Bombay High Court
Padmaja P. Patel And 4 Ors vs State Of Maharashtra And 5 Ors on 14 March, 2023
Author: R. N. Laddha
Bench: G. S. Kulkarni, R. N. Laddha
2023:BHC-OS:1834-DB
bipin prithiani
1
902-wpl-35549.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 35549 OF 2022
Padmaja P. Patel & Ors. ... Petitioners
Versus
State of Maharashtra & Ors. ... Respondents
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Mr.Akshay Kapadia for the Petitioners.
Mr.Sukanta Karmakar, AGP for the Respondent No.1-State.
Mr.Kunal Waghmare, i/by Sunil Sonawane for the Respondents 2 & 3-
MCGM.
******
CORAM: G. S. KULKARNI &
R. N. LADDHA, JJ.
DATE : 14th MARCH, 2023
P.C. :-
1. Rule, returnable forthwith. Mr.Karmakar, learned AGP waives service for Respondent No.1-State. Mr.Waghmare, learned Counsel waives service for Respondent Nos.2 and 3 - Municipal Corporation for Gr.Mumbai. Respondent Nos. 4 to 6 had appeared on the earlier occasions however they remained absent on the last two occasions. It appears that they are not interested to contest the petition. By consent of the appearing parties, heard finally.
2. This petition is filed praying for the following reliefs :-
"a. That this Hon'ble Court be pleased to issue a writ of certiorari and thereby quash and set aside the impugned order dated 07.10.2022 passed by the Technical Advisory Committee of BMC and impugned letter dated 19.10.2022 wherein the order dated 07.10.2022 was communicated to the Petitioners, hence all actions therefrom may be directed to be kept in abeyance, instantly;::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 :::
bipin prithiani 2 902-wpl-35549.22.doc b. That this Hon'ble Court may be pleased to issue a writ in the nature of Mandamus or any other appropriate writ, order Or direction thereby restraining the Respondents from taking any other action in pursuance of the impugned order dated 07.10.2022 passed by the Technical Advisory Committee of BMC and impugned letter dated 19.10.2022 wherein the order dated 07.10.2022 was communicated to the Petitioners, may kindly direct the Respondent Nos. Ito 6 if they intend to demolish the Said Building and redevelop the building then they should first undertake to perform its obligations and provide proof thereof, that, all of the benefits as mandated under 337(A) of DCPR of 2034 will be extended to the Petitioners including provision of alternate accommodation of like area as occupied currently in the same vicinity of current accommodation i.e. Marve Road, Malad (W), Mumbai 400 064 and Brokerages, Deposits and rentals in advance of atleast 3 [Three] years, with an undertaking and agreement concluded instantly to provide permanent alternate accommodation on ownership basis, with incremental area as per Laws and corpus to cover additional taxes thereon and the corresponding stamp duty and registration charges as per Law; and other benefits and as prescribed in the DCPR of 2034 and governing laws;
bb. That this Hon'ble Court be pleased to issue a writ of certiorari and thereby quash and set aside the impugned notice dated 15.10.2022 issued u/s. 354 of the MMC Act and the notice dated 10.11.2022 issued for disconnecting the Electricity and Water supply. c. That pending hearing and final disposal of this Writ Petition this Hon'ble court may kindly stay the effect, operation and implementation and execution of the impugned order dated 07.10.2022 passed by the Technical Advisory Committee of BMC and impugned letter dated 19.10.2022 wherein the order dated 07.10.2022 was communicated to the Petitioners; d. That pending the hearing and final disposal of this Writ Petition this Hon'ble Court may kindly appoint the independent auditor from its panel of Consulting Engineer of the Bombay high court, so as to immediately carry out the required structural repair of the Said Building, based on the audits done and reports annexed herewith, solely at the cost and consequences + risk of the Land Lords / Land owners under Court's Supervision; dd. That pending hearing and final disposal of this Writ Petition this Hon'ble Court may kindly stay the effect, operation and implementation and execution of the notice dated 15.10.2022 issued u/s. 354 of Municipal Corporation Act by the Respondent MCGM and notice dated 10.11.2022 issued by the Respondent MCGM. e. That interim and ad interim relief in terms of prayer clause
(c) & (d) be granted;::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 :::
bipin prithiani 3 902-wpl-35549.22.doc f. That cost and compensation for expenses incurred till date, of the petition also be provided for;
g. That such further and other reliefs be granted as may be deemed fit and proper in the nature and circumstance of the present case."
3. It appears from the record that the building in question has already been declared to be dilapidated. The building "Mahaprabhu building" is a Ground + two floor structure. As per the policy of the respondent-Municipal Corporation (for short 'MCGM'), a notice under Section 353B1 of the Mumbai Municipal Corporation Act, 1888 (for short 'MMC Act') was issued to the occupants of the building on 18 May 2022. The petitioners who are tenants of the building had submitted a structural audit report through their Structural Engineer Shri Mahendra Dhaware, who opined that the building could be classified as C2-B category i.e. structural repairs without evacuation. There was also a structural audit report of Shri Rahul B. Mehta, Structural Consultant of M/s. RPR Archineers LLP submitted by the owners of the building, who are respondent nos. 4 to 6 in the present petition. The said report opined that the building is in dilapidated condition falling in the C-1 category and would be required to be demolished. Confronted with these two reports, the MCGM referred the matter to the Technical Advisory Committee (for short 'TAC'). The TAC in its report dated 7 October 2022, classified the building in the C-1 category. The conclusion of the TAC needs to be noted which reads thus:-
" CONCLUSION In view of the present site condition and precarious nature of the building under reference and having gone through the details & 1 Structures Stability Certificate ::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 ::: bipin prithiani 4 902-wpl-35549.22.doc opinion given by all the Committee Members and considering the age of the building, the Committee is of the opinion that the structural audit report submitted by Structural Consultant, Shri Rahul B. Mehta (STR/M/152) of M/s,RPR Archineers LLP classifying the structure in "C-1" category i.e. "To be evacuated and demolished immediately" shall be accepted.
