Bombay High Court
Vikas Premises Co-Operative Society ... vs Brihanmumbai Municipal Corporation on 2 July, 2025
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
Digitally
signed by
2025:BHC-OS:9875-DB
MEERA
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MEERA MAHESH
MAHESH JADHAV
JADHAV Date:
2025.07.02
18:50:54
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 19422 OF 2025
Vikas Premises Co-op Soc Ltd. ) ...Petitioner
Versus
1 Brihanmumbai Municipal Corporation )
2 The Municipal Commissioner )
3 The Assistant Engineer, (B & F), A Ward )
4 Junior Engineer Water Department )
5 The Senior Police Inspector )
6 Brihanmumbai Electric Supply & Transport ) ...Respondents
-----
Mr. Aniruddh Joshi, Senior Advocate a/w Mr. Mayur Khandeparkar, Mr. Ishwar
Nankani, Ms. Vrushali Pokharna, Ms. Avishka Jadhav i/by Nankani &
Associates for the Petitioner.
Ms. K. H. Mastakar i/by Ms. Komal Punjabi for Respondent No.1-BMC.
Mr. Atul Vanarse, AGP for Respondent No.5-State.
Mr. Sumeet Palsuledesai a/w Mr. Mohammed Oomar Shaikh i/by M. V. Kini &
Company for Respondent No.6-BEST.
Mr. Rahul Jadhav, Asst. Eng. (B&F), 'A' Ward is present.
Mr. Nagesh Lomte, Jr. Eng. (B&F), 'A' Ward is present.
-----
CORAM : G.S. KULKARNI &
ARIF S. DOCTOR, JJ.
DATE : 2ND JULY 2025
ORAL JUDGMENT (PER ARIF S. DOCTOR J.)
1. This is a case pertaining to a dangerous building known as 'Vikas
Building', which is situated at a short distance from this Court, in a busy
commercial area of Mumbai, namely, the Fort area. It is a building of
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about 129 years old, which has been categorized to be extremely ruinous
(C-1 category) and which would suffer an imminent collapse. It has been
already vacated in a very urgent situation by the Disaster Control Cell of
Mumbai Municipal Corporation on 21 June 2025.
2. The petitioner is the owner of the building. It is ground + 4
storeyed structure, which has about 37 tenements/members all of which
are commercial/offices. Any untoward incident of a collapse of the
building would not only be a disaster qua the occupants of the building,
but also to the adjoining premises qua the public at large in the busy Fort
area. The water and electricity supply of the building have already been
disconnected. It is in these circumstances, the petitioner is before the
Court and in our opinion "too-too" late in time to contend that the
petitioner would make an attempt to repair the building.
3. Being tasked with adjudication of this petition, we are duty bound
to refer to the decision of this Court in High Court on its own motion (In
the matter of Jilani Building at Bhiwandi) vs. Bhiwandi Nizampur
Municipal Corporation and Others1 wherein the Court being alarmed
and deeply pained by the incidents of collapse of the buildings, resulting
in loss of lives, has initiated the said Suo Motu Public Interest Litigation.
In the said case, it was a collapse of a building known as "Jilani Building"
1 2022 SCC OnLine Bom 386
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at Bhiwandi, taking away 38 lives. Added to such incident, was an
incident of collapse of another structure on 9 June, 2021 at Malwani in
which 12 persons lost their lives. The Court observed that the situation
was such that different categories of structures were vulnerable to a
collapse posing constant threat to the lives of innocent people. It was
observed that the past incidents have shown a spree of human lives being
lost which has continued unabated. The Court pondered as to how long
this "unending cycle" of sustaining buildings in ruinous state, including
uncontrolled illegal and unauthorized constructions, and amongst them
the ghost of countless number of dilapidated buildings, would haunt
innocent people. It was observed that a deeper dive into these issues, the
scene was murkier. The Division Bench observed that what possessed the
Court was a poignant hope and optimism that things would improve and
drastic steps would be taken by the concerned authorities to prevent
building collapses. It was observed that in the deepest of the heart, the
Court was concerned on human lives being lost in such building
collapses. Notably, it was observed that the Court believed, with
certainty, that the strong arms of law were required to be used firmly, not
only to punish the disorderly, but also, to save the lives of those who
become victims. Being confronted with such state of affairs in respect of
the dilapidated buildings, the Court held that it was an ultimate
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accountability and responsibility of the municipal officers and/or
municipal machinery in the event of collapse and made the following
significant observations:-
"DILAPIDATED/RUINOUS BUILDINGS.
