Bombay High Court
Bhamini G. Keni And 10 Ors vs The State Of Maharashtra And 3 Ors on 10 March, 2017
Bench: Naresh H. Patil
1
os-wpl-3002-3011 & 2934 - 16
pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION LODGING NO. 3002 OF 2016
1. Mr. Jayant Sunderdas Karia & ors. .. Petitioners
Versus
1. The Municipal Corporation of Greater
Bombay & ors. .. Respondents
WITH
WRIT PETITION LODGING NO. 3011 OF 2016
1. Mr. Harish Ruparel & ors. .. Petitioners
Versus
1. The Municipal Corporation of Greater
Mumbai & ors. .. Respondents
WITH
WRIT PETITION LODGING NO. 2934 OF 2016
1. Bhamini G. Keni & ors. .. Petitioners
Versus
1. The State of Maharashtra and ors. .. Respondents
Mr. P. R. Yadav a/w Priyanka Dubey for petitioners in WPL No. 3002 of
2016.
Mr. J. A. Udaipuri i/by Udaipuri and Co. for petitioners in WPL No.
3011/16.
Mr. Girish Godbole a/w Mr. S. S. Kanetkar, Mr. Sumieet Kothari and
Raghavendra B. for petitioners in WPL No.2934/16.
Dr. Abhinav Chandrachud a/w Mr. Shailedra Singh for respondent nos.3 to
5 in WPL No. 3002/16, for respondent nos.5 to 7 in WPL No. 3011/16 and
for respondent no.4 in WPL No. 2934/16.
Mr. Sukanta Karmakar, AGP for State in WPL Nos.2934 and 3011 of 2016.
Mrs. Pallavi Thakar for MCGM.
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os-wpl-3002-3011 & 2934 - 16
CORAM: NARESH H. PATIL &
M. S. KARNIK, JJ.
RESERVED ON : JANUARY 19, 2017
PRONOUNCED ON : MARCH 10, 2017
JUDGMENT [ Per Naresh H. Patil, J.] :
1. Rule, returnable forthwith. Heard finally by consent of
parties.
2. Petitioners in Writ Petition Lodging Nos. 3002 and 3011 of
2016 are the original residents of the premises known as "Velbai Velji
Arogya Bhuvan", 196, Koliwada, Sion (East), Mumbai 400 022 (for short
"subject structure"). Petitioners in Writ Petition Lodging No. 2934 of
2016 are occupants of the shops on the ground floor of the subject
structure.
3. Petitioners challenge the notice of eviction bearing No.
AC/TN/OD/310/B & F dated 19/10/2016 issued by Designated Officer FN-
I, Asst. Engineer (Building & Factory), F/North Ward of Municipal
Corporation, Mumbai and seek consequential reliefs. Petitioners state
os-wpl-3002-3011 & 2934 - 16
that respondent nos.3 to 5 are the original landlords, being trustees of "Bail
Velbai Velji Bhimji Charitable Trust", having their registered office at
Godavari Chamber, 43th Floor, S. V. Road, Kandivali (West), Mumbai 400
067. It is alleged that at the behest of respondent nos.3 to 5, the
Corporation issued impugned notice. Petitioners are under constant threat
of demolition of the subject structure. Petitioners further state that
they have submitted relevant documents to respondent no.2, namely,
(a) structural audit report by M/s. V. J. Joshi & Associates, (b) structural
audit report by M/s. Viztech Consultants, (c) structural audit report by
Vastu Associates with N.D. Test Report conducted by EN Lab Services,
registered structural engineer, (d) structural audit report by Mr. Milind
Patil, structural engineer having B.M.C. License No. STR/P86 with N. D.
Test Report conducted by M/s. R. K. Infra Technoclinc Services Pvt. Ltd.,
appointed by the shop owners of the suit premises and (e) structural audit
report dated 15/2/2016 by Veermata Jinabai Technological Institute (VJTI).
The petitioners objected to the decision of respondent no.2 in declaring the
subject structure in C-1 category (building to be demolished).
