Bombay High Court
Ajay S/O Rambhau Vinchurkar vs The State Of Mha. Thr. Pso Ps City Kotwali ... on 11 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi, M.W. Chandwani
2024:BHC-NAG:391-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.123 OF 2023
Rahul s/o Rajendra Jain, Aged 43 years,
Occ. Business, R/o Kusumkunj, Mangilal
Plot, Amravati, Tq. & Dist. Amravati.
... PETITIONER
VERSUS
1. The State of Maharashtra through,
Additional Chief Secretary, Home
Department, Mantralaya, Mumbai 32
2. The Commissioner of Police,
Amravati City, Amravati, Amravati
Office At Camp, Amravati.
3. PSO City Kotwali Police Station,
Amravati.
4. Mrs. Nilima Aaraj, Senior Police
Inspector and investigating Officer,
Presently Posted at Police Station
City, Kotwali, Amravati.
5. Suhas Nandkishore Chavhan
(Informant) Aged about - Major,
Occu. Service, Presently working as
Sub-Engineer, and Inspection Officer,
Circle -2, Amravati Municipal
Corporation, Amravati.
... RESPONDENTS.
WITH
2
CRIMINAL APPLICATION NO.259 OF 2023
Suhas s/o Nandakishor Chauhan, aged
43 years, Occu. Service, R/o Vidhyut
Nagar, Behind V.M.V. College, Amravati,
Tq. And Dist. Amravati.
... APPLICANT
VERSUS
The State of Maharashtra, through :
Police Station Officer, City Kotwali
Police Station, Amravati, Tq. And
Dist. Amravati.
... NON-APPLICANTS.
WITH
CRIMINAL APPLICATION NO.258 OF 2023
Ajay s/o Rambhau Vinchurkar, aged 48
years, Occ. Service, R/o Kiran Nagar to
Farshi Stop Road, Subhash Colony,
Amravati, Tq. & Dist. Amravati.
... PETITIONER
VERSUS
The State of Maharashtra, through
Police Station Officer, City Kotwali
Police Station, Amravati, Tq. & Dist.
Amravati.
....NON-APPLICANT
_____________________________________________________________
Shri F.T. Mirza, Advocate a/w Shri Shaml J. Kadu, Advocate for the
petitioner (in Cri.W.P. 123/2023).
Shri A.S. Mardikar, Senior Advocate a/b Shri Ved Deshpande,
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Advocate for the applicant. (in Criminal Application Nos.258/2023
and 259/2023.
Shri Anup Badar, Addl.P.P. for the State.
Shri Ishant V. Tambi, Advocate for the Intervener.
______________________________________________________________
CORAM : VINAY JOSHI AND M.W. CHANDWANI, JJ.
RESERVED ON : 18.12.2023.
PRONOUNCED ON : 11.01.2024.
JUDGMENT :
(Per : Vinay Joshi, J.)
1. By invoking inherent jurisdiction of this Court, the
petitioner/applicants are seeking to quash the First Information Report
bearing Crime No.540 of 2022 registered with the Kotwali Police
Station, Amravati City for the offence punishable under Section 304-A,
308 read with Section 34 of the Indian Penal Code ('IPC'). All
proceedings relating to the same First Information Report ('FIR) raises
a common issue for consideration hence, they are taken together for
disposal.
2. Since anticipated things happened at the cost of five human
lives we recall a proverb 'Think of devil and devil is here'. An old
dilapidated building consisting of ground plus two floors collapsed on
30.10.2022 claiming life of five innocent labourer. Initially, the crime
was registered under Section 304-A of the IPC at the instance of
applicant Suhash Chauhan a Deputy Engineer (designated Officer) at
Municipal Corporation, Amravati, who has been arraigned as an
accused during the course of investigation. Applicant Suhas Chauhan
was the Executing Authority of the administrative orders passed by the
Municipal Commissioner. He owns a responsibility of regulating the
construction and other related activities within the jurisdiction of
Amravati Municipal Corporation (for short hereinafter referred to as
'the Corporation').
3. A building known as 'Rajendra Lodge and Commercial
Building' situated at Prabhat Square, Amravati was in dilapidated ruins
condition which led to declare it as a dangerous felling in (C-1)
category. The Corporation has issued notices to the owner and
occupants of the tenement in terms of Section 264, 268 and 397A of
the Maharashtra Municipal Corporation Act (for short 'the MMC Act').
1st and 2nd floor of the building was occupied by a lodging house owned
by applicant Rahul Jain. Ground floor consisting of five shops was
owned by different persons. The 100 years old building became
dangerous and declared so. Ground floor occupants have procured a
Structural Engineers Stability Certificate of the ground floor premises.