91. People losing their lives in building collapses, is required
to be completely obliterated. The right to livelihood, in our
opinion, includes the right to live in safe buildings and houses.
Whosoever is the owner of the building, may it be of private
ownership or of the ownership of a public body, as also
whosoever is occupying the building, it is the constitutional
obligation of such persons, that the safety of the building/
premises is paramount so that the lives of the residents of the
buildings are safe and not endangered by a likely collapse. In the
event of an unfortunate collapse not only the owners but also
the occupants for their negligence would be required to be held
responsible for consequences which may arise from a collapse.
92. 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 is 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.
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Talib Habib Shaikh (supra) as any interference by the Civil
Court may endanger the lives of others.
93. 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.
94. 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
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to overcome all such pressures and discharge their duties with
utmost accountability as obligated in law.
95. As noted by us above, the Municipal Commissioners are
expected to frame a mechanism so that the concerned
designated officers of every ward would enforce an audit of the
buildings as required by law, so that the buildings which are
notified to be ruinous can be vacated and incidence of a collapse
averted. We may also note that there may be category of
buildings which in no time from the year of their construction
become dangerous due to the inferior quality of the
construction material and/or for other reasons. Experience has
shown that there are certain buildings of recent origin, which
were constructed with sub-standard materials and/or on account
of their rank defective construction, were hazardous for
occupation and ultimately collapsed. This was a case of a
building which collapsed on 4 April, 2013 in Mumbra, now a
suburb of Thane. It was one of the most ghastly collapses in
which 74 people died, and of which there were 18 children, 33
men and 23 women. Such building was an illegal building. A
serious question in such situation would arise, as to how such
illegal buildings could come up and people occupy such
buildings? Is it not in connivance with the municipal and the
State officers ? It is for such reason, and with the sense of
concern for our fellow citizens, we have impressed the
important role of the municipal and the State officers in the
scheme of affairs, to be extraordinarily vigilant and prevent
building collapses. A comparatively new building becoming
dangerous is also required to be brought to the notice of the
municipal authorities by all the concerned including the
occupants, as these situations cannot remain hidden.
96. 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 reasons."
(emphasis supplied)
4. It is on such conspectus, the Court in its operative order issued
directions to the Municipal Commissioner and/or the competent authority of a
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Designated Planning Authority to take review of the illegal buildings/
structures in every ward and actions be taken thereon every month. In the
event of inaction, the Court also directed that accountability be fixed on the
municipal officers.
5. The substantive prayers as prayed for by the petitioner in the present
petition, at the outset, are required to be noted which read thus:-
"a) that this Hon'ble Court be pleased to issue a Writ of
Mandamus or Writ in the nature of Mandamus or any
appropriate writ, order and /or direction declare that the
2nd, 3rd, 4th, 5th and 6th Notices, are illegal, null, void,
non-est, unenforceable, not binding on the Petitioner and
quash and / or set aside the same;
b) that this Hon'ble Court be pleased to issue a writ of
Mandamus or a writ in the nature of Mandamus or any
other appropriate writ, order and / or direction restraining
Respondents No. 1 to 6 to refrain from acting upon the
either of the 2nd, 3rd, 4th, 5th or 6th Notices against the
Petitioner or the said Building;
c) that this Hon'ble Court be please to issue a writ of
Mandamus or a writ in the nature of Mandamus or any
other appropriate writ, order and / or direction directing
Respondents No. 1 and 6 to forthwith restore the electricity
supply and water connection of the said Building;"
6. As the facts would indicate failure on the part of the petitioner to
maintain the building leading it to deteriorate so as to reach a stage that every
owner or occupier of a building is required to be evacuated on an alarm of
collapse of the building, is something which cannot be overlooked. The
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legislature has made a robust provision that any building which is more than 30
years old is required to be certified by the structural engineer to be safe as
provided for by incorporating Section 353B of the Mumbai Municipal
Corporation Act, 1888 (for short "MMC Act").
