Bombay High Court
Farzin Ardeshir Adel And 3 Ors vs Municipal Corporation Of Greater ... on 11 August, 2022
Bench: R.D. Dhanuka, Kamal Khata
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 13705 OF 2022
1. Farzin Ardeshir Adel, )
Adult, Indian inhabitant of Mumbai)
Occupation : Business and having )
address at M/s. Minoo's Shop No.8, )
Ground Floor, H.M.Petit Widows )
Homes, Building No.225, Junction )
of JSS Road and Babasaheb Jayakar)
Marg, Thakurdwar, Mumbai 400 002)
2. Mr.Shapur Rustom Phirozmand )
Adult, Indian inhabitant of Mumbai)
Occupation : Business and having )
address at )
M/s. Sun Shine Restaurant & Bakery,)
Shop No. 300 - 302, Ground Floor, )
H.M.Petit Widows Homes, )
Building No.225, Junction of )
JSS Road and Babasaheb Jaykar )
Marg, Thakurdwar, )
Mumbai - 400 002 )
3. Rameshchandra Bagatawarmal Jain)
Adult, Indian inhabitant of Mumbai)
Occupation : Business and having )
address at )
M/s. Sunrise Metal Industry, )
Shop No.__, Ground Floor, )
H.M.Petit Widows Homes, )
Building No. 225, Junction of JSS )
Road and Babasaheb Jayakar Marg,)
Thakurdwar, Mumbai 400 002 )
4. Saroj Ramkar Pandey, )
Adult, Indian inhabitant of Mumbai)
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Occupation : Business and having )
address at )
M/s.R.K.Hair & Care, Shop No.5, )
Ground Floor, H.M.Petit Widows )
Home, Building No.225, Junction of)
JSS Road and Babasaheb Jayakar )
Marg, Thakurdwar, Mumbai 400 002) ..... Petitioners
VERSUS
1. Municipal Corporation of Greater)
Mumbai, a body constituted under )
the provisions of Mumbai Municipal)
Corporation Act, 1888, having its )
Head office at Mahapalika Bhavan,)
Mahapalika Marg, Opp. C.S.T., )
Mumbai 400 001 )
2. Assistant Engineer (B&F), )
Municipal Corporation of Greater )
Mumbai, 'C' Ward, Office Building,)
76, Shrikant Palekar Marg, )
Near Chandanwadi Electric Cemetery)
Mumbai 400 002 )
3. Assistant Municipal Commissioner,)
Municipal Corporation of Greater )
Mumbai, 'C' Ward, Office Building)
76, Shrikant Palekar Marg, )
Near Chandanwadi Electric Cemetery)
Mumbai 400 002 )
4. Designated Officer and Executive)
Engineer (B&F), )
Municipal Corporation of Greater )
Mumbai, 'C' Ward, Office Building)
76, Shrikant Palekar Marg, )
Near Chandanwadi Electric Cemetery)
Mumbai 400 002 )
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5. The Nesserwanjee Manockjee )
Petit Charity Fund, )
A Public charitable Trust having its)
office address at Uco Bank Building)
359, Dr. D.N.Road, Fort, )
Mumbai 400 001 ) ..... Respondents
ALONGWITH
WRIT PETITION (L) NO. 12803 OF 2022
Jatin Bhankharia )
Aged about 53 years, Occupation : )
Business, proprietor of )
M/s. Bhankharia Tea Co. having )
address at 302, Ground Floor, )
"H.M.Petit Widows Homes", )
"Building No.225", C.S.No.2179 of )
Bhuleshwar Division, Junction of )
JSS Road and Babasaheb Jaykar )
Marg, Bhuleshwar Division, )
Thakurdwar, Mumbai - 400 002 ) ..... Petitioner
VERSUS
1. The Municipal Corporation of )
Greater Mumbai, )
a body Corporate, duly incorporated)
under the provisions of M.M.C.Act,)
1888, having its office at )
Mahanagar Palika Marg, Mumbai )
400 001, through its Commissioner, )
2. Assistant Commissioner/ )
Executive Engineer (B&F)/ )
Designated Officer-II, C Ward )
Office Building, 76, Shrikant Palekar)
Marg, Near Chandanvadi Electric )
Cemetery, Mumbai - 400 002 )
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3. The Chairperson of TAC, )
Dy.Ch.Engg. (Bldg. Proposal), City,)
New Municipal Bldg., Bhagwan )
Walmiki Chowk, Vidyalankar Marg,)
Opp. Hanuman Mandir, Antop Hill,)
Wadala (E), Mumbai - 400 037 )
4. The Nesserwanjee Manockjee )
Petit Charity Fund, Trust/Owner/ )
Landlord, )
"H.M.Petit Widows Homes", )
"Building No.225", C.S.No.2179 of )
Bhuleshwar Division, Junction of )
JSS Road and Babasaheb Jaykar )
Marg, Bhuleshwar Division, )
Thakurdwar, Mumbai - 400 002 )
5. M/s. Sunshine Restaurant & Bakery,)
A partnership firm through its partner)
Mr.Shapur Rustom Phirozmand )
aged 73 yrs., Occupation : Business )
at 300, Ground Floor, )
"H.M.Petit Widows Homes", )
"Building No.225", C.S.No.2179 of )
Bhuleshwar Division, Junction of )
JSS Road and Babasaheb Jaykar )
Marg, Bhuleshwar Division, )
Thakurdwar, Mumbai - 400 002 ) ..... Respondents
Mr.Karl Tamboly, a/w. Mr.Anoshak Daver, Ms.Kausar Banatwala,
Mr.Yash Dhakkad, i/b. Mr.Tushar Goradia for the Petitioners in
WPL/13705/2022.
Mr.Pramod Bhosle, a/w. Mr. Praful Valvi, i/b. Ms.Devika Nigade for
the Petitioner in WPL/12803/2022.
Ms.Oorja Dhond, i/b. Mr.Sunil K.Sonawane for the Respondents -
M.C.G.M.
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Mr.Ashish Kamath, a/w. Mr.C.Rashmikant, Mr.Vishesh Malviya,
Mr.Mohit Khanna, Mr.Tejas Popat, i/b. M/s.Rashmikant & Partners for
the Respondent no. 4 in WPL/12803/2022 and Respondent no.5 in
WPL/13705/2022.
Mr.Roshan Bhoir, Assistant Engineer (Building Proposal) 'C' Ward
present.
CORAM: R. D. DHANUKA AND
KAMAL KHATA, JJ.
DATE : 11th AUGUST, 2022
JUDGMENT (Per R.D.Dhanuka, J.):-
The petitioners in Writ Petition (L) No. 13705 of 2022 filed
under Article 226 of the Constitution of India, have prayed for a writ of
certiorari for quashing and setting aside letter dated 4 th April, 2022
issued by the respondent no.4 Designated Officer and Executive
Engineer under section 354 of the Mumbai Municipal Corporation Act
read with section 489 of the said Act to the trust/owner/landlord of the
Building No. 225, C.S.No.2179 of Bhuleshwar Division, Junction of
J.S.S. Road & B.J.Marg, Thakurdwar, Mumbai - 400 002 calling upon
them to vacate and pull down the structure/building. The said letter
also called upon the petitioners to prevent all cause of danger therefrom
with a threat of prosecution under section 475-A of the said Act in case
of non compliance of the said notice within 30 days from the date of
service of the said notice and stating that the said building is in a
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dangerous condition, 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.
2. The petitioners also prayed for a writ of certiorari for quashing
and setting aside the decision of the respondent nos. 1 to 4 to declare
the said building in C-1 category and minutes of the meeting held on
14th October, 2021 of the Technical Advisory Committee.
