Bombay High Court
Vadilal Kunwarji Gada vs The Brihanmumbai Municipal ... on 30 January, 2024
Author: G.S. Patel
Bench: G.S. Patel
2024:BHC-OS:1675-DB 917-OSWP-3259-2023.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3259 OF 2023
WITH
CONTEMPT PETITION (L) NO. 20622 OF 2023
IN
WRIT PETITION NO. 3259 OF 2023
Vadilal Kunwarji Gada & Ors ...Petitioners
Versus
The Brihanmumbai Municipal Corporation & Ors ...Respondents
Mr Shoaib Menon, with Ibrahim Menon, for the Petitioner.
Mr Rohaan Cama, with Pankaj Pandey & Smit K Nagda, for
Respondent No 2.
Mr Dharmesh Pandya, i/b Kurdukar Associates, for Contemnor No 4
in CONPL/20622/2023.
Mr Sukanta Karmakar, AGP, for the Respondent-State.
Ms Rupali Adhate, with Pooja Yadav, for the Respondent-MCGM.
Digitally
signed by
ASHWINI
ASHWINI
H GAJAKOSH
GAJAKOSH Date:
2024.01.31
12:05:54
CORAM G.S. Patel &
+0530
Kamal Khata, JJ.
DATED: 30th January 2024
PC:-
1. The Petition is a complete misadventure. It is filed by two
tenants. They are not the owners of this property called Prabhudas
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917-OSWP-3259-2023.DOC
building at Saint Xavier School Road, Vile Parle (West), Mumbai
400 056. The prayers in the Petition assail a takedown notice of 13th
June 2022 and whether directly or indirectly assail a report of the
Technical Advisory Committee ("TAC"), as can be seen from
prayer clause (b). The only two final prayers in the Petition are
prayer clauses (a) and (b), spread over five pages, from page 38 to 41.
They read thus:
"(a) that this Hon'ble Court may be pleased to issue a
Writ of Mandamus or any other proper Writ, order or
direction calling for the records and proceedings and
examining the legality validity and proprietary of the action
of issuing the Impugned Notice No. KW/354 (Pull
Down)/275/BF/AE-IV/71 dated 13/06/2022 of the
Designated Officer (Executive Engineer [Building &
Corporation at Exhibit 'N' to the Petition and the acts of
disconnecting the electricity and water to the said building
and issuing of erroneous Area Certificates i.e. Area
Certificate No. KW/90/71/OD/BF/AE-IV dated
29/05/2023 at Exhibit 'R' to the Petition; and Area
Certificate No. KW/127/71/OD/BF/AE-IV dated
09/06/2023 at Exhibit 'S' to the Petition and the issue of
Letter bearing No. Dy.Ch.E/BP/1454/WS-1 dated
24/05/2022 issued by the Chairman of TAC at Exhibit 'M'
to the Petition; and TAC Report bearing No. Dy. Ch. Engr.
(B.P.)/4122/W.S.-I dated 27/08/2021 at Exhibit 'E' to the
Petition and this Hon'ble Court may be further pleased to
direct the officers of the Respondent No. 1 Corporation to
restore the electricity and water to the said building being
Building known as 9A/9B, Prabhudas Building, having A-
Wing (being Ground Floor + 2 Floors) & B-Wing (being
Ground Floor + 2 Floors + 3 Part Floor), standing on plot
bearing City Survey Title Number Vile Parle No. 3 - 49D /
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Part C (Ulpin No. 87943288202), admeasuring 887.90
square meters, St. Xavier School Road, Vile Parle (West),
Mumbai - 400 056 and allow the Petitioners to repair the
said building.
(b) that after examining the legality and validity and
propriety of the Impugned Notice No. KW/354 (Pull
Down)/275/BF/AE-IV/71 dated 13/06/2022 of the
Designated Officer (Executive Engineer [Building &
Corporation at Exhibit 'N' to the Petition under the
provisions of Section 354 of The Bombay Municipal
Corporation Act, 1888 calling upon to vacate and pull down
the said building being Building known as 9A/9B,
Prabhudas Building, having A-Wing (being Ground Floor +
2 Floors) & B-Wing (being Ground Floor + 2 Floors + 3
Part Floor), standing on plot bearing City Survey Title
Number Vile Parle No. 3 - 49D / Part C (Ulpin No.
87943288202), admeasuring 887.90 square meters, St.
Xavier School Road, Vile Parle (West), Mumbai - 400 056
and the erroneous Area Certificates issued being i.e. Area
Certificate No. KW/90/71/OD/BF/AE-IV dated
29/05/2023 at Exhibit 'R' to the Petition; and Area
Certificate No. KW/127/71/OD/BF/AE-IV dated
09/06/2023 at Exhibit 'S' to the Petition and the issue of
Letter bearing No. Dy.Ch.E/BP/1454/WS-I dated
24/05/2022 issued by the Chairman of TAC at Exhibit 'M'
to the Petition; and TAC Report bearing No. Dy. Ch. Engr.