4. Mr. Yadav, learned counsel appearing for the petitioners in
WPL No. 3002 of 2016 submitted that though the subject structure is old, it
os-wpl-3002-3011 & 2934 - 16
is in repairable condition. Petitioners are residing in the subject structure
since last many years. In case the subject structure is demolished, the
petitioners would be homeless and would face severe hardship. It is
submitted that at the behest of the landlords, the Corporation authorities
have acted contrary to the established procedure and decided to pass order
to demolish the subject structure. Learned counsel submits that Technical
Advisory Committee's report (TAC) is not reasonable and sound one. Said
report is erroneous one, it does not consider in depth the reports submitted
by the experts submitted on behalf of the petitioners. The TAC has
conveniently brushed aside the opinion of the experts/structural engineers
favoring that the subject structure could be repaired and need not be
demolished. The guidelines, framed by the Division Bench of this court
(Coram: Anoop Mohta & A. A. Sayed, JJ.) in Original Side Writ
Petition (L) No. 1135 of 2014, Municipal Corporation of Gr. Mumbai
vs. State of Maharashtra and ors., decided on 23/6/2014, were not
followed. Learned counsel submitted that at this stage if a further report
from reputed institute like Indian Institute of Technology (IIT) is called, the
petitioners would be bound by the said report irrespective of its conclusion.
Learned counsel referred to the relevant reports of structural engineers, the
TAC report and other relevant documents on record. The petitioners are
os-wpl-3002-3011 & 2934 - 16
ready to bear the cost of repairs.
5. Mr. Udaipuri, learned counsel appearing for the petitioners in
WPL No. 3011 of 2016, submitted that the subject structure is in a
repairable condition. According to their estimate, around Rs.30 lacks
would be required for repairing the subject structure which the petitioners /
occupants are ready to bear. Certain persons who are residing in the
subject structure have approached the Bombay Small Causes Court
claiming tenancy rights. In the submissions of the learned counsel, the
landlords are not in a position to develop the subject structure. They do not
have financial capacity to develop the building. In such circumstances, the
petitioners are left in dark as no concrete proposal has been placed before
this court for developing the subject structure after demolishing the same.
It is not known to as to when the landlords would develop the subject
structure. The landlords conveniently waited for numbers of years to
develop the subject structure without repairing it. Learned counsel referred
to the report submitted on behalf of the petitioners by the structural
engineers and experts. The TAC report is erroneous one, it does not take
into consideration all the necessary aspects. The decision of the
Corporation, declaring the subject structure as C-1 category, was also
os-wpl-3002-3011 & 2934 - 16
erroneous. Learned counsel submits that there is no existing law to
protect the occupiers, owners, tenants of the privately owned
structure/building in the city. After staying there for more than 50-60
years, if the structure/building is to be demolished, then the occupants
must be protected.
6. Learned counsel for the petitioners, except Mr. Godbloe,
submit that the list of tenants is not prepared by the Corporation, which
violates the guidelines framed by the Division Bench of this court in the
matter of Municipal Corporation of Gr. Mumbai vs. State of Maharashtra
and ors. (Supra). The TAC did not send its experts to inspect the subject
structure and instead reached conclusion by comparing the reports
submitted by the petitioners. Learned counsel further submitted that TAC
did not strictly comply with the guidelines framed by this court. The
petitioners have challenged the TAC report. The said report is based on
comparison of other reports submitted by the petitioners. The guidelines
framed by this court need to be modified in the light of the situation in
which the petitioners are placed. There is no law to protect them in case
the subject structure is demolished and the landlords are not in a position to
develop the same in near future.
os-wpl-3002-3011 & 2934 - 16
7. Mr. Godbole, learned counsel appearing for the
petitioners/shop owners in WPL No. 2934 of 2016 submits that even if the
decision is taken to demolish the building, the entire building need not be
demolished. Technically/structurally, there is no need to demolish the
ground floor. The ground floor structure is in good condition and without
disturbing the ground floor structure, the property could be developed.
Learned counsel submitted that if the subject structure is in a repairable
condition, then the demolishing the subject structure is not the solution.
There are 15 shops on the ground floor. In respect of occupants of three
shops, Rent Act proceedings are going on in the appropriate court.
Learned counsel submits that the notice issued under Section 354 of the
Mumbai Municipal Corporation Act, 1888 (for short Act of 1888) is bad in
law. Learned counsel placed reliance on the following decisions :
(a) Makarand Dattatreya Sugavkar vs. Municipal
Corporation of Greater Mumbai and ors. [(2013) 9 SCC
136].
(b) Vannattankandy Ibray vs. Kunhabdulla Hajee [(2001) 1
SCC 564].
(c) T. Lakshmipathi and ors. vs. P. Nithyananda Reddy and
ors. [(2003) 5 SCC 150].
(d) Shaha Ratansi Khimji and Sons vs. Kumbhar Sons
Hotel Private Limited and ors. [(2014) 14 SCC 1].