7. In the year 2024, a structural audit report in respect of this building was
submitted to the Municipal Corporation, which was scientifically undertaken
with all mandatory test being carried out by the Structural Engineer. The
structural audit report has made multiple observations, some of which are to
the effect that the columns were observed with corrosion cracks, wall was
observed with vertical masonry cracks and seepage marks, ceiling was observed
with seepage marks. Most significantly beams were observed with corrosion
cracks, window lintel beam was observed with seepage marks, window top was
observed with cracks, structural steel beam was observed with corroded and
plaster observed cracks, roof wooden ceiling had seepage marks, columns
cladding were having cracks, walls were observed with separation cracks,
ground floor passage ceiling was observed with wind corrosion cracks and
reinforced expose. The photographs of this ruinous building are part of the
report submitted by the Structural Engineer at the behest of the petitioner
about a year back i.e. in June 2024. The report observed that even if repairs are
undertaken at the most serviceable life, it would be for another 15 years. Such
report was re-confirmed by the said Structural Consultant by a fresh report
submitted on the request of the Municipal Commissioner very recently on 21
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June 2025 when the building was classified into 'C-1' (dangerous) category
inter alia with remark "to be evacuated immediately".
8. On such backdrop, we now advert to the contentions as urged on behalf
of the petitioner.
9. Shron of unnecessary details, it is the Petitioner's contention that the
Respondent No. 1 has issued the impugned notices in complete breach of the
provisions of Section 353B of the MMC Act as also the Order of this Court
passed in Writ Petition No. 1080 of 2015 and the Circular dated 10 th October
2017 issued by Respondent No. 1 are thus illegal, null and void.
10. Mr. Joshi, Learned Senior Counsel appearing on behalf of the Petitioner
at the outset invited our attention to the notice dated 20 th June 2025 ('first
notice') issued by Respondent No.3 (Assistant Engineer, Building and Factory)
under Section 353B of the MMC Act, and pointed out that by the first notice,
the Petitioner was called upon to examine the said Building by appointing a
structural engineer /consultant for the purpose of certifying that the said
Building was fit for human habitation within a period not exceeding 30 days
from the receipt of the above Notice.
11. Mr. Joshi then pointed out that despite the fact that by the first notice,
the Petitioner was granted a period of 30 days to furnish the report of a
structural engineer/consultant, the Respondents, in complete breach of the
provisions of Section 353B of the MMC Act issued the following impugned
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notices to the Petitioner:
i. Notice 20th June, 2025 ('2nd notice') issued by Respondent No. 5
(The Senior Police Inspector) directing that the said Building should
be vacated immediately owing to cracks being developed in the said
Building.
ii. Notice dated 20th June 2025 ('3rd notice'), issued by Respondent No.
6 (Brihanmumbai Electric Supply & Transport) informing the
Petitioner that the electricity connection for the said Building had
been disconnected on the grounds that the said Building had been
declared as dangerous having been categorized as "C-1".
iii. Notice dated 21st June 2025 ('4th notice') issued by Respondent No.3
calling upon Petitioner to immediately vacate and pull down the said
Building within a period of 7 days from receipt of the notice.
iv. Notice dated 23rd June 2025 ('5th notice') issued by Respondent
No.3 calling upon the Petitioner to prepare an "Area Statement" of
the occupants of the said Building within a period of 7 days from
receipt of the said notice.
v. Notice dated 25th June 2025 ('6th notice') issued by Respondent No.