3. The petitioner in Writ Petition (L) No. 12803 of 2022 has prayed
for quashing and setting aside the notice dated 4 th April, 2022 and seeks
permission to inspect the first floor and take further action as required
as per the report of the Structural Engineer dated 15th July, 2021.
4. By consent of parties, both the writ petitions were heard together
and are being disposed off by a common order :-
5. We shall first summarize the facts in Writ Petition (L) No. 13705
of 2022 :-
6. The respondent no.5 is the landlord/owner of the building known
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as H.N.Petit Widows Home, Building No. 225, JSS Road, Thakurdwar,
Mumbai - 400 002 (hereinafter referred to as the said building.) The
building has ground plus five floors and is more than 100 years old. It
is the case of the respondent no.5 that the said building was used for
providing hostel facilities to widows. The petitioners in this petition
are claiming to be the tenants in the said building. Sometime in the
year 2014, the backside of the building was repaired according to the
petitioners.
7. It is the case of the respondent no.5 that due to the dilapidated
condition of the said building, the widows who were occupying the
tenaments on the five upper floors, were moved to another hostel of the
respondent no.5.
8. The respondent no.5 forwarded a copy of the Structural Audit
Report prepared by a licensed structural consultant Mr.Ramkrishan
Kejriwal to the respondent no.4. As per the said report, the said
building is severely damaged, is in a dilapidated condition and
classified under C-1 category.
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9. The respondent no.3 vide letter dated 10th May, 2021, called
upon the respondent no.5 to submit documentary evidence and the
names of the occupiers/tenants within three days from the receipt of the
said letter and directed to take necessary preventive measures such as
propping, barricading, etc. to prevent any untoward incident.
10. On 28th May, 2021, the respondent no.4 called upon the
petitioners stating that the respondent no.4 was in receipt of the
structural audit report of the said building and called upon them to
submit their structural audit report through a licensed structural
consultant within 30 days and/or submit their say in the event they had
any objections to the structural audit report submitted by the
respondent no.5 through Mr.Ramkrishan Kejriwal in accordance with
clause 1.04 of the guidelines issued by the Deputy Municipal
Commissioner dated 25th May, 2018.
11. On 18th June, 2021, the petitioners informed the respondent no.4
that the tenants would like to get a structural audit of the building done.
It is the case of the respondent no.5 that the said letter has not been
signed by Mr.Ramesh Jain and Mr.Praveen Jain. The signature of
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Mr.Saroj Kumar Pandey does not match the signature in the writ
petition.
12. On 2nd July, 2021, the petitioners appointed Mr.Bhalchandra Oak
as the structural auditor. On 15 th July, 2021, the petitioners submitted a
structural audit report prepared by Mr.Bhalchandra Oak to the
respondent no.4.
13. On 11th August, 2021, the respondent no.5 addressed a letter to
the petitioners inviting their attention to the letter dated 5 th July, 2021
from the respondent no.1 directing them to take preventive measures
such as propping, barricading etc. The petitioners were informed that
the respondent no.5 had appointed M/s.Lakdawala Logistics for
carrying out the said work as instructed by the respondent no.1.
14. On 24th August, 2021, the respondent no.1 informed the parties
that the Deputy Chief Engineer (BP) City, Chairman, Technical
Advisory Committee wishes to inspect the building along with
Technical Advisory Committee and concerned C Ward members on 26 th
August, 2021.
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15. On 12th September, 2021, the said Mr.Bhalchandra Oak issued a
corrigendum to report dated 15th July, 2021 and opined that 'the
building structure was classified as C-3, Minor Repairs only'.
16. On 22nd September, 2021, the petitioners filed a suit bearing LC
Suit No. 7793 of 2021 along with Notice of Motion No. 230 of 2021 in
the City Civil Court, Bombay for various reliefs including permanent
order of injunction restraining the Corporation from enforcing the
notice dated 5th July, 2021. On 6th October, 2021, the City Civil Court,
Bombay refused to grant any ad-interim relief holding that till then, no
notice under section 354 of the said Act has been passed and the
building was not classified as C-1 by the Corporation.
17. On 14th October, 2021, the Technical Advisory Committee held a
meeting and after comparing both the structural audit reports and
hearing the structural auditors came to the conclusion that the structure
of the building was in a dilapidated condition and may collapse thereby
endangering life and property of residents and passersby and opined
that the structure under reference needs to be vacated and demolished
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immediately. The Technical Advisory Committee declared the said
structure falls in C-1 category.
18. On 1st December, 2021, the Technical Advisory Committee
passed an order directing the respondent no.5 to take necessary and
preventive measures such as propping of the building to avoid any
mishap.
19. On 22nd December, 2021, the respondent no.1 Corporation
addressed a letter to the respondent no.5 stating that the structure has
been categorized as C-1 structure by the Technical Advisory
Committee on 1st December, 2021 and required the respondent no.5 to
submit the names of the occupiers and evidence of their occupation
within three days. The respondent no.1 once again directed the
respondent no.5 to take preventive action.
20. On 5th January, 2022, the respondent no.5 addressed a letter to
the respondent no.1 and pointed out that the building was more than
100 years old though there was no approval plan of the building. The
respondent no.5 contended that the trust had intended to take
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preventive steps but the tenants have objected to the respondent no.5
from taking such preventive steps. On 18 th February, 2022, the
respondent no.5 addressed a letter to the petitioners informing that the
respondent no.5 had appointed a contractor to arrange for propping and
barricading which the petitioners did not permit the respondent no.5 to
do.
21. On 24th February, 2022, the petitioners informed the respondent
no.5 that the contention of the respondent no.5 that the building was
dilapidated/dangerous is baseless and is yet to be adjudged upon by the
Technical Advisory Committee. The respondent no.5 had failed in its
duties to upkeep and repair the building due to which damage was
caused to the building. The petitioners objected to barricading and
propping up the building and informed that the petitioners themselves
would undertake necessary repairs as advised in the structural audit
report of their auditor.
22. On 14th March, 2022, the respondent no.4 issued notice under
section 488 of the said Act to the tenants/ occupiers stating that the
Designated Officer with assistants will enter the premises situated in
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the building for the area measurements of shops and rooms as per the
policy guidelines of dangerous/dilapidated structure on 15th March,
2022.
23. On 29th March, 2022, the Designated Officer addressed a letter to
the petitioners and the respondent no.5 including a copy of the order
dated 1st December, 2021 passed by the Technical Advisory Committee
and directed the parties to act as per circular dated 25 th May, 2018 and
to take necessary preventive measures in order to avoid any mishap in
the meantime. On 31st March, 2022, the respondent no.4 issued an
area statement to the parties showing the measurement of the premises
taken during the site visit on 15th March, 2022.
24. On 4th April, 2022, the Designated Officer addressed a letter to
the parties under section 354 of the Mumbai Municipal Corporation
Act to vacate and pull down the building within 30 days along with a
threat of initiation of action against them in case of non compliance
under section 475-A of the said Act.
25. On 11th April, 2022, the respondent no.5 called upon the
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petitioners to vacate the building within 15 days as the building was
required to be pulled down.
26. It is the case of the respondent no.5 that since the condition of
the building was dilapidated, in the year 2019 itself, the widows were
moved to another hostel of the respondent no.5 and since then the
tenament on the upper floors i.e. first to five floors are lying vacant.
