Bombay High Court
Khalil Ahmed Mohd. Ali Hamdulay And 2 Ors vs Municipal Corporation Of Greater ... on 22 August, 2019
Equivalent citations: AIRONLINE 2019 BOM 876, 2019 (6) ABR 27
Author: Gs Patel
Bench: S.C. Dharmadhikari, G.S.Patel
KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS
OSWPL2417-19-J.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2417 OF 2019
1. Khalil Ahmed Mohd. Ali
Hamdulay,
adult, Indian Inhabitant, residing at
Room No. 102, on the frst oor
2. Zubeda Mohd. Ali
Hamdulay,
adult, Indian Inhabitant, residing at
Room No. 2, on the ground oor
3. Maaz Nazir Kazi,
Indian Inhabitant, residing at Room No.
401 on fourth oor.
All residing at New Kisant Building
CHSL., situate at Plot No. 5, Opp. Sir
Elly Kadorie High School, 79-E,
Bhawan Adinath marg, Mazagaon,
Mumbai 400 010 ... Petitioners
~ versus ~
1. Municipal Corporation of
Greater Mumbai,
a statutory corporation incorporated
under the Mumbai Municipal
Corporation Act, 1888, having its head
office at Mahapalika a Marg, Mumbai
400 001
2. The Assistant Engineer,
Building & Factories, & Designated
Officer, "E"EW rard, Municipal Office,
Municipal Corporation of Greater
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KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS
OSWPL2417-19-J.DOC
Mumbai, 2nd Floor, 10, Shaika
Hafzuddin Marg, Byculla Wrest,,
Mumbai 400 008.
3. New Kisant Cooperative
Housing Society Limited,
a Society duly registered under the
provisions of the Maharashtra Society
Act, 1960 having its address at Plot No.
5, Opp. Sir Elly Kadorie high School,
79-E, Bhagwan Adinath Marg,
Mazgaon, Mumbai 400 010
4. M/s. Okay Estate
Developers,
a registered partnership frm having its
office at 40, Habour Crest Building,
Ground oor, Shivdas Chapsi Road,
Mazgaon, Mumbai through its Partners
1, Mohiuddin A Ansari, 2, Asjad
Ansari and Mr Musammil Hussain
5. State of Maharashtra,
through the office of the Collector of ...
Mumbai. Respondents
A PPEARANCES
FOR THE PETITIONER RM Vanoo, with AJ Uniyal.
FOR THE RESPONDENT Ms Rupali Adhate.
ALSO PRESENT Mr Bhushan Patil,
Junior Engineer, Building & Factory
Department, "E" Ward, MCGM.
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KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS
OSWPL2417-19-J.DOC
CORAM : S.C. Dharmadhikari, &
G.S.Patel, JJ.
DATED : 22nd August 2019.
ORAL JUDGMENT: (Per GS Patel, J.)
1. This rrit Petition is fled by three of 15 occupants of a building ka nown as New Kisant, the property of the 3rd Respondent, the New Kisant Cooperative Housing Society Limited. The building is a ground and four oor structure at Mazgaon, Mumbai 400 010. The building was constructed sometime in 1978. It is over 40 years old now. There were 15 occupants or society members. Of these 15 persons or families, all but the three Petitioners have vacated.
2. re have heard Mr Vanoo for the Petitioners at some length. The challenge in this rrit Petition under Article 226 of the Constitution of India is directed against a notice dated 3rd July 2019 issued by the 1st Respondent Corporation W"E"the MCGMW, through its officer, the 2nd Respondent, under Section 354 of the Mumbai Municipal Corporation Act 1888 W"E"MMC ActW,. There is also a challenge to another notice dated 13th August 2019 issued under Section 353-B of the MMC Act. The next prayer is for an injunction restraining the authorities from acting upon either of these notices. The interim relief sought is for a stay of the efect and operation of both these notices and an order of restraint against the Respondents from taka ing any action in execution of these notices.
3. Since June 2019, we have extensively, and exhaustively, considered the scope and ambit of the law relating to Section 354 Page 3 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC and 353-B of the MMC Act. In a series of decisions, as many as seven or eight in all as noted below, we have set out the entire law on the subject. re begin this judgment, therefore, by referencing these decisions and then setting out the relevant propositions culled from these authorities.