In response to the notices, 1st and 2nd floor was demolished by its owner
applicant Rahul Jain on 23.07.2022. However the ground floor portion
was not demolished. One of the shop owner Mr. Shaha started repairs
work which resulted into collapsing of entire structure. In said mishap
five workers burried under debris and died.
4. Initially, applicant Suhas Chauhan (the Corporation Officer)
has lodged the report against one of the shop owner Harshal Shaha and
Sushila Shaha, who became a cause for collapse by starting repairs
without permission. Registration of crime has rolled the process of
investigation. During the course of investigation, applicant Suhas
Chauhan (Deputy Engineer) and applicant Ajay Vinchurkar (Sectional
Engineer) as well as applicant Rahul Jain (owner of 1 st and 2nd floor)
were arraigned as an accused by adding Sections 304, 308 read with
Section 34 of the IPC. Both employees of the Corporation i.e. Suhas
Chauhan and Ajay Vinchurkar have questioned the tenability of
prosecution stating that they have no role in the alleged mishap.
Likewise, applicant Rahul Jain also sought to quash FIR stating that he
has already demolished 1st and 2nd floor however he has been falsely
implicated. Ill fated widow of one of the deceased has intervened in all
petitions/applications by blaming applicants jointly responsible for the
occurrence. In short intervener has endevoured to impress that
applicants are also equally responsible with Shaha couple for mishap,
which resulted into loss of lives and therefore, the resistance.
5. For the sake of convenience it would be apposite on our
part to make brief reference of the events in tabular form, as below :
Dated Event
31.07.2019 First notice of the Corporation under Sections 264, 268 and
397A of the MMC Act to all occupants of the building.
28.02.2020 Second notice of the Corporation as above.
09.03.2020 Reply by applicant Rahul Jain to the Corporation to the
notice of eviction dated 28.02.2020 and seeking time for
demolition.
12.03.2020 Communication of Rahul Jain to the Corporation seeking
time to demolish his 1st and 2nd floor structure.
17.07.2020 Similar letter of Rahul Jain to the Corporation seeking time
for demolition.
09.06.2021 Communication by the Corporation to Electricity Board for
disconnecting electric supply of the entire building.
10.06.2021 Letter by Rahul Jain to ground floor occupants directing to
vacate for demolition of 1st and 2nd floor.
11.06.2021 Letter by ground floor occupant Mr. Shaha to applicant
Rahul Jain requesting to carefully remove 1 st and 2nd floor
structure.
14.06.2021 Letter by application Rahul Jain to the Corporation
requiring Corporation to demolish the structure, as ground
floor occupants did not vacate.
21.06.2021 Reply letter by ground floor occupant Mr. Shaha to
applicant Rahul Jain asking to demolish 1 st and 2nd floor
structure immediately.
19.07.2021 Communication by the Corporation to Local Police directing
to vacate the entire building being dilapidated.
18.08.2021 Communication by the Corporation to all occupants for
immediate demolition of entire structure.
03.09.2021 Letter by Applicant Rahul Jain to the Corporation
requesting to demolish the structure.
25.11.2021 Reminder letter by the Corporation to Electricity Board for
disconnection of electric supply.
17.06.2022 Letter by the Corporation to all occupants directing to
demolish entire building within 7 days.
20.07.2022 Letter by the Corporation to all occupants as above.
23.07.2022 1st and 2nd floor structure was partially removed by
applicant Rahul Jain.
22.07.2022 Letter by Mr. Shaha to the Corporation and applicant Rahul
Jain requesting to immediate demolition of structure.
19.09.2022 Letter by all ground floor occupants to the Corporation and
Rahul Jain for removal of debris lying on the ground floor.
30.10.2022 Entire building collapsed
6. In addition, we would take a note that ground floor
occupant Mr. Shaha has filed Regular Civil Suit No.458 of 2021 against
the Corporation and others restraining them from demolishing the suit
structure in pursuance of demolition notices dated 28.02.2020 and
18.02.2021. In said suit, Mr. Shaha sought temporary injunction
however it was rejected by the Trial Court vide order dated 29.03.2022.
Ground floor shop occupants have procured a Structural Stability
Report from Structural Auditor Chetan T. Prajapati dated 01.09.2021.
The intervener has produced several communications. He has also
produced photographs depicting the position of entire building,
position after removal of 1st and 2nd floor, and debris lying on the top of
the ground floor.
