Baumont Foods Private Limited And ... vs Minicipal Corporation Of Greater ...
2017 Latest Caselaw 2566 Bom

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Ladda


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              CIVIL APPELLATE JURISDICTION

             APPEAL FROM ORDER (STAMP) No. 14198 of 2017
                                  WITH
               CIVIL APPLICATION (STAMP) No. 14199 of 2017
                                    IN
             APPEAL FROM ORDER (STAMP) No. 14198 of 2017.


         Baumont Foods Pvt Ltd & Ors                                 ..Appellants.
                   Vs
         Municipal Corporation Gr.Mumbai                             ..Respondents.


         Mr. Gautam Joshi, Senior Advocate a/with Piyush Raheja
         a/with Mr Bhushan Shah, Ms Karishma Moha and Ms
         Neha Lakshaman i/by Mansukhlal Hiralal & Co. for the
         appellants.

         Ms. Madhuri More, Advocate for MCGB-Respondent
         No.1.

         Mr Mustafa Doctor a/with Mr. Surya Abhishet and Mr.
         Abhijeet Deshmukh i/by M/s Hariani & Co. for
         Respondent No. 2 and 4.

         Mr Harish Pandya Ms Aradhana Bhansali, Ms Gargi
         Panwar i/by Rajani Associates for Respondent Nos. 6
         to 11.
         Mr Inderpal Singh Nirmale for Respondent No. 12 to 22.

                                               CORAM : C.V. BHADANG, J.

DATE : 18th May, 2017.

(VACATION JUDGE)

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JUDGMENT.

1) The appellants are challenging the order

dated 6th May, 2017 passed by the learned City Civil

Court at Bombay in Draft Notice of Motion in L.C. Suit

No. 5177 of 2017. By the impugned order the learned

City Civil Court has refused to grant ad-interim relief to

the appellants/plaintiffs. The notice of motion is made

returnable on 19th July, 2017. By consent of parties, the

appeal is taken up for final disposal.

2) Brief facts are that the appellants/plaintiffs

have filed a suit challenging a notice dated 28 th April,

2017 issued by the first respondent Mumbai Municipal

Corporation ("the Corporation" for short) under section

354 of the Mumbai Municipal Corporation Act, 1888

(M.M.C.Act for short) ordering demolition of the first,

second and third floors of Somani Building situated at

Bombay Samachar Marg, Mumbai. The case made out

in the plaint is that the appellants have acquired sub-

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tenancy right of the respective premises on the third

floor of the said building from the third respondent

through Basant Kumar Somani Memorial Trust ("tenant"

for short), which in turn had acquired tenancy rights

from the second respondent i.e. Dr. J.K. Somani Public

Charity Trust ("the landlord" for short). It is claimed

that the said tenancy is valid and subsisting. On 30 th

November, 2016 there was an outbreak of fire on the

second floor of the Somani building which spread to the

third floor. The fire could be brought under control and

dowsed after more than ten hours on 1 st December,

2016 causing damage to the substantial part of the

said building.

3) On 1st December, 2016 the Corporation

addressed a letter to the owners/occupiers asking them

to appoint a structural consultant. On 5 th December,

2016 the landlord submitted a structural audit report

from K.R.Trivedi & Associates who concluded that the

said building should be demolished. Sometime in

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December, 2016 the appellants and the other sub-

tenants of the building (respondent No. 6 to 22)

appointed Ellora Consultancy Services to conduct an

independent structural audit of the building. The Ellora

Consultancy Services submitted its report dated 16 th

December, 2016 to the Corporation based on the

external inspection finding that the building is in a

repairable condition, however, reserving a final

conclusion after examining the internal damage.

4) It is undisputed that the appellants and the

other sub-tenants of the building have vacated the

respective portions soon after the incident of fire.

5) The Ellora Consultancy Services after internal

inspection submitted a detailed structural audit report

on 10th January, 2017 classifying the building as C2-A

i.e. one which is repairable.

 6)               The            internal   correspondence              of       the





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Corporation showed that the concerned Executive

Engineer had opined on 18th February, 2017 that a

notice ought to be issued under Section 354 of the

MMC Act for repairs of the building on the basis of the

report of Ellora Consultancy Services. Thus, according

to the appellants, even the Corporation was

maintaining that the building is in repairable condition.