4. There is an extant MMC policy, evolved as a result of an interim decision of 23rd June 2014 of this Court, 1 in regard to such notices. Under Section 354, on the basis that the building is ruinous, dilapidated and dangerous, owners and occupants are called upon to bring down the structure in question. This is Section 354:
354. W1, If it shall at any time appear to the Commissioner that any structure Wincluding under this expression any building, wall or other structure and anything affixed to or projecting from any building, wall or other structure, is in a ruinous condition, or lika ely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure Subject to the provisions of section 342, of danger therefrom.
W2, The Commissioner may also if he thinka s ft, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, with a convenient platform and hand-rail, if there 1 Municipal Corporation of Greater Mumbai v State of Maharashtra & Ors, rrit Petition No. 1080 of 2015.
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W3, It is shall appear to the Commissioner that any building is dangerous and needs to be pulled down under sub-section W1,, the Commissioner shall call upon the owner, before issuing notice thereunder, to furnish a statement in writing signed by the owner stating therein the names of the occupiers of the building ka nown to him or from his record, the area in occupation and location of premises in occupation, possession of each of the respective occupiers or tenants, as the case may be.
W4, If he fails to furnish the statement as required by sub- section W3, within the stipulated period, then the Commissioner shall maka e a list of the occupants of the said building and carpet area of the premises in their respective occupation and possession along with the details of location.
W5, The action taka en under this section shall not afect the inter se rights of the owners or tenants or occupiers, including right of re-occupation in any manner.
Explanation.-- For the purposes of this section, "E"the tenantW shall have the same meaning as assigned to it in clause W15, of section 7 of the Maharashtra Rent Control Act, 1999W.
5. Occupants have 30 days in which to produce their own structural report contesting the view that the building is ruinous. Sometimes they do, and sometimes they do not. rhen they do, it is almost invariably a report saying the building can be repaired. Owners usually have reports supporting the demolition and saying Page 5 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC the building cannot be repaired. The policy now demands that with con icting reports, the matter is to be referred to a specially constituted Technical Advisory Committee under the chairmanship of the Director WES&P, of the MCGM. The rival consultants are given notice and are heard. The TAC is to maka e a site visit or visual inspection. After considering all material, it is then to maka e its independent technical assessment. There are diferent categories into which a building may be placed. A C-1 categorization is that the building is ruinous and cannot be repaired. A C-2B categorization is assigned when the building can be repaired without requiring to be evacuated. A C-2/A category means the building requires repairs Wnot demolition,, but those repairs can only be done on evacuation.
6. The interim order mentioned above held the feld until fnal disposal of the Petition on 28th February 2018.2
7. The entire policy was evidently set up precisely to allay fears that rapacious landlords in connivance with venal municipal officers were issuing Section 354 pull-down notices almost indiscriminately without any regard to the facts. This was meant as a fail-safe, or as another level of checka and balance. The TAC is not a quasi-judicial authority. It was not ever intended that the independent assessment of the TAC, arrived at after an open consideration of rival contentions, would itself be susceptible to interference on facts -- i.e. that a writ court in exercise of its discretionary and jurisprudentially constrained jurisdiction under Article 226 of the Constitution of India would substitute its own opinion as to whether 2 W2018, 5 AIR Bom R 460 : 2018 SCC Online Bom 816.
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8. In several judgements delivered in similar cases involving challenges to almost identical notices, we summarised the applicable legal principles. These decisions are:
(a) Mahendra Bhalchandra Shah & Ors v Municipal Corporation of Greater Mumbai & Ors, rrit Petition WL, No. 1755 of 2019, decided on 24th June 2019;
(b) Inderjit Singh Sethi & Ors v Municipal Corporation of Greater Mumbai & Ors, rrit Petition No. 880 of 2018, decided on 9th July 2019;
(c) Ramesh Nathubhai Patel & Ors v State of Maharashtra & Ors, rrit Petition No. 1500 of 2016, decided on 9th July 2019;
(d) Kutbi Manzil Tenants Welfare Association v Municipal Corporation of Greater Mumbai & Ors, rrit Petition No. 2451 of 2018, decided on 16th July 2019;Page 7 of 23
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(e) Sundar R. Gavaskar & Ors v Municipal Corporation of Greater Mumbai & Ors, rrit Petition No. 602 of 2019, decided on 29th July 2019;
(f ) Richard Gasper Mathias & Ors v Municipal Commissioner, Municipal Corporation of Greater Mumbai & Ors, rrit Petition No. 2108 of 2018 decided on 1st August 2019.