27. The petitioner in Writ Petition (L) No. 12803 of 2022 claims to
be in occupation of shop bearing no. 302 on the ground floor of the
said building carrying on business for more than 70 years. It is also the
case of the petitioner in the said petition that the petitioner has been
paying the rent in respect of the said shop premises from time to time
to the respondent no.5.
28. Mr.Tamboly and Mr.Daver, learned counsel for the petitioners in
Writ Petition (L) No. 13705 of 2022 invited our attention to various
exhibits annexed to the writ petition and various averments from the
reply filed by the respondents.
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29. It is submitted that the Technical Advisory Committee as well as
the respondent nos. 1 to 4 have not adhered to the guidelines laid down
by this Court by an order dated 23rd June, 2014 in Writ Petition (L) No.
1135 of 2014. It is submitted that the Technical Advisory Committee
had perused and considered only the structural audit report and carried
out visual observations and surprisingly came to the conclusion that the
said building was in dangerous and dilapidated condition, may collapse
and therefore needs to be vacated and demolished immediately.
30. It is submitted that the Technical Advisory Committee has not
carried out specific test like ultra sonic pulse velocity test, rebound
hammer test, half cell potential test, carbonation depth test, core test,
chemical analysis, cement aggregate ratio. On this ground alone, the
impugned order passed by the Technical Advisory Committee and
action initiated by the respondent nos. 1 to 4 is vitiated. It is submitted
that the Technical Advisory Committee could not have come to such
conclusion without carrying out any such test which were mandatory.
31. Learned counsel for the petitioners invited our attention to the
letter addressed by the Municipal Corporation calling upon the
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petitioners to submit the structural audit report through licensed
structural consultant of the building along with Proforma B based on
non destructive testing (NDT) which includes above seven tests. It is
submitted that the said letter dated 28th May, 2021 itself would indicate
the mandatory requirement of carrying out various tests and obtain test
reports along with the structural audit report required to be submitted
by the petitioners.
32. It is submitted that admittedly the respondent no.5 did not carry
out any test in accordance with the mandatory requirement provided in
the guidelines and also Proforma B. No such test reports were
submitted along with the structural audit report submitted by the
respondent no.5. Learned counsel invited our attention to the structural
audit report submitted by Mr.Bhalchandra Oak appointed by the
petitioners submitted that the said report would clearly initiate the
nature of the test carried out by the petitioners before submission of the
said structural audit report. Our attention is also invited to the
corrigendum issued by the said structural auditor stating that the
building was in C-1 category and requires only repairs to be carried
out.
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33. Learned counsel for the petitioners invited our attention to the
order passed by the Technical Advisory Committee in the meeting held
on 14th October, 2021 and more particularly the comparison of the audit
report submitted by the parties at page 207 of the petition. It is
submitted that admittedly, the petitioners had carried out about 3 out of
10 tests and had submitted a test report along with structural audit
report submitted by the petitioners. Though the respondent no.5 had
not carried out any of the mandatory test, the Technical Advisory
Committee in the impugned report has only opined that these tests were
not required as the building was having load bearing wall and TW/M.S.
structure and declared the said structure under C-1 category.
34. It is submitted by the learned counsel for the petitioners that the
structural audit report submitted by the petitioners through their
consultant has been totally ignored. No reasons are recorded by the
Technical Advisory Committee as to why the structural audit report
submitted by the petitioners' structural consultant was not considered
or was not acceptable as against the structural audit report submitted by
the respondent no.5 through their consultant were acceptable.
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35. Learned counsel for the petitioners placed reliance on the
judgment of Supreme Court in case of Union of India vs. Mohan Lal
Capoor and others, (1973) 2 SCC 836 and submitted that whether
administrative quasi judicial order should reveal rational nexus
between the facts considered and the conclusions reached to show that
the decision was manifestly just and reasonable. It is submitted that the
reasons are the links between the materials on which certain
conclusions are based and the actual conclusions. Learned counsel
submits that the entire order passed by the Technical Advisory
Committee is without reasons. It is submitted that while accepting the
structural audit report submitted by the consultants of the respondent
no.5 and dismissing the report submitted by the petitioners, the
Technical Advisory Committee has violated the principles laid down by
the Supreme Court in case of Union of India (supra) and consequently
the impugned order is vitiated and deserves to be set aside on that
ground alone.
36. Learned counsel for the petitioners placed reliance on the
judgment delivered by this Court on 12th December, 2017 in Writ
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Petition No. 211 of 2017 in case of Ansari Rizwan Ahmed Mohd.
Umer and Ors. vs. Municipal Corporation of Greater Mumbai and
Others and more particularly paragraph (4) and submits that the tests
were required to be conducted before submitting audit report. It is
submitted that this Court in the said judgment directed the Municipal
Corporation to refer the case of the subject building to Technical
Advisory Committee with a direction to comply with the directions
issued by this Court in case of Municipal Corporation of Greater
Mumbai vs. State of Maharashtra & Ors. (2014) SCC Online Bom.
666. It is submitted that the respondent no.5 not having carried out any
mandatory test, the Technical Advisory Committee could not have
accepted the structural audit report submitted by the structural
consultant of the respondent no.5.
37. Learned counsel for the petitioners placed reliance on the
circular dated 1st January, 2018 issued by the Municipal Corporation of
Greater Mumbai formulating certain guidelines since there were no
specific guidelines for appointment of structural consultant. He
submits that those guidelines were also not complied with by the
respondent nos. 1 to 4 or by the respondent no.5.
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38. Learned counsel placed reliance on the judgment delivered by a
learned Single Judge of this Court in case of Jaspal A.Wig & Ors. vs.
Municipal Corporation of Greater Mumbai & Ors., 2018 SCC Online
Bom 16302 and in particular paragraphs 7, 8 and 10 in support of the
submission that in all such cases, where the visual inspection is not
carried out, the report of the Technical Advisory Committee should be
ignored or it would become illegal. Everything depends upon the facts
and circumstances of each case.
39. In paragraph (8) of the said judgment, it is held that it being a
load bearing structure, if the N.D. tests are not carried out and there is
proper explanation given by the Technical Advisory Committee for the
same, it cannot be said that the Technical Advisory Committee has not
followed the requisite procedure and therefore, the conclusion arrived
at by the Technical Advisory Committee should be ignored.
40. It is submitted by the learned counsel for the petitioners that
there is no differential settlement in the impugned structure. The
Technical Advisory Committee ought to have directed the respondent
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no.5 to carry out all the tests before arriving at the conclusion of that
the building was classified in C-1 category. It is lastly submitted by the
learned counsel for the petitioners that the ground floor structures
occupied by the petitioners are in sound condition and are not required
to be demolished. The petitioners have no objection if the upper floors
are demolished by the Municipal Corporation or by the respondent
no.5.
41. It is submitted by the learned counsel for the petitioners that the
facts of this case are very peculiar, where respondent no.5 has not even
come with any proposal for redevelopment of the building nor with the
proposal to shift the petitioners to any other alternate accommodation
till the building is redeveloped.
42. Mr.Ashish Kamath, learned counsel for the respondent no.4 in
Writ Petition (L) No. 12803 of 2022 and respondent no.5 in Writ
Petition (L) No. 13705 of 2022 submits that the order passed by the
Technical Advisory Committee on 1st December, 2021 does not show
any malafide or perversity. It is submitted that the said building is
about 120 years old. He invited our attention to the structural audit
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report submitted by the structural engineer of the petitioners
Mr.Bhalchandra Oak and submitted that the said structural auditor has
erroneously considered the age of the construction of the said building
as approximately 60 years, though it is an admitted position that the
said building is about 120 years old or atleast about 100 years old. He
submits that the entire report submitted by the structural auditor of the
petitioners is on a wrong factual premise and is thus rightly ignored by
the Technical Advisory Committee. He considered that at the first
instance, the said consultant of the petitioners in the said report
submitted on 15th July, 2021 has classified the said building in C-2B
category. However, surprisingly by a corrigendum issued on 12 th
September, 2021 by the said structural engineer, the classification of
the said building was classified as C-3 that required minor repairs only
by correcting the alleged mistake on the second page of the forwarding
letter.
