Bombay High Court
Mr. Jaswant Shivlal Chandarana ... vs The State Of Maharashtra And Ors on 18 July, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9757 OF 2013
Mr. Jaswant Shivlal Chandarana & Anr. .. Petitioners
Vs
State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.4958 OF 2014
Shri Vasant Shantaram Gupte & Ors. .. Petitioners
Vs
State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.9758 OF 2013
Mr. Mohhamed Salim Hasmat Chaudhari .. Petitioner
Vs
State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.9759 OF 2013
Mr. Vipin Harjeevan Parmar .. Petitioner
Vs
State of Maharashtra & Ors. .. Respondents
WITH
WRIT PETITION NO.9760 OF 2013
Mr. Kehersingh Kabulsingh .. Petitioner
Vs
State of Maharashtra & Ors. .. Respondents
...
Mr. Rahul Shivaji Kadam for the Petitioners.
Ms. N. M. Mehra, AGP for the Respondent No. 1.
Mr. A. S. Rao for the Respondent Nos. 2 to 4.
Mr. I. M. Khairdi for the Respondent No. 5.
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CORAM : A. S. OKA &
SMT. VIBHA KANKANWADI, JJ.
DATE : 18/07/2017.
ORAL JUDGMENT (PER: A. S. OKA, J.)
1] Heard the learned counsel appearing for the Petitioners.
The learned Counsel appearing for the 2 nd to 4th Respondents, the
learned AGP for the State and the learned counsel appearing for the 5 th
Respondent.
2] Rule. Respondents waive service. Forthwith taken up for
final disposal.
3] These petitions can be conveniently disposed of by a
common order as the same relate to the same building namely
Badlapurkar Chawl described in paragraph 1 of the petitions. The
challenge in these petitions at the instance of the occupants of the
buildings is to the impugned notices issued under Section 268 of the
Maharashtra Municipal Corporations Act, 1949 (for short "the said Act").
The said notices proceed on the footing that the subject building is in
dangerous and ruinous condition which is required to be demolished.
Therefore, the Petitioners were called upon to remove themselves from
the building.
4] It appears that the 2 nd Respondent - Municipal Corporation
relied upon the Structural Audit Report of Shri R. K. Yadav which is
dated 19th September 2013 for coming to the conclusion that the
building is in ruinous condition. We have perused the said report which
is placed on record. From the report, it appears to us that no scientific
tests have been conducted by Shri R. K. Yadav for coming to the
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conclusion regarding the structural status of the building. The
Petitioners are also relying upon certain reports which are filed along
with additional affidavits. We have perused the said reports. The
petitioner and Municipal Corporation are relying upon reports of the
Structural Engineers which show that scientific tests have not been
carried out by the consultants before recording their opinion. The 5 th
Respondent is the owner/landlord of the building. The Petitioners and
the 5th Respondent through their learned counsel have agreed that
opinion of Shri Kedar V. Kale, Consulting Engineer be sought on the
Structural status of the building. The Petitioners and 5 th Respondent
have agreed to share the costs and expenses of the structural audit work.
We may note here that even the Kalyan Dombivli Municipal Corporation
is agreeable for appointing Shri Kedar V. Kale to make structural audit of
the building. The Petitioners in these petitions and the 5 th Respondent
will be responsible for payment of charges and expenses to Shri Kedar V.
Kale in equal shares.
5] Our attention is invited to a decision of the Division Bench
in the case of Municipal Corporation of Greater Mumbai Vs. State of
Maharashtra and Ors.1 The Division Bench was dealing with the
provision of Section 354 of the Mumbai Municipal Corporation Act, 1888
which confers power on the Municipal Commissioner to remove or a
demolish building which is in dangerous and ruinous condition. The
procedure for the exercise of powers under Section 354 is laid down in
the said decision. The provisions of Section 264 and 268 being pari
materia with the provisions of Section 354 of the said Act, 1888, there is
no reason why the directions issued by the said decision should not be
applied. Therefore, in terms of the said decision, Shri Kedar V. Kale who
1. 2014 (6) Bombay Cases Reporter 860
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has been appointed to do structural audit cannot base his opinion only
visual inspection. He will have to consider whether tests as suggested in
sub-clause (ii) of Clause (d) of paragraph 9 of the said decision are
required to be carried out. In addition, he will have to ascertain what
other tests are required to be carried out to enable him to give a proper
opinion on the present structural status of the building. If in his opinion
the tests as suggested in sub-clause (ii) are not necessary, he will have to
give reasons in his report for the said conclusion.