4 (Junior Engineer Water Department) informing the Petitioner that
the water supply for the said Building had been discontinued.
12. Mr Joshi, then without prejudice to the aforesaid submission pointed
out that Respondent No. 1 had at no point of time, prior to issuing the
impugned notices even informed the Petitioner that the said building was
declared C-1, let alone furnished the Petitioner with a copy of the said report by
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which the said building had been classified as C-1.
13. He then submitted that even the basis of the classification of the said
building as C-1 was fundamentally flawed since the classification was done on
the basis of a structural stability report of July 2024 ('the first report'), which
had been obtained by the Petitioners from one Mahimtura Consultants Private
Limited ("Mahimtura"). He pointed out that the first report infact concluded
as follows:
"The overall condition of the building is quite repairable
and serviceable life of the Building can easily be enhanced
by 15 years after suggested repair works are carried out".
Additionally, the said report provided an estimate of Rs.
1,49,97,300/- (Rupees One Crore Forty-Nine Lakhs
Ninety-Seven Thousand Three Hundred Only) for carrying
out necessary repairs."
14. Mr. Joshi submitted that the classification of the said building was
entirely malafide as Mahimtura had, on the basis of the first report filled in the
profoma -B, classified the building as C-1 without carrying out any fresh
inspection of the said building. He further pointed out that the classification
was (i) plainly contrary to the first report (ii) Mahimtura did not have any
authority to fill in profoma -B since this was after Mahimtura's engagement
with the Petitioner had come to an end and (iii) the Proforma - B had never
been accepted by the Petitioner.
15. Mr. Joshi then submitted that the Petitioner had also, after receipt of the
first notice engaged the services of one Vishwakarma Enterprises
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('Vishwakarma') to carry out a structural audit of the said building. He pointed
out that Vishwakarma had in its report inter alia opined as follows:
"Hence considering the above investigations and test results,
it is recommended that the existing structure named Vikas
Premises Co-Operative Society Ltd. Plot Bearing C.S. No.
219 of Fort Division, A Ward at 11, N.G.N. Vaidya Marg,
Fort, Mumbai-400001, having G+4 upper floors shall be
repaired for major structural strengthening / rehabilitation
works for external and internal structural members along
with related plastering, water proofing and painting works
under the supervision of qualified structural engineer and
site supervisor. The back side wall portion of the building
from 2nd to 4th floor shall be removed and replaced with
new masonry works with additional supporting means. The
method statement and specification for carrying out repair
shall be obtained from the competent consultant and the
work shall be carried out."
Mr. Joshi thus submitted that since there were two conflicting reports,
both reports must necessarily be referred to the Technical Advisory Committee
('TAC') in terms of the Order passed in Writ Petition No. 1080 of 2015 and the
Circular dated 17th October 2017 issued by Respondent No. 1 to enable TAC to
decide which report is to be acted upon. He submitted that until such time as
TAC decides, the impugned notice cannot be acted upon.
16. Mr. Joshi clarified that the Petitioner was not seeking to occupy the said
building at this stage nor was seeking the restoration of electricity and water. He
submitted that all that the Petitioner was seeking at this stage was for both the
reports to be placed before the TAC and until TAC opines on the way forward,
the said building not to be demolished.
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17. Per contra, Ms. Mastakar, Learned Counsel appearing on behalf of
Respondent No.1 submitted that the Petitioner's contentions were entirely
devoid of any merit. She pointed out that the Respondents had been
constrained to issue the impugned notices in view of a call which was received
from the Disaster Control Cell of Respondent No.1 at 7.15 p.m. on 20 th June
2025, by which Respondent No.1 was informed that the said Building was in
an extremely dangerous condition and was likely to fall, which is to the
following effect.