Further, according to the appellants, on 28 th February,

2017 the representative of the second respondent were

demolishing a wall of the building without consent of

sub-tenants and occupiers. The Corporation addressed

a notice to the landlord on 2 nd March, 2017 directing

them to cease from the unauthorized demolition of the

wall. Sometime in March, 2017 the appellants learnt

through an RTI querry that the landlord obtained

another structural audit report from one Shashank

Mehendale & Associates on 12th January, 2017 stating

that the building is in a repairable condition. There is

yet another report from the Veermata Jijabai

Technological Institute, Mumbai ( "VJTI" for short) dated

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14th March, 2014 stating that the upper floor of the

building is beyond logical repairs. On 29 th March, 2017

the appellants obtained another structural audit report

from A.D. Shintre Consultants stating that the building

can be made structurally safe and sound.

7) On 13th April, 2017 the appellants

approached this Court by filing Writ Petition No. 1081 of

2017 seeking protection of the Somani Building before

onset of monsoon. The Deputy Chief Engineer (Building

Proposals) opined that the matter must be referred to

the Technical Advisory Committee (TAC) in view of the

contradictory structural audit reports. Finally on 28 th

April, 2017 the Corporation issued a notice asking the

landlord to pull down first floor walls/portion of second

and third floor of the said building under section 354 of

the MMC Act. In that view of the matter, writ petition

No. 1081 of 2017 was disposed of with liberty to the

appellants to pursue appropriate remedy before the

Civil Court. It is in pursuance thereof that the

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appellants filed a suit challenging the impugned notice

under Section 354 of the MMC Act. In the notice of

motion the appellants sought the following reliefs:-

(a) Defendant No.1 be ordered and directed by this Hon'ble Court to submit the (a) Shashank Report;(b) Ellora Report; and © VJTI Report; (d) Shintre Report to TAC for its independent consideration and review;

(b) That pending the hearing and final disposal of the present suit, the concerned officers, staff members, representatives, contractors, servants and agents of Defendant No. 1 to 5 be restrained by an order and injunction of this Hon'ble Court from in any manner implementing impugned notice or taking any steps whatsoever pursuant thereto and/or from demolishing / damaging the Somani Building or any part thereof;

(c) That pending the final hearing and disposal of the present suit, the Plaintiffs be permitted at their costs and expenses at this stage to carry out the following work in the suit building forthwith;

(i) To prop the entire suit building

(ii) To provide a temporary supporting arrangement to repair the standing portion of the suit building;

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(iii) To cover the entire suit building by a pandal to protect it from monsoon rains.

(iv) To remove the debris lying at the premises of the suit building.

              (d)        Interim and ad-interim reliefs in
                         terms   of   prayer  Ia) to    (c)
                         hereinabove;
              (e)        For costs of this Notice of Motion;and
              (f)        For such further and other reliefs as
                         this Hon'ble Court deem fit in the
                         facts and circumstances of the case
                         may require;


 8)                 It was contended on behalf of the appellants

that the Municipal Corporation has not followed the

guidelines issued by this Court vide judgment dated

23rd June, 2014 in Original Side Writ Petition (Lodging)

No. 1135 of 2014 while issuing the impugned notice.

The first respondent claimed that the impugned notice

is issued as per the provisions of law and looking to the

ensuing monsoon season there is likelihood of the

building, falling down, as the building is in a dilapidated

condition. The judgment in Writ Petition (L) No. 1135 of

2014 is not applicable to the building where the

tenants have vacated their premises.

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 9)               The respondent Nos. 2 to 4 also claimed that

the guidelines on which reliance is placed by the

petitioners are not applicable.

10) The learned Trial Court came to the

conclusion that the prayer clause (c) in the draft notice

of motion cannot be granted at the ad-interim stage.

The learned Trial Court found that the appellants having

already vacated their tenanted premises which were

located on the third floor of the building cannot claim

protection of the guidelines issued by this Court in O.S.

Writ Petition (L) No. 1135 of 2014. The learned Trial

Court found that the guidelines are applicable in a

situation where the tenants of a dilapidated building

are not ready to vacate the tenanted premises. The

learned Trial Court further noticed the judgment of this

Court dated 24th July, 2015 in Writ Petition No. 136 of

2006 by which it is clarified that, in an extraordinary

situation where sufficient time is not available, the

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Corporation can proceed with the notice under Section

354 of the Act without referring the matter to the TAC.

11) I have heard Mr Gautam Joshi, learned

Senior Counsel for the applicants/appellants and Mr.

Mustafa Doctor learned Senior Counsel for Respondent

Nos. 2 to 4. I have also heard Mrs. Madhuri More for the

first respondent Corporation and Mr. Harish Pandya for

Respondent No. 6 to 11 and Mr Inderpal Singh Nirmale

for Respondent Nos. 12 to 22.

