Ansari Rizwan Ahmed Mohd. Umer And ... vs Municipal Corporation Of Gr. ...
2021 Latest Caselaw 7499 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION

                       WRIT PETITION NO. 895 OF 2019

Ansari Rizwan Ahmed Mohd. Umer & Ors.           ... Petitioners
           Vs.
Municipal Corporation of Greater Mumbai & Ors. ... Respondents

                             ...........
Mr. Chetan Kapadia a/w. Mr. Ankit Lodha a/w. Ms. Kausar
Banatwala a/w. Ms. Gauri Sakhardande a/w. Chirag Sarawagi i/b.
Tushar Goradia Petitioners.
Mr. Yashodeep Deshmukh a/w. Ms. Pooja Yadav i/b. Ms. Aruna Savla
for the Respondent Nos. 1 to 3-MCGM.
Mr. Rajendra Mishra for the Intervenors/Applicant
                                   ..........
                      CORAM: R. D. DHANUKA AND
                              MADHAV J. JAMDAR, JJ.

(VACATION COURT)

DATE : 24th MAY, 2021.

(THROUGH VIDEO CONFERENCE) P. C:-

1. The matter is placed on board on the praecipe filed by the

Petitioners' Advocate in view of the notice issued by the Municipal

Corporation on the ground that the buildings in question which

belongs to Municipal Corporation has been declared under C-1

category.

2. Mr. Kapadia, learned Counsel for the Petitioner invited our

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attention to some of the reports submitted by the structural

engineers/auditors and would submit that buildings in questions are

not required to be demolished as the same can be repaired. Those

reports relied upon by the Petitioners clearly indicates that buildings

would fall under C-2 A category and not C-1 category. The learned

Counsel invited our attention to order passed by this Court on 12 th

December, 2017 directing the Municipal Corporation to refer the

case of the subject buildings to Technical Advisory Committee with a

direction to comply with the direction/guidelines issued in

paragraph 9 of the decision of this Court in case of Municipal

Corporation of Greater Mumbai Vs. State of Maharashtra & Ors.

(2014) SCC Online Bom. 666.

3. It is submitted by the learned Counsel that though the

Technical Advisory Committee was directed to comply with various

directions in paragraph 9 of the said judgment prescribing the

guidelines the Technical Advisory Committee did not carry out any

test and once again declared the buildings in question under C-1

category. He submits that three reports produced on record by the

Petitioners are contrary to the said TAC report.

4. It is submitted that the Municipal Corporation has not

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approved the proposal of the redevelopment of the buildings in

question till date and these occupants who are staying in these

buildings since last 95 years thus shall not be asked to vacate by the

Municipal Corporation.

5. Mr. Kapadia also invited our attention to report dated 12 th

August, 2018 submitted by VJTI and more particularly paragraph 6

thereafter and would submit that the said report was submitted by

the VJTI after passing of the last order passed by this Court directing

TAC to carry out test in compliance with the principles laid down by

this Court. He submits that the said report clearly indicates that

structures in question are stable and can be repaired and was rightly

classified as C-2B category.

6. Mr. Deshmukh, learned Counsel for the Municipal Corporation

on the other hand, relied on various orders passed by this Court. He

submits that the TAC has complied with the said order passed by this

Court and opined that buildings cannot be repaired and will have to

be demolished. He invited our attention to the order dated 3 rd

September, 2019 and more particularly paragraph 4 and would

submit that this Court have made it clear that there was no question

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of old and dilapidated municipal buildings housing the tenants

continuing at the site for they do not only pose a threat to the life of

those occupying but those residing in the neighbourhood or passing

by such buildings. Therefore, these buildings ought to be pulled

down and that cannot be resisted at any cost. He submits that

Municipal Corporation has already submitted a proposal for

redevelopment of the buildings and said proposal is pending before

the Improvement Committee. The draft tender is already prepared.

7. The learned Counsel states that developer has already made

proposal for development of the said buildings. He submits that the

said proposal would be submitted by the Improvement Committee at

the earliest and appropriate decision in this regard would be taken.

It is submitted by the learned Counsel for the Municipal Corporation

that Corporation has also offered temporary alternate

accommodation to the occupants of the buildings in question at S. G.

Chemicals premises, Vashi Naka, Chembur. The Petitioners however,

are not vacating the tenaments though offered in the year 2020

itself. He submits that since the redevelopment may be finalized by

the Improvement Committee/Corporation, the developer that would

be approved by the Improvement Committee would make an

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appropriate arrangement for temporary alternate accommodation at

subsequent stage till the buildings are redeveloped under the said

project. Large number of other affected occupants of the buildings

are already shifted to said temporary alternate premises. No

complaint has been made by any of those parties. It is submitted by

the learned Counsel that Petitioners have not challenged the order

dated 3rd September, 2019 passed by this Court and thus cannot

refuse to vacate the premises though the buildings are in dilapidated

condition and declared as C-1 category. It is submitted that the said

developer has made proposal on behalf of the society formed by the

Petitioners.

8. A perusal of the order dated 30th July, 2019 passed by this

Court indicates that this Court has made it clear that if Petitioners

are not willing to accept the temporary or transit accommodation,

then, such monetary reliefs, as are extended by the developer in the

scheme, should be extended to them and the Municipal Corporation

should ensure that the developer makes the monthly payment

regularly. In addition, it would be an obligation of the Municipal

Corporation to ensure that construction of rehabilitation building is

complete within the given time frame and that after the permissions

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and approvals are in place, the Petitioners are brought back in such

rehabilitation building.

9. This Court passed several orders in this matter. By an order

dated 3rd September, 2019, this Court clarified both parties that

there is no question of old and dilapidated municipal buildings

housing the tenants continuing at the site, for they do not only pose

a threat to the life of those occupying but those residing in the

neighbourhood or passing by such buildings. Therefore, these

buildings ought to be pulled down and that cannot be resisted at any

cost. The Municipal Corporation should not burden itself by allowing

occupants to occupy such structures any longer. The Municipal

Corporation may have to compensate all or such of them who suffer

on account of untimely collapse of these buildings. It is not in

dispute that said order has not been challenged by the Petitioners.

10. In so far as the order dated 12th December, 2017 passed by the

Division Bench of this Court relied upon by Mr. Kapadia, learned

Counsel for the Petitioners is concerned, a perusal of the said order

clearly indicates that in paragraph 8(i), the discretion was given to

the Technical Advisory Committee to decide whether it was

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necessary to carry out certain tests which are specified in the order

of this Court or not. The TAC however will have to record the said

conclusion alongwith brief reasons for coming to the said

conclusion.

11. A perusal of the TAC report submitted pursuant to the said

order in the meeting held on 11th January, 2018 clearly indicates

that TAC has considered various aspects at page 321. The TAC

members have gone through the structural audit report submitted by

M/s. Rehab Consultants Pvt. Ltd., and noticed that they had

submitted Structural Audit Report on 30.04.2014, concluding the

building as repairable without conducting any test. Further as per

the conclusion of the structural audit report submitted by M/s.

Rehab Consultants Pvt. Ltd., severe damages were observed at few

places in the columns and ceilings and recasting will have to be

carried out at such places. The damaged RCC frame inside and

outside the building needs to be repaired immediately. As the

building is 90 years old and ageing, it is advisable to remove the

additional load of the extended area beyond the building line and

advisable to remove the additional load of the extended area beyond

the building line and lofts inside the flats wherever required and

possible.

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12. The structural audit reports, proforma 'B' and facts put up by

all the structural consultants, opinions/reports of ward staff, Estates

staff as well as representatives of TAC and observations made during

the site visit by TAC members on 09.01.2018 were discussed during

the meeting in detail. TAC members also noticed that the building is

more than ninety yearS old and has already lived its useful life. The

highly distressed structural members are repaired in cosmetic way,

hence the defects are merely hidden and does not provide any

strength and stability to the structure. TAC members unanimously

felt that the explanation given by M/s. Infra Consults for not

preparing tests viz. Half Cell Potential test, Core test, Chemical

analysis and cement aggregate ratio is justified and feels that it is

not safe to conduct the core test. The reinforcement is highly

corroded and hence corrosion potential mapping (Half Cell Potential

test) is not required to be performed. Further Chemical analysis and

cement aggregate ratio test are used as preliminary test to judge the

grade and quality of the concrete and need not be conducted for

highly distressed structure. It is observed that the N.D. Tests

conducted by M/s. Infra Consults are sufficient to judge the quality

and strength of the concrete and steel. The tests were carried out

approximately four years back and the ninety year old structure is

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further deteriorated.

