Shree. Dipty Co-Op. Housing ... vs The Municipal Corporation Of ...
2016 Latest Caselaw 3495 Bom

                                                 1               WP.2276/2015(S-903)

    mnm

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                      
                 ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                              
                           WRIT PETITION NO. 2276 OF 2015


    Shree Dipty C.H.S. Ltd.                                 ...Petitioner




                                                             
         Vs.
    Municipal Corporation of 
    Gr. Mumbai & Ors.                                       ...Respondents




                                                    
    Mr. J.N. Jayale, Advocate for the Petitioner 
    Ms. Geeta Joglekar, Advocate for BMC, Respondent Nos. 1 to 3
                                       
    Mr. V.S. Upadhyaya, AGP for Respondent No.4

                                   CORAM : SHANTANU S. KEMKAR &
                                      
                                                M.S. KARNIK, JJ.
                                   DATED   : 30TH JUNE, 2016
                                                                  
    ORDER (PER JUSTICE SHANTANU S. KEMKAR):

With the consent of the parties heard finally.

2. By filing this Petition under Article 226 of the

Constitution of India the Petitioner has challenged the notice

dated 13th May, 2014 Exhibit-P by which Brihanmumbai

Mahanagarpalika has directed the Petitioner to vacate the

building in question immediately as the same is required to be

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pulled down being in ruinous and dilapidated condition.

3. The case of the Petitioner is that the Builder had

obtained a structural report from M/s. Conpro Consultant Pvt.

Ltd. to the effect that the building is in dilapidated condition

whereas the Petitioner had obtained and submitted before the

Corporation a report from the N.M. Consultants to show that

the building though is in a bad condition, but is repairable.

4. The grievance of the Petitioner is that in pursuance to

the directions issued by this Court on 31 st July, 2014 while

disposing of the earlier Writ Petition (L) No. 1933 of 2014 the

matter was referred to the Technical Advisory Committee

(TAC), but the TAC in its report dated 24th November, 2014

has not considered the report submitted by the Petitioner in is

correct perspective has taken a decision holding that the

Petitioner's building needs to be evacuated immediately and

requires to be demolished as it is not fit for human habitation.

5. On the other hand learned Counsel for the Corporation

3 WP.2276/2015(S-903)

submits that the TAC has taken into consideration both the

reports and as per the Summary Test results and the

conclusions of both the structural audit reports the TAC after

visual examination, photographs distress mapping plan of the

building and the test results submitted by both the

Consultants held that the building needs to be evacuated as

the same is not fit for human habitation and is in a

dilapidated condition.

6. Having considered the submissions made by learned

Counsel for the parties and having gone through the TAC

report dated 24th November, 2014 we find that the TAC has

elaborately dealt with both the reports, one submitted by the

Builder and the other submitted by the Petitioner. The TAC

found that in the report submitted by the Petitioner it was

mentioned that the test result shows the concrete is of

doubtful quality. Following is the cruxs of the report

submitted by the Petitioner:

"(B) From the Test results, M/s. N.M. Consultants appointed by Society has concluded that :

                                           4                WP.2276/2015(S-903)

           1)       The column of Gr. Floor are found to be with major  

damage and lost compressive strength of concrete with

steel corrosion inside.

2) The received test results indicates major structural

damage. The concrete quality found very poor which has affected the load carrying capacity of structural members.

The overall condition of the building shows severe and major damages all around the building.

3) In addition proper support to be placed on

immediate basis wherever necessary and to safeguard the

structure.

4) Partial demolition requiring major structural

repairs, which enhances 3-4 years life of structure".

7. Thus we find that even in the aforesaid report

submitted by the Petitioner it was specifically observed that

the overall condition of the building shows severe and major

damages all around the building. The concrete quality is

found very poor which has affected the load carrying capacity

of structural members, the column of ground floor to be with

major damage and lost compressive strength of concrete with

steel corrosion inside, proper support to be placed

immediately wherever necessary and to safeguard the

5 WP.2276/2015(S-903)

structure. It further reveals that the building requires partial

demolition requiring major structural repairs, and the repair

would enhance the life of the structure to merely 3 to 4 years.

8. Thus the TAC on the basis of the aforesaid report as also

the one which was recommending for demolition has

recorded the finding that the building is not repairable and it

requires to be demolished. In the circumstances no fault

could be found in TAC report. As a result in the absence of

any perversity in the TAC report we find the decision of the

Corporation to demolish the building to be perfectly justified.

Accordingly the Petition deserves to be and is hereby

dismissed.

9. As regards Petitioner's prayer to grant some time to

vacate the building, in view of the fact that this Court vide

order dated 24th December, 2014 granted interim protection

to the Petitioner on submitting undertaking and that

undertaking has been filed, we are inclined to grant 4 weeks

time to the Petitioner to vacate the premises. The undertaking

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given by the Petitioner shall remain operative till the

Petitioner vacates the premises as aforesaid.

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