(B.P.)/4122/W.S.-I dated 27/08/2021 at Exhibit 'E' to the
Petition, this Hon'ble Court may be pleased to declare the
same as bad in law and quash the same and direct the
officers under employment of the Respondent No. 1
Corporation to do their duties in accordance with law and
allow the Petitioners to repair the said building and at the
same time take physical measurements of the flats of the
Petitioners."
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2. Knowing that the law on the TAC is against them, it is now
attempting to change the colour of the Petition by saying that there
is a dispute about area statements. That is not the principal frame of
prayer clauses (a) and (b). That cannot be the subject matter of writ
jurisdiction. A dispute between a tenant and a landlord about the
area that was occupied by the landlord is a factual decision which we
cannot entertain. If the tenants have an issue regarding what the
actual area is, or should be shown as, the remedies are clear in law,
and they are entitled to avail of those. They will undoubtedly have
sufficient documentation, including, not least of all, municipal
assessment records which will establish one way or the other. We are
not in our writ jurisdiction going to entertain fanciful claims for
larger areas. We are shown photographs of the building. It is entirely
evacuated. It is wholly uninhabitable. More than anything else, this
now poses a serious danger to others in the vicinity.
3. Our recent order of 23rd January 2024 in Writ Petition (L)
No 836 of 2024, Agra Buildings Tenants Occupants Association v
Municipal Corporation of Greater Mumbai and Ors, 1 will substantially
cover the principles in law. That also was a question of a building
and its structural condition. Paragraphs 6 to 11 and 13 to 15 read as
follows:
"6. On considering this material and on the basis of its
independent assessment, the TAC concluded that the
building was indeed reparable but by demolishing and
vacating some more distressed portions of it. Consequently,
the TAC categorized the building as C-2A. But the TAC
noted that these repairs had to be done urgently. It said that
1 2024:BHC-OS:1385-DB
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if these repairs were not done in six months, the building
would fall in to the C-1 category.
7. There then followed on 29th December 2023 the
impugned notice at Exhibit 'P' at page 88. This required
the building to be pulled down entirely. It was an order
under Section 354 of the MCGM Act.
8. The reliefs in the Petition are firstly to quash this
notice of 29th December 2023 and secondly, to stay its
operation. The third prayer clause (c) is for an extension of
time to these tenant Petitioners to carry out repairs.
9. The entire structure of the TAC now requires, in our
view, a re-examination. It is being widely misused and it is
being used particularly to obliterate the rights of owners of
the property. The entire submission seems to be that an
owner cannot re-develop his or her own property and enjoy
the benefits of fruits of re-development and development
potential without the consent of tenants. This is being done
despite the fact that tenancies are in no way adversely
affected by either reconstruction or redevelopment. That is
settled law by a judgment of the Supreme Court apart from
the fact that provisions of The Maharashtra Rent Control
Act, 1999 and the MCGM Act itself protect these very
rights.2 In other words, these low rent tenancies are
effectively usurping the rights of property owners. No
tenant ever offers to purchase the property itself.
10. The TAC began with a set of guidelines issued as an
interim order by this Court in 2014 in a Writ Petition filed
by the Municipal Corporation of Greater Mumbai
("MCGM") against the State of Maharashtra.3 The
MCGM thought it fit to adopt these guidelines and to
2 Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd, (2014) 14
SCC 1. V
3 Interim Order dated 23rd June 2014 in Writ Petition No 1080 of 2015,
Municipal Corporation of Greater Mumbai v State of Maharashtra.
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incorporate them as part of its policy. This is why when that
Petition came up for final disposal before a Bench of AS
Oka J, (as he then was) and RI Chagla J on 28th February
2018, the Court commented that nothing could now be
done in regard to the guidelines because these were now
part of the MCGM policy, but it did say that no Court could
have entered the realm of policy and frame these guidelines
in 2014 to begin with. That crossed the line between judicial
functions and executive functions and was in violation of
established principles and the doctrine of separation of
powers.
11. What has happened after that is even more peculiar.
Now the entire TAC set of guidelines has led to people
believing that these are matters of right and that Writ
Courts can somehow sit as if in first appeal from
recommendations of the TAC. In other words, the
expectation now is that a Writ Court in exercise of its
jurisdiction under Article 226 of the Constitution of India
will decide which of several competing reports to choose
and will pronounce on the structural stability of a building.
To put it bluntly, that is wholly untenable. It borders on the
absurd. The purpose of creating the TAC was to ensure that
rapacious landlords did not in alleged connivance with
MCGM officers pull down perfectly sound structures. But
we have every reason now to question the premise of this to
begin with especially in tenanted structures because we do
not see why the owner of a property needs to wait for a
building to become dilapidated to propound a proposal for
redevelopment, if that is his right and is part of his right to
the enjoyment and the full benefit of ownership of the
property in question. In a fit case, we may need to revisit
this entire issue.
