Imtiaz Ali Mohammed Bangdiwalla vs The State Of Maharashtra Through ...
2022 Latest Caselaw 9230 Bom

                                                                       902-OSWPL-4811-2022.DOC




                      Shephali



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION
                                     WRIT PETITION (L) NO. 4811 OF 2022


                      Imtiaz Ali Mohammed Bangdiwalla                            ...Petitioner
                            Versus
                      The State of Maharashtra through the Principal          ...Respondents
                      Secretary & Ors


                      Mr Ashok Saraogi, with Daksha A Parmar, i/b Prajot H Jaggi, for the
                           Petitioner.
                      Mr Kedar Dighe, AGP, for the Respondent No. 1-State.
                      Mr Shoaib I Memon, with Ibrahim Memon, for Respondent No. 2.
                      Mr Yashodeep Deshmukh, with Sagar Patil, for the Respondent-
SHEPHALI
                           MCGM.
SANJAY                Mr Sanjeev Pandhare, AEBP, H/Ward, present.
MORMARE
Digitally signed by
                      Mr Mukesh Godse, SEBP, H/Ward, present.
SHEPHALI
SANJAY
MORMARE
Date: 2022.09.15
11:28:53 +0530


                                             CORAM      G.S. Patel &
                                                        Gauri Godse, JJ.

                                             DATED:     14th September 2022
                      PC:-

1. This matter raises several questions of wide public importance relating to constructions within the command area of the Municipal Corporation of Greater Mumbai ("MCGM"). The Petition is by no means a Public Interest Litigation. On the one hand, are Mr Saraogi's clients, who say they are owners or part- owners of the building in question known as Daulat House at Bandra

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West. On the other side are Mr Memon's clients, the 3rd Respondents, MK Builders and Developers. The State of Maharashtra is not really a necessary party. It is the 1st Respondent. The 2nd Respondent is the MCGM.

2. We do not propose in today's order to finally dispose of the Petition. We believe that in our future order and judgment of final disposal we will need to revisit the law on several aspects. At this stage, to serve as adequate advance notice to all counsels, and to ensure that none of these issues escape our attention later, we only list the various areas or aspects that we intend to address on a future date. All these squarely arise in the present Petition. Thereafter, for today, we propose to issue certain directions that we believe are immediately necessary.

3. The questions that we propose to address fully in a judgment are these:

(a) Whether, having regard to the provisions of Right to Information Act and the Evidence Act, it is the obligation of the MCGM as a public authority and as a planning authority under the Maharashtra Regional & Town Planning Act, 1966 to ensure that its entire record relating to every construction project is publicly available on the Citizens Portal of the MCGM website?

(b) Whether it is possible for the MCGM to leave open and unattended notices of various kinds, such as stop work notices, without formally closing them?

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(c) Whether closing such a notice once issued requires an independent application of mind and the recording of a subjective satisfaction of an authorized officer of the MCGM on objective material, or whether a notice can merely be deemed to be closed by inaction on receipt of a privately obtained report or private document?

(d) Whether an illegality in construction is ever capable of being "regularised", having regard to the law settled by a catena of decisions of the Supreme Court and of this Court?

4. In regard to the third question, i.e., the closing of a notice or a report, the present case is an example of how such an open notice or communication is conceivably problematic for not only Mr Saraogi's clients but also for occupants of the building and also for Mr Memon's clients, the developers. Any notice that is never formally closed remains on record and is always liable to be used to the disadvantage of all or any of these stakeholders. We do not believe that it is permissible either in the name of "ease of doing business" (whatever that is supposed to mean in this context) or otherwise to leave such notices hanging. A notice or communication of the kind to which we will presently refer is formally issued in writing and is part of the record. The document may also be an internal document of the MCGM from one department to another, as in this case. Even if it is an internal communication, it may record or note an actual observation on site. Therefore, logically, whether the notice is issued to a third party or is an internal communication, one way or the other it must be brought to a close. It can either be implemented

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or it can be closed by saying no further action is required; but one of the two must happen. If the final order is that no action is required, then this must be for good and stated reason. It simply cannot be that a notice or communication remains open so that it can be invoked at some remote or distant point in time long after the event. There is equally no presumption that mere inaction of the MCGM results in, or is deemed to result in, a closure of a notice or any action proposed by an internal document.