43. Learned counsel invited our attention to the said report submitted
by the structural engineer of the petitioners and submitted that even
according to the said report which was issued on the premise that the
building was 60 years old. He submits that the said consultant appears
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to have submitted the said report on the basis of only ground floor
structure and has accordingly erroneously opined that all the load of the
upper floors are eventually transferred to the foundations through the
ground floor. The said consultant came to a conclusion that the life of
the building would be 15 years after repairs. He submits that on this
ground itself the said structural audit report submitted by the said
Mr.Bhalchandra Oak even otherwise could not have been considered as
authentic and reliable by the Technical Advisory Committee.
44. It is submitted that the entire report is based on the instructions
given by the petitioners. The said structural auditor had not admittedly
visited the upper floors of the said building before submitting the said
structural audit report.
45. Learned counsel for the respondent no.5 invited our attention to
the structural audit report submitted by Mr.Ramkrishan Kejriwal,
annexed at Ex.DD of the petition. The west side wall is in dangerous
condition and required all the lintels and internal and external plaster
also to be redone. The additional columns and beams had to be
provided to relieve the loading on wall and also give the bearing to
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joist of the flooring. He submits that this crucial aspect which was
noticed by the structural auditor of the respondent no.5 was
unfortunately not noticed by the structural auditor appointed by the
petitioners while submitting the report while perusal of the Technical
Advisory Committee.
46. It is submitted by the learned counsel for the respondent no.5
that the structural auditor appointed by the petitioners also did not
consider another crucial aspect that the structural columns and beams
of the ground floor are badly damaged/corroded in such a way that
columns and beams may deflect, which may cause collapse of the
building and necessitated a pull down of the entire building so as to
save the lives of occupants and passersby. The consultant of the
petitioners also did not consider that the repairs in the building were
uneconomical and building was dangerous for human habitation.
47. Insofar as the letter addressed by the Municipal Corporation
calling upon the petitioners to carry out various tests as per Proforma
before submitting structural audit report is concerned, it is submitted by
the learned counsel for the respondent no.5 that the said requirement of
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carrying out the test as per Proforma B does not apply in the case of the
load bearing structure. In support of this submission, learned counsel
invited our attention to the report of the structural auditor appointed by
the petitioners and submitted that it is an admitted position that the core
support structure is load bearing. The petitioners also during the course
of arguments, did not dispute that the impugned structure was load
bearing.
48. It is submitted that the opinion of the structural auditor appointed
by the petitioners that the NDT tests could have been required in case
of structure being load bearing was totally unauthentic on the ground
that the building was not more than 60 years but rather was more than
100 years old. He submitted that the entire conclusion in the said
report of Mr.Bhalchandra Oak was totally unauthentic and he could not
opine correctly in view of the erroneous premise that the building was
only 60 years old and not 100 years old.
49. Insofar as letter addressed by the Municipal Corporation calling
upon the petitioners to carry out various tests in accordance with
Proforma B is concerned, it is submitted by the learned counsel for the
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respondent no.5 that the petitioners have also not carried out all the
requisite tests as prescribed in Proforma B. They have carried out only
selective tests and there are no reasons given by the structural
consultant for not carrying out all tests. On this ground also, report of
the structural auditor submitted by the petitioners could not have been
considered as authentic by the Technical Advisory Committee.
50. Learned counsel for the respondent no.5 submitted that
substantial portion of the land beneath of the impugned structure is
affected by the setback area and on this ground also the proposal of the
redevelopment may not be void.
51. Learned counsel for the respondent no.5 invited our attention to
the reasons recorded by the Technical Advisory Committee in the
impugned report and submitted that the Technical Advisory Committee
has not only considered the report submitted by both the parties but had
also visited the site on 29th August, 2021 and observed that the building
was repaired in past by erecting steel beams and columns to support the
structure. Heavy vegetation was seen on external walls and top of the
building. Major vertical cracks are seen on the North West face of the
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building from 2nd to 4th floor leakage marks, deflected and damaged
lintel above window sill and deterioration of wooden beams in slab
were seen in some of the rooms on 1st to 3rd floor.
52. It is submitted that the Technical Advisory Committee has also
raised various queries during the meeting and had asked for the views
of the structural consultant appointed by both the parties who were
present in the meeting. The structural auditor appointed by the
petitioners himself was present in the meeting and admitted that the
building was load bearing structure with wall thickness of 350 mm
equivalent about 14 inches.
53. In 2nd page of the said report at page 209 of the petition, when
the Technical Advisory Committee asked the structural consultant of
the petitioners whether the crack was due to differential settlement or
otherwise, the structural auditor of the petitioners opined that the crack
in the wall was from 2nd floor onward and hence it was not due to
differential settlement. Mr.Chaugule, the representative of the
consultant appointed by the respondent no.5 pointed out to the
consultant of the petitioners that the cracks were not superficial and
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were major cracks in load bearing walls. He submits that after
considering and deliberating on both the reports, the Technical
Advisory Committee rightly opined that the building was in dangerous
and dilapidated condition and may collapse thereby endangering life
and property of the residents and passersby and needs to be vacated and
demolished immediately and classification of the said building as C-1
category is correct.
54. It is submitted by the learned counsel for the respondent no.5
that the entire arguments of the learned counsel for the petitioners is
that since no NDT and other tests were carried out by the respondent
no.5, the structural audit report submitted by the respondent no.5 could
not have been considered at all by the Technical Advisory Committee.
He submits that since the entire structure was a load bearing structure
and the dilapidated condition of the building was visible to the naked
eye, that was noticed during the site visit by the Technical Advisory
Committee, there was no necessity to carry out any such test. The
Proforma B relied upon by the Municipal Corporation is not applicable
in case of the structural being a load bearing structure.
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55. Learned counsel for the respondent no.5 placed reliance on the
judgment of the Division Bench of this Court in case of Bharat
Choksey & Ors. vs. Life Insurance Corporation of India & Ors.,
2015 SCC OnLine Bom 6077 and more particularly paragraph (24) of
the judgment delivered by the learned Single Judge of this Court in
case of Anil Agrawal vs. The Municipal Corporation of Greater
Mumbai & Ors., delivered on 25th September, 2019 in Appeal from
Order (St) No. 25086 of 2019 and more particular paragraphs 4 and 5.
56. Learned counsel for the respondent nos. 4 and 5 distinguished
the judgment of this Court in case of Jaspal A.Wig & Ors. (supra)
relied upon by the learned counsel for the petitioners and submitted
that in the facts of this case, the Technical Advisory Committee had
clearly opined that it being a load bearing structure, the test was not
required. The order passed by the Technical Advisory Committee thus
could not have been interferred with. He relied upon paragraph (10) of
the said judgment and submitted that everything depends upon the facts
and circumstances of each case. The Technical Advisory Committee
has not only considered the report submitted by both the structural
audit engineers but has also visited the site before passing the
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impugned order.