13. But what is the Petitioner's complaint? They say that
they have carried out some repairs. At least one
correspondence at 96 from the Petitioners alleges that the
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building is perfectly sound and has become strong and
stable. The photographs annexed to the Petition including
those at pages 60, 62 and 63 plainly indicate to the contrary.
What are the repairs that have been carried out? The
Petition itself does not elucidate.
14. Mr Waghmare learned Advocate for the Respondent
MCGM has instructions from Mr Subodh Bamborde, Jr
Engineer (Bldg & Factory Dept) 'A' Ward, to say that the
only so-called repairs that have been carried out are the
installation of electric meters (and photographs are
helpfully provided at pages 64 and 65) and some propping.
Faced with this what the Petitioners really say is that it was
not possible to carry out repairs within six months and
therefore their request for a further extension of time
should be granted.
15. We ask: At what cost? At whose cost? The rights of
the property owner are one thing. But there is also to be
considered the fact that six months have passed without any
significant work other than electrical meters and some
propping. If this building on the busy Mahatma Gandhi
Road collapses, the consequences could be catastrophic not
just for the Petitioners but for others in the city and most
particularly for MCGM officers. It is well known that
whenever a building collapses the first thing that happens is
that FIRs are filed against the property owner and MCGM
officers. Nobody ever takes actions against the tenant
although that tenant has claimed to have carried out
"repairs"."
4. In that case, we also rejected the plea for an extension of time
to vacate and in the meanwhile to restore power and water
connections. We allowed in paragraph 21 the Municipal Corporation
of Greater Mumbai ("MCGM") officers to enter the premises for
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the purpose of area measurement. We make that allowance here as
well. The MCGM officers are at liberty to inspect the building for
the purposes of area measurement or for such other purposes as the
MCGM officers think fit.
5. The ad-interim order of 26th June 2023 read thus:
"1. Mentioned. Not on board. Upon mentioning, taken
on production board.
2. It is necessary that the respondent no.1-Municipal
Corporation files its reply in this matter in order to clarify
the position of the petitioner no.2 as tenant or otherwise.
This is all the more necessary because Municipal
Corporation has issued Area Certificate showing the
petitioner no.2 to be the tenant and subsequently, the
Municipal Corporation issued two Area Certificates, which
did not show the petitioner no.2 to be tenant and name of
the petitioner no.2 did not figure in the subsequent area
statements.
3. Learned counsel for the respondent no.1-Municipal
Corporation seeks one week's time to file reply clarifying
the issue and states, on instructions, that, for one week from
today, the respondent no.1-Municipal Corporation would
not act upon the notice issued for demolition. This
statement is accepted till the next date.
4. It is clarified that further occupation of the building
by the petitioners, till the next date, shall be at their own
risk.
5. Stand over to 5th July 2023."
6. This argument about area statements was raised there,
although the order in question did not address the frame of the
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prayers in the Petition. As we have noted from prayer clauses (a) and
(b) set out above, it is only at the end of prayer clause (b) that there
is some reference to an area certificate. That area certification has
nothing to do with structural condition. It is preposterous to suggest
and cannot be accepted that a tenant's area statement will somehow
determine whether a dilapidated and danger structure continues.
From a public perspective that would be thoroughly irresponsible,
and we have no hesitation in comprehensively rejecting any such
submission. The fact that there is a dispute in regard to the area of
the tenancy is not a reason to allow a dilapidated and dangerous
building to continue. The categorization as C-1 clearly indicates that
the building is not only uninhabitable, in this case not inhabited, but
is in ruinous and dangerous condition. Private interests of tenants
cannot be allowed to compromise other settled rights including the
public responsibility of the MCGM in regard to safety.
7. The rights of tenants are adequately protected in law, both
under the Maharashtra Rent Control Act, 1999 and under the
Mumbai Municipal Corporation Act, 1888. There is absolutely no
reason to keep re-agitating this theory that a tenant has right
superior to that of a landlord or that until the area certification is to
the tenant's satisfaction, nothing can be done to the building.
8. In any case, there is also a dispute about the Petitioners' claim
to tenancy. Mr Cama for the 2nd Respondent, the owner of the
building does not even accept that the Petitioners are tenants to
begin with. Obviously, the Petitioners will need to establish their
claim to tenancy in a Court of appropriate jurisdiction. We have not
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in this order accepted the Petitioners' claim or assertion that they
are tenants.
9. The ad-interim order of 26th June 2023 is vacated.
10. The Petition is rejected. There will be no order as to costs.
(Kamal Khata, J) (G. S. Patel, J)
30th January 2024
