Bombay High Court
Narendra Ratilal Shah And 4 Ors vs Municipal Corporation Of Greater ... on 8 April, 2021
Bench: G. S. Kulkarni
WPL No.8927.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 8927 OF 2021
Narendra Ratilal Shah & Ors. ... Petitioners
versus
Municipal Corporation of Greater
Mumbai & Ors. ... Respondents
--
Mr.Prathmesh Kamat i/b. Ms.Sapna Rachure, Advocate for the
Petitioners.
Ms.Vandana Mahadik, Advocate for the Respondents No.1 to
4/MCGM.
Mr.Nitin Tacker a/w. Mr.P.G.Lad, AGP for the Respondent
No.5/State.
--
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE : - APRIL 8, 2021
ORAL JUDGMENT :- (Per Dipankar Datta, CJ.)
1. This writ petition is at the instance of 5 (five)
residents/occupiers of "Rubby Terrace" situate on M.V. Road,
Andheri (East), Mumbai - 400 069 (hereafter the said
building). We find that the petitioners 1 to 4 have already
instituted a writ petition, registered as WP(L) 6268 of 2021
along with several other residents/occupiers of the said
building seeking more or less similar relief as claimed in this
writ petition. We are of the view that this writ petition, at the
instance of the petitioners 1 to 4, ought not to be entertained
particularly having regard to the pendency of Writ Petition (L)
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No. 6268 of 2021. Accordingly, at their instance, this writ
petition stands dismissed. This order of dismissal shall not
affect such petitioners' right to raise all contentions that are
available to them in such pending writ petition.
2. However, the petitioner no. 5 is not a party to Writ
Petition (L) No. 6268 of 2021; hence, this writ petition shall
be heard at his instance only.
3. The challenge in this writ petition is to a report of the
Technical Advisory Committee (hereafter "the TAC", for short)
of the Municipal Corporation of Greater Mumbai (hereafter
"the MCGM", for short) dated January 22, 2021 as well as to a
notice dated February 1, 2021 issued under Section 354 of
the Mumbai Municipal Corporation Act, 1888 (hereafter "the
Act", for short). The TAC by its impugned report categorized
the said building as "C-1". Incidentally, it is not disputed at
the Bar that the said building is more than 60 years old. The
said building has been so categorized by the TAC on account
of the same having become unsafe and dangerous and
requiring immediate demolition for securing public safety.
Pursuant to such report, the impugned notice was issued
requiring the occupants/residents of the said building to
vacate the same for the purpose of facilitating its demolition.
4. Appearing in support of the writ petition, Mr. Prathmesh
Kamat, learned advocate has raised the following points:
(i) The report of the structural engineer appointed by
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the tenants, categorizing the said building as "C-
2B", was not considered in its entirety inasmuch as
despite there being findings rendered by such
structural engineer in respect of 'core test',
'chemical analysis' and 'cement aggregate ratio',
the TAC concluded in its report that the same were
"not found". Accordingly, it is clear that the TAC did
not apply its mind to all the materials on record.
(ii) The report of the structural engineer appointed by
the tenants does indicate that the subject building
is capable of being repaired and though such
repairs would enhance the life of the structure by a
minimum period of two years with periodical
repairs being carried out at an interval of two
years, the TAC without assigning any independent
reason accepted the report of the structural
engineer appointed by the landlord/respondent
no.5. The minimum that was required of the TAC
was to give some indication as to why the report of
the structural engineer appointed by the
respondent no.5 appeared to it to be more
creditworthy in preference to the report of the
structural engineer appointed by the tenants; and
the final report of the TAC being unreasoned, the
same does not comply with the requirements of
due process, fair play in action and natural justice.
(iii) The TAC did not conduct any of the tests as set out
in sub-clause 2 of clause (d) of paragraph 9 of the
decision of the coordinate Bench of this Court in
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Municipal Corporation of Greater Mumbai V/s.
State of Maharashtra, reported in (2014) 6 Bom.
C.R. 860. Reliance has also been placed on the
decision of another coordinate Bench of this Court
in Nalin Kumar Ramdas Sampat V/s. Mumbai
Municipal Corporation, reported in 2018 SCC
OnLine Bom 6374, for the proposition that the TAC
having acted completely contrary to the decision in
Municipal Corporation of Greater Mumbai
(supra), the TAC ought to be directed to submit a
fresh report in the light of the observations made
in such decision. Prayer is made for direction of a
similar nature requiring identical course of action
to be followed in the present case.
(iv) Paragraph 2.09 of the guidelines (hereafter "the
said guidelines", for short) issued by the MCGM for
declaring private and municipal buildings as "C-1"
category (dangerous, unsafe) stipulate that the
tenants are entitled for alternate accommodation;
hence, even if the said building is demolished on
account of the same having become
unsafe/dangerous, the respondent no.5 ought to
be directed to provide alternate accommodation in
terms of the said guidelines.
5. Having heard Mr. Kamat and considering the grievances
raised in this writ petition, we do not find any infraction of the
right of the surviving petitioner warranting interference and
are of the firm opinion, for the reasons to be assigned
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hereafter, that the writ petition deserves to be dismissed in
limine.