Immediate actions are necessary from the Occupants / Owner to vacate & prop the building as per the details to be submitted by registered Structural Engineer. Failure to prop the building should lead to further course of legal action from Designated Officer, P/North Ward. Designated Officer, P/North Ward should pursue the legal action and shall not stall unless there is order of Competent Authority of Competent Court.
The decision shall be communicated as per practice by Member Secretary. Further course of action, if any, with due process and as per policy in force and the standard guidelines of Hon'ble High Court shall be followed by Designated Officer & Executive Engineer (Building & Factory), P/North Ward."
4. It appears from the report of the TAC that no formal meeting of the members of the TAC had taken place which is clear from the fact that the members of the TAC have signed the report on different dates. It also appears from the report of the TAC that the site has been inspected on 27 September 2022 at 12:30 a.m. by the TAC members, along with P/North ward staff. However, there is no report of the site inspection.
5. What is further interesting is as to what has been stated by the learned counsel for the respondent-Municipal Corporation in this context. On instructions, he states that what has been recorded, on internal page 5 paragraph 2, is itself the report of the site inspection. We are quite surprised at such contention being urged on behalf of the Municipal Corporation. It is also quite astonishing that although the site inspection was undertaken on 27 September 2022, there is no formal site inspection report and more particularly, a technical report ::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 ::: bipin prithiani 5 902-wpl-35549.22.doc as would be required to be maintained by the TAC to come to the conclusion as noted by us above.
6. We accordingly find much substance in the contentions as urged on behalf of the petitioners that the impugned report of the TAC does not reflect the correct position and/or the same is vitiated by non- application of mind.
7. As observed by a coordinate bench of this Court in its order dated 1 December 2022, the petitioners were permitted to have a structural audit from experts namely VJTI, Mumbai. The report of the VJTI is placed on record on behalf of the petitioners, whereby, in a detailed report the following recommendations are made:-
"8.0 RECOMMENDATIONS In view of the above conclusions, we feel that few structural elements such as slabs and scams of the building have lost their strength and hence design load carrying capacity as per he provision and requirements of I.S codes. Deterioration of these structural elements in the building at few places is severe. By considering deteriorated condition of these structural elements, it is necessary to carry out the major structural repairs/rehabilitation/strengthening of few structural elements immediately. As the load bearing walls are good conditions and structural distress are observed at few places in slab elements, we are in opinion that this building can be classified in C2- A category i.e. carry out major structural repairs by vacating the building within six months from the date of issue of this report.
It is necessary to appoint the expert structural consultant to suggest appropriate structural strengthening and retrofitting technique by identifying the deficiency in the structural members due to deteriorated condition of the structural elements. After structural repair stability certificate shall be obtained from structural consultant before occupying the said building."
(emphasis supplied)
8. We have also perused the conclusions as contended in the ::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 ::: bipin prithiani 6 902-wpl-35549.22.doc report.
9. In the aforesaid circumstances, as there is more than one report on the condition of the building, we are of the opinion that these reports and materials are required to be re-examined by the TAC and only after an appropriate examination of the building as mandated by law, a fresh report be prepared considering all the parameters, and orders and in accordance with law.
10. We, accordingly, dispose of the petition by the following order:-
(a) The order/report dated 7 October 2022 passed by the TAC is quashed and set aside. Any consequent action of the Municipal Corporation to issue a notice under the said report also would stand quashed and set aside.
(b) The TAC is directed to take into consideration the report of the VJTI, as also the earlier reports, as also by undertaking an independent examination of the building and preparing a technical report of such examination, a copy of which be furnished to the parties. The TAC, after granting an opportunity of hearing to the petitioners, as also the respondent nos. 4 to 6, as also the concerned Officers of the Municipal Corporation, shall arrive at a fresh decision, in accordance with law. Such decision be taken within a period of four weeks from today after setting out an appropriate program, of which notice be issued to all the parties by the TAC. All contentions of the parties, in that regard, are expressly kept open.
(c) Needless to observe that, in the meantime, till an appropriate order is passed, the petitioners shall occupy their respective tenements at their own risk and consequences, and in the event of any untoward incident of a collapse, they shall not hold the Municipal Corporation or any of its Officer or the State Government, as also the landlords, liable for any consequences.::: Uploaded on - 25/03/2023 ::: Downloaded on - 10/06/2023 13:08:06 :::
bipin prithiani 7 902-wpl-35549.22.doc
(d) An undertaking to that effect be placed on record of this petition within a period of two weeks from today.
15. Writ Petition is disposed in the above terms. No costs.
[R. N. LADDHA, J.] [G. S. KULKARNI, J.]
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