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8. Dr. Abhinav Chandrachud, learned counsel appearing for the
respondents-landlords submitted that the TAC considered the reports of all
the experts, engineers and thereafter arrived at a sound and proper
reasoning. Learned counsel submits that the notice under Section 354 of
the Act of 1888 was issued prior to the framing of guidelines by the
Division Bench of this court in Original Side Writ Petition (L) No. 1135 of
2014. In the facts, there was no need for calling one more report from the
IIT, which would be a futile exercise. Learned counsel submitted that the
list of the occupants could be prepared even before demolishing the subject
structure and on that ground the impugned notice and the TAC report need
not be set aside. Reference was made to Section 16 of the Maharashtra
Rent Control Act, 1999. There are 15 shops on the ground floor and
around 10 to 11 persons are personally living and occupying on upper
floors. The subject structure is of ground + three floors. Out of 15 shop
occupants, agreement of rent was executed with 12 occupants of shops.
Three occupants had approached Civil Court. The Suits filed by them were
decreed and the respondents-landlords had filed appeal, which is pending
consideration. The learned counsel specifically submits that non of the
occupants is a tenant of the landlords. They were allowed to occupy the
premises for medical treatment purposes at the relevant time. Before 50-
os-wpl-3002-3011 & 2934 - 16
60 years the subject structure was used as sanatorium.
In respect of the structural quality of the subject structure,
learned counsel submitted that the same is very old and in a highly
dilapidated condition. It has become dangerous to life not only for the
occupants but even for third parties. The subject structure has become
hazardous for neighbourers and passers-by. Therefore, the landlords intend
to demolish the same. In respect of TAC report, learned counsel submitted
that there is no need to conduct further visual inspection by the TAC in the
light of the reports filed by the petitioners on record. This is the third time
after remand by this Court that the TAC has expressed its opinion in
favour of the landlords of the subject structure. Learned counsel submitted
that the guidelines d(ii), framed by the Division Bench of this court in
Original Side Writ Petition (L) No. 1135 of 2014, are discretionary in
nature. In view of the TAC report and the condition of the subject
structure, there is no case for causing interference in the view adopted by
the TAC and the Corporation to demolish the subject structure. If the
subject structure collapses, then it would cause loss of life and property.
Even if the petitioners have undertaken that in such a situation, in case of
untoward incident, they are taking the risk, still it would not be legally
os-wpl-3002-3011 & 2934 - 16
permissible to continue to occupy such subject structure in view of highly
dilapidated condition of the subject structure. Learned counsel placed
reliance on the judgment of this court in the case of Mr. Zubair Malik and
ors. vs. Municipal Corporation of Greater Mumbai and ors. [2015 (1) ALL
MR 543].
9. Learned counsel appearing for the Corporation submitted that
the TAC report is based on analysis of the experts opinion. The TAC is
consisting of Senior Officers and Experts in the field. The subject structure
is old and it needs to be demolished. In case the subject structure
collapses, there is likelihood of loss of life and property. The Corporation
has taken into consideration all the aspects of the matter and thereafter
issued notice under Section 354 of the Act of 1888. Learned counsel
submits that there is no case made out by the petitioners to protect them
and the petitions deserve to be dismissed.
10. We have heard the learned counsel appearing for the parties at
sufficient length. We have perused the record placed before us. Notice
under Section 354 of the Act of 1888 was issued by the Designated Officer
FN-I, Asst. Engineer (Building and Factory), F/North Ward of the Mumbai
os-wpl-3002-3011 & 2934 - 16
Municipal Corporation on 19/10/2016. The petitioners submitted reply to
the said notice. Petitioners further submitted report of experts. In view of
the conflicting opinion of the experts' views, as submitted by the petitioners
and the contesting respondents, the TAC held its meeting on 20/8/2015 at 4
p.m. The TAC concluded as under :-
" The TAC Committee was held on 2.7.2015 at 4.00 p.m.
in Director (E.S. & P)'s Chamber. However, the consultants of
owner as well as tenants were not present. TAC directed that if
the consultant failed to attend the next meeting ex-parte orders
will be passed & action will be initiated against consultant.
After the TAC called the next meeting on 20.8.2015 at 4.00
p.m. & the committee held accordingly when, both the
consultants of owner as well as tenants were present.
The site is inspected by Ward staff and A.E. (B & F)
F/North Ward stated in the meeting that there only are the
three tenants occupying the premises. Further the test reports
submitted by both R.C.C. Consultants are below the standard
norms mentioned in I.S. Code and shows doubtful quality of
concrete and 90% probability of corrosion of R.C.C. members.
