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that staircase portion is separated. Left side column at the entrance of the bldg. is having major vertical cracks.

Steel are exposed at many locations and found corrugated.

Shri V.J. Joshi of M/s. V.J. Joshi Consultants informed that the South side portion of the building

under reference is damaged which is repairable by jacketing the columns. He further informed that the structure is more than 50 years old and after repairs its

life span would be 10 years at a repair cost of Rs.600 per

sq. ft. for structural repairs only.

It was enquired with Shri V.J. Joshi whether core

test was conducted when he stated that he had carried out core test on beams and not extracted core from the columns as they were in a dangerous condition.

M/s. Scecon Consultants informed that the building

is vacated and the building is in a dilapidated condition and hence, requires to be pulled down. He also informed

that core could not be extracted as the columns have corroded and were in a bad shape and could collapse. Further, he stated that if repairs are carried out to the

structure, it would exceed more than 70% of the reconstruction cost.

Considering the submissions of the Ward & Estate staff and both the Consultants, TAC is of the opinion that as the building is in a dilapidated condition the results

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submitted by both the structural consultants are doubtful and negative. The repairs to the structure may not

increase the life of structure. As both the consultants have carried out N.D. Tests, which are poor and below par.

Hence TAC members do not felt necessary to carry to carry out fresh N.D. Tests. Further, as per the submission of

Shri V.J. Joshi that he could not extract core from the columns as they were distressed and as they were in a dangerous condition, also considering the repair cost of

Rs.600/- sq. ft. for structural repairs only. As the

structural repair cost is higher side, which is not technoeconomically viable, steel are exposed at many

locations and found corrugated. It is also observed during visit of TAC members that there is no proper access to residential portion of said building and even Fire Engines

cannot enter near the entrance of residents which is on

back side. Hence, TAC opined that the building is not fit for human habitation and in order to prevent any

untoward incident to the neighbouring residents and passersby, it is advisable to evacuate the occupied shops and to demolish the structure. Hon. Court may be

appraised, being a matter is in court under W.P.No.879 of 2014.

In the meantime, concerned staff of Asstt. Commissioner (Estate) and Asstt. Commissioner, 'D' Ward shall keep the structure under observation and shall take

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necessary preventive measures such as propping, barricading etc. till demolition of the building".

5. Learned Counsel for the Petitioner submits that the TAC

has not considered the earlier reports in its correct

perspective and has declined the Petitioner's contention on

the ground that there is no proper access to residential

portion of the said building and even Fire Engines cannot

enter near the entrance of residents which is on back side. He

submits that the TAC should not have rejected the Petitioner's

contention for these extraneous considerations.

6. On the other hand the learned Senior Counsel

appearing for Municipal Corporation has supported the TAC

report. He drew our attention to the entire conclusion of the

TAC. He submits that the members of the TAC visited the site

on 21st March, 2016. The TAC has elaborately dealt with the

matter and recorded the finding that the building requires to

be pulled down as the same is in dilapidated condition. He

further submits that this Court need not to interfere into the

TAC report which is based on proper appreciation of both the

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reports and the visit of the site by the members of the TAC

who are experts of the subject.

7. Having considered the submissions of the learned

Counsel for the parties and having gone through the report of

the TAC we find that the TAC has elaborately dealt with the

matter and on the basis of spot inspection and after going

through the relevant material recorded the finding. The

finding of the TAC is based on the sound appreciation of both

the reports and the material placed before it and no fault can

be found in the same. In the absence of any perversity in the

TAC report no case is made out for invoking the extra

ordinary jurisdiction of this Court under Article 226 of the

Constitution of India. The additional reason assigned by the

TAC that there is no proper access and even Fire Engines

cannot enter near the entrance of the residents which is on

back side cannot be said to be irrelevant and on that basis the

TAC report which is otherwise based on sound reasons cannot

be brushed aside. Accordingly, we decline to interfere into

the TAC report and also the decision of the Corporation to

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demolish the building in question.

8. At this stage the learned Senior Counsel for the

Petitioner on instructions stated that the Petitioner has

already vacated the premises. He however submits that the

Corporation is required to comply with the direction of this

Court under clause 9(n) passed in Writ Petition (L) No. 1135

of 2014. To this learned Senior Counsel appearing for the

Respondent BMC submits that the Corporation has already

offered alternate accommodation to the Petitioner and shall

abide by the directions contained in Clause 9(n) of the said

order passed in WP.(L) NO.1135 of 2015. We find no further

orders in this regard are necessary. The Petition is dismissed.

(M.S. KARNIK, J.) (SHANTANU S. KEMKAR, J.)