Bombay High Court
Balkrishana S/O Ramnivas Sharma ... vs Nagpur Municipal Corporation, ... on 29 September, 2022
Bench: S.B. Shukre, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4011 of 2022
With
Writ Petition No.3230 of 2022
Writ Petition No.4011 of 2022
1. Shri Balkrishna S/o Ramnivas Sharma,
Aged 74 years,
Occupation - Business.
2. Shri Vipin S/o Balkrishna Sharma,
Prop. R.K.B. Mens Wear,
Aged 36 years,
Occupation - Business,
Respondents No.4 & 5
Both R/o Flat No.110, Tower-F,
Godrej Anandam, Ganeshpeth,
Nagpur-440018. ... Petitioners
Versus
1. Nagpur Municipal Corporation,
Nagpur, through its Commissioner,
Civil Lines, Nagpur.
2. The Assistant Commissioner,
Nagpur Municipal Corporation,
Gandhibag Zone-6, Mahal, Nagpur.
3. The Dy. Commissioner,
Encroachment & Enforcement Department,
Nagpur Municipal Corporation,
Gandhibag Zone-6, Mahal, Nagpur.
4. Niraj S/o Krishnakumar Sharma,
Aged 32 years,
Occupation - Business,
R/o o8 Building-C, Ayurvedic Layout,
NIT Complex, Sakkardara, Nagpur. ... Respondents
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Shri C.S. Kaptan, Senior Advocate, with Shri M.S. Sharma, Advocate
for Petitioners.
Shri A.R. Sambre, Advocate for Respondent Nos.1 to 3.
Shri Anand Jaiswal, Senior Advocate, with Shri S.A. Sahu, Advocate
for Respondent No.4.
With
Writ Petition No.3230 of 2022
Mr. Niraj S/o Krishnakumar Sharma,
Aged 32 years,
Occupation - Business,
R/o 108, Building-C,
Ayurvedic Layout,
NIT Complex, Sakkardara, Nagpur. ... Petitioner
Versus
1. Nagpur Municipal Corporation,
Nagpur, through its Commissioner,
Civil Lines, Nagpur.
2. The Assistant Commissioner,
Nagpur Municipal Corporation,
Gandhibag Zone-6, Mahal, Nagpur.
3. The Dy. Commissioner,
Encroachment & Enforcement Department,
Nagpur Municipal Corporation,
Gandhibag Zone-6, Mahal, Nagpur.
4. Shri Balkrishna S/o Ramnivas Sharma,
Aged 74 years,
Occupation - Business.
5. Shri Vipin S/o Balkrishna Sharma,
Prop. R.K.B. Mens Wear,
Aged 36 years,
Occupation - Business.
Respondents No.4 & 5,
R/o Flat No.1103, Tower-F,
Godrej Anandam, Ganeshpeth,
Nagpur-440018. ... Respondents
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Shri Anand Jaiswal, Senior Advocate, with Shri S.A. Sahu, Advocate
for Petitioner.
Shri A.R. Sambre, Advocate for Respondent Nos.1 to 3.
Shri C.s. Kaptan, Senior Advocate, with Shri M.S. Sharma, Advocate
for Respondent Nos.4 and 5.
CORAM : SUNIL B. SHUKRE & G.A. SANAP, JJ.
DATE : 29th SEPTEMBER, 2022
ORAL JUDGMENT (PER SUNIL B. SHUKRE, J.) :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
2. Although there have been argument and counter-argument
over the legality or otherwise of the impugned notice of demolition
dated 22-2-2021 made by the learned counsel appearing for the rival
parties in both these petitions, we find that the notice of demolition
impugned in Writ Petition No.4011 of 2022 sought to be implemented
in Writ Petition No.3230 of 2022 cannot stand to the scrutiny of law.
This notice is contradictory in nature, in the sense that while it points
out that the portion of the property in question, i.e.
Ground + 2 structure, admeasuring 56 square meters, is in
dilapidated condition, it goes on to direct the petitioner in Writ
Petition No.3230 of 2022 to demolish the entire Ground + 2 structure
of the property. Of course, it then refers to the cracks developed in
the walls and damage to the patni slab, but it does not state that
because of these cracks to the walls and damage to the patni slab, the
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entire house has been rendered a dangerous structure, requiring
demolition.
3. Shri Anand Jaiswal, learned Senior Advocate, appearing for
the petitioner in Writ Petition No.3230 of 2022, submits that the
impugned notice of demolition dated 22-2-2021 is very clear and it is
based not only on the report of the Structural Auditor, but also on the
report of the Inspection Officer of the Nagpur Municipal Corporation
and, therefore, the said notice is required to be implemented, and in
any case, once the subjective satisfaction is reached by the Officer of
the Corporation regarding dilapidated state of the building, this Court
cannot sit in appeal, is the law well-settled long back. We accept the
submission of the learned Senior Advocate on the question of the law
on the point raised by him having been settled long back, but for that
matter, there has to be a firm foundation provided by the facts of the
case. In the present case, the foundation of the facts, as seen from the
impugned notice of demolition dated 22-2-2021, is absent. This
conclusion is also supported by what we have noted after going
through the inspection report made available by the Corporation for
our perusal today. Even the inspection report is identical with the
statements made in the impugned notice of demolition. It also states
that the dilapidated portion of the building has an area of 14 x 4
square meters, which is equivalent to 56 square meters of the total
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area of the building in question, which is about 99.10 square meters.
The inspection report does not identify as to which of the portions of
the entire building has become dilapidated and which requires
immediate demolition. One of the parties obtained subsequently
another structural audit report from another Structural Engineer and
this report is not consistent with the report submitted by the earlier
Structural Engineer, on whose report the petitioner in Writ Petition
No.3230 of 2022 is placing reliance. In such a case, therefore, it is
better that a structural stability report from a reputed Structural
Engineer is obtained and thereafter a fresh decision is taken by the
Corporation regarding demolition of the structure. The entire exercise
can be directed to be completed in a time-bound manner.
4. Accordingly, we quash the impugned notice of demolition
dated 22-2-2021 and direct the Nagpur Municipal Corporation to
conduct structural stability audit of the structure in question from the
reputed Structural Engineer.
5. The Head of the Department in Civil Engineering Branch in
Shri Ramdeobaba College of Engineering and Management, Nagpur, is
appointed by consent of rival parties, as the Structural Auditor with a
request to him to conduct structural stability audit of the property
bearing House No.13, situated at Ward No.29, Circle No.7/12A,
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Division No.2, Tilak Road, Near Abhyankar Statue, Mahal, Nagpur,
with a further request to submit his structural stability report to the
Nagpur Municipal Corporation within a period of fifteen days from the
date of inspection of the building. The inspection of the building may
be done by him in the presence of the rival parties and for this
purpose, the rival parties shall provide all assistance to the Structural
Auditor so appointed by this Court.
6. The remuneration to be paid to the Structural Auditor and the
expenses of the inspection and the report shall be equally borne by the
petitioners in both these petitions.
7. We direct the Nagpur Municipal Corporation to take an
appropriate decision regarding the issue involved in these petitions
within a period of seven days from the date of receipt of the report of
the structural stability report.
8. We also direct that the entire exercise be completed within a
period of four weeks from the date of the order.
9. With the above directions, both these petitions are disposed
of. Rule accordingly. No costs.
Digitally Signed By :P D
LANJEWAR
Signing Date:03.10.2022
18:20 (G.A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Lanjewar