Consultant Shri Yogesh P. Patel from Bai Velbai Velji Bhimji
Charitable Trust opined that the building is in dilapidated
condition, reinforcement has been deteriorated to the extent of
90% R.C.C. slab at same parts are sagged. The consultant V. J.
Joshi & Associates opined for major structural repairs without
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vacating tenants. It is also observed that there is a suit in a
City Civil Court regarding evacuation filed by the owner.
However, the same should be dealt by Asstt. Commissioner,
F/North Ward separately.
After taking into consideration of both the consultant's
report placed on record. Statement recorded during TAC
meeting and as per the present site condition explained by
ward Designated Officer it appears that the building under
reference is in dilapidated condition and unsafe for human
habitation TAC does not felt necessary to carry out N.D. Test
separately as both the consultants have submitted the report
which N.D. Tests.
Looking towards all the above facts, and taking on
record the structural audit report of all the consultants TAC
opined that the building shall be evacuated immediately and
shall got demolished with due care under the supervision of
Structural Engineer by following due process of Law. In the
mean time ward staff shall directed Owner/Occupier to take
necessary preventive measures such as propping etc. till
evacuation of the building."
11. Three writ petitions were preferred against the conclusion
reached by the TAC i.e. Original Side Writ Petition (L) Nos.1584, 1616
and 1618 of 2016. By an order dated 16/6/2016, Division Bench of this
Court, to which one of us ( M. S. Karnik,J.) was party, directed the TAC to
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take a fresh decision keeping in view all the earlier reports as also the
report of VJTI. Para 4 of the said order reads as under :-
"4. Having heard the learned counsel for the parties and
having regard to the fact that there is conflict in the earlier
reports and the report submitted by the VJTI, on the broad
consensus arrived at during the course of the hearing we
dispose of this petition by directing TAC to take a fresh
decision keeping in view all the earlier reports as also the
report of VJTI with further opportunity to the respondent nos.3
to 5 to submit any other report from the competent expert body
in support of their contention that the building in question is
dangerous and/or dilapidated. Let the said report, if any, be
submitted by respondent nos.3 to 5 within a period of six
weeks from today. After expiry of six weeks, in case the report
is filed by respondent nos.3 to 5, the TAC shall consider all
earlier reports including the report of VJTI and the report as
may be submitted by respondent nos.3 to 5 and take a fresh
decision in the matter as to whether the building in question
can be repaired or is required to be demolished. Let the TAC
take a fresh decision within four weeks from the date of receipt
of such report from respondent nos.3 to 5. Till the decision as
aforesaid is taken by the TAC and for the period of two weeks
thereafter, the water facility as also the electricity facility be
restored and be continued by the BMC. The occupants in all
the petitions which are listed today shall file an undertaking
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before this Court within ten days that they will be occupying
the structure in question at their own risk and neither the
respondent landlord nor the officers of the BMC would be held
responsible for criminal action or for any damage caused to
them or to any one due to collapse of the building. Needless to
say that this Court has not examined the correctness of any of
the reports submitted by the parties and the TAC is free to
decide the matter as already ordered. All the contentions are
kept open."
12. Thereafter, the Assistant Commissioner (F/North Ward)
submitted papers to TAC on 30/7/2016 to take a fresh decision keeping in
view all the earlier reports, including report of VJTI and all competent
expert bodies, if any. Further fresh structural audit report of the subject
structure under reference from the trustees of Bai Velbai Velji Bhimji
Charitable Trust carried out by S. P. College Of Engineering was also
submitted to TAC by the Asstt. Commissioner (F/North) Ward.
Accordingly, TAC arranged meeting on 26/8/2016 with Director (E.S. & P)
Chairman of TAC's cabin in the presence of 15 officers/consultants. The
TAC prepared comparison statement of tests which was submitted by
F/North ward in the meeting held on 26/8/2016 at 2.45 p.m. carried out by
structural consultants. The said comparison statement mentioned by the
TAC in its report is reproduced as under :-
os-wpl-3002-3011 & 2934 - 16
Test Standard M/s. M/s. M/s. M/s. Vastu M/s VJTI M/s SP Re-mark
carried Yogesh V.J.Joshi Milind Associates College of
out Patel Patil Engg
UPV Test (IS: 1331 1.42 2.56 ----- 2.57 (avg) 1.84 (avg) 1.39 (avg)
(km/sec) Part I) Below (avg) (avg)
3.00 km/sec.