12) It is submitted by Shri Joshi, learned Senior

Counsel for the appellants that all that the appellants

are seeking is that the Corporation should refer the

matter to the TAC as there are conflicting reports by

the structural auditors. He pointed out that there are

two reports submitted by the appellants and three by

the landlords which depict a contradictory position

about the condition of the building as to whether it is in

a repairable condition or not. It is submitted that the

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Competent Authority of the Corporation had made a

volte face on their stand in this regard. It is submitted

that if the existing structure is demolished, it will

seriously affect the rights and interest of the petitioners

who are admittedly the sub-tenants of the third floor of

the building. The learned Senior Counsel submitted

that the Corporation has not yet classified the building.

It is submitted that the Corporation was required to

follow the guidelines as laid down by this Court in Writ

Petition No. 1135 of 2014. It is submitted that even

otherwise this Court can always direct and require the

Corporation to refer the matter to the TAC which is a

high level expert body, if there is a situation where

there are conflicting expert opinions/reports. The

learned Senior Counsel has referred to the amended

provisions of Section 354 of the MMC Act (as amended

by Maharashtra Act No.22 of 2017 with effect from 19 th

January, 2017.) It is submitted that as per sub-section

(3) of Section 354 of the MMC Act before issuing notice

the Commissioner has to call upon the owner of the

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building to furnish a statement in writing stating the

names of the occupiers which has not been followed in

this case. It is submitted that under section 499 of the

MMC Act the tenants are entitled to take appropriate

steps for reconstruction of the building and as such

valuable 'vested rights' of the appellants are involved

and are likely to be jeoparadised if the impugned

notices are executed. The learned Senior Counsel

placed reliance on the decision of this Court in the case

of Gajanan Ramrao vs. Municipal Corporation City

Nagpur & Ors (MANU/MH/0534/2006) in order to

submit that merely because the building appears to be

in a dilapidated condition did not justify the order of

demolition. The learned counsel for the appellants and

learned counsel respondent No. 6 to 11 and respondent

Nos. 12 to 22 have supported the appellants.

13) On the contrary, it is submitted by Shri

Mustafa Doctor, the learned Senior Counsel for

Respondent No.2 and 4 that the guidelines issued by

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this Court in Writ Petition (L) No. 1135 of 2014 have

rightly been held to be not applicable by the learned

Trial Court. The learned Counsel would submit that the

said guidelines have been explained away in a

subsequent decision of this Court in Writ Petition No.

136 of 2006 ( Bharat Choksey & Ors Vs. Life Insurance

Corporation of India & Ors) decided on 24/7/2015. It is

pointed out that this Court has held that the said

guidelines cannot be read as if the same are provisions

of a Statute. In few cases, where there is an emergent /

extraordinary situation, the Corporation can take action

and it is not possible to take a view that the

Corporation cannot make a departure from the

guidelines.

14) The learned Counsel has referred to the

various Reports in order to submit that there is a clear

case made out for issuance of the notice under section

354 of the MMC Act. The learned Counsel has pointed

out that, even on facts, this is not a case where a

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reference to the T.A.C.would be necessary. It is

submitted that the appellants have long vacated the

premises on the third floor which was destroyed by the

fire and the appellants thus cannot place reliance on

the guidelines issued by this Court in Writ Petition (L)

No. 1135 of 2014.

15) It is submitted that the reliance placed on the

amended provisions of Section 354 of the MMC Act is

also misplaced, inasmuch as there is no dispute about

the tenants/occupants of the subject building and the

appellants having already vacated the building. It is

pointed out that the impugned notice takes care of the

rights of the appellants and other tenants/sub-tenants.

It is submitted that the learned Trial Court was justified

in refusing the ad-interim relief.

16) I have carefully considered the rival

circumstances and the submissions made. The

appellants who were occupying the third floor of the

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building have already vacated the said premises.

Admittedly, there was an incident of fire in the building

on 30th November, 2016 which came under control and

was eventually doused after about ten hours i.e. on 1 st

December, 2016, causing damage to the substantial

part of the building. It has come on record in the

various reports of the Experts that the the building is a

load bearing structure which is more than 75 years old.

It would be significant to note that the appellants had

filed Writ Petition (L) No. 1081/2017 seeking a direction

for issuing a notice under section 354 of the MMC Act.

That Petition was disposed of on 4 th May, 2017 in view

of the fact that the Corporation in the meantime had

issued the impugned notice on 28th April, 2017.