(g) Vivek Shantaram Kokate & Ors v Municipal Corporation of Greater Mumbai & Ors, rrit Petition No. 931 of 2019, decided on 19th August 2019.
9. In these decisions, we Court examined the scope of Section 354, the settled law on the subject in the context of writ jurisdiction, the provisions of Section 353B of the MMC Act, and its statement of objects and reasons, and dealt, too, with the argument that demolition of a tenanted structure adversely afects tenancy or occupancy rights. Section 353-B reads thus:
"E"353B. Structural Stability Certifcate.
W1, Every owner or occupier of a building in respect of which a period of thirty years, from the date of,--
Wi, issue of its completion certifcate by the Corporation; or Wii, issue of permission to occupy a building under section 353A ; or Wiii, its physical occupation of at least 50 per cent., of its built-up area, whichever is earlier, has expired, Page 8 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC shall cause such building to be examined by a Structural Engineer registered with the Corporation for the purposes of certifying that the building is ft for human habitation Wsuch certifcate hereinafter referred to as "E"the Structural Stability CertifcateW,. The Structural Stability Certifcate issued by such Structural Engineer shall be submitted to the Commissioner.
W2, The Structural Stability Certifcate shall be submitted within one year from the expiry of a period of thirty years referred to in sub-section W1,, and every ten years thereafter or such earlier period as the Commissioner may determine having regard to the condition of the building and the corrective repairs carried out by the owner or occupier.
W3, Notwithstanding anything contained in sub-section W1,, the Commissioner may, at any time, after having recorded the reasons, in writing, direct the owner or occupier of a building, to cause such building to be examined by such Structural Engineer and to submit to the Commissioner, the Structural Stability Certifcate, as required under sub-section W1,, within the period not exceeding thirty days as specifed by the Commissioner, in such direction.
W4, If the Structural Engineer recommends any corrective repairs for securing the structural stability of the building, such corrective repairs shall be carried out by the owner or occupier of a building to the satisfaction of the Commissioner.
W5, Any owner or occupier, as the case may be, who fails to carry out corrective repairs for securing structural stability, within a period of six months from the date of report of the Structural Engineer, shall be punished with the fne as provided in section 471.Page 9 of 23
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W7, If there is any dispute about the amount of expenses for which demand is made under sub-section W6,, an appeal may be preferred to the Chief Judge of the Small Causes Court, but no such appeal shall be entertained by the said Chief Judge, unless--
Wi, it is preferred within twenty-one days from the date of receipt of notice of such demand ;
Wii, the amount for which demand is made is deposited with the Corporation and a true copy of the receipt showing that the amount has been so deposited accompanies the appeal.
W8, In case the appeal is decided in favour of the appellant and the amount of expenses deposited with the Corporation is more than the amount payable by the appellant, the Commissioner shall adjust the excess amount with interest at 6.25 per cent, per annum from the date on which the amount is so deposited by the appellant, towards the property tax payable by the owner in respect of such building thereafter.W
10. The principles of law culled from these decisions are these:
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(a) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition: see:
Diwanchand Gupta v NM Shah & Ors.3; Nathubhai Dhulaji v Municipal Corporation,4
(b) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354W5, of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the feld regarding tenancies of built premises in Maharashtra. The Supreme Court decision in Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd & Ors.5 now maka es it clear that the rights of tenants and occupants are unafected by the required demolition.
(c) Tenants have rights but also remedies to ka eep their structure in tenantable repair. re have referred extensively to Section 14 of the Maharashtra Rent Control Act, 1999. So far, we have not seen a single case where any tenant or group of tenants has invoka ed his or their rights under this Section.
(d) Section 353B casts an obligation not only on owners but also on occupiers of structures that are more than 30 years old to furnish a structural stability certifcate. re 3 AIR 1972 Bom 316, per KK Desai and GN Vaidya JJ. 4 AIR 1959 Bom 332, YV Dixit & VM Tarka unde, JJ. 5 W2014, 14 SCC 1.Page 11 of 23
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(e) A rrit Court exercising jurisdiction will not substitute its own view for that of technically qualifed experts. Equally, the rrit Court will not prefer the view of one expert over another.
(f ) In order to succeed a Petitioner before the Court must be able to show that the impugned action sufers from rednesbury unreasonableness,6 i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoka ing the doctrine of proportionality. 7 In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.