Doubtful
3.00 to 5.00
km/sec
(Medium)
3.50 to 4.50
km/sec
(Good)
Above 4.50
km/sec
(Excellent)
Rebound (IS:13311 12.47 17.00 14.46 17.00 28.16 (avg) 16.30 (avg)
Hammer part II) (avg) (avg) (avg) (avg)
Test 40 (Very
(Mpa) good)
30-40 (Good)
20-30 (fair)
<20 (Poor)
Half Cell (ASTM/ 433.88 383.00 ----- 383.0 351.35 415.45
Potential C876-80)
(-m.V) Above(-) 350
mV - Active
corrosion.
Above (-)
200 mV-
High
Corrosion.
Bent (-) 200
to (-) 350
mV-
Uncertainty
of corrosion.
Carbonati No No ------ No No Change No Change
on Test Change Change Changein in Colour in Colour
in in Colour
Colour Colour
The TAC referred to conclusion of structural auditor M/s.
Yogesh Patel (appointed by trustees), conclusion of structural auditor M/s.
os-wpl-3002-3011 & 2934 - 16
V. J. Joshi, appointed by tenants, conclusion of structural auditor M/s.
Milind Patil, appointed by tenants, conclusion of structural auditor M/s
Vastu Consultants, appointed by tenants and conclusion of structural
auditor M/s VJTI, appointed by tenants. Reference was made to the
conclusion of structural auditor M/s. S P College of Engg, appointed by
trustees. The TAC conclusion dated 27/9/2016 reads as under :-
" There are total six Structural Consultants appointed for
the matter under reference. Five Structural Consultants were
present and the test results submitted by them are taken on
record. M/s. Vastu Associates were not present however, the
test results submitted by them are taken on record.
The structure is in bad condition and has outlived its
life. Sagging is observed and at the same time it was brought
to notice of TAC committee that unauthorized extensions are
seen. Terrace and the toilets are in a very bad condition.
Structural cracks are observed. Sagging is observed at few
location.
Considering the above submissions of all the Structural
Consultants, Post Graduates staff appointed by MCGM and
F/North Ward staff, TAC is of the opinion that the earlier
decision given by the TAC on 20/8/2015 holds good and the
structure under reference is beyond repairs, as the same is not
fit for human habitation and needs to be vacated and
demolished immediately."
os-wpl-3002-3011 & 2934 - 16
This TAC report has been challenged in these petitions.
13. In the comparison statement of tests, result of UPV Test,
Rebound Hamer Test, Half Cell Potential and Carbonation Test are
mentioned. The structural auditor's report submitted by the petitioners
mentioned that it needs immediate action from the occupants. It is also
mentioned that the building structure was not maintained / repaired or
painted for last many years. The TAC observed in the report that the
structure is in bad condition and has outlived its life. Structural cracks are
observed at few location. Therefore, the earlier decision taken by the TAC
dated 20/8/2015 was held good and it was opined that structure under
reference was beyond repairs and same is not fit for human habitation and
needs to be vacated and demolished immediately.
14. In the facts, we are not inclined to call for a further test report
from IIT. Learned counsel appearing for the petitioners submitted that in
view of the guidelines framed by this Court, the TAC ought to have called
its own structural audit report through experts. The guidelines were
framed by the Division Bench of this court on 23/6/2014 in O.S. Writ
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Petition (L) No.1135 of 2014 filed by Municipal Corporation for Greater
Mumbai and the notice under Section 354 of the Act of 1888 was issued on
3/5/2014 in this case. Therefore, in strict sense, the guidelines framed by
this Court are not applicable. Even otherwise, the TAC, while reaching
conclusion had compared the tests reports submitted by both the parties.
The reports, include technical / structural aspects of the matter which were
considered by the TAC which is comprised of Senior Persons having
sufficient knowledge of the technical and structural aspect of the building.
We do not find force in the allegations made by the petitioners that at the
behest of the trustees, the Corporation had resorted to issuance of
impugned notice on the conclusion reached by the TAC. The petitioners
had questioned the first report by filing Writ Petitions before this court.