17) The learned Senior Counsel for the

appellants has raised a three fold challenge in the

appeal. Firstly, it is contended that the impugned

notice is bad in law as the Corporation was required to

refer the matter to the T.A.C. in view of the guidelines

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issued by this Court in Writ Petition (L) No. 1135 of

2014. Secondly, it is contended that if the building is

demolished under the garb of implementation of the

impugned notice, valuable rights of the appellants

would be affected. Such demolition would affect the

eventual set backs which may be permissible at the

time of reconstruction. Thirdly, it is contended that

there is non-compliance with the amended provisions

of Section 354 of the MMC Act.

18) In my considered view, the submissions as

made cannot be accepted. Writ Petition (L) No. 1135 of

2014 was filed by the Corporation seeking direction

against the State of Maharashtra and the concerned

police personnel to take steps for forcible eviction of

the occupants of the building which was the subject-

matter of dispute in the said petition. The Corporation

had inter-alia sought issuance of proper guidelines for

removal of "non-cooperating occupants" of dilapidated

and dangerous buildings. According to the Corporation,

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such guidelines were necessary so as to avoid any

injury, incidence of loss of lives of the occupants of the

building as well as the occupants of the adjoining

structures and passersby. This Court has noticed that

sometime the owners/builders are non-cooperative

while in some cases the tenants / occupants do not

cooperate. It can thus be seen that it was in the

context of such a situation that this Court had given

certain directions in the nature of guidelines to be

followed by the Corporation.

19) Thus, at least, prima facie, at this stage, (as

this court in this appeal is considering the question of

ad-interim relief) it cannot be accepted that the

guidelines would apply to a situation where the tenants

/ sub-tenants/occupants of the building in question

have already vacated the premises in their occupation.

That apart in a subsequent petition namely Writ

Petition No. 136 of 2006 a Division Bench of this Court

has inter-alia held that in a given case the Corporation

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can act and it is not in every case that the compliance

with the guidelines is mandatory. Obviously, the

question would depend on the facts and circumstances

of each case. The learned City Civil Court has found

and to my mind rightly so that the guidelines issued in

Writ Petition (L) No. 1135 of 2014 cannot be called into

aid in this case.

20) It would now be necessary to make a brief

reference to the various reports of the structural

engineers/experts. In the report of K.R.Trivedi &

Associates dated 5th December, 2016 it has been noted

as under :

(i) The structure is in extremely endangered condition and not fit for human entry and habitation.

(ii) The structure should be demolished carefully. No person should enter the structure. It can be fatal to human life.

(iii) While carrying out the demolition care should be taken to prevent damage to the adjoining structures.

21) In the report of Ellora Consultancy Services

the condition of the building is recorded as under :

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(a) Ground and 1st floor found in good condition, no damage due to fire noticed.

(b) 2nd floor slab damaged at kitchen / pantry area.

(c) 3rd floor part collapsed due to fire.

(d) Roof damaged due to fire to be removed immediately and replaced.

The report finds that the building is in a repairable

condition and is classified as C2-A category which

means that the building is to be vacated and/or

partially demolished requiring major repairs.

22) In the VJTI report, it has been found that

Because of fire, inside part of upper floors have collapsed on the first floor. All structural elements of these floors have lost their strength because of fire.

External wall is free -standing above first floor and heavy vegetation growth is observed on external face of the building. The report finds that the upper floors of the building are beyond "logical repairs".

23) In the report of A.D.Shintre, Consultant, it has

been found that the building can be certainly made

structurally safe by effecting repairs.

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24) In the report of Shashank Mehendale &

Associates it has been found that the structure which is

a old load bearing structure with wooden members

which are burnt badly. The Load bearing walls of the

portion of the building which is still standing are

showing cracks at some locations. Building is presently

evacuated.

25) Apart from the aforesaid reports, I have also

seen the photographs of the building and at least,

prima facie at this stage, it appears that the upper

floors of the building appear to be substantially

damaged/destroyed due to fire, the photographs show

the skeletal outside walls standing.

26) It was pointed out on behalf of the appellant

that the Corporation has made a volte face on its stand

as to whether the building needs repairs or needs to be

demolished. In my considered view, the submission

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cannot be accepted. This is because there is a report of

the inspection carried out by the Corporation on 31 st

March, 2017 which is produced at page 503 of the

compilation in which the following observation is made:

As the said building is in dilapidated and dangerous condition, it may collapse at any point of time. After considering the safety of adjoining structures and passerby on road. It is proposed to demolish the dangerous portion of the said building upto ground floor level and safeguard the remaining structure immediately.