7. Undisputedly, the Corporation has issued several notices for
removal of ruins and dilapidated structure. 1 st and 2nd floor owned by
applicant Rahul Jain was removed on 23.07.2022, whilst remaining
structure entirely collapsed on 30.10.2022. Moreover, there is no
dispute that while one of the ground floor occupants Mr. Shaha has
started repairs work, the entire structure collapsed taking life of 5
laborers. At the instance of the report lodged by the Officer of the
Corporation, crime was registered against the ground floor shop
owner/occupant Mr. Shaha who started repairs work. During the
investigation, the Police have arraigned the Corporation Officers (Suhas
Chauhan and Ajay Vinchurkar) and 1 st and 2nd floor owner Rahul Jain
as an accused.
8. The blame game started after collapse of the building. The
stand taken by the Corporation Officers (Suhas Chauhan and Ajay
Vinchurkar) is quite similar whilst the stand of Rahul Jain (1st and 2nd
floor owner) is distinct. Certainly stand of ground floor occupant Mr.
Shah would be different, but he is not before the Court. Everyone
endevoured to shift blame on the other, claiming certain excuses.
9. Learned Senior Counsel Mr. Anil Mardikar made exhaustive
submissions on behalf of the Municipal Officers (Suhas Chauhan and
Ajay Vinchurkar) which are setout below :
i) Applicants Corporation Officers were bona fidely
discharging their official duty.
ii) Applicant Suhas Chauhan himself has issued
statutory notices for demolition.
iii) Applicants have issued notices to all occupants for
vacating the premises for removal.
iv) Applicants have taken steps of issuing letter to
MSEDCL for disconnection of electric connection to
facilitate demolition work.
v) Applicants have issued notices to concerned Police
Authority seeking removal of occupants to facilitate
demolition work.
vi) Ground floor occupants submitted structural
stability certificate stating that ground floor
premises can be made good by repairs.
vii) Civil Suit filed by the ground floor occupant Mr.
Shaha against the Corporation is pending.
viii) In pursuance of notices, 1st and 2nd floor was
removed.
10. The entire action of the Corporation was bona fidely
undertaken in discharge of lawful duty. At the most applicants can be
blamed towards dereliction of duty amenable to the departmental
action.
11. Learned Counsel Mr. Mirza appearing for the 1 st and 2nd
floor owner Rahul Jain made following submissions :
i) Since inception Rahul Jain was ready and willing to
demolish 1st and 2nd floor structure in response to
the notices.
ii) Ground floor occupants have not removed
themselves from the premises which has delayed
removal of 1st and 2nd floor structure.
iii) Applicant Rahul Jain has repeatedly issued notices
to the ground floor owners for discontinuing their
business activities and to co-operate for removal of
1st and 2nd floor structure.
iv) Civil Suit was filed by the ground floor shop owner
Mr. Shaha, which caused delay.
v) In pursuance of notice, applicant Rahul jain has
demolished 1st and 2nd floor structure on
23.07.2022.
vi) Applicant Rahul Jain has also removed the debris
lying on the roof of ground floor.
vii) Action against applicant Rahul Jain was mala fide
and tainted.
12. Learned Counsel Mr. Tambi appearing for the intervener
made following submissions :
i) Time to time notices were issued to all the
occupants but they failed to remove the dilapidated
structure.
ii) Entire building fells under C-1 grade category which
needs immediate demolition.
iii) The Corporation Authorities though issued notices
have not discharged their lawful duties within
stipulated period.
iv) The Corporation failed to take immediate action in
terms of provisions of the MMC Act, which has
resulted in the fatal collapse of building claiming
five lives.
v) The Corporation Authorities ought to have taken
requisit steps in terms of Section 264 and 268 of the
MMC Act.
vi) 1st and 2nd floor occupant Rahul Jain intentionally
caused delay in removing 1st and 2nd floor structure.
vii) Rahul Jain has not removed 1st and 2nd floor
structure in entirety, but only demolished walls and
kept debris lying on the roof of the ground floor.
viii) All of them have conscious knowledge that their
inaction may lead to cause death of the occupants
and passerby.
13. Learned Addl. Public Prosecutor Mr. Badar has reiterated
the stand taken by the intervener. Moreover he would submit that the
investigation is at the verge of completion. During the course of
investigation, several statements have been recorded depicting total
willful negligence/inaction on the part of the applicants/petitioners.
The reply-affidavit contains name of several witnesses stating that
debris of 1st and 2nd floor were lying on the top of the ground floor. It
was the duty of the Corporation Officers to demolish dangerous
structure but they have not performed their duties faithfully. It is
submitted that since the investigation is in progress, it cannot be
throttled at initial stage. The uncontroverted allegations prima facie
makes out a case for trial, hence urged for rejection.