While remanding the matters back, the Division Bench of this court had
directed for taking a fresh decision by the TAC, keeping in view of all the
earlier reports as also the report of VJTI with further opportunity to the
respondent nos.3 to 5 therein to submit any other report from the competent
expert body in support of their contention that the building in question is
dangerous and/or dilapidated. It seems that even before the Division
Bench, the issue of TAC appointing its own structural auditor to inspect the
building was not raised. The parties complied with the order passed by the
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Division Bench in remanding the matter back to the TAC. Therefore, at
this stage, we do not find that the matter needs to be further remanded back
for appointing its own structural auditor or experts calling for fresh report
after inspecting the subject structure. As regards the guidelines, directing
to frame list of occupants before demolishing the building, we are of the
view that even before demolishing the building, the Corporation could
prepare such a list as per the guidelines framed by the Division Bench of
this court and on that count the exercise conducted by the TAC, after
remand, cannot be faulted. The matter need not be remanded back to the
TAC on that ground.
15. We have seen the photographs of the subject structure. We find
that the subject structure seems to be very old and in bad condition. But,
merely by seeing photographs, condition of the structure cannot be
decided. Therefore, structural audit reports, view of the experts are to be
looked into. In such cases, Corporation authorities too are duty bound to
resort to appropriate steps if it is found that a building/structure is in a
dilapidated condition or dangerous for the occupants to live. It is
obligation on the authorities to take appropriate steps in accordance with
law. In case portion of the building/structure collapses, then it is very
os-wpl-3002-3011 & 2934 - 16
likely that people residing in such building would suffer loss of life,
property or may suffer severe injuries. The Corporation is duty bound to
avoid any loss of life and property to by-passers, third parties and persons
residing in the immediate neighbourhood of such building. From all these
angles such issues brought before the court are required to be looked into.
16. The issue regarding lack of appropriate legislation in respect
of the occupants of the privately owned building is raised. We reproduce
para 4 of the order of this court dated 23/6/2014 in Writ Petition (L) No.
1135 of 2014 :-
"4. In light of the problem faced by the Corporation
concerning large number of seriously dangerous and
dilapidated buildings/ structures which require to be urgently
vacated/demolished, so as to prevent loss of life of the persons
residing therein and/or residing in surrounding localities
and/or people who are passers-by, the Corporation has issued
notices under Section 354 of the Mumbai Municipal
Corporation Act, 1888 (hereinafter referred to as "the said
Act") requiring the occupiers / owners to vacate / pull down
the building(s). In view of the fact that in many of such
buildings, the tenants and/or occupiers are residing and / or
unwilling to vacate the premises inspite of the fact that the
os-wpl-3002-3011 & 2934 - 16
building is dilapidated and dangerous and likely to fall, which
would cause loss of human life including of the persons who
are refusing to vacate therefrom and/or because of the inaction
on the part of the owners, it has become necessary to pass the
present order."
Provisions of Section 354 of the Act of 1888 reads as under :-
"354. Removal of structures, etc., which are in ruins or
likely to fall.
(1) If it shall at any time appear to the Commissioner that
any structure (including under this expression any building,
wall or other structure and anything affixed to or projecting
from, any building, wall or other structure) is in a ruinous
condition, or likely to fall, or in any way dangerous to any
person occupying, resorting to or passing by such structure or
any other structure or place in the neighbourhood thereof, the
Commissioner may, by written notice, require the owner or
occupier of such structure to pull down, secure or repair such
structure, subject to the provisions of section 342 and to
prevent all cause of danger therefrom.
(2) The Commissioner may also if he thinks fit, require the
said owner or occupier, by the said notice, either forthwith or
before proceeding to pull down, secure or repair the said
os-wpl-3002-3011 & 2934 - 16
structure, to set up a proper and sufficient hoard or fence for
the protection of passers by and other persons, with a
convenient platform and handrail, if there be room enough for
the same and the Commissioner shall think the same desirable,
to serve as a footway for passengers outside of such hoard or
fence.
(3) If it shall appear to the Commissioner that any building
is dangerous and needs to be pulled down under sub-section
(1), the Commissioner shall call upon the owner, before
issuing notice thereunder, to furnish a statement in writing
signed by the owner stating therein the names of the occupiers
of the building known to him or from his record, the area in
occupation and location of premises in occupation, possession
of each of the respective occupiers or tenants, as the case may
be.
(4) If he fails to furnish the statement as required by sub-
section (3) within the stipulated period, then the
Commissioner shall make a list of the occupants of the said
building and carpet area of the premises in their respective
occupation and possession alongwith the details of location.
(5) The action taken under this section shall not affect the
inter se rights of the owners or tenants or occupiers, including
right of re-occupation in any manner.
os-wpl-3002-3011 & 2934 - 16
Explanation.- For the purposes of this section, "the tenant"
shall have the same meaning as assigned to it in clause (15) of
section 7 of the Maharashtra Rent Control Act, 1999.".