27) The learned Senior Counsel for the appellants

has referred to the internal correspondence /

submissions of the Corporation dated 18 th April, 2017 in

which in view of the reports of Ellora Consultancy and

A.D. Shintre Consultant, it was proposed by the Deputy

Chief Engineer (BP) CT to refer the matter to TAC. As

noticed earlier, even prior to 18th April, 2017 i.e. on 31st

March, 2017 in the inspection report it was found that

the building is in a dilapidated and dangerous condition

and it may collapse at any point of time. Thus in the

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given facts of the case prima facie it cannot be

accepted that the guidelines in WP (L) No.1135/2014

would apply once the appellants have vacated the

premises in their possession.

28) In so far as the second ground of the rights of

the appellants being affected, is concerned, the

impugned notice requires the landlord to take the

following measures to avoid mishap or loss of human

life and property

"To pull down first floor walls remaining walls / portion of second and third floor of the building known as "J.K.Somani Building" situated at British Hotel Lane, Fort, Mumbai under the supervision of a Licensesed Structural Engineer and to prevent all cause of danger therefrom.

29) It can thus be seen that the impugned notice

does not require the demolition/removal of the ground

floor structure. Furthermore, the note No. 5 appended

to the notice makes it clear that the status of tenancy

rights of the tenants will not change due to issuance of

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this notice. Thus, the contention that the valuable

rights of the appellants are likely to be affected if the

notice is implemented, particularly in view of the sets

back which may be available at the time of

reconstruction cannot prima facie be accepted as the

ground floor is not going to be affected by the

impugned notice.

30) This takes me to the submission based on the

amended provisions of Section 354 of the Act. Sub-

section (3) (4) and (5) were added by the Amending Act

No.22 of 2017 which read thus:

"(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

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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."

31) Prima facie it can be seen that sub-section

(3) of section 354 of the MMC Act aims at

preempting/preventing any subsequent dispute as to

the occupiers of the building which may have relevance

as to the rights of such tenants/occupants in the event

of reconstruction. Prima facie this may not apply to a

situation where either there is no dispute as to the

names of the tenants/occupants of the building(as in

the present case) and/or when such occupants have

already vacated the premises. Sub-section (5) of

section 354 of the MMC Act would make it explicit that

the action taken under the said section shall not affect

the inter se rights of the occupants in any manner.

Thus, in my considered view the contention based on

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non-compliance with the amended provisions of section

354 of the MMC Act cannot be accepted.

32) In the case of Gajanan Ramrao (cited supra)

a notice was issued under section 289 of the City of

Nagpur Corporation Act, 1948. The Additional

Commissioner had confirmed the order of the Deputy

Municipal Commissioner directing demolition of a

portion of the building. That was challenged before a

learned Single Judge of the High Court, which petition

was dismissed and the matter went in Appeal before

the Division Bench. The Division Bench found that the

petition was rejected solely on the ground that the

report of the A.D.T.P. was from an expert in the field.

However, it was found by the Division Bench that the

report of the A.D.T.P. was not available at the time of

issuance of the impugned notice nor the order passed

by the Authorities disclosed consideration of the report

by the Engineering staff of the Corporation. It can thus

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be seen that the case turned on it's own facts. The

question whether a particular building is dilapidated or

not and whether it requires partial or complete

demolition or whether the building is amenable to

repairs, would always be a question of fact peculiar to a

particular case.

33) The building in question is situated in a

busy/crowded locality of South Bombay. Considering

the ensuing monsoon season efforts have to be taken

to see that no danger to public/passerby is caused. The

public safety in the matter would be of paramount

consideration. This is one more reason why the relief as

claimed by the Appellant cannot be granted.

34) The learned Senior Counsel for the

appellants made an alternate submission. It is

submitted that in the event this Court is not inclined to

grant ad-interim relief, a licensed architect appointed

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by the appellants may be permitted to remain present

and supervise the work of the implementation of the

impugned notice. In this regard, it may be mentioned

that by the impugned notice the appellants have been

directed to pull down the first floor walls, remaining

walls, portion of the second and the third floor of the

building, under the supervision of a licensed structural

engineer. Thus, the impugned notice already requires

the work to be done under the supervision of a licensed

structural engineer. Thus, it is not possible to accede to

the submission made on behalf of the appellant.

However, suffice it to mention that the appellants and

the licensed structural engineer appointed to supervise

the work, shall strictly abide by the requirements of the

impugned notice and shall ensure that the structures

which are not part of the impugned notice are not

affected during the course of demolition. The

Corporation shall also oversee that the structures which

are not part of the impugned notice are not affected.

With this no case for interference is made out. In the

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result, the appeal is hereby dismissed. Civil Application

No. (Stamp) No. 14199 of 2017 is disposed of.

(C.V. BHADANG,J)