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18. She then invited our attention to the notice dated 21 st June 2025 ('4th
notice') which she pointed out recorded as follows:
Gentlemen,
Call is received from disaster control cell of BMC at 07:15
PM on 20.06.2025 informing that the building named Vikas
Building, situated at Green Street, Fort, Mumbai-400 001 is in
dangerous condition and likely to fall. The Mumbai Fire Brigade,
Police Personnel and staff of this office immediately reached the
site when it is observed that major vertical cracks have occurred in
the east side external wall of the building, which is in close
proximity with the adjoining Green House building. The
building is immediately vacated by the Fire Brigade department
with help of Police Staff. Warning Posters about dilapidated /
dangerous condition of building are displayed inside and on outer
walls and along periphery of the building. The premises is
cordoned in order to prevent person from moving or passing in
and around the building. The occupiers and office bearers of the
Vikas Premises Co-op. Society Ltd. were present on site and
informed that they had carried out Structural Audit of their
building wherein repairs were suggested by their Structural
Consultant M/s. Mahimtura Consultants Pvt. Ltd. The said
consultant came on site at around 08:25 PM and observed the
present condition of building. He informed that he had given
Structural Audit report to the society, about a year before,
informing therein to carry out immediate structural repairs
however till date the society has not taken any remedial measure.
A letter dated 21.06.2025 of M/s. Mahimtura Consultants Pvt.
Ltd. is received to this office along with Proforma B of Structural
Audit Report and photographs showing conditions of the
structure, wherein the said consultant has mentioned his various
observations showing that the structural condition of building has
become extremely dilapidated. He has mentioned specifically
that, "Main load carrying members such as Load bearing walls,
columns, beams and slab are severely damaged due to corrosion
and damage to the concrete due to age and weathering effect.
Building shall be evacuated to carry out propping."
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In the Proforma B received on 21.06.2025, the consultant
M/s. Mahimtura Consultants Pvt. Ltd. has categorised the
building in C-1-category.
In view of above it appears to me that the G + 4 storey
building of "Vikas Premises Co-op. Society Ltd., situated at
Green Street, Fort, Mumbai - 400 001" of which you are the
Owner/Occupier / User / Chairman / Secretary / Society, is in a
ruinous condition likely to fall and dangerous to any person
occupying, or passing by the same as per the observations and
recommendations of consultant M/s. Mahimtura Consultants Pvt.
Ltd. in their report.
I hereby require you, under section 354 of the Mumbai
Municipal Corporation Act as follows:-
"To immediately vacate and pull down the G + 4 storey
building of "Vikas Premises Co-op. Society Ltd., situated at
Green Street, Fort, Mumbai - 400001", and to prevent cause of
danger therefrom. I further hereby require you, under aforesaid
section of the Municipal Corporation Act to forthwith secure the
said structure and to set up a proper and sufficient board or fence
for the protection of passers-by and other persons and adjoining
properties. I give notice of 07 days from the service or receipt
thereof that if the requisition be not complied with, this office
shall in accordance to provisions of section 489 of Mumbai
Municipal Corporation Act, take all such measures as to comply
the above requisitions and you will render yourself liable for
prosecution as per relevant provisions of the said Act.
Ms. Masatkar thus submitted that there could be no doubt as to the fact
that the said building posed a grave risk not only to the occupants but also to
the surrounding buildings and to the public at large. She thus submitted that
the said building would have to be demolished as set out in the 4 th notice.
19. Ms. Masatkar also independently placed reliance upon the letter of
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Mahimtura dated 21st June 2025 which she pointed out recorded as follows:-
"Dear Sir,
As per telephonic call and request from your office and
Society, our engineers have visited the site yesterday evening
in view of some cracks reported in rear load bearing walls of
the structure. Accordingly, the limited area of the structure
mainly rear side wall and common area of building inspected
and some wide cracks were observed. We are submitting
herewith Proforma B based on quick observation yesterday
and the information available from visual inspection done
about a year before. Due to safety and time restriction site
was not allowed to access fully. We therefore recommend to
have a thorough inspection to suggest more appropriate
safety and other remedial measures required as soon as
possible.