In respect of conflicting audit reports, experts' reports
submitted by the contesting parties, the matter would get referred to TAC
according to the Division Bench of this court. Clause 9 (d) of the order
refers to the steps to be taken by TAC. We may refer to Clause 9 (l) and (p)
of the said order, which read as under :-
"9(l) The rights of the tenants and / or occupiers and /or
owners in respect of the said premises / property will not be
affected by virtue of evacuation or demolition carried out b the
Corporation of such dilapidated and dangerous building in
exercise of the power under section 354 of the said Act or by
virtue of the fact that the Corporation is the owner of the
premises. Such tenant and /or occupier and/or owner will be
entitled to re-occupy the premises in respect of the same area
after the reconstruction of the building, subject to the
prevalent provisions of law pertaining to redevelopment of the
property or subject to any arrangement or agreement arrived at
by and between such tenants and/or occupiers with the owner
of the building. Any action of evacuation /removal/demolition
os-wpl-3002-3011 & 2934 - 16
will not affect the inter se rights of owners if there be more
than one owner or there is a dispute as to the title of the
property."
(p) In case privately owned buildings are demolished by the
Corporation in exercise of power under Section 354 read with
the present order, then the Corporation shall, while granting
sanction of redevelopment, impose a condition in IOD
(Intimation of Disapproval) that no Commencement
Certificate will be issued under section 45 of the MRTP Act,
1966 unless and until an Agreement either providing a
Permanent or a settlement is arrived at by and between the
tenants and /or occupiers and the landlord in respect of the
said demolished premises, is filed with the Corporation at the
earliest."
17. The aforesaid guidelines would take care of the rights of the
persons occupying the privately owned building. It was clarified by the
Division Bench in para 10 of the order that the guidelines nowhere restrict
the power, scope and purpose of Section 354 of the Act of 1888.
According to the court, the order was necessitated to make Section 354
effective and to see that human lives are not in any manner compromised.
18. It is for the State to take appropriate decision on the issue of
os-wpl-3002-3011 & 2934 - 16
protecting the occupants of privately owned building, in case of demolition
of the building and if necessary make suitable legislation in that behalf.
19. Mr. Godbole, learned counsel, refers to paras 19 and 19.1 of
the judgment of the Supreme Court in the case of Makarand Dattatreya
Sugavkar vs. Municipal Corporation of Greater Mumbai and ors.
[(2013) 9 SCC 136], which read as under :-
"19. A careful reading of Sections 354 and 489 shows that if
the Commissioner is satisfied that any structure is in a ruinous
condition or likely to fall or is in any way dangerous to any
person occupying, resorting to or passing by such structure or
any structure or place in the neighbourhood thereon, then he
can require the owner or occupier of such structure to pull
down, secure or repair the same and to prevent cause of danger
therefrom:
19.1 The word "structure" used in sub-section (1) of Section
354 includes any building, wall and other structure and
anything fixed to or projecting from any building, wall or
other structure. Under Section 354 (2), the Commissioner can
direct the owner or occupier to take steps enumerated in
Section 354(1) on emergency basis. If the owner or occupier
fails to take steps in terms of Section 354(1) or (2), then the
os-wpl-3002-3011 & 2934 - 16
Commissioner can suo motu take such measures or cause such
works to be executed. In that event the expenses incurred in
the taking of appropriate measures and/or execution of work
are required to be paid by the person or by any one of the
persons to whom the requisition or order issued under Section
354 was addressed.
20. Learned counsel Dr. Abhinav Chandrachud refers to para 16 of
the judgment in the case of Mr. Zubair Malik and ors. vs. Municipal
Corporation of Gr. Mumbai and ors. [2015 (1) ALL MR 543], which
reads as under :
"16. We cannot sidetrack the difficulties of such old legal
tenants of such old chawls/buildings owned by poor
landlord/owner who are unable to commercially exploit the
land property but, as stated to be under obligation to provide
temporary alternate accommodation till the construction /
development of the dilapidated, dangerous buildings on the
land. Such statutory or otherwise legal tenants / occupants
cannot be treated on lower footing than the unauthorized or
authorized slum dwellers/ occupants on Government or local
body's land or property, specially when the urgent situation of
compulsory razing of such dilapidated old buildings crops up.
The State or local authorities are willing to provde such
occupants, dwellers / tenants temporary and/or permanent
os-wpl-3002-3011 & 2934 - 16
alternate accommodation as recorded in earlier orders (supra).