14. Learned Senior Counsel Mr. Mardikar also attracted our
attention to the order passed by this Court while granting pre-arrest
protection to applicants Suhas Chauhan and Ajay Vinchurkar. It is
argued that this Court while granting pre-arrest protection expressed
that fault lies with Architecture and Structural Engineer furnishing
stability report. The Court also expressed that the Investigating Officer
shall take necessary steps to book the real culprits. Moreover, it is
argued that prima facie culpability cannot be attributed towards the
applicants Suhas Chauhan and Ajay Vinchurkar. We are not much
impressed by the observations of learned Single Judge made in the
context of granting pre-arrest bail, which has its own periphery and
different parameters. The matter has to be looked in broader
perspective since the challenge is pressed to the very tenability of the
prosecution that too at initial stage.
15. We have gone through the Structural Stability Certificate
issued by the Architecture Chetan Prajapati. On examination and
verification of the building as required under the provisions of 265A of
the MMC Act, the Architect had issued a certificate stating that building
falls in the C-1 category to be demolished immediately with all safety
measures under the strict supervision of Structural Engineer. After
taking various tests including Ultrasonic Pulse Velocity Test (NDT) and
Rebound Hammer Test (NDT), he has drawn following
Conclusions/recommendations in the report :
Conclusions :
1. Quality of material is very poor.
2. Heavy corrosion of the Steel member is found.
3. Nondestructive test such as Rebound hammer test, UPV
test shows Very Poor strength of concrete.
4. Major Cracks in column, beam and brick masonry wall
is seen.
5. Leakages are seen at most of the places on wall and
slab of the structure, due to which peeling of plaster
and color is seen.
6. Major deflection in slabs of almost in all floors is found.
7. Overhead tank (OHT) is damaged.
8. Falling down of plaster and exposure of brick masonry
at many places is found.
9. Additional Dead load is provided on floor by brick
masonry.
10. Parapet wall of all floors is in worst condition.
11. Staircase case area is in satisfactory condition at this
stage.
12. Ground floor walls are in satisfactory conditions at this
stage and can be avoid demolishing or it will be as per
site condition after course of demolition.
13. First floor walls (few walls) at entrance or wall above
shop 3 and shop 4 are also in satisfactory condition but
due repiaring work of ground floor slab or demolition
work stability of wall will reduced.
14. It is very difficult to repair building as sudden failure of
components of building is found during site inspection.
15. Only by hand contact to wall falling down of plaster at
many places is found showing very low strength of
material.
16. Algae growth is seen on components of building.
17. It is found that girder of adjoining building is
rest/supported on walls of second floor hence it is
necessary to avoid removal or demolition of west side
wall of this building and therefore propping to this wall
will required.
Recommendation :
In view of the above conclusions and various
tests carried out on the said structure/building and due
situated in crowded area/traffic area "RAJENDRA LODGE &
COMMERCIAL MARKET" has to be Evacuated Demolition
Immediately but do not remove/demolished west side wall as
it is found that attached building/detached building/
neighbors building/adjoining building taken support from the
wall of this building, and therefore propping to this wall will
required to avoid collapse of wall (or as per site condition
under the guidance of structural engineer). After
reconstruction or providing support to adjoining building,
Propping can be removed and also evacuated demolished of
west side wall can be complete step by step. The said work is
to be carried out under supervision of structural engineer
strictly with all safety measures.
It is also possible to avoid removal of ground
floor wall as at this stage it is in satisfactory condition (it is
fully as per decision/requirement of all owners) and therefore
it will be necessary to repair or reconstruct ground floor slab
(temporary) without providing load on ground floor wall
under supervision of structural engineer. It structure is not
demolished fully or if ground floor wall is not demolished
then it will be necessary to arrange structural inspection after
every six months as quality of material is weak and age of
building is more. In our opinion the said building will be
structurally safe and stable after complete evacuated
demolition and reconstruction of building."
16. No one disputed that the entire structure was 100 years old,
and in dilapidated condition. Time and again, notices have been issued
by the Corporation for demolition by placing the structure in C-1
category. The Structural Stability Report though suggests that it is
possible to avoid removal of ground floor however it was one of the
possibility. The entire tenor of report was that the building was in ruins,
dilapidated condition. We would like to reiterate the final opinion of
the Architect and Structural Engineer that "in our opinion the said
building will be structurally safe and stable after complete evacuated
demolition and reconstruction of building", which is self speaking.