Please note that validity of our earlier report submitted in
2024 was for 6 months only and no remedial measures has
been adopted as on date as recommended in the said report.
Hence we are reminding again to take action immediately as
per enclosed structural audit report "Proforma B"."
Basis the above, Ms. Masatkar submitted that Mahimtura had
categorically confirmed that the Petitioner had taken no remedial measures
when the said building was in highly ruinous and dilapidated condition. She
thus submitted that the Respondents were entirely justified in issuing the
impugned notices and given the grave condition that the building was in, thus
no interim relief ought to be granted to the Petitioner.
20. At this stage, we put to Mr. Joshi as to what steps were taken by the
Petitioner after receipt of the first report from Mahimtura, in July 2024. In
response, Mr. Joshi pointed out that the Petitioner had in this regard, in the
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Petition averred as follows:
13. "After receipt of the said Report, the Petitioner held
various meetings to discuss on the method of
implementation of the recommendations and suggestions
contained in the said report.
14. The Petitioner conducted various meetings in which it
was agreed by and between the members of the Petitioner
that the said Building may be redeveloped Pursuant thereto
the Petitioner invited tenders for undertaking the said
activity. However, none of the tenders found favour with
the majority of the members of the Petitioner, as a result of
which the said redevelopment process could not be carried
out.
15. As there was no favourable offer for redevelopment, the
Petitioner was considering the manner of undertaking repair
/ reconstruction of the said Building."
We then asked Mr. Joshi as to what material was there to substantiate
what had been set out above. Mr. Joshi submitted that he would place the same
in a compilation by 5 p.m. by the end of the day. We thus placed the matter
today for passing orders.
Analysis and Conclusion :-
21. After having heard Learned Counsel and having perused the
compilation filed by the Petitioner, we find that not only has the Petitioner not
made out a case for the grant of any interim relief, but that the Petition itself
deserves to be dismissed for the following reasons:
A. A perusal of the compilation submitted by the
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Petitioner reveals that the Petitioner had, as far back as 7 th
May 2024 obtained a structural stability report from one
K.R. Trivedi inter alia certifying the said building "as very
old, dilapidated and required to be vacated immediately ".
Despite this in paragraph 9 of the Petition, the Petitioner
has made an averment to the following effect:-
"Considering that the said Building was old, the
Petitioner had from time to time carried out necessary
Structural Audits of the said Building".
No reference to the said report has been made, much less
explained in the memo of the petition. In our view, this
amounts to material suppression, as the Petitioner had in its
possession the report which showed that the building was
infact C-1. It was incumbent upon the Petitioner to have
specifically set this out and then, if at all, explained the
same. The Petitioner having not done so, has clearly
approached this Court with unclean hands. On this ground
alone, the Petition must fail.
B. Further, and crucially, a perusal of the compilation of
documents filed by the Petitioner also reveals that the
Petitioner had on 14th October 2024 received a letter from
the Mumbai District Co-Operative Housing Federation
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Ltd. (a copy of which was not annexed to the compilation)
pursuant to which the petitioner obtained a quotation from
one M/s. Sanjay & Co. for civil work pertaining to Beam
and Column in filling section office next to the society
office unit no. 406. Shockingly, the Petitioner did not take
any steps to carry out this work despite knowing fully well
that the building was in a grave condition, instead on 24 th
February 2025, after almost four months, the managing
committee of the Petitioner inter alia resolved as follows:
"at this stage, it would not be necessary to consider the
quotation received from one M/s Sanjay & Co. for civil
work of beam and column in the filing section office next to
the society office unit No.406, pursuant to a letter dated
14th October 2024 received from the Mumbai District Co-
Operative Housing Federation Ltd, since the society was in
the process of undergoing redevelopment."
Thus, it is clear as daylight that the Petitioner, despite the
fact that the condition of the said building was so grave, did
absolutely nothing to ensure its repair and restoration,
despite reports which set out the emergent need for doing
so.