They have permitted various settlements for the same."
21. We have perused the record, the judgments cited (supra), the
structural audit reports submitted by the parties and the TAC's report. We
find that the building has become old and dilapidated. The building is more
than 60 years old. The structural audit reports show that due to poor
condition and age of the building and lack of maintenance, heavy
leakages/seepage are observed and vegetation growth is also noticed.
Most of the columns, beams and many slabs supporting common passage
at all floors are in dangerous condition and many of them are prop
supported.
22. The structural audit report of M/s VJTI, appointed by tenants,
also shows that the building structure was not maintained / repaired or
painted for last many years. Most of the internal RCC members, beams,
columns and slabs, have been found in sound condition without any major
sign of distress. However, a few internal elements about 10% beams and
5% columns and 20% slab show major distress primarily due to corrosion
of refinement bars. The VJTI submitted its opinion that the building is
os-wpl-3002-3011 & 2934 - 16
liveable. However, if the habitation in the building is to be continued then
the existing props provided in the passage around the open chowk area
shall be tightened and severally deteriorated / damaged columns and beams
should be repaired on immediate basis.
23. The TAC took into consideration six structural consultants
appointed for the matter under reference. In the opinion of the TAC the
structure is in bad condition and has outlived its life. Sagging was
observed and unauthorized extensions were noticed. Terrace and the
toilets are in a very bad condition. The TAC noticed structural cracks and
sagging at few locations. In the opinion of the TAC, the building is
beyond repairs.
24. This court in exercise of its writ jurisdiction would not sit
over for reviewing the merits of the structural audit reports. It is the job
of experts. The opinion of the experts reached with regard to the condition
of the building being subjective opinion, this court would not substitute its
view, even if the opinion suffers from some errors here or there. The
opinion of structural audit reports submitted by the tenants and the
landlords are conflicting in nature and, therefore, under the guidelines
os-wpl-3002-3011 & 2934 - 16
framed by this court, the TAC would look into and evaluate properly to
decide regarding the sustainability of the structure. It is for the TAC to
take appropriate decision as to whether the building is in repairable
condition or not and whether the persons should continue to occupy such
building. If it is in such a dangerous condition that it may collapse and
cause loss of life and property, the TAC evaluates the same and submits the
report accordingly. The TAC, after going through six structural audit
reports submitted before it has again looked into the matter consequent to
the remand of the case by this court. Comparison statement mentioned by
TAC in its report shows that six experts carried out UPV Test, Rebound
Hammer Test, Half Cell Potential and Carbonation Test. Based on these
reports, the TAC submitted its report. In the facts, we do not find that it
was necessary for the TAC to again get one more report by appointing
structural auditor from their side. While remanding the matter to TAC, this
court did not direct TAC for a visual inspection report before submitting
report. Neither the petitioners pressed for the same.
25. In the facts we are not convinced to call for another report
from IIT as suggested by the petitioners. From the record placed before us
and looking to the condition of the building, we find that it is a very old
os-wpl-3002-3011 & 2934 - 16
dilapidated structure, it is dangerous for human habitation. In case of
collapse of the structure, it is very likely that there could be loss of life and
property. In the process, third parties, neighbourers, passers-by are also
likely to get injured and suffer loss of life and property. Taking into
consideration not only the structural audit reports but overall condition of
the building, the decision was taken and thereafter the impugned notice
was issued by the Corporation.
26. Learned Counsel Shri Godbole appearing for petitioners/shop
owners submitted that the ground floor structure is in good condition and it
need not be demolished. If required, certain repairs will be carried out.
We would not substitute our opinion to the view adopted by TAC in its
report in respect of the subject structure. In the facts we are not inclined to
accept the contentions advanced by learned Counsel Mr. Godbole.
27. We direct that before demolishing the building, the
Corporation shall comply with the guidelines in preparing the list
containing names of the tenants/occupants and the area occupied by the
tenants/occupants.
os-wpl-3002-3011 & 2934 - 16
28. We observe that as and when landlord decides to develop the
subject plot, he would be bound by guidelines No. 9(l) and (p) framed by
this Court in WPL No. 1135 of 2014 which would protect the interest of the
occupants of the building.
29. In exercise of our writ jurisdiction and in the facts and
circumstances of the case, we are not inclined to accept the petitioners' case
for quashing and setting aside the notices and the TAC report. The
petitions fail and are dismissed accordingly. Rule is discharged. No costs.
(M. S. KARNIK, J.) (NARESH H. PATIL,J.)