5. This disturbs us today for one reason. At page 85 there is an internal communication of 25th January 2019 from the Designated Officer (II) H/West Ward to the Assistant Engineer, Building Proposal Department of that ward. It notes that there was a routine site inspection on 25th January 2019 at 12.30 pm. The DO's staff found that there was unauthorised tampering and chipping of two reinforced cement concrete columns in the basement "thereby endangering the stability of the building". This unauthorised work was stopped. It was then also noted that the building was unauthorisedly occupied without an Occupation Certificate and that there were illegal classes going on in the basement. The same notice also notes unauthorised construction of part of the 5th floor and the 6th floor in respect of which a notice under Section 354(A) of the Mumbai Municipal Corporation Act 1888 was issued on 18th December 2018. There was a reply to this notice and further correspondence was going on. The DO had written on 10th January 2019 and 17th January 2019 seeking remarks.

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6. On 31st January 2019, on the DO's recommendation, the Executive Engineer building proposals H ward recommended action regarding the unauthorised occupancies. As regards the tampering of two RCC columns and unauthorised change of user, the Executive Engineer authorised the DO to initiate necessary action. This is all the more reason why such internal communications demand closure and finality.

7. There are therefore three aspects to this. We are not concerned today with the question of unauthorised occupation or of the construction of the 5th and 6th floors. We will address those issues later. The point that concerns us today is the site inspection report of tampering and chipping of two RCC columns said to threaten the structural stability of the building.

8. The MCGM file shows that the 3rd Respondent developer submitted an audit report of its consultant MP Prime Structures Private Limited. The report is dated 18th February 2018, shortly after the internal communication at page 85. The report is on the file of the MCGM.

9. The summary statement at the head of this report says that there were certain additions and alternations for a car lift carried out by removing soiling and PCC (Plain Cement Concrete) which are not structural members and would not endanger the stability of the lift structure or any other part of the building. There are detailed observations in the report as well.

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10. We are expressing no opinion on the correctness or otherwise of the report. But what concerns us is that there were admittedly additions and alterations inter alia for a car lift. This has to be read in the context of the internal communication at page 85 which noted chipping of RCC columns in the basement. We are told by Mr Deshmukh on instructions that the car lift was always proposed and was in fact sanctioned. The question that remains unanswered, therefore, is why any chipping was required of the RCC columns in the basement at all, whether for a car lift or otherwise.

11. We note in passing, and we will revisit this at a later stage, that this report was not uploaded to the Citizens Portal until 8th September 2022 after an order we made in this Writ Petition. We are not satisfied with the MCGM's explanation in this regard. We will consider both the law and appropriate directions when we finally dispose of the matter.

12. What has remained to be done is to formally close the communication at page 85 in any shape, fashion or form whether by an internal communication or otherwise and whether based on MP Prime Structures Report of 18th February 2018 or an independent valuation. All that has happened is that the structural auditor's report is taken on file. But the communication of 25th January 2019 has remained open. As we noted at the beginning, this will conceivably be problematic to all three stakeholders including the developer. We would have expected the MCGM to have a properly qualified officer examine the report, consider the internal communication at page 85 and to see if the report fully addressed

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the concerns. Then they would have had to be an endorsement that no further action was required on the DO's internal communication of January 2019 and that the stop-work issued by him need not continue. The MCGM file is entirely silent on this aspect of the matter. That is unacceptable. Construction has been allowed to proceed but without formally closing this internal communication of bringing it to a logical conclusion. Even today, we do not have any material before us, other than some presumption based on inaction we are invited to draw to assess whether the structural auditor's report adequately addresses the concern express by the DO in his internal communication.

13. For this reason, we direct the MCGM to have its Technical Advisory Committee ("TAC") evaluate the precise condition noted in the DO's communication at page 85 regarding the chipping of the two RCC columns in the basement. We do not require the TAC, since it has qualified personnel, to appoint a structural auditor. However, it is open to the TAC, if it thinks fit in its discretion, to get a structural audit done by a structural auditor empanelled with the MCGM.

14. There is some urgency to the matter. Mr Memon agrees that there is no remaining construction but makes a statement on instructions that the builders will do no other civil work in the structure until the next date. The statement is noted and accepted.

15. We give the TAC two weeks in which to give us its opinion on Affidavit on the structural stability of the building with specific

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reference to the DO's observations. Affidavit. It goes without saying that the TAC will be given a copy of the 18th February 2019 structural report and the TAC members will also be entitled to make a site inspection in the presence of representatives of the Petitioner as also the 3rd Respondent.

16. List the matter on 7th October 2022 on the Supplementary Board.

(Gauri Godse, J)                                        (G. S. Patel, J)





                           14th September 2022