Bombay High Court
Jaspal A. Wig Thr. Its Partner Subhash ... vs Mumbai Municipal Corporation And Ors on 10 September, 2018
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (STAMP) NO.21237 OF 2018
ALONG WITH
CIVIL APPLICATION (STAMP) NO.21361 OF 2018
Jaspal A. Wig and Ors. .... Appellants-Applicants
V/s.
Municipal Corporation of
Greater Mumbai & Ors. .... Respondents
Mr. Prasad Dani, Senior Counsel, a/w. Mr. Dharam, for the Appellants-
Applicants.
Mr. Narendra V. Walawalkar, Senior Counsel, a/w. Mrs. Madhuri More,
for the Respondent-MCGM.
Mr. Ravindra N. Kachare for Respondent No.3.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 10 TH SEPTEMBER, 2018.
P.C. :
1. Heard Mr. Dani, learned Senior Counsel for the Appellants- Applicants; Mr. Walawalkar, learned Senior Counsel for the Respondent- Municipal Corporation; and Mr. Kachare, learned counsel for Respondent No.3.
2. This Appeal takes an exception to the order dated 16 th July 2018 passed by the City Civil Court, Mumbai, thereby dismissing the Notice of Motion No.2793 of 2017 filed in L.C. Suit No.1812 of 2017. 1/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:02 :::
3. The said Notice of Motion was taken out by the present Appellants to restrain the Respondent-Municipal Corporation from taking any action in pursuance of the notice dated 31st October 2013, issued under Section 354 of the Mumbai Municipal Corporation Act, 1888. The Appellants claim themselves to be the tenants of the suit property and according to them, the property is not in such a dilapidated and dangerous condition, as it required to be demolished. It can still be repaired and the necessary repairs are, therefore, required to be carried out by the Landlord. It is submitted that, the Landlord, i.e. Respondent No.3 herein has, however, filed the Suit for eviction and to support him, the present impugned notice, under Section 354 of the MMC Act, is issued by the Respondent-Municipal Corporation. Therefore, the Respondent-Municipal Corporation be restrained from taking any action in pursuance of the said notice; especially in the light of the fact that, no proper procedure, as laid down by this Court in its order dated 23 rd June 2014 in O.O.C.J. Writ Petition (Lodging) No.1135 of 2014, is followed.
4. According to learned counsel for the Appellants, as per the guidelines laid down by this Court in O.O.C.J. Writ Petition (Lodging) No.1135 of 2014, it was necessary for the 'Technical Advisory Committee' itself to carry out visual inspection of the suit structure and also to conduct various tests, as laid down therein. However, there is no compliance of this direction. In view thereof, the impugned notice and 2/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:02 ::: the order passed for demolition of the suit building is not legal and proper and hence, the Trial Court should have granted the relief of interim injunction, restraining the Respondent-Municipal Corporation from carrying out any action of demolition.
5. However, in my considered opinion, these submissions cannot be accepted, because, as pointed out by learned counsel for the Respondent- Municipal Corporation, already the suit building is classified as "C-1"
Category by not one Auditor, but by the three Structural Auditors, as can be seen from the report of the 'Technical Advisory Committee'. All the three Structural Auditors were unanimous in holding that the suit building is required to be classified as in "C-1" Category. Those three Consultants are, namely, Mr. J.R. Shah of M/s. Shah Structural Private Limited, M/s. Avon Projects and M/s. Shashank Mehendale and Associates. There was only one report in favour of the Appellants that of M/s. S.P. Consultants, dated 29th November 2013, who has stated that the suit building is in repairable condition and needs to be repaired immediately within a period of three to four months. However, Mr.Suresh Suthar of M/s. S.P. Consultants had informed the 'Technical Advisor Committee' that, he had carried out structural audit of the suit building on 29th November 2013 and under tremendous political pressure, he had suggested that the suit building was repairable.
Further, he has also appraised the 'Technical Advisory Committee' that, 3/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:02 ::: he had informed the tenants about the repair costs @ Rs.1,300/- per square feet and repairs were required to be carried out within four months; however, the repairs are not carried out.
6. The Technical Advisory Committee's report further goes to show that, on 10th December 2013 at about 9:45 a.m., part portion of the slab of 3rd floor and 2nd floor had collapsed on the 1st floor. Immediately the said building was vacated and water and electricity supply was disconnected. Further, on 30th August 2016 at 6:15 a.m., part portion of the structure adjoining Rajaram Mohan Roy Marg was collapsed and it was comprising of Ground + 3 upper floors and part 4th floor. Only because the building was already vacated, there was no casualty. Thus, it is apparent that the condition of the suit building has become so dangerous and dilapidated that during this entire process of Technical Advisory Committee carrying out the requisite enquiry and arriving at its conclusion also, major portion of the suit building has collapsed.
7. The 'Technical Advisory Committee' has also clarified in its report that, though as per the directions of this Court in O.O.C.J. Writ Petition (Lodging) No.1135 of 2014, it was necessary to conduct N.D. Test, it was clarified that the suit structure is load bearing structure and, therefore, N.D. Test could not be carried out. Learned counsel for the Respondent- Municipal Corporation has, in this respect, placed reliance on the 4/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:02 ::: Judgment of this Court in the case of Bharat Choksey and Others Vs. LIC of India and Ors., 2015 (6) Bom.C.R. 152 , wherein the similar contention was raised and it was held in paragraph No.24 as follows :-
"24. Now referring to the Clause (d) of Paragraph 9 of the said judgment and order, which provides that the TAC shall undertake various tests, as specified therein. There is some merit in the contention of the Municipal Corporation that the tests laid down therein appear to be in relation to the RCC structures and not in relation to load-bearing structures. Nevertheless, so long as the said judgment and order of this Court holds the field, if the TAC is not able to carry out the tests laid down therein, the TAC will have to give reasons as to why the tests could not be conducted. A report of the TAC will not become per se illegal, if the clause (b) of Paragraph 9 is not fully complied with. It will ultimately depend on the facts and circumstances of each case. What is material is whether the members of the TAC has applied their mind and whether the process adopted by the TAC is legal and proper. In the present case, though the reasons may not be specifically assigned by the TAC, but it appears that as the structure of the building, which is constructed in the year 1908 is not a RCC structure, the tests laid down could not be conducted. The Petitioners have relied upon very old structural assessment reports of the year 2006."
8. Therefore, it being a load-bearing structure, if the N.D. Tests are not carried out and there is proper explanation given by the 'Technical Advisory Committee' for the same, it cannot be said that the 'Technical Advisory Committee' has not followed the requisite procedure and, 5/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:03 ::: therefore, the conclusion arrived at by the 'Technical Advisory Committee' should be ignored.
9. Learned counsel for the Appellants has relied upon the Judgment of the Division Bench of this Court in the case of Tushar H. Shah and Others Vs. State of Maharashtra and Others, dated 9th October 2017, in O.O.C.J. Writ Petition (Lodging) No.1863 of 2017 , to submit that, as per the direction of this Court given in O.O.C.J. Writ Petition No.1135 of 2014, the visual inspection of the suit property by the Technical Advisory Committee members is mandatory. It is submitted that, in this order dated 9th October 2017 passed in Writ Petition (Lodging) No.1863 of 2017, when this point was raised, the Division Bench of this Court has directed the Members of the Technical Advisory Committee to carry out visual inspection.
10. However, in my considered opinion, this Judgment does not support the case of the Appellants, because the observations made therein go to show that, "without going into the merits of the submissions made on behalf of the respective parties about the requirement of the Members of the Technical Advisory Committee to personally carry out visual inspection, as required by clauses (d) and (i) of the order passed in O.O.C.J. Writ Petition No.1135 of 2014" , the direction was given by the Division Bench in its order in the particular 6/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:03 ::: facts of that case to the Technical Advisory Committee to carry out visual inspection. Hence, there was no general direction that, in all such cases, where the visual inspection is not carried out, the report of the Technical Advisory Committee should be ignored or it would become illegal. Everything depends upon the facts and circumstances of each case.
11. Here in the case, the conclusion arrived at by the Technical Advisory Committee is based on the concurring reports of the three Structural Auditors. It is also coupled with the fact that major portion of the suit building had already collapsed during the said process. Not only that, the suit building is at present abandoned and not occupied. It is standing at such a place that on its two sides, there are roads. Therefore, if the building further collapses or is damaged, it will cause loss of not only the property, but also the human lives. In such situation, the Trial Court has rightly rejected the order of interim injunction, as sought by the Appellants.
12. There is no question of the Appellants suffering any loss or hardship, as their rights as 'tenants' will be always protected and will be taken care of in view of the Clause 9(1) and (p) of the order dated 23 rd June 2014 passed in Writ Petition No.1135 of 2014, which read as under :-
7/9
AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:03 ::: "9(1) The rights of the tenants and / or occupiers and / or owners in respect of the said premises / property will not be affected by virtue of evacuation or demolition carried out by the Corporation of such dilapidated and dangerous building in exercise of the power under Section 354 of the said Act or by virtue of the fact that the Corporation is the owner of the premises. Such tenant and/or occupier and/or owner will be entitled to re-occupy the premises in respect of the same area after the reconstruction of the building, subject to the prevalent provisions of law pertaining to redevelopment of the property or subject to any arrangement or agreement arrived at by and between such tenants and / or occupiers with the owner of the building. Any action of evacuation/removal/demolition will not affect the inter se rights of owners, if there will be more than one owner or there is a dispute as to the title of the property.
(p) In case, privately owned buildings are demolished by the Corporation in exercise of power under Section 354 read with the present order, then the Corporation shall, while granting sanction of redevelopment, impose a condition in IOD (intimation of Disapproval) that no Commencement Certificate will be issued under Section 45 of the MRTP Act, 1966, unless and until an Agreement either providing a permanent or a settlement is arrived at by and between the tenants and/or occupiers and the landlord in respect of the said demolished premises, is filed with the Corporation at the earliest."
13. These guidelines will take care of the rights of the Appellants. In view thereof, the Appeal holds no merits; hence, stands dismissed. 8/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:03 :::
14. At this stage, learned counsel for the Appellants seeks continuation of the ad-interim relief. However, in view of the above discussion, no such case is made out for continuation of the ad-interim relief. Hence, this request is rejected.
15. In view of the above, Civil Application (Stamp) No.21361 pending in the Appeal does not survive and the same stands disposed off as infructuous.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 9/9 AO(St.)-21237-18.doc ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:07:03 :::