C. The Petitioner's contention that the building's
classification as C-1 is flawed and requires reference to the
TAC, especially in light of the Vishwakarma report, is
entirely untenable in the aforesaid facts, all of which were
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suppressed from this Court. The notice dated 21 st June
2025, sets out in detail the on-site observations of " major
vertical cracks" in the east side external wall. Mahimtura
after revisiting the site on 20th June 2025, submitted
Proforma B on 21st June 2025, categorizing the building as
C-1 which explicitly states that "Main load carrying
members such as Load bearing walls, columns, beams and
slab are severely damaged due to corrosion and damage to
the concrete due to age and weathering effect. Building shall
be evacuated to carry out propping. " Furthermore,
Mahimtura's letter dated 21st June 2025, unequivocally
confirms that the Petitioner had taken no remedial measures
as recommended in the first report and also that the said
building is in a highly ruinous and dilapidated condition.
D. Crucially, even the report upon which reliance was
placed by the Petitioner i.e. Vishwakarma's report also in no
uncertain terms inter alia records that "the structural
members in the building require major work towards the
strengthening / rehabilitation of structural members and
load bearing walls along with related plastering and
waterproofing works to maintain the building in good
condition. The portion of wall at back side of the building
from 2nd to 4th floor is beyond repair and the same shall be
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removed carefully and shall be replaced with new masonry
works with additional means to transfer the load efficiently
from 4th floor to ground floor." Thus from the material
before us, there is no manner of doubt that the said building
is in a very precarious condition and posed a grave danger
and thus necessitates immediate preventive action.
E. The very purpose of the TAC, as established in Writ
Petition No.1080 of 2015 and the Circular dated 17 th
October 2017, was to reconcile conflicting structural audit
reports. However, this mechanism was intended for
situations where there was a genuine dispute over the
structural integrity of a building and where immediate
danger is not apparent. This procedure was not
contemplated to aide those Societies which have done
absolutely nothing to ensure that their premises are kept
well maintained and don't pose a risk to the safety of all
concerned. In the facts of the present case, from all counts
the situation is one which requires swift action which we
must both note and commend the Respondent Corporation
for taking. The suppressed material itself makes it clear that
the contention that there are in this case "conflicting
reports" is wholly irrelevant and certainly not acceptable in
the fact situation. Thus, in such gross facts the question of
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submission of the reports to the TAC in our opinion, does
not arise. In any event, the safety of human life and
property in the vicinity takes precedence over any so-called
procedural lapses, even assuming such existed.
F. Even otherwise, we find the stand taken by the
Petitioners to be most odd. From the compilation, which is
placed on record, it is clear that the members of the
Petitioner had resolved to issue Public Notice inviting offers
for preparing feasibility/project report for repairs/or for the
redevelopment/or reconstruction and pursuant thereto, it
appears that they had infact issued such public notice for
"assisting society in carrying out a detailed survey of the
Society Property and preparing a feasibility report for
redevelopment and/or reconstruction and/or repairs of the
Society Property". Thus, today it is indeed befuddling as to
on what basis the Petitioner can resist the building being
pulled down, especially when the Petitioners right to
redevelop the same would be intact and which the
Petitioner had always sought. It is clear to our minds from a
perusal of the suppressed material, that the Petitioners now
want to repair the said building and not proceed with its
redevelopment, purely for commercial considerations and
nothing else. This conduct of the Petitioner is absolutely
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unconscionable since clearly the Petitioners have put
commercial considerations above issues of not only the
safety of their own members but also the public at large.
Suffice to state that it is the Petitioner alone who is
responsible for the dilapidated condition of the said
building since had the same been maintained by the
Petitioner, the said building would not be in the grave
condition that it is today in.