6. Although Mr. Kamat is right in his contention that the
TAC while comparing the conclusions arrived at by the two
sets of structural engineers appointed by the respondent no.5
and the tenants has indicated that the structural audit report
of the structural engineer appointed by the tenants was
lacking in certain material particulars, of the nature brought
to our notice, nothing substantial turns on such an omission.
The said guidelines, framed by the MCGM in pursuance of the
interim decision in Municipal Corporation of Greater
Mumbai (supra) and the final order dated February 28, 2018,
require that if conflicting structural audit reports are produced
by the owners and/or the occupants on the status of the
building under consideration, the matter shall be referred to
the TAC and its decision shall be final and binding on all
parties concerned. The TAC is under obligation to give hearing
to the concerned structural consultants during the meeting.
7. In the present case, it is clear from the report of the TAC
that the structural engineer appointed by the tenants was
present at the meeting and he was duly consulted. No dispute
on this score has been raised by the surviving petitioner. The
report of such structural engineer, prepared in November
2019, is further clear on the point that the said building is
damaged and that if repairs do not begin in three months,
such engineer would not stand responsible and the MCGM will
be informed accordingly. Not only that, there are two letters
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on record : (i) an undated letter addressed by the tenants to
the respondent no.5 and (ii) a letter dated January 13, 2021
addressed by the tenants to the Assistant Deputy
Commissioner, K/East, Andheri (E), Mumbai - 400 069,
wherein it has been admitted that the said building is in a
dilapidated condition and for the purpose of safety and
security of the lives of the tenants, the same requires
immediate repairs.
8. Perusal of the report of the TAC reveals that its members
had been to the site of the said building and its independent
observations are noted in Sl. Nos. 1 to 13 of paragraph 8
thereof. Such observations do provide ground for the TAC to
reach the conclusion it did. It is certainly not a case where the
TAC, without any site inspection and without the requisite
satisfaction, arrived at a conclusion that the said building is
unsafe and dangerous and, thus, requires to be demolished.
There has been appropriate ascertainment of the condition of
the said building by conducting requisite inspection at the site
and the findings are not merely based on mechanical
acceptance of the report of the structural engineer appointed
by the respondent no.5. Had the independent observations
under paragraph 8 not been there, the surviving petitioner
could have something to say. In such view of the matter, we
find no reason to hold that the TAC had mechanically
proceeded to discard the structural audit report of the
structural engineer appointed by the tenants.
9. As observed earlier, we find that the said guidelines were
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framed taking into consideration the directions given in
Municipal Corporation of Greater Mumbai (supra). Once
directions given by the Court have been encapsulated in the
said guidelines, our duty is to examine whether such
guidelines have been followed by the TAC in letter and spirit.
We see no reason to take exception to the report of the TAC
on this count since no infirmity in the process of decision
making has been brought to our notice by Mr. Kamat. If
indeed, the directions given by this Court in Municipal
Corporation of Greater Mumbai (supra) had not been
followed and the said guidelines framed without taking into
consideration any aspect, which the MCGM was required to
follow, it was incumbent that a substantive challenge to the
said guidelines were laid. Without there being any challenge
to the said guidelines, the point sought to be raised by Mr.
Kamath that the directions given by the coordinate Bench in
Municipal Corporation of Greater Mumbai (supra) have
not been followed appears to us to be devoid of any
substance.
10. The decision in Nalin Kumar Ramdas Sampat (supra)
was rendered on March 19, 2018 i.e., a few months before the
said guidelines were framed. The coordinate Bench interfered
because the directions given by the earlier coordinate Bench
in Municipal Corporation of Greater Mumbai (supra) had
not been followed by the TAC. Once the guidelines are in
place, the action taken by the TAC has to be judged in the
light of the provisions contained therein. Mr. Kamat has not
been able to establish before us that the report of the TAC has
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acted in derogation/deviation of the said guidelines.
11. The final contention of Mr. Kamat that alternate
accommodation ought to be provided has been raised to be
rejected. We have seen from the said guidelines that alternate
accommodation is required to be provided if in case any
building owned by the MCGM is categorized as "C-1". The said
building is a private building, owned by the respondent no.5.
Hence, the question of alternate accommodation does not and
cannot arise.
12. Proceedings before a writ court are not in the nature of
an appeal. There cannot be or reevaluation or reappreciation
of factual findings rendered by an authority competent to
record the same. If an order passed by such authority suffers
from the vice of illegality, irrationality and/or procedural
impropriety, which are the known grounds of judicial review, a
writ court may interfere if such interference would further
public interest. Here, the TAC comprising of expert
members/engineers has returned a finding that the said
building is unsafe and dangerous and needs to be vacated
immediately. The field reserved for experts (engineers, here)
should not be encroached upon by the judiciary, is settled law.
We lack the necessary expertise and cannot sit in appeal and
reverse finding of the TAC.
13. For the reasons aforesaid, the writ petition is dismissed
in limine, without any order for costs.
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14. The surviving petitioner is granted fifteen days' time to
vacate, failing which the respondent no.5 shall be at liberty to
take appropriate steps in accordance with law.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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