13. It is observed that the required test applicable in this case are

carried out. TAC members unanimously opined that the earlier

decision of TAC holds good and the said building known as "Lambi

Cement Chawl A & B" is in severely dilapidated condition and may

collapse without giving any warning thereby endangering the life

and property of the residents and the people residing in adjoining

properties and passerby. Further the structure under reference is not

habitable and needs to be vacated and demolished immediately by

following due process of law under the supervision of structural

consultant.

14. The TAC directed 'E' ward staff and staff of Estate Department

to direct owner/occupiers to vacate the building immediately and to

take necessary preventive measures. In our view, the report

submitted by the TAC is in compliance with the order passed by this

Court on 12th December, 2017 and does not warrant any

interference.

15. The matter was referred to TAC in view of the conflicting

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reports obtained by the Petitioners. TAC has already opined that

buildings cannot repaired and is required to be demolished.

16. This Court in the order dated 3rd September, 2013 has already

made clear that the Municipal Corporation should not burden itself

by allowing occupants to occupy such structures any longer. The

Municipal Corporation may have to compensate all or such of them

who suffer on account of untimely collapse of these buildings. There

is no question of old and dilapidated municipal buildings housing

the tenants continuing at the site for they do not only pose a threat

to the life of those occupying but those residing in the

neighbourhood or passing by such buildings. The said order passed

by this Court has attained finality.

17. We accept the statement made by Mr. Deshmukh, learned

Counsel for the Municipal Corporation that the proposal for

redevelopment submitted by the developer on behalf of the

Petitioners would be considered in the next meeting of the

Improvement Committee. We also accept the statement made by the

learned Counsel that if the said proposal is accepted by the

Improvement Commission, the same would be placed before the

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Corporation for further approval. The developer as may be approved

would have to provide for temporary alternate accommodation to

these occupants as may be agreed upon or would pay transit rent.

We accept the statement made by the learned Counsel that several

other occupants have already shifted to said alternate premises

offered by the Municipal Corporation at S. D. Chemicals, Vashi Naka,

Chembur.

18. A perusal of the structural audit report submitted by the

Petitioners obtained from VJTI also clearly indicates that building is

about 95 years old. Maintenance of the building has not been done

at required intervals. The reinforcement has 50% probability of

corrosion at locations where they are exposed to moisture. The

terrace has also developed a lot of weakness due to the water

ingress. Before any repairs can be carried out, the covering to the

terrace and the mangalore tiles should be constructed to protect the

building from the water hitting its various parts. All the distressed

RCC members must be repaired as soon as possible. A large amount

of vegetation is observed at joints between masonry and RCC

members. This should be removed as soon as possible. The loose

concrete of the RCC slabs, beams, pardis and chajjas in all floors,

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should be broken down and should be repaired using polymer

modified cement mortar. Leakage is observed in the toilet blocks

also. This should be arrested at the earliest.

19. A perusal of the photographs on record placed by the

Petitioners also indicates that building is in dilapidated condition.

We thus cannot allow the occupants of the said building to occupy

the said building any more to avoid any risk to their life and to the

life of occupiers of the adjoining buildings. We accordingly direct

the occupants of the buildings in question to occupy the temporary

alternate premises offered by the Municipal Corporation within two

weeks from today without fail. If occupants do not vacate within two

weeks, Municipal Corporation is at liberty to take forcible possession

of the premises.

20. For this period of two weeks, it is made clear that Petitioners

would continue to occupy, the same at their own risk and cost. The

Petitioners would not hold the Municipal Corporation or any other

Authority responsible in case of any untoward incident happens

during the period of these two weeks.

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21. It is made clear that order passed by this Court is subject to

the orders as may be passed by the Improvement Committee as well

as by the Corporation in the meetings proposed to be held in the

near future. If the Improvement Committee or the Municipal

Corporation does not approve the redevelopment proposal,

Petitioners would be at liberty to apply for appropriate orders.

22. The Application made by the learned Counsel for the

Petitioners for stay of this order is rejected.

23. Place the matter on board for admission on 23rd June, 2021.

24. Parties to act on the copy of this order authenticated by the

Associate of this Court.

(MADHAV J. JAMDAR, J.)                               (R. D. DHANUKA, J.)




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