57. Insofar as circular dated 1st January, 2018 relied upon by the
learned counsel for the petitioners is concerned, it is submitted by the
learned counsel for the respondent no.5 that the said circular dated 1 st
January, 2018 was issued by the Municipal Corporation before framing
specific guidelines for appointment of structural consultant and for
referring the contract in a report submitted if any by the Technical
Advisory Committee. He submitted that the said circular thus would
not apply to the facts of this case and more so in view of the specific
guidelines already framed by the Municipal Corporation subsequently.
58. The next submission of the learned counsel for the respondent
no.5 is that the opinion formed by the Technical Advisory Committee
is not vitiated by any malafides, perversity, arbitrariness, hence this
Court has no power to interfere with such order passed by the
competent body while exercising powers under Article 226 of the
Constitution of India. He submits that this Court is not an expert to
interfere with the technical opinion of the Technical Advisory
Committee on various technical aspects. In support of this, learned
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counsel for the respondent no.5 placed reliance on the following
judgments :-
(a) Judgment of Division Bench of this
Court in case of Mahendra Bhalchandra Shah &
Ors. vs. Municipal Corporation of Greater
Bombay & Ors. in Writ Petition (L) No. 1755 of
2019 delivered on 24th June, 2019 and more
particularly paragraphs 17, 19, 21 to 26, 31 to 33
and 35.
(b) Judgment of Division Bench of this
Court in case of Vivek Shantaram Kokate & Ors.
vs. The Municipal Corporation of Greater
Mumbai & Ors. in Writ Petition No. 931 of 2019
delivered on 19th August, 2019.
(c) Judgment of Division Bench of this
Court in case of Municipal Corporation of
Greater Mumbai vs. The State of Maharashtra
& Ors. in Writ Petition No. 1080 of 2015
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delivered on 28th February, 2018 and more
particularly paragraph 28.
59. Learned counsel for the respondent no.5 also placed reliance on
the judgment of this Court in case of Jayant Sunderdas Karia & Ors.
vs. Municipal Corporation of Greater Bombay & Ors., 2017 (6)
Mh.L.J. 657 and more particularly paragraph (6) in support of the
submission that the suggestion of the learned counsel for the petitioners
that all upper floors can be demolished so as to protect the ground floor
structure would not be possible or viable on the ground that the entire
building is found dilapidated and is required to be demolished.
60. It is submitted by the learned counsel for the respondent no.5
that the petitioners had admittedly filed a suit bearing L.C.Suit No.
7993 of 2021 before the Bombay City Civil Court challenging the said
notice dated 5th July, 2021. He invited our attention to the order dated
6th October, 2021 passed by the Bombay City Civil Court refusing to
grant ad-interim relief. He submitted that in view thereof, no reliefs
can be granted by this Court in this writ petition.
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61. Insofar as Writ Petition (L) No.12803 of 2022 is concerned, it is
submitted by the learned counsel for the respondent no.5 that the
petitioners therein claims to be one of the sub-tenant of the respondent
no.5 in the said building which claim is seriously disputed by the
respondent no.5. The petitioners have not submitted any structural
audit report separately in respect of the said building and thus cannot
be now allowed to challenge the order passed by the Technical
Advisory Committee on any ground.
62. In view of the submissions made by the learned counsel for the
respondent no.5 that the substantial part of the building is affected by
set back area, this Court passed an order on 12 th July, 2022 recording
such submission made by the learned counsel for the respondent no.5
that according to the respondent no.5 it would not be viable to carry out
any redevelopment without prejudice to the rights and contentions of
the respondent no.5 that no relief can be granted by this Court in favour
of the petitioners, this Court accordingly directed to take instructions
and to make a statement before this Court as to whether the land
beneath the offending structure is affected by set back and if so, how
much area and whether any reconstruction is permissible on the said
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land if the offending structures are directed to be demolished.
63. In pursuance of the said order issued by this Court on 12 th July,
2022, the Municipal Corporation filed two affidavits.
64. Mr. Kamath, learned counsel for the respondent no.5 tenders a
copy of the notice issued by the Municipal Corporation on 12 th July,
2022 and served upon the owners/occupiers stating that the condition
of the building is absolutely deteriorated and/or may collapse any
moment. The Municipal Corporation made it clear by the said notice
that, if there is any loss of life or any other loss, the Municipal
Corporation will not be responsible for such untoward incident.
65. Ms. Dhond, learned counsel for the Municipal Corporation
invited our attention to the various averments made by the Municipal
Corporation in various affidavits filed in these petitions. It is submitted
by the learned counsel that the subject plot is situated in the residential
zone and no reservation is affecting the land. The subject plot falls
within the Coastal Regulation Zone as shown in the location plan and
thus shall be governed by the notification issued by the Government of
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India dated 19th February, 1991 and amended upto date. He submits
that as per sanctioned CZMP, HTL/set back lines with map scale with
respect to subject plot i.e. the land under reference falls under CRZ II
category. The development shall be governed as per the Ministry of
Environment and Forest, Government of India in the notification dated
19th February, 1991.
66. It is submitted that the subject plot abuts the proposed Metro
Rail alignment and/or falls within influence zone of station areas
thereof. Remarks from MMRDA shall be obtained before commencing
any development. She submits that the said plan is affected by the
sanctioned regular line of 29.26 mtrs. i.e. 90.6 feet approximately wide
Jagannath Shankarseth Road marked in red colour on the regular line
plan. She invited our attention to the development plan annexed to the
affidavit in reply dated 21st July, 2021.
67. Learned counsel for the Corporation also invited our attention to
various averments made in the affidavit in reply dated 21st July, 2022
filed by the Assistant Engineer (Building Proposal) on behalf of the
respondent nos. 1 to 3 and would submit that if any online proposal is
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submitted for extensive repairs (beyond 75% of built up area) to any
existing building which have been constructed with the approval from
the competent authority or were in existence prior to 17 th April, 1964 in
respect of the residential structures and 1st April, 1962 in respect of
non-residential structures (before its demolition), it will be considered
by the Building Proposal Department on its own merits as per the
relevant provisions DCPR 2034 and more particularly Regulation 60,
Appendix IV of the DCPR 2034. He submits that depending upon the
category of a particular building, the plans may be approved as per the
relevant regulations of DCPR 2034 i.e. Regulation 33 or Regulation 30
of the DCPR 2034 which is applicable.
68. Learned counsel for the Municipal Corporation justified the
decision taken by the Technical Advisory Committee and submits that
no interference is warranted with the said decision.
69. Insofar as submission of the learned counsel for the petitioners
that even the Municipal Corporation has held that the petitioners were
required to carry out various tests and to annex along with structural
audit report is concerned, it is submitted that the said Proforma
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referred to in the said letter of the Municipal Corporation is a format
prescribed by the Municipal Corporation. The said proforma does not
provide that such test should be mandatory also in case of a load
bearing structure.
70. Mr. Tamboly and Mr. Daver, learned counsel for the petitioner in
their rejoinder argument submitted that carrying out such test
prescribed in Proforma B is mandatory. The tests are not carried out.
The Technical Advisory Committee would not be able to decide
whether the building is dilapidated and is under C-1 category or
otherwise without conducting such tests.
REASONS AND CONCLUSIONS:
71. The questions that arise for consideration of this court in these
two petitions are (i) whether non-destructive and other tests described
in Proforma 'B' issued by the Municipal Corporation are required to be
carried out necessarily before submitting Structural Audit Report and
even if offending structure is load bearing structure? (ii) what are the
powers of court under Article 226 of the Constitution of India to
interfere with the order passed by the Technical Advisory Committee
("TAC") on the status of the building.