Undoubtedly, the Corporation has issued the first notice on 31.07.2019
stating the building to be ruinous and totally in dangerous condition.
The notice indicates that the building was approximately 100 years old.
There is every possibility that it may collapse at any moment, which
would take lives not only of occupants but of passersbies too.
17. It is the main contention of the learned Senior Counsel Mr.
Mardikar that the Municipal Authorities did their best by issuing
repeated notices to the occupants and made every endevour to
facilitate the demolition. Our attention has been invited to the notices
dated 31.07.2019, 28.02.2020 and 18.08.2021 to impress that the
Corporation Authorities have taken necessary steps for demolition.
Moreover, it is emphasized that besides notices to the occupant, letters
have been issued to MSEDCL (on 19.06.2021, 25.11.2022) for
disconnecting the electric supply, as well as on 19.07.2021 letter was
issued to the Police asking them to vacate the premises in terms of
Government Resolution of the year 2015. It is submitted that since
Structural Stability Report was procured by the ground floor occupants
as well as civil suit was pending, it caused delay in taking further action
on the part of the Corporation. According to him, entire action of the
Corporation was bona fide and at the most, negligence can be
attributed towards the Officers. Moreover, it is submitted that by any
stretch of imagination criminal liability cannot be fastened on the
Officers of the Municipal Corporation.
18. We deem it necessary to reproduce Section 264 of the MMC
Act which has set out the mechanism for the removal of dangerous
structure :
"264. Removal of structures, etc., which are in ruins or likely
to fall.
(1) If it shall at any time appear to [the Designated Officer]
that any structure (including under this expression any
building, wall, parapet, pavement, floor, steps, railings, door
or window frames or shutter or roof or other structure and
anything affixed to or projecting from or resting or any
building, wall, parapet or other structure) is in a ruinous
condition or 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,
[the Designated Officer] may, by written notice, require the
owner or occupier of such structure to pull down, secure,
remove or repair such structure or thing or do one or more of
such things and to prevent all cause of danger therefrom.
(2) [The Designated Officer] may also, if he thinks fit, require
the said owner or occupier by the said notice, either forthwith
or before proceeding to pull down, secure, remove or repair
the said structure or thing, to set up a proper and sufficient
hoard or fence for the protection of passers by and other
persons, with a convenient platform and hand-rail if there be
room enough for the same and [the Designated Officer] shall
think the same desirable to serve as a footway for passengers
outside of such hoard or fence.
(3) If it appears to [the Designated Officer] that the danger
from a structure which is ruinous or about to fall is imminent,
he may, before giving notice as aforesaid or before the period
of notice expires, fence off, take down, secure or repair the
said structure or take such steps or cause such work to be
executed as may be required to arrest the danger.
(4) Any expenses incurred by [the Designated Officer] under
sub-section (3) shall be paid by the owner or occupier of the
structure.
(5) (a) Where [the Designated Officer] is of opinion, whether
on receipt of an application or otherwise, that the only or the
most convenient mean by which the owner or occupier of a
structure such as is referred to in sub-section (1) can pull
down, secure, remove or repair such structure, is by entering
any of the adjoining premises belonging to some other person
3[the Designated Officer] after giving such person a
reasonable opportunity of stating any objection may, if no
such objection is raised or if any objection which is raised
appears to him invalid or insufficient, by an order in writing
authorise the said owner or occupier to enter such adjoining
premises.
(b) Every such order bearing the signature of [the Designated
Officer] shall be a sufficient authority to the person in whose
favour it is made, or to any agent to person employed by him
for this purpose, after giving to the owner of the premises
reasonable written notice of his intention so to do, to enter
upon the said premises with assistants and workmen, at any
time between sunrise and sunset, and to execute the
necessary work.
(c) In executing any work under this section, as little damage
as can be, shall be done to the adjoining owner's property and
the owner or occupier of premises for the benefit of which the
work is done, shall-
(i) cause the work to be executed with the least practicable
delay;
(ii) pay compensation to any person who sustains damage by
the execution of the said work."
19. The statues itself vests variety of powers and provide
mechanism for enforcing the obligation. The Authorities are
empowered to take all forcible measures against such occupants as
permissible in law. Section 268 empowers the Authority to forcibly
vacate the building in certain circumstances. The plain, duty and
obligation is to ensure that dangerous structures which are in ruinous
state or likely to fall down are removed if they are in municipal limites.
If the laws are not enforced, the result can only be total lawlessness.
