Bombay High Court
Court On Its Own Motion vs State Of Maharashtra & 3 Others on 3 July, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 6541 OF 2006.
Court on its Own Motion ....PETITIONER.
VERSUS
1. State of Maharashtra,
through Secretary, Urban
Development Department, Mantralaya
Mumbai - 32,
2. Nagpur Municipal Corporation,
through its Commissioner, Nagpur.
3. Nagpur Improvement Trust,
through the Secretary, Nagpur.
4. Shri Pankaj Dhawan,
Builder of Newly construction 4 storied
building, collapsed in Civil Lines, Nagpur
resident of Raj Nagar, Nagpur.
5. Smt. Meena M. Arora,
r/o. Temple Road, Civil Lines, Nagpur.
6. Virendra G. Dhawan,
power of Attorney for Meena M. Arora,
r/o.Dalal Compound, Katol Road,
Nagpur.
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7. Commissioner of Police,
Nagpur.
8. P.S.O. Sitabuldi Police Station,
Nagpur. ....RESPONDENTS
.
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Mr. F.T. Mirza. Amicus Curiae.
Ms. R. Kalia, Asstt. Govt. Pleader for Respondent No.1.
Mr. S.M. Puranik, Advocate for Respondent No.2.
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CORAM : B.P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
DATED : JULY 03, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
News item about construction of 4 storied building collapse in
Civil Lines locality of Nagpur published in "The Hitwada" dated 19.12.2006
and other newspapers, led to suo moto cognizance by this Court in public
interest and thereafter Writ Petition No. 6541/2006 came to be registered.
Advocate Shri Firdos Mirza, came to be appointed as Amicus and after
conducting inquiry with the office of respondent no.2 Nagpur Municipal
Corporation i.e. Planning Authority and after paying visit to the spot, he
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drafted this petition.
2. Learned Amicus has made certain prayers like directing
respondent no.2 to ascertain damage caused to the neighbouring owners
because of collapse of newly constructed building, holding of inquiry against
the officers of Nagpur Municipal Corporation. Other prayer is to direct the
Nagpur Municipal Corporation to update format of its building permit. It is
further requested that necessary police action also be initiated.
3. Respondent no.3 Nagpur Improvement Trust has filed reply and
pointed out certain provisions in Development Control Rules (DCR). It is
further stated that the Nagpur Improvement Trust has decided to obtain
additional information or undertaking regarding safety of building before
according sanction from the Architect/Engineer and Structural
Engineer/Supervisor of the project. Attention is invited to Clauses 6.2 to 6.4
of the Development Control Rules for said purpose. Rule 6.2.9 is also relied
upon.
4. We do not wish to delve more on the provisions of DCR, which
have come into force in the year 2000. Compliance with those provisions
might have avoided the accident.
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5. Learned Amicus however, has pointed out that a plot not in
existence has been created and was made available for raising the structure
of which collapsed. The piece of land situated by the side of a flowing nala
was permitted to be constructed upon and for that purpose, the then
Additional Municipal Commissioner or Municipal Commissioner of
respondent no.2 exercised some powers. He has pointed out that statutorily
from said nala, 9 meters of land should have been left open and thereafter
the outer boundary of plot could have started. Thus, after that boundary,
again a marginal space ought to have been left open, and then the structure
i.e. the building line would have come out. From his arguments, it is
apparent that in the present matter, this requirement was not followed and
on the contrary 9 meters distance was brought down to 3 meters. If above
mentioned requirements were followed, the viable plot was not available at
that site. That is the note of the competent building engineer on the file of
respondent no.2. Inspite of that note, the Municipal Authorities brought
down the requirement to 3 meters and effort was made to create a viable
plot.
6. Learned Amicus has on the basis of instructions gathered from the
technical expert has urged that the building being in the bed of nala, was
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having tendency to accumulate water. It was also black soil, with the result,
4 storied construction came down within a year of its completion. He is
pointing out other violations i.e. absence of a commencement certificate or a
completion certificate.
7. Facts at hand prima facie show that without their being proper
certificate of a structural engineer to support such a building, the
construction was going on.
8. It is not in dispute that even today the so called plot is lying as it is
i.e. without any construction. The neighbours whose residential house were
damaged to certain extent due to collapse, have already repaired their
respective houses.
9. As cognizance has been taken in public interest, after noticing the
affidavit of Nagpur Improvement Trust, and the state of affairs, we find it
appropriate to direct the respondents to insist for displaying a board on
such site at a prominent place where the construction work sanctioned by
the competent planning authority is to commence. The board shall display
name of the structural engineer, name of Civil engineer and contractor as
also name of Architect and their phone numbers. The note that sanctioned
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plan number with date thereof and that its copy is available for perusal at
the site, shall also be displayed on such board. The planning authorities
should issue commencement certificate only after satisfying themselves that
such a board is displayed. The date and particulars of commencement
certificate shall also thereafter be added on such board.
10. In present matter, as we find that the power to relax, has been
exercised prima facie erroneously, we direct respondent nos. 1 and 2 to
enquire into the matter. For that purpose, they can issue suitable notice to
the concerned Additional Municipal Commissioner or Municipal
Commissioner as the case may be. We are aware that these officers are not
parties before us and hence, our above observations shall not be binding and
shall not affect or prejudice defence available to them in any manner.
11. This action shall be initiated within a period of six weeks from
today and the present incumbent (Municipal Commissioner) shall file an
affidavit in this Writ Petition, though it is disposed of, to that effect after its
copy is served on the learned Amicus.
12. If learned Amicus is not served with such copy within a period of
six weeks, it will be open to him to bring this fact to the notice of this Court.
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13. With these directions and observation, and placing on record our
special thanks to the learned Amicus as also other respective counsel who
have assisted the Court in this matter, we dispose of the present
proceedings.
JUDGE JUDGE
Rgd.