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72. It is not in dispute that the said building in question is more than
100 years old and is a load bearing structure. The petitioners in both
these petitions are admittedly occupying the ground floor structures
having shops and carrying on business. Respondent no.5 landlord
obtained a Structural Audit Report from the licensed structural
consultant Shri Ramkrishan Kejriwal dated 10th August, 2020 certified
that the said building was in a dilapidated condition and classified the
said building in C-1 Category.
73. On the other hand, the petitioners appointed a Structural Auditor
Shri Bhalchandra Oak who submitted a report on 15 th July, 2021
classifying the building as a C2 B category thereby requiring "no
eviction and only structural repairs" and subsequently classified it as
C3 category requiring "minor repairs only." In view of the conflict
between these two opinions obtained by the parties, the Municipal
Corporation referred both these reports to the TAC. The TAC visited
the said building and made various visual observations.
74. On 14th October, 2021 after comparing both these structural audit
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reports submitted by the parties and after their own visual observations
during the site inspection, the Technical Advisory Committee opined
that the said building was in a dangerous and dilapidated condition and
may collapse thereby endangering the life and property of the residents
and passersby. The Technical Advisory Committee accordingly
suggested that the said building/structure needs to be evacuated and
demolished immediately and classified the said building as C-1
category.
75. Based on the said order passed by the Technical Advisory
Committee on 14th October, 2021, further directions were issued by the
Technical Advisory Committee on 1st December, 2021 directing the
owner to take preventive measures such as propping of the building etc.
to avoid any mishap. Respondent no.5 in turn called upon the
petitioners to vacate their ground floor structures. It is not in dispute by
the petitioners, that the upper floors occupied and used as widows
home were vacated in the year 2019 by those occupants. According to
respondent no.5, those widows were required to be moved to another
hostel in view of the dilapidated condition of the said building.
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76. In view of the structural auditors report submitted by respondent
no.5, the Municipal Corporation called upon the petitioner to submit a
report from a Licensed Structural Auditor vide letter dated 28 th May,
2021 requesting to submit such report along with Proforma 'B' based
on non destructive testing which includes around ten tests.
77. It is the case of the petitioners that in pursuance of the said letter
dated 28th May, 2021 issued by the designated officer and Executive
Engineer, the petitioners obtained a report from Shri Bhalchandra Oak
who carried out some of the tests described in the Proforma 'B'. It is
not in dispute that after receiving of these two reports on record, the
Technical Advisory Committee along with its members and several
others visited the said building. We shall now deal with the issue as to
whether any test as prescribed in Proforma 'B' was at all mandatory or
necessitated for a structural audit report even if the structure was load
bearing structure.
78. According to the report submitted by the structural engineer of
the petitioners, the said building was constructed around 60 years back
and according to the respondent no.5's Structural Engineer the said
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building was more than 100 years old. The learned counsel for the
petitioners could not dispute before this court that the said building was
more than 100 years old during the course of arguments. The
petitioners also could not dispute that the report of Shri Bhalchandra
Oak, the Structural Engineer appointed by the petitioners submitting a
report was on the premise that the said building was about 60 years old.
79. A perusal of the said report submitted by Shri Bhalchandra Oak
indicates the admitted position that the structure is a load bearing
structure. The said report submitted by Mr. Bhalchandra Oak indicates
that the observations made by the said Structural Engineer itself refers
to the load bearing wall being 350mm thick equivalent to
approximately 14 inches thickness.
80. A perusal of the report submitted by respondent no.5 also
indicates that the said building is a load bearing structure. It is an
undisputed fact that the structure is a load bearing structure. On visual
inspection by the Technical Advisory Committee, the Technical
Advisory Committee has also in the impugned order rendered a
finding that the said structure is a load bearing structure. The Technical
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Advisory Committee accordingly held that no test was required. In
support of the rival contentions of the parties, whether such test
described in Proforma 'B' are required to be carried out or not, even in
case of load bearing structure both the parties have relied upon various
judgments for consideration of this court.
81. The Division Bench of this Court in the case of Bharat Choksey
and Others (supra) accepted the contention of the Municipal
Corporation that the test laid down by the Municipal Corporation
appear to be in relation to the RCC structures and not in relation to load
bearing structures. This Court held that so long as the judgment of this
Court in case of Municipal Corporation of Greater Mumbai v/s. State
of Maharashtra, holds that if the Technical Advisory Committee is not
able to carry out the test laid down therein, the Technical Advisory
Committee will have to give reasons as to why the test could not be
conducted. It will ultimately depend upon the facts and circumstances
of each case.
82. It is held that what is material is whether members of the TAC
have applied their mind and whether the process adopted by the TAC is
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legal and proper. In that case, though the reasons were not specifically
assigned by the TAC, this court held that as the structure of the
building which was constructed in the year 1908 was not a RCC
structure, the tests laid down could not be conducted. In our view, the
principles laid down by this Court in the said judgment in the case of
Bharat Choksey and others (supra) apply to the facts of this case. In
the facts of this case also the TAC has opined that such tests described
by the Municipal Corporation were not necessary in view of the said
structure being a load bearing structure.
83. The learned single Judge of this Court in Anil Agrawal (supra)
considered the facts where the TAC did not deem it necessary to order
any non-destructive test including core test on the structural members
of the building having regard to the nature of construction of it being
partly RCC and partly load bearing. This court accordingly held that
neither the approach of TAC nor the conclusion arrived at by it can be
said to be either perverse or unreasonable. What TAC was expected to
do was to assess the condition of the suit building having regard to the
various structural reports before it. The TAC had duly applied its mind
to the material circumstances disclosed in the reports. We are in
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agreement with the views expressed by the learned single Judge of this
Court in case of Anil Agrawal (supra) and do not propose to take a
different view on the issue whether non-destructive test and other tests
are mandatorily required at all in the case of a load bearing structure or
not.
84. Be that as it may, a perusal of the impugned order passed by the
TAC indicates that after site visit by the TAC on 29th August, 2021 it
was clearly observed that the building was ground plus 5 story load
bearing building. The building was repaired in past by erecting steel
beams and columns to support the structure in the south side. This
conclusion was arrived at by the TAC on the basis of the IOD issued by
the Municipal Corporation in respect of the south side wall including
other completion certificate dated 30th July, 2014. The TAC also
recorded a finding that there was heavy vegetation seen on external
walls and top of the building.
85. TAC noticed that major vertical cracks were seen on the North
West face of the floor from 2nd to 4th floor. Leakage marks, deflected
and damaged lintel above window sill and and deterioration of wooden
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beams in slab were seen in some of the rooms on 1 st to 3rd floor. Very
heavy vegetation/root growth was seen on 3rd to 5th floor toilet blocks
at each floor. On 4th floor in North West corner of the building some
portion of the wall near the crack was also seen and have a tilted
exterior. The wooden beam was seen broken due to wall separation in
North West corner room. It was observed that the building was a load
bearing building and the wall separation may lead to major
collapse/incident in the building thereby making the entire building
unstable.
86. A perusal of the said order passed by TAC further indicates that
various queries were raised by the Technical Advisory members to the
representatives of the structural consultants who had submitted their
respective reports. It was pointed out to the Structural Engineer of the
petitioners that the cracks were not superficial and were major cracks
in load bearing walls and the repair methodology as suggested was not
appropriate for such wide cracks in the load bearing walls. After
considering the structural audit report submitted by both the parties, a
visual inspection on site, report of the ward staff and relying on the
observations and opinions of both the structural consultants, TAC
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found that the building was in distressed condition and may collapse
any time and accordingly needs to be evacuated and demolished being
in dangerous and dilapidated condition.
87. In our view the TAC rightly formed an opinion. We are not
inclined to form a different opinion than the opinion formed by the
TAC which opinion is after considering the structural audit report
submitted by both the parties, after visual inspection of the building
and after considering the various other material produced on record
and considered in the impugned order. The impugned order further
indicates that Shri Atul Kulkarni, the Deputy Chief Engineer (Building
Proposal) City was the Chairman of the TAC, Shri R. S. Dholay, the
Executive Engineer (Building Proposal) City-III was one of the
member of the TAC. Shri Suraj Pawar, Sub Engineer (Building &
Factory) Representative of Ward-E.E. 'C' Ward was also member of
the said committee as Member Secretary. The meetings were also
attended by Mr. Ambre, Assistant Engineer (Building Proposal) and the
representatives of both the structural consultants.
88. The said TAC was constituted as per policy guidelines
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consisting of 4 members including Assistant Law Officer. There is no
substance in the submission of the learned counsel for the petitioner
that the order passed by the TAC is based on no reasons or based
mechanically without considering the structural audit report submitted
by the petitioners through their structural auditor. It is clear that the
opinion formed by TAC that, no such non-destructive test or other tests
were required in cases of load bearing structure was not merely taken
on the basis of the statement made by both the parties, that it was a
load bearing structure but after considering the factual situation that
was derived after personal visit of the site by the members of the TAC
who are engineers and experts in the field.
89. Perusal of the report submitted by Shri Bhalchandra Oak, the
structural auditor appointed by the petitioners indicates that the said
report proceeded on an erroneous basis that the said building was 60
years old which admittedly was factually incorrect. Be that as it may,
the said report was on the basis of the test carried out by the petitioner
in respect of ground floor structure only. The TAC considered these
aspects in the impugned order rightly and accepted the report submitted
by Structural Auditor appointed by the respondent no.5 having found it
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more authentic and more particularly after visiting the site personally
and after having interacted with the structural engineers representing
the parties who had attended the meeting before TAC.
90. Insofar as the judgment delivered by the learned Single Judge of
this Court in case of Jaspal A. Wig & Ors. (supra) pressed in service by
the learned counsel for the petitioners is concerned, in our view the
said judgment would advance the case of the respondent no.5 and not
the petitioners. It is held in the said judgment that if the structure is a
load bearing structure and if the non-destructive tests are not carried
out and if there is proper explanation given by the TAC of the same, it
cannot be said that the TAC has not followed the requisite procedure
and therefore the conclusion arrived at by the TAC should be ignored.
In the facts of this case, the TAC has recorded reasons as to why non-
destructive test was not necessary to be carried out.
91. In our view, the TAC thus rightly formed an opinion that the
non-destructive test and other tests were not required to be carried out
in view of the structure being a load bearing structure. We do not find
any infirmity in this view taken by the TAC.
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92. We shall now deal with the scope of parties of a writ Court
exercising powers under Article 226 of the Constitution of India while
dealing with an order passed by the TAC opining that the building has
become dilapidated and is required to be pulled down otherwise it
might cause loss of lives of the occupants of the building.
93. This Court after adverting to its earlier judgment in case of
Municipal Corporation of Greater Mumbai v/s. State of Maharashtra
& Ors., 2018 SCC OnLine Bom.816 held that the guidelines required
the Corporation to conduct an independent inspection and assessment
before classifying a building as category C-I. The structural audit was
required which was to be taken into account. It is held that the Court is
not permitted or even capable of determining whether the building is
truly so ruinous as to warrant its demolition. This Court does not
assess the structural condition of the building or its structural
vulnerability. The Court only assess the vulnerability in law of
demolition notices or the TAC recommendation or order. The Court
addressed not to the decision itself, but to the process by which the
decision was reached. The Court does not suggest that the mere age of
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a structure invariably and unquestionably means that it is ruinous or
dilapidated.
94. This Court held that only when the petition makes out a
sufficient cause for interference on one or more of the grounds, High
Court is not entitled to intervene in exercise of its limited jurisdiction
under Article 226 of the Constitution of India. In exercise of this
limited jurisdiction of the High Court it cannot substitute its view for
the technical view of the members of the TAC. It is only when the TAC
is clearly demonstrated to have acted arbitrarily, malafide or in the
manner that it can fairly be said to be perverse and that the TAC's order
is implausible or one that no reasonable or rational person could ever
take, that this Court will intervene. The principles laid down by this
Court in the said judgment apply to the facts of the case.
95. In case of Vivek Kokate and Ors. (supra), a Division Bench of
this Court after adverting to various judgments culled out the principles
of law in paragraph 5 of the said judgment. It is held that it is never for
a Court in exercise of its limited jurisdiction under Article 226 of the
Constitution of India to decide whether a particular structure is or is not
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actually in a ruinous or dilapidated condition. The rights of
tenants/occupants are not harmed by demolition ordered and carried
out. These rights are adequately safeguarded by Section 354(5) of the
Bombay Municipal Corporation Act and by the provisions of the
governing Maharashtra Rent Control Act, 1999 which fully occupies
the field regarding tenancy of built premises in Maharashtra.
96. This Court adverted to the judgment of the Supreme Court in
Saha Ratansi Khimji & Sons v/s. Kumbhar Sons Hotel Pvt. Ltd. &
Ors., (2014) 14 SCC 1 in which it was held that, the rights of tenants
and occupants are unaffected by the required demolition. The tenants
not only have rights but also remedies to keep their structure in
tenantable repair. This Court in the said judgment in case of Vivek
Kokate (supra) has held that Section 353B casts an obligation not only
on owners but also on occupiers of structures that are more than 30
years old to furnish a structural stability certificate. A writ Court
exercising jurisdiction will not substitute its own view for that of
technically qualified experts. Equally the writ Court will not prefer the
view of one expert over another. This Court held that in order to
succeed, a petitioner before the court must be able to show that the
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impugned action suffers from Wednesbury unreasonableness i.e. it is so
unreasonable that no rational person could, having regard to the fact of
the case, ever have reached it.
97. In the facts of this case, there are no allegations of perversity or
of malafides with particulars. The principles laid down in the case of
Vivek Kokate (supra) would apply to the facts of this case. We do not
propose to take any different view in the matter.
98. A Division Bench of this Court in the case of Jayant S. Karia
(supra) considered the power of writ Court while considering an order
passed by the TAC. This Court held that merely by seeing
photographs, the condition of the structure cannot be decided.
Therefore, the 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 the building/structure is
in a dilapidated condition or dangerous for the occupants to live. It is
an obligation on the authorities to take appropriate steps in accordance
with law. In case portion of the building/structure collapses, then it is
very likely that people residing in the said building would suffer loss of
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life, property or may suffer severe injuries. The Corporation is duty
bound to avoid any loss of life and property to passersby, 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.
99. This Court also held that in exercise of its writ jurisdiction, this
Court 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 a subjective opinion, this
Court would not substitute its view, even if the opinion suffers from
some errors here or there. It is held that in cases of conflicting reports
of the structural auditors, the TAC would look into and evaluate
properly to decide regarding the sustainability of the structure. It is the
TAC who shall take appropriate decision as to whether the building is
in repairable condition or not and whether the persons should continue
to occupy such building.
100. It is held that if the structure is in such a dangerous condition
that it may collapse and cause loss of life and property, the TAC
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evaluates the same and submits the report accordingly. This Court
accordingly held that they were not convinced to call for another report
from IIT as suggested by the petitioners in that case. We are also not
inclined to accept the suggestion of the petitioners to call for another
report from structural engineer on the issue of whether non-destructive
test or other tests can be carried out or ought to be carried out on the
offending structures or not.