6] After Shri Kale submits report, the Appropriate Authority of
the Kalyan Dombivli Municipal Corporation will have to consider
whether the impugned notices are required to be implemented. If after
considering the report, the Competent Authority is of the view that the
building is not in a dilapidated or ruinous condition, it will be open for
the Municipal Corporation to initiate appropriate action in accordance
with law. If the Competent Authority comes to the conclusion that the
impugned notices will have to be acted upon, a notice to that effect will
have to be served to the parties.
7] In Writ Petition No. 4958 of 2014, the learned counsel
appearing for the 5th Respondent states that he will file Vakalatnama of
5th Respondent within a period of 6 weeks from today. On the prayer
made by the Advocate for the Petitioners, we permit deletion of the
name of the 6th Respondent in the said petition. A formal amendment to
that effect shall be carried out within a period of two weeks from the
date on which this order is uploaded. Accordingly, we dispose of these
petitions by passing the following order:-
O R D E R
a) By consent of the Petitioners, 5th Respondent and the
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Kalyan Dombivli Municipal Corporation, Shri Kedar V.
Kale, Consulting Engineer having License No. 402 is
hereby appointed to carry out structural audit of the
subject building namely Badlapurkar Chawl described in
the 1st Paragraph in the petitions. The Petitioners and 5 th
Respondent will deposit requisite advance amount with
Shri Kale to enable him to undertake the work of
structural audit;
b) While carrying out the work of structural audit, Shri Kale
will consider whether it is necessary to carry out tests as
specified in clause (d) of paragraph 9 of the aforesaid
decision in the case of Municipal Corporation of Greater
Mumbai (Supra). If he is of the opinion that some of the
said tests are not required to be carried out, he will have
to record reasons for the same in his report;
c) Needless to add that Shri Kale will be free to carry out
any additional tests which are not mentioned in the
aforesaid judgment and order;
d) We direct the Petitioners and 5th Respondent to
immediately supply an authenticated copy of the
judgment to Shri Kale who shall act upon the same. As
directed earlier, the fees and charges payable to Shri Kale
will be equally shared by the Petitioners and the 5 th
Respondent;
e) Shri Kale shall submit a detailed report after carrying out
structural audit on the structural status of the said
building to the Kalyan Dombivli Municipal Corporation
within a period of 2 months from the date on which an
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authenticated copy of this judgment and order is
received by him;
f) After the receipt of a report, the Competent Authority of
the said Corporation will consider the said report and
will decide whether the impugned notices require
implementation. If the Competent Authority is of the
view that impugned notices are required to be
implemented, an intimation of the said decision along
with copies of the report of Shri Kale shall be forwarded
to the Petitioners, the 5th Respondent and to all other
affected parties. In such event, no further steps shall be
taken on the basis of the impugned notices for a period
of 3 weeks from the date on which a copy of the decision
of the Municipal Corporation as aforesaid is served to the
Petitioners to enable the Petitioners to challenge the
impugned notices as well as the opinion express by Shri
Kale;
g) If after considering the report of Shri Kale, the
Competent Authority of the Municipal Corporation is of
the view that action in terms of impugned notices is not
necessary, intimation of such decision shall be also given
by the Municipal Corporation to the Petitioners and 5 th
Respondent along with copies of the report of Shri Kale.
In such event, it will be open for the 5 th Respondent to
file appropriate proceedings in accordance with law;
h) Till the decision of the Competent Authority is
communicated as aforesaid, the Municipal Corporation
shall not act upon the impugned notices subject to
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condition of the Petitioners filing undertakings in this
Court stating that they will continue to occupy their
respective premises at their own risk. The undertakings
to further state that in the event of collapse of the
building or any part thereof, the Petitioners will be solely
responsible for the loss or damage caused to third
parties;
i) If such undertakings are not filed within a period of four
weeks from today, the protection granted as above shall
come to an end automatically;
j) We make it clear that we had made no adjudication on
the present structural status of the subject building and
all question in that behalf are left open;
k) Rule is made partly absolute on above terms. No order
as to costs.
l) All concerned including Shri Kedar V. Kale to act upon an
authenticated copy of the judgment and order of this
Court;
(SMT. VIBHA KANKANWADI, J.) (A. S. OKA, J.)