(g) It is never sufficient merely to allege mala fdes without particulars. rhile direct evidence may not always be available as proof of mala fdes, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fdes are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility. 8 Courts are slow to draw dubious inferences from incomplete facts, 6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, W1948, 1 KB 223 : 1947 W2, All ER 680.
7 State of Madhya Pradesh & Ors v Hazarilal, W2008, 3 SCC 273;
Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, W2007, 4 SCC 669. 8 Union of India v Ashok Kumar, W2005, 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, W2009, 13 SCC 272.
Page 12 of 2322nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC especially when the imputations are grave and m and they are made against one who holds an office of responsibility in the administration.9 Mala fdes are the last refuge of a losing litigant.10 Hence, whenever mala fdes are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. re have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fdes, it is always made without any particulars whatsoever and we are aska ed simply to conjecture that this must be so. The law in regard to allegations of mala fdes is well settled and we will draw no such general conclusion.
(h) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seeka an order of status quo. re have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specifc reference to the actual state of afairs at that moment.11 There can be no order of status quo against natural elements. It is one in one 9 EP Royappa v State of Tamil Nadu, W1974, 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, W2003, 4 SCC 579. 10 Gulam Mustafa v State of Maharashtra, W1976, 1 SCC 800. 11 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, W2006, 3 SCC 312, the Supreme Court said it was not proper to order a status quo Wthere, in respect of premises, without indicating what the status quo was Page 13 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC thing to direct to parties to a contract to maintain the status quo. This may be an order against one person seeka ing another's eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.
(i) re have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertaka ings from occupants allowing them to continue in occupation at their own riska is without any basis in law. The MCGM cannot contract out of a statute. An undertaka ing by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaka ing is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaka ing ever being enforceable, let alone when the person who gives the undertaka ing himself or herself sufers an unfortunate mishap.
11. As regards the notice under Section 353B, we have in more than one decision Wreferred to above,, already set out that this provision was introduced by an amendment precisely because there was a catastrophic building collapse that tooka many lives. The section sets a benchmarka building age. Any building of more than 30 years requires the owner or occupants to submit, on completion of that benchmarka age, a structural stability report. If not, the MCGM may issue a notice demanding one. That in itself does not mean that Page 14 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC the building is not ruinous. The facts in this case do not bear out the Petitioners' case and do not ft the requirements of established and settled law.
12. Once this position in law is considered, what remains is to see whether the case presented by Mr Vanoo is or is not covered by this legal position, that is to say whether Mr Vanoo is able to maka e out a case of mala fdes, perversity, manifest illegality or rednesbury unreasonableness sufficient to warrant our interference in exercise of our limited jurisdiction under Article 226 of the Constitution of India. Cardinal to our approach must be two overriding factors. First that in our writ jurisdiction, we will not go into disputed questions of fact. Second, as has been settled half a century ago, it is not for a Court in exercise of its writ jurisdiction to determine whether a building is actually ruinous or not.
13. The 4th Respondent to this Petition is a partnership frm of developers. According to the Petitioners themselves, as set out in paragraph 9 the building requires substantial repairs. Mr Vanoo submits that a structural audit was carried out in 2017-2018 when the building was found to be in what is called the C-2/A category requiring urgent repairs but not demolition. This paragraph also says that the member of the society Wobviously including the Petitioners, agreed to proceed with the redevelopment of the building i.e. that it would be brought down and reconstructed. Then the Petitioners say that there was no action taka en to obtain a tender and no project management consultant was appointed.
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14. The entire thrust of paragraph 10 of the Petition is not directed to the physical condition of the building or to the accuracy or inaccuracy of the impugned notices but instead to the lacka of any agreement, understanding or redevelopment proposal between the society and its members.
15. Paragraph 11 contains an allegation of mala fdes against the 4th Respondent developer made in the usual vague and un- particularised fashion by alleging that the builder has sought to dictate and manipulate the proceedings of the society. re are not concerned with these narrations about the development agreement or the proposal between the society and its members.
16. rhat is then alleged in paragraph 14 is that the society Wof which the Petitioners are members, obtained a "E"stage-managedW structural audit report of 3rd June 2019 to show that the building was in the C-1 category i.e. so dilapidated and ruinous as to warrant its being pulled down.