20. No doubt the Corporation has initiated action in terms of
Section 264 of the MMC Act on 31.07.2019. It was followed by two
successive notices and issuance of letters to different authorities to
facilitate demolition. However the question lingers in our mind
whether is it sufficient for the Corporation Authorities, who are
responsible and obliged to take the things to the logical end. Can the
Corporation shed its responsibility by merely issuing repeated notices
without further action. Though the pendency of civil suit was pointed
to us however temporary injunction was rejected meaning thereby
there was no hurdle for the Authority to go on with the statutory
obligation.
21. Learned Counsel Mr. Tambi took us through the
observations of this Court in case of Suo Motu Public Interest Litigation
No.1 of 2020 (High Court on its own motion (In the matter of Jilani
Building at Bhiwandi) vs. Bhiwandi Nizampur Municipal Corporation
and ors.) decided on 26.02.2022 which reads as below "
"89. We have noted the provisions of law which recognize an
obligation of the owners/occupants to maintain the premises so that
they are safe for human living. In the event the structure/building
dangerous, strict enforcement of the provisions of law is expected
from the municipal authorities against the owners and the occupants
of such structures/building. It is clear that variety of powers are
available with such authorities to enforce such obligations. It is also a
lawful duty of these officers not to turn a blind eye to the ruinous
buildings, and by their inaction, bring about a situation that the
building/structure collapses and residents lose their lives. In such
event, not only the persons who own the building but also those who
permit ruinous buildings to stand, become accountable and
responsible for the consequence of such collapses. The tendency of
those who knowingly permit occupation of ruinous
buildings/structures is also required to be commented upon. If there
is resistance of the occupants to vacate the buildings which are
ruinous, then necessarily, not only in the interest of the residents of
such building but also those who occupy the adjoining premises and
those who are likely to be affected in the event of unfortunate
collapse, becomes a matter of serious concern. In such situations, it is
expected that the authorities take all forcible measures against such
occupants as permissible in law. If such occupants in this situation
resist the action being taken and approach the Civil Court, the Civil
Court in such a situation needs to be extremely slow as noted by the
Co-ordinate Bench of this Court in Mohd. Talib Habib Shaikh (supra)
as any interference by the Civil Court may endanger the lives of
others.
90. In our considered opinion, there is an urgent need of a collective
social consciousness to be inculcated in our fellow citizens living in
unsafe buildings. The adamant attitude of residents to vacate the
buildings which are declared to be ruinous needs to be strictly dealt.
The municipal machinery needs to enforce the mandatory
compliance of structural audits to be submitted by the owners of the
buildings as per the requirement of law, failing which, actions need
to be taken against such owners who do not undertake structural
audit of old buildings. This is the need of the hour. There is yet
another aspect, also there is no guarantee that the new buildings
(less than 30 years old) are safe and would not collapse as the
experience has shown. In regard to such buildings, the municipal
authorities are required to take all precautions also of securing an
undertaking from the developer/builder or from whosoever is
constructing the building, that the entire structure of the building
would be safe for its occupants on all aspects of its user, for the
stipulated period as the law may require, and as to a declaration as
to the safe life of the building in normal circumstances. In our
opinion, in the absence of such guarantee and assurance of safety,
the lives of the occupants can certainly be said to be unsafe to occupy
the building, where such assurance has been compromised. Thus, all
provisions under the law and the D.C. Regulations need to be strictly
enforced on this front.
91. We also note from the current statistics which are made
available by the Mumbai Municipal Corporation on its website that
there are 407 dilapidated buildings in Mumbai. There may be similar
structures within the Municipal jurisdiction of Corporations in the
vicinity of Mumbai and other places. The planning authorities,
therefore, are required to take emergent actions in regard to such
ruinous structures and save innocent lives being lost in possible
building collapse. Various enactments conferring powers with the
Municipal Corporation are replete with provisions strengthening the
hands of the municipal officers to take action against such
dilapidated buildings. The concerned officers not only need to be
vigilant but also inculcate a willingness to take actions, and that too,
by overcoming all odds and possible interferences/hindrances which
may be created by unscrupulous, unconscionable and corrupt
elements, in obstructing their lawful discharge of duties. There may
be extraneous forces which may operate in this situation and derail
any action to be taken in respect of a dilapidated building. However,
as it would be the ultimate accountability and responsibility on the
municipal officers, in the event of an unfortunate building collapse,
the officers need to overcome all such pressures and discharge their
duties with utmost accountability as obligated in law.
....
93. We also cannot forget the role of the municipal officers
and its law officers in not showing promptness and/or in delaying to
move the Courts for vacating any orders passed on illegal
constructions and dilapidated buildings. They cannot remain mute
spectators in the event the situation requires a stay or injunction,
warranting to be urgently vacated. The Municipal Commissioner
needs to take appropriate actions on the concerned officials, if it is
found that prompt actions are intentionally not being taken or are
delayed for extraneous purposes and for unexplainable."
22. The above observations speaks for itself largely
emphasizing the role and responsibility of the Municipal Officers while
enforcing the statutory duty. There is no denial that the MMC Act
authorizes the Corporation to demolish the structure in certain
exigencies. However, apparently for three years, the Corporations has
only issued notices but did nothing more than that. Since inception i.e.
from the first notice dated 31.07.2019, the Corporation was well aware
that building was in dilapidated condition and at the verge of collapse
at any moment, which would be dangerous for the occupants and
passersby. Besides categorizing building in C-1 category still for next
three years the building was not demolished for one or the other reason
but finally on 30.10.2022, it did happened as expected right from the
first notice. Such building may not immediately collapse, but venerable,
the occupant thereof must considered themselves lucky till their fortune
changes. It is a question of fact for consideration whether total inaction
on the part of the Corporation can be mere negligence or intentional
connivance or something more than that. In law, an omission is a
failure to act, which generally attracts different legal consequences. In
the criminal law, an omission will constitute an actus reus and give rise
to the liability when the law imposes a duty to act and the person is in
breach of that duty.
23. Final report has not been filed meaning thereby the
Investigating Agency has not arrived on the particular conclusion that
under which penal Sections the final report is to be filed against
Municipal Officers. Several statements have been recorded as well as
various notices forms the part of record. Therefore, at this preliminary
stage it is not possible for us to form a definite opinion that no prima
facie case exists against the applicants. The object of Section 482 of
Code of Criminal Procedure (the Code) is to prevent abuse of the
process of Court and to secure the ends of justice. It is well settled that
the power under Section 482 of the Code should be used sparingly and
with circumspection to achieve the said object. Exercise of jurisdiction
under the inherent power at initial stage despite triable material
amounts to throttling the process of law at the very initial stage. It is a
matter of trial to establish as to why the Corporation has slept over and
allow to exist a life risk on public road for long three years.
24. This Court in case of Municipal Corporation of Greater
Mumbai vs. State of Maharashtra and ors. 2014(6) Bom.C.R.860 has
laid down guidelines in paragraph 9 of the decision pertaining to cases
felling in the category C-1. Particularly, guideline no.(c) reads as
below :
"c) The Corporation shall consider the report of Structural
Engineer appointed by the owners and/or occupants
classifying the building as dilapidated and dangerous. If
the owners and/or the occupants bring conflicting reports
on the status of the building, the Corporation shall refer
the matter to Technical Advisory Committee (TAC) under
the Chairmanship of Director (ES&P) with at least 3 other
members, viz. City Engineer, Chief Engineer (DP) and
Chief Engineer (P&D)".
25. There is no explanation whether the Structural Stability
Report has been referred to the Technical Advisory Committee.
Everything is a matter of trial and therefore, at this stage, we are not
inclined to exercise our jurisdiction in favour of the Corporation
Officers.
26. So far as the case of applicant Rahul Jain is concerned,
absolutely we are not convinced to hold that the prima facie case does
not exist against him. It is argued by the intervener that only upper
walls have been removed but entire debris were kept lying on the top
of the ground floor. Rather accumulation of debris making uneven load
joined the cause for collapse. Though Rahul Jain has made a stout
claim that he is law abiding person and has removed 1st and 2nd floor on
23.07.2022 but it is an empty compliance. Unless the debris have been
removed, it cannot be treated that he has complied the notice under
Section 264 of the Act. If debris are not entirely removed, it is a mere
eye-wash.
27. The reply filed by the State says that some of the
statements are on the point that Rahul Jain has desisted workers from
removing the debris and left it to the fate of the ground floor
occupants. Moreover, ground floor occupants also issued a notice to
Rahul Jain seeking removal of debris, but he did not. The cause of
collapse cannot be pin pointed which may be because of multiple
reasons. The intervener has tendered several photographs (page 123 to
128) to show that demolition of 1st and 2nd floor was half done and
debris are still lying. Though Rahul Jain has claimed that he has
removed the debris however it is a matter of trial to establish as to
when and to what extent debris have been removed. Therefore,
certainly a prima facie case exist against Rahul Jain to put him on trial.
28. In plethora of judgment, the Supreme Court has laid down
the guidelines that regard to exercise of jurisdiction by this Court under
Section 482 of the Code. In case of State of Haryana vs. Bhajan Lal
1992 SCC (Cri) 426, the Supreme Court has listed the categories of
cases when the power under Section 482 of the Code can be exercised
by the Court. These principles or the guidelines were reiterated in
several decisions. It emerges from the series of decision that when a
prosecution at the initial stage is asked to be quashed, the test to be
applied by the court is as to whether the uncontroverted allegations as
made in the complaint prima facie establish the case. The courts have
to see whether the continuation of the prosecution amounts to abuse of
process of law and whether continuation of the criminal proceeding
results in miscarriage of justice or when the court comes to a
conclusion that quashing these proceedings would otherwise serve the
ends of justice, then the court can exercise the power under Section
482 CrPC. While exercising the power under the provision, the courts
have to only look at the uncontroverted allegation in the complaint
whether prima facie discloses an offence or not, but it should not
convert itself to that of a trial court and dwell into the disputed
questions of fact. In the backdrop of above legal position, we have
tested the facts of this case but unable to agree the submission made by
the petitioner's about absence of prima facie material.
29. The argument has also been advanced on the point that in
any eventuality the provisions of Section 304 of the IPC would not
attract. At this stage, we constrain ourselves from making exhaustive
comments in this regard. Section 304 of the IPC is punishing section for
the offence of culpable homicide as defined under Section 299 of the
IPC. Section 304 can be divided into two parts. The first imposing harsh
punishment if the act was done with the intention of causing death or
of causing such a bodily injury as likely to cause death, whilst second
part imposes comparatively less punishment if the act is done with the
knowledge that it is likely to cause death but in absence of intention.
Always in cases under 304 of the IPC, the question arose about
establishing either intention or knowledge about likelihood of
consequences. One of the meaning given in the Oxford Dictionary of
the word "knowledge" is :
"The fact of knowing a thing, state, etc or (in general sense
person, acquaintance, familiarity gained by experience").
Acquaintance with a fact, perception, or certain information
of a fact or matter, state of being aware or informed,
consciousness (of anything). The object is usually a
proposition expressed or implied, e.g., the knowledge that a
person is poor, knowledge of his poverty."
30. Knowledge of the existence of a particular fact is an
element of the offence, such knowledge is established if a person is
aware of high probability of its existence, unless he actually believes
that it does not exists. The knowledge can be established by an
affirmative or circumstantial evidence during the trial. Herein the facts
are peculiar wherein statutory notices were given branding the building
to be extremely dangerous for human life. In that perspective the
matter needs to be viewed. It is too early to express, in case of proof
whether the death is caused by mere rash and negligent act (includes
omission) or the omission with due knowledge of consequences.
31. In sum and substance the Municipal Authority who are
obliged to perform its statutory duties and functions have not done
their duty assiduously. If done, could have saved the lives. Likewise,
prima facie case is made out that owner of 1 st and 2nd floor by non
removal of debris contributed the cause of collapsed. At this stage there
is no material to hold that the said owner has fully complied the
statutory notice which is disputed question of fact. Prima facie case
exists against all applicants to put them on trial. In above peculiar facts,
we are not inclined to exercise our extra ordinary powers to stifle the
prosecution. We would clarify that all above observations are made on
prima facie basis for disposal of quashing of proceedings which has no
impact on the merits of the case.
32. While parting with, we express our deep pain as to how no
one is bothering about human life. When the structure is dangerous
strict enforcement of the provisions of law is expected from every
quarter. Instances are not few that despite vesting of vast powers, strict
forcible measures have not been taken resulting into loss of lives. We
may bent upon to think that violation of laws cannot take place without
the active connivance. Nebulous approach to such important facets
touching to the lives of the citizens is a matter of concern.
33. In view of the above, both applications and petition stands
dismissed.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
Later on :
34. After pronouncement of the judgment, learned Counsel Shri
Kadu appearing in Criminal Writ Petition No.123 of 2023 would submit
that the petitioner desire to challenge this order before the higher
forum and till that period interim order be continued. While issuing
notice on 15.02.2023, we have passed interim order that 'investigation
shall go on but charge-sheet shall not be filed against the Petitioner
without obtaining leave of this Court'. Since interim protection is
running till date, to facilitate the petitioner to challenge this order, we
hereby extend interim protection by four weeks from today.
35. Later on, learned Counsel Shri Digvijay Singh holding for
Shri Ved Deshpande appearing for the applicants of Criminal
Application Nos.259/2023 and 258/2023 reiterated the same prayer.
We are also extending the same interim relief in both applications.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 11/01/2024 18:46:19