G. Though an argument was canvassed that the Petitioner
had chosen to repair and not redevelop the said building
since redevelopment would be impeded in view of the fact
that the building was in the proximity of the naval precincts,
not a single document to support such contention was even
relied upon nor formed part of the compilation of
documents submitted. In any view, even assuming any such
fetter existed, the same could never be used as a shield to
resist the demolition of a building which as already noted
above poses a grave threat not only to the occupants thereof,
but also to the public at large as already noted above and is
located in the heart of Mumbai's commercial hub and thus
any collapse would have disastrous consequences.
H. The facts of the present case and from the material which
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is placed before this Court as also the suppressed material
makes it crystal clear the immediate and verifiable threat of
collapse, which necessitate the demolition of the said
building. This Court has consistently held, as evinced in
numerous pronouncements including the judgment of the
Bombay High Court in the case of High Court on its own
motion (In the matter of Jilani Building at Bhiwandi)
(supra), that where a building is found to be in an
imminently dangerous condition, posing a risk to life and
property, the municipal authorities are duty-bound to take
prompt action, including demolition, to avert a disaster. In
the Jilani Building case, this Court held that the paramount
consideration is public safety, and when there is clear
evidence of a dilapidated structure posing an immediate
threat, procedural delays or disputes over repair versus
redevelopment cannot be permitted to jeopardize lives.
22. While parting, we may observe that in the glaring facts and
circumstances of the case, preventing the municipal machinery from strict
adherence to the provisions of law and take appropriate action the law would
mandate, consistent to what has been held in the decisions of this Court,
and/or to take a view against demolition is certainly not acceptable. To deal
with such serious issues peculiar to Mumbai with large number of old and
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dilapidated buildings suffering collapses and which invariably happen during
the monsoon season, this Court rendered its decision in High Court on its own
motion (in the matter of Jilani Building at Bhiwandi) (supra). What is
paramount for the Court is to consider is safety of human lives, which would be
not only of the occupants but also of all those who are likely to be affected by
this ruinous structure. Even persons occupying adjoining buildings, passers-by
on the busy road have rights not to get affected in any manner by a building
collapse. There cannot be any guarantee whatsoever when the building would
collapse. The duty to maintain the building was of the petitioner, which is a
Cooperative Society and certainly an association of persons who are all
occupying commercial premises, that too with several prominent commercial
establishment and a restaurant being situated in the building with large
business turnover. All such persons have done nothing, than exploiting the
building and recklessly using the same, leaving the building to be deteriorated.
Today the situation is of fait accompli. It has gone completely out of hand.
On such conspectus, we would not permit ingenuity and/or such technical
pleas being advanced and in these circumstances permit the law to take its own
course. It is not new to the municipal jurisprudence that ruinous dilapidated
buildings, were required to be demolished/removed. The present building
cannot be an exception.
23. In the light of the aforesaid with certitude this petition needs to be
dismissed, however, considering our reasons, we cannot simplicitor dismiss this
petition. It needs to be dismissed with costs, which are quantified at
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Rs.5,00,000/- to be deposited within two weeks from today with the Cancer
Ward of the KEM Hospital, Mumbai.
24. At this stage, Mr. Joshi Learned Counsel for the Petitioner submits that
some time be granted to the members of the Petitioner to remove their
belongings. Responding to such contentions, Ms. Mastakar, on instructions of
one Mr. Rahul Jadhav, Assistant Engineer, (B & F), 'A' Ward, who is present in
Court, states that entry into the building cannot be permitted as the building is
in a very dangerous condition and would thus pose a grave risk to anyone who
enters the said building. Given this we make it clear that if the member of the
Petitioner enters the said building they do so at their own risk and
consequences and without holding the Municipal Corporation, State
authorities or third parties liable for any civil or criminal consequences in the
event of any untoward incident of collapse. Further the petitioner and its
members shall jointly and severally be liable for any damage or loss to life,
which would be suffered by any third parties in both civil or criminal
proceedings. We thus cannot accede to this request. We leave it to the
competent officers of the Municipal Corporation to take appropriate decision
in this regard if at all any member of the petitioner intends to access the said
building.
[ARIF S. DOCTOR, J.] [G.S. KULKARNI, J.]
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