17. According to the Petitioners, the 2nd Respondent issued the frst impugned notice dated 3rd July 2019 under Section 354 of the MMC Act saying that the building was ruinous. The Petitioners maintain that there is no basis for this notice and that the structural audit report of 3rd June 2019 is, in their words 'false'. There is then a reference to the correspondence by or on behalf of the Petitioners by which the Petitioners submitted their own consultant's report dated 26th July 2019 saying that the building could be repaired. re will return to this report shortly. Then there are averments about Page 16 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC the Petitioners having approached various authorities and municipal councillors, with which we are again not concerned. The Petitioners then contend that on 14th August 2019 there was a direction to place the two con icting structural reports before the Technical Advisory Committee of the MCGM. But in the meantime on 13th August 2019 the MCGM issued a notice threatening to disconnect the electricity and water supply to the building. The Petitioners replied to this on 16th August 2019 saying that the matter was pending before the TCA and therefore action should not be taka en.
18. Paragraph 23 then contains further allegations of mala fdes but also without particulars saying that these notices are at the behest of the developer who is exercising "E"all ka inds of pressureW and "E"intimidating tacticsW.
19. The grounds set out in the Petition are only to this efect that since there is at least one report obtained by the Petitioners showing that the building can be repaired, therefore the notices are ex facie bad and cannot be sustained.
20. Therefore, Mr Vanoo submits, the Petition should be allowed. re do not agree.
21. re will consider all three reports immediately. There is a frst report of 14th August 2017 by Techno Consultants. This says that the building needs to be partially evacuated and requires immediate repairs. It notes specifcally at page 52 that there were cracka s observed in structural members including columns in all the ats Page 17 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC and that reinforcement was exposed in the ceilings and the beams. These observations are reiterated at page 56. At page 57 is an alarming observation that one column on the ground oor has actually bucka led. At page 60 there is a conclusion that there are major cracka s in the beams, columns and slabs and the core concrete are afected. It was in view of this that at page 61, Techno Consultant said that the building required to be evacuated and required partial demolition requiring major structural repairs. re are unable to see how this report in any way benefts Mr Vanoo.
22. The next report is prepared by one Murtaza Haveliwala and it is a report made following an inspection of 25th May 2019 Wpage 76 onwards,. Mr Vanoo's complaint against this report is that the consultant Haveliwala carried out no tests but only made a visual inspection. The entire basis of this submission is wrong. There is no requirement either in law or technically that every single time a test is necessarily required. If on visual inspection it is found that the building is so far damaged that it cannot possibly be repaired and requires reconstruction, technical tests are not necessarily required. Such tests are required only where there is some level of ambiguity or where some portions are afected and others are not so vitally afected. Haveliwala inspected the entire building and his observations at page 85 are that the carbonation had reached extreme limits reducing the passivity of concrete which protects the reinforcement bars from a corrosion. He also found that some columns had bulged and that the RCC members Wbeams and columns, had deteriorated. There was severe corrosion. The load carrying capacity had degraded. There was extensive loss of reinforcement. Bricka worka was broka en. There was signifcant Page 18 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC vegetation growth. He opined that the building was beyond logical repair. It is no answer to say that this report is awed for want of any tests. In fact Haveliwala notes de ections and sagging in the structural members in all the rooms Wpage 89, and that the column conditions of staircase is cracka ed. At page 90 he candidly states that no tests were carried out as visually the structure was dilapidated. He said in no uncertain terms the structure required immediate evacuation and pulling down.
23. This leaves the Petitioners' consultant's report at Exhibit "E"FW from page 94 onwards. This was made by one MF Associates and we are sorry to say that this report leaves almost everything to be desired. First, the report begins by saying that the consultant had the beneft of no structural details whatsoever and that some of the ats were locka ed Whe does not say which or how many,. It is on the basis of this partial or incomplete inspection that this report is made and that immediately speaka s to its inherent unreliability. He also notes at page 100 the spalling of cover concrete but only notices at one or two locations. Obviously those are the only locations that he was able to see. Then there are some photographs, which according to the Petitioner's consultant, shows that the internally building is in sound condition. From page 105 onwards are some of the observations regarding the tests. At page 111 we notice that the consultant had no information regarding the foundations of the building. But what is more important is to be found in the results of the test at pages 113-114 read with pages 116-117. For example, in regard to the ultrasonic pulse velocity test, the standard is that if the velocity is below 3 ka m/sec, the concrete is doubtful, i.e. unsafe. At page 116 are the results of the test carried out by Petitioners' own Page 19 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC consultant. The velocity range is from 1.66 to 1.96 and not above i.e. just over half the recommended minