Bombay High Court
Pardhav Enterprises vs Municipal Corporation Of Greater ... on 15 May, 2024
Bench: Sandeep V. Marne, Neela Gokhale
2024:BHC-OS:8300-DB
Neeta Sawant WP(L.)-14536-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO. 14536 OF 2024
Pardhav Enterprises } ...Petitioner
:Versus :
1. Municipal Corporation of Greater Mumbai
2. The Municipal Commissioner, Municipal
Corporation of Greater Mumbai
3. Assistant Commissioner
4. Assistant Engineer ( Bldg. & Fact.)
5. Dy. Chief Engineer, (Building & Proposal
Department
6. Hiren Vasant Visaria } ...Respondents
Mr. Prathamesh Kamant a/w. Mr. Pratik Jani, Mr. Princee Vaishnav i/by.
Prime Legam, for the Petitioner.
Ms. Pooja Yadav i/by. Mr. Sunil Sonawane, for B.M.C.
Mr. Ankit Lohia a/w. Mr. Yadunath Chaudhary, Mr. Viraj Jadhav i/by.
Mr. Kevin Pereira, for Respondent No.6.
Coram : Sandeep V. Marne, &
Dr. Neela Gokhale, JJ.
(Vacation Court)
Dated : 15 May 2024.
Page No.1 of 14
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Neeta Sawant WP(L.)-14536-2024
ORAL JUDGMENT :
1) Rule. Rule made returnable forthwith. With the consent of the learned counsel appearing for parties, petition is taken up for hearing and final disposal.
2) By this petition, Petitioner is aggrieved by the action of the Technical Advisory Committee (TAC) in directing Petitioner and Respondent No.6 to submit fresh structural audit reports after receipt of structural audit report of IIT, Mumbai. According to the Petitioner, IIT, Mumbai was appointed by TAC as independent agency after noticing conficting audit reports produced by the Petitioner and Respondent No.6. Petitioner therefore claims that once an independent agency i.e. IIT, Mumbai has classified the building into 'C-1' category, there is no question of TAC summoning another structural audit report from Respondent No.6. This is the limited grievance raised by the Petitioner in the present petition.
3) Considering the narrow controversy raised in the petition, it is not necessary to record facts of the case in detail. Sufce it to record that the building involved in the petition is more than 61 years old. The Assistant Municipal Commissioner appointed its empaneled structural auditor who submitted report dated 31 January 2023 classifying the building into 'C-1' category. Based on that report, the third Respondent issued notice dated 31 January 2023 under the provisions of Section 354 of the Mumbai Municipal Corporations Act, 1888 for pulling down the building. At the instance of Respondent No.6, who is a tenant in the Page No.2 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 building, conficting structural audit report dated 30 December 2022 was produced. Thereafter, notice dated 5 April 2023 was issued for immediate evacuation and demolition of the building. Respondent No.6 filed Writ Petition (Lodg.) No. 9779 of 2023 in this Court, which came to be disposed of granting fresh opportunities to the rival parties to place on record their respective structural audit reports and directing TAC to pass fresh order. It appears that the Petitioner submitted structural audit report dated 13 April 2023 classifying the building in 'C-1' category whereas the Sixth Respondent relied upon structural audit report of VJTI, Mumbai classifying the structure of Respondent No.6 into 'C2-B' category and structure of other tenants in 'C-3' category. After considering the conficting audit reports, as well as after hearing the structural consultants, TAC passed order dated 4 August 2023 accepting the structural audit reports submitted at the behest of the Petitioner classifying the building in 'C-1' category and directed immediate vacation of the building. TAC's decision dated 4 August 2023 became subject matter of challenge in Writ Petition (Lodg.) No.21939/2023 which came to be disposed of by order dated 10 August 2023 holding that TAC did not indicate in its order as to why only few observations of conficting reports were considered and why rest of the parts of the reports were rejected. This Court therefore remanded the matter to TAC for fresh decision by setting aside its report dated 4 August 2023.
4) After remand, TAC in its meeting dated 12 August 2023 decided to appoint IIT, Mumbai to carry out fresh audit of the structure. Accordingly, IIT, Mumbai conducted structural audit and submitted report dated 12 March 2023 to TAC classifying the building in 'C-1' Page No.3 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 category. When TAC met to consider the report of IIT, Mumbai on 23 April 2023, Respondent No.6 raised on objection that the validity of earlier structural audit reports relied upon by Respondent No.6 had expired and therefore prayed for an opportunity to submit fresh structural audit report. TAC has accepted the request and has directed him to submit fresh structural audit report within one month. Petitioner is also granted opportunity to submit a fresh structural audit report. Petitioner is aggrieved by decision of TAC dated 23 April 2024 directing both the parties to submit fresh structural audit report and has filed the present petition.
5) We have heard Mr. Kamant, the learned counsel appearing for the Petitioner, Mr. Lohia, the learned counsel appearing for Respondent No.6 and Ms. Yadav, the learned counsel appearing for Respondent No.1-M.C.G.M.
6) After having considered the submissions canvassed by the learned counsel appearing for the parties, in our view, TAC has completely misdirected itself in directing both the rival parties to procure their own structural audit reports even after receiving report of independent structural auditor viz. IIT, Mumbai. Under the Guidelines prescribed by the M.C.G.M., reference is required to be made to TAC only in the event of submission of conficting structural audit reports by landlords and tenants. Paras-1.04 and 1.05 of the guidelines reads thus :
1.04) If the tenants/Occupants object to the findings of the Structural audit report they shall be asked to appoint their own, registered structural Page No.4 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 engineer and submit the structural audit report in Proforma-B within 15 days. Otherwise process will be same as per 1.07.
1.05) If the owners and/or the tenants/occupants submit conficting structural audit report on the status of the building, the matter shall be referred to the concerned Technical Advisory Committee (T.A.C.) (Annexure-3) and the decision of T.A.C. will be final and binding on all the parties concerned. The Technical Advisory Committee shall give hearing to concerned structural consultants during the meeting. As far as possible, meetings of Technical Advisory Committee (T.A.C.) shall not be adjourned. For genuine reasons the meeting may be adjourned but in no case more than two adjournments shall be granted.
7) In the present case, it appears that there are as many as 7 structural audit reports submitted by rival parties which are as under :
Sr.no. Auditor Date of the Classification of
Report structure
1. Reinforce consulting Engineers & 1.01.2023 C1 Category
Architect
2. M/s. Space Design & Development 30.12.2023 C2-B category
3. M/s. Con Arch India 07.04.2023 C3 category
4. M/s. Sardar Patel College of 13.04.2023 C1 category
Engineering
5. Total Solution 04.05.2023 C2-B category
6. B.J. Mehta Architectural & C1 Category
Structural
7. VJIT Mumbai 17.05.2023 Structure of Ground
Floor in C-3 and
Ground + Floor in
C2-B category
8) Thus, as per the Guidelines, TAC is supposed to give hearing
to the concerned structural consultants, who submit conficting reports and Page No.5 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 thereafter take a decision. In taking its decision, the TAC can conduct site inspection for the purpose of forming opinion about classification of the building. If felt necessary, TAC can appoint an independent structural consultant in the event it is found that decision cannot be taken on the basis of observations of the conficting structural audit reports. In the present case, TAC could have taken decision after considering the conficting structural audit reports relied upon by rival parties. It appears that TAC met on 22 August 2023 and conducted detailed hearing which was attended by various municipal ofcials, as well as structural consultants of Petitioner, as well as of Respondent No.6. The structural consultants, whose reports were relied upon before TAC, were heard in detail and TAC noted following observations :
T.A.C. OBERVATION:
In this case, initially the earlier proposal was submitted by R/Central Ward before Technical Advisory Committee on 16.03.2023 considering the entire Ganesh Bhuvan Building as a single structure and common conficting structural audit reports were submitted. On that basis, the T.A.C. has processed the matter. As per the policy guidelines, T.A.C. has to accept one structural audit report from the conficting structural audit reports in front of T.A.C. Thereby considering the single structure, the Technical Advisory Committee has given the earlier decision which was communicated U/No.Dy.Ch. Engr (B.P./12336/W.S.-II dated 03.04.2023. While site visit of T.A.C. Members, since the structures are closely spaced, it was not able to identify the seperate stsructures visually. Subsequently, after hte orders of Hon'ble High Court, as per the proposal submitted by R/Central Ward Staf, two Structural Consultants viz. M/s. B.J. Mehta, Architectural & Structural Consultants Pvt. and VJTI, Mumbai have submitted individual structural audit reports for structure no.1, structure no.2 and structure no.3 and also while going through the proposal submitted again by R/Central Ward U/No.AC/RC/013933/BF dated Page No.6 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 13.07.2023 to Technical Advisory Committee, it was come to know that there are three structures involved in the said proposal i.e. structure no.1, and structure no.3 are ground foor structures and structure no.2 is ground + one storeyed structure. While passing the order dated 04.08.2023, since the structure no.1 and structure no.3 are ground foor structures, considering all aspects, the structural audit reports submitted by VJTI, Mumbai classifying the structure no.1 and structure no.3 in "C-
3" category i.e. 'No eviction only minor repairs' was accepted. However, since the structure no.2 is ground + one storey structure having intermediate slab like portion cantilever common passage and external staircase, considering all the aspects and the opinion of all members of Technical Advisory Committee, the structural audit reports submitted by M/s. Reinforce Consulting Engineers & Architects, M/s. Sardar Patel College of Engineering and M/s. B.J. Mehta Agricultural & Structural Consultants Pvt. Ltd. for ground + one structure which is classified in "C- 1" category i.e. "to be evacuated and demolished immediately" was accepted.
Further, R/Central Ward Staf vide their ofce note U/No. AC/RC/260/SR/BF dated 21.08.2023 has submitted the file papers to the Chairman, TAC mentioning therein that the Hon'ble High Court vide order dated 10th August, 2023 in Writ Petition (L) No 21939 of 2023 directed that "this matter requires fresh consideration by the TAC in respect of Structure No.2 only. The matter is remanded back to TAC for fresh consideration and decision in respect of Structure No.2. TAC is directed to grant hearing to the representatives of both sides and also the concerned structural auditors and take a fresh decision in respect of Structure No.2, in accordance with law, as early as possible and preferably within three weeks from the date of appearance of the parties before TAC."
Accordingly, the Structural Consultants and the parties were heard by Technical Advisory Committee and the structural audit reports submitted by them were perused. M/s. Reinforce Consulting Engineers & Architects have classified the said building in "C-1" category, M/s. Space Design & Development have classified the said building in "C2-B"
Page No.7 of 1415 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 Category; M/s Sardar Patel College of Engineering have classified the building under reference in "C-1" category, M/s. Total Solution have classified the said structure in "C2-B" category M/s.B.J. Mehta Architectural & Structural Consultants Pvt. Ltd. have classified the said building in "C-1" category and V.J.T.I., Mumbai have classified the Structure No.2 which is of ground foor + 1 in ' C 2-B' category.
Hon'ble High Court vide order dated 10 th August, 2023 has set aside the order of Technical Advisory Committee and directed T.A.C. for fresh consideration and decision in respect of Structure No.2. However, it is difcult for T.A.C. to consider the old structural audit reports and give fresh opinion for Structure No.2. Hence, it will be appropriate to get the fresh structural audit carried out for Structure No.2 through I.I.T., Powai being experts in Structural Engineering field.
9) TAC thereafter concluded in its meeting dated 22 August 2023 as under :
: CONCLUSION:
In continuation of the order of Technical Advisory Committee U/No.Dy.Ch.E. (B.P 3824/W.S./P&R dated 04.08.2023 and considering the opinion of all Members of Technical Advisory Committee & on perusal of the Structural Audit Reports submitted by all the Structural Consultants, the Technical Advisory Committee has unanimously decided that Designated Ofcer / Executive Engineer (B. & F.), R/Central Ward shall appoint IIT, Powai for carrying out fresh structural audit for Structure No.2 as per the norms immediately and submit the proposal/file papers again to the Technical Advisory Committee on receipt of fresh structural audit report from I.I.T., Powai. Till the time, Designated Ofcer / Executive Engineer (B. & F.), R/Central Ward shall take utmost precautions like insisting propping to the structure by occupants / owner to avoid any mishap causing any loss of life and property failing which, appropriate action shall be taken by the Designated Ofcer / Executive Engineer (B. & F.), R/Central Ward.
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As far as Structure No.1 and Structure No.3 is concerned, the Technical Advisory Committee have already decided to accept the structural audit reports submitted by V.J.T.I., Mumbai for the Ground Floor Structure No.1 & Structure No.3 which are classified in 'C-3' category i.e. 'No eviction only minor repairs' as per earlier T.A.C. decision U/No.Dy. Ch.E. (B.P)/3824/W.S./P&R dated 04.08.2023.
The decision shall be communicated as per the 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 the Executive Engineer/Designated Ofcer (Building & Factory), R/Central Ward.
The order is passed in view of provisions of Circular issued U/No.Dy.Ch.E.(B.P.)/4789/W.S./P & R dated 14 August 2023.
Asstt. Law Ofcer, "R/Central Ward" may appraise the decision taken by Technical Advisory Committee to the Hon'ble High Court.
10) It appears that TAC felt it necessary after considering the conficting structural audit reports to call for independent report from IIT, Mumbai. Thus the decision to call for report of IIT, Mumbai was taken by TAC for the purpose of enabling it to make recommendations relating to classification of the building. The purpose of summoning independent audit report from IIT, Mumbai was not for the purpose of considering a contest between that report and the reports submitted by the rival parties. Neither Petitioner nor Respondent No.6 challenged the decision of TAC in meeting dated 10 August 2023 to summon independent structural audit reports from IIT, Mumbai though the decision of TAC was circulated to all the parties by letter dated 26 August 2023. In that sense, both Petitioner as well as Respondent No.6 acquiesced in the decision of the Page No.9 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 TAC to have report of independent structural auditor for taking final decision in the matter.
11) Accordingly, IIT Mumbai submitted its report dated 12 March 2024 classifying the building in 'C-1' category. In our view, once the independent structural auditor gave report, TAC ought to have decided the matter finally. However, TAC erroneously entertained the request on behalf of Respondent No.6 for submission of fresh structural audit report on the ground that the validity of earlier structural audit reports had expired. The observations recorded by TAC in this regard are as under :
T.A.C. OBSERVATION :
Considering the points submitted by Shri Viren Visaria regarding validity of the structural audit reports and while going through the file papers, it is observed that M/s. Space Design & Development has audited the structure on 15.12.2022. M/s. Reinforce Consulting Engineers & Architects has carried out structural audit of the said structure on 17.01.2023 M/s. Con Arch India has audited on 07.04.2023, Sardar Patel College of Engineering has audited on 14.04.2023; M/s. Total Solution has audited on 29.04.2023. VJTI, Mumbai has audited on 03.05.2023 and M/s. B.J. Mehta Architectural & Structural Consultants P. Ltd. has audited the said structure on 20.05.2023. The validity of the last report submitted by M/s. B.J. Mehta Architectural & Structural Consultants Pvt. Ltd. on 20.05.2023 is also lapsed as on today. Thereby, there is only one valid structural audit report of I.I.T.. Mumbai is available in front of TAC as on today and as per the TAC Policy Guidelines, at least two or more valid conficting structural audit reports are required in front of TAC to take the decision.
It is to mention here that as per the last order of TAC dated 24.08.2023, it was directed that Designated Ofcer / Executive Engineer (B. & F.), R/Central Ward shall appoint I.I.T., Powai for Page No.10 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 carrying out fresh structural audit for Structure No.2 as per the norms immediately and submit the proposal / file papers again to Technical Advisory Committee on receipt of fresh structural audit report from I.I.T., Powai. However, the structural audit report from I.I.T. Bombay has been received in March 2024 thereby consuming the period of about 6 months. Thereby, the validity of the earlier structural audit reports is lapsed.
Further as far as request made by Shri Viren Visaria for carrying out fresh audit report within the period of 30 days is concerned, the matter was discussed with all the Structural Consultants who were present for the TAC hearing. As stated by them, the time period of about 2 to 3 weeks are required for carrying out / obtaining test results of the structure.
12) On the basis of the above observations, TAC has proceeded to draw the following conclusions :
CONCLUSION:
In view of above, it is unanimously decided by all TAC Members that one final chance shall have to be given to the Party i.e. Shri Hiren Visaria (Janata Stores) for submitting fresh structural audit report within the period of one month from the date of this hearing order to Designated Ofcer / Executive Engineer (B & F.). R/Central Ward. Also, the opposite party ie. Shri Paras Rambhia of Hotel Suvej (M/s. Pardhav Enterprises) can also submit fresh structural audit report, if he desires, within the period of one month from the date of this hearing order. If no fresh conficting structural audit reports are submitted by both the parties upto 22.05.2024, then Designated Ofcer / Executive Engineer (B. & F.). R/Central Ward shall proceed further as per structural audit report given by I.I.T., Bombay.
13) In our view, it is not at all necessary for TAC to invite structural audit reports from the Petitioner or Respondent No.6.
Petitioner is not interested in submitting any fresh structural audit report.
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Calling of fresh structural audit report at the behest of private parties is resorted to by TAC essentially on account of request made by Respondent No.6.
14) In our view, the report submitted by IIT, Mumbai is not required to be treated as a conficting report and in that sense, it is not necessary for TAC to have fresh structural audit reports. The purpose why TAC has called for structural audit reports of Petitioner and Respondent No.6 is apparent from the following observations of TAC :
'Therefore, there is only one fresh structural audit report and on the basis of only one valid structural audit report, TAC cannot decide the matter.'
15) In our view, the above submission made by Respondent No.6 is totally misplaced. As observed above, the structural audit report summoned by TAC from IIT is independent one, which is summoned solely for the purpose of assisting TAC in making its recommendations.
Therefore, it was not necessary for TAC to have fresh multiple valid reports for the purpose of deciding whether the report of IIT is in confict with any of the reports relied upon by the rival parties.
16) If the course of action suggested by TAC is accepted, the same would result in an unending exercise of calling fresh structural audit reports on the ground of expiry of validity of earlier structural audit reports. To illustrate, if for some reason the structural audit report of either Petitioner or Respondent is received six months after IIT's report dated 12 March 2024 or if TAC is unable to meet and decide the issue Page No.12 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 within 6 months of IIT's report dated 12 March 2024, TAC will have to requisition fresh report from independent agency. This would be unending and such course of action is required to be avoided. In our view, the structural audit report of IIT, Mumbai is independent one and TAC can take decision on the basis of said report after hearing rival parties and their structural consultants.
17) Mr. Lohia would submit that in such hearing, Respondent No.6 be permitted to rely upon structural audit report submitted by him without raising the objection of expiry of its validity. In our view, TAC is required to take a holistic view of the matter and cannot be too hyper technical. In peculiar facts and circumstances of the case, where TAC has already summoned structural audit report of reputed independent agency of IIT, Mumbai undoubtedly it would be guided by the recommendations of the said report. However, the same does not mean that Respondent No.6 is precluded from relying on other audit reports submitted at its behest during the course of hearing before TAC.
18) Writ Petition accordingly succeeds. The Order dated 23 April 2024 passed by TAC is set aside and the proceedings are restored before TAC who shall proceed to take decision in an expeditious manner as per the observations made above. During the course of its decision making process, TAC in addition to the report of IIT, Mumbai shall also permit Petitioner and Respondent No.6 to rely upon structural audits already conducted at their behest. TAC shall proceed to take a decision as expeditiously as possible preferably before 30 June 2024, after hearing the Petitioner, as well as Respondent No.6. With the above directions, the Page No.13 of 14 15 May 2024 ::: Uploaded on - 16/05/2024 ::: Downloaded on - 16/05/2024 19:10:58 ::: Neeta Sawant WP(L.)-14536-2024 Writ Petition is partly allowed. Rule is made partly absolute. There shall be no order as to costs.
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