101. In the said judgment, this Court also considered the submission
of the learned counsel for the tenants that the ground floor structure
was in good condition and whether without disturbing the ground floor
structure, the upper floors only could be demolished and ground floor
structure could be redeveloped or not. This Court rejected the said
submission on the ground that this Court cannot substitute its opinion
to the view adopted by the TAC in its report in respect of the subject
structure. We are thus not inclined to accept the submission of the
learned counsel for the petitioners that the upper floors can be
demolished and ground floor structures may be allowed to be retained.
As per order of the Technical Advisory Committee, entire building is
dilapidated.
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102. It is an admitted fact that the said building is situated on a plot of
land in a very congested and crowded area of Bhuleshwar and lots of
people are passing through the said road on which the said building is
constructed. If this building is allowed to be retained, if any untoward
incident occurs, there will be a loss of lives not only to the occupants of
the building but also the passersby.
103. This Court while considering the submissions of the petitioners
also cannot lose sight of an admitted position that the subject plot falls
within the Coastal Regulation Zone (CRZ) and is affected by the
sanctioned regular line of 29.26 meters i.e. 96 ft. approximately wide
Jagannath Shankarseth Road and also that the subject plot abuts the
proposed metro rail alignment or falls within influence zone of station
areas thereof. We are thus not inclined to accept the submission of the
learned counsel for the petitioners to permit to retain the ground floor
structures more so on account of the report of the TAC declaring the
entire building as C-1 category and as dilapidated. We also take note
of the fact that the substantial part of the land beneath the building in
question is affected by regular line as well as by metro and also as the
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subject plot abuts metro rail alignment or falls within the influence
zone of the station area thereof. We are not impressed with the
arguments of the learned counsel for the petitioners that the tenancy
rights of the petitioners, if any, are in jeopardy if the demolition of the
building takes place in compliance with the recommendation made by
the TAC.
104. The apprehension of the petitioners is without any basis. The
remedies of the petitioners or occupants insofar as their claim of
tenancy or occupancy, it is protected in view of Section 354(5) of the
Mumbai Municipal Corporation Act and also under the provisions of
Maharashtra Rent Control Act.
105. The learned counsel for the petitioners could not dispute that a
substantial part of the land beneath the same building is affected by
sanction regular line of 29.26 meters and also that the subject plot abuts
the proposed metro rail line or within influence zone station areas
thereof. In the event of the said building being demolished in
compliance with the recommendation made by the TAC and in case the
respondent no.5 does not carry out the reconstruction of the building,
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the petitioners are always entitled to avail of the remedies in
accordance with law for permission to carry out redevelopment itself.
106. In our view, while exercising powers under Article 226 of the
Constitution of India, while dealing with the correctness of the
recommendation made by the TAC and holding that the building is in
dilapidated condition and may collapse any moment, thereby
endangering the life of the occupants of the building and passersby, this
Court cannot exercise powers of an appellate court in order to interfere
with such findings of fact. The powers of writ Court to interfere with
such order passed by the TAC comprising of experts on the subject
cannot be lightly interfered with. The Court cannot sit as an appellate
authority over the recommendations made by the TAC.
107. We are also unable to accede to the request of the petitioners,
who are the occupants/tenant of the ground floor to repair the building
and thereby protect their interests and rights and we cannot ignore the
rights of the other occupants and/or the landlord of the building. If the
submission of the petitioner is to be accepted and the upper floors
beyond the ground floor are to be demolished, then the rights of the
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other occupants including that of the landlord could be severely
prejudiced.
108. Mr. Bhosle, the learned counsel for the petitioners in Writ
Petition (L) no.12803 of 2022 adopted the arguments advanced by Mr.
Karl Tamboly along with Yash Dhakkad for the petitioners in Writ
Petition (L) no.13705 of 2022. In addition to these arguments, he
submitted that his client was not allowed to visit the upper floors of the
building for the purposes of taking out a separate structural audit
report.
109. Mr. Kamat, the learned counsel for respondent no.4 in this
petition opposed the submission on the ground that the petitioner has
no locus to file this writ petition as the petitioner had not obtained any
structural audit report nor had appeared before the TAC. The issue
relating to the claim of tenancy made by the petitioner is pending
before the appellate court. In his rejoinder argument, Mr. Bhosale, the
learned counsel for the petitioner states that even if his client is in
occupation of the shop premises for last 17 years and has been paying
rent to the respondent no.5. He submits that even if the petitioner has
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not undertaken any separate structural audit report in respect of entire
building or with his structure, he is still a person aggrieved which
gives him locus to file this petition. He is placing reliance on the
structural audit report submitted by the other tenants occupying various
shop premises on the ground floor. In our view petitioner in Writ
Petition (L) no.12803 of 2022 is entitled to rely upon the Structural
Audit Report submitted by the petitioners in the companion Writ
Petition. The petitioner in the said Writ Petition has locus to file the
said petition irrespective of the fact whether any eviction proceedings
filed by the respondent no.5 are pending against the petitioner or not.
110. In our view, the learned counsel for respondent no.5 is right in
his submission that the circular dated 1st January, 2018 issued by the
Municipal Corporation describing certain guidelines in absence of
regular guidelines is superseded by the regular guideline framed by the
Municipal Corporation subsequently and thus no reliance could be
placed on the said circular dated 1st January, 2018.
111. Both the writ petitions are totally devoid of merit. We
accordingly, pass the following order;
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(i) Notice dated 4th April, 2022, minutes of
meeting of Technical Advisory Committee held on 14th
October, 2021 and order dated 1st December, 2021
passed by Technical Advisory Committee are upheld.
(ii) The petitioners in both the writ petitions along
with other occupiers, if any, of the offending structures
are directed to remove themselves along with their
articles and belongings within three weeks from today
without fail and handover the vacant possession
thereof to the respondent no.1 Corporation for carrying
out demolition. The undertaking rendered by the
petitioners forming part of the record of this Court also
to continue for a period of three weeks from today.
(iii) It is made clear that the rights of the
petitioners are not jeopardized by the order of
demolition passed by the Technical Advisory
Committee and upheld by this Court. The rights of the
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petitioners are protected by Section 354 (5) of the
Mumbai Municipal Corporation Act and the provisions
of the Maharashtra Rent Control Act, 1999 and would
remain unaffected by the required demolition.
(iv) The rights of the petitioners, if any, are also
protected to apply for redevelopment of the entire
building as may be permissible in law, if the
respondent no.5 in Writ Petition (L) no.13705 of 2022
and respondent no.4 in Writ Petition (L) no.12803 of
2022 do not carry out redevelopment after demolition
of the building within the time prescribed in law.
(v) If the petitioner and the other occupants of the
shops on the ground floor of the building in question,
do not vacate within three weeks from today and
possession is not handed over to the Municipal
Corporation, the Municipal Corporation will be at
liberty to take forcible possession of all the respective
shops and structures on the ground floor and if
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necessary take the assistance of the police to carry out
the demolition thereafter expeditiously.
(vi) Writ Petition (L) no.13705 of 2022 and Writ
Petition(L) no.12803 of 2022 are dismissed with the
aforesaid clarifications.
(vii) Parties to act on an authenticated copy of this
order.
(viii) There shall be no orders as to costs.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.]
At this stage learned counsel for the petitioners seeks stay
of the operation of this order for a period of three weeks. Since
this Court has already granted three weeks time to the petitioners
to vacate, staying the operation of the order for three weeks is
not warranted. Application for stay is accordingly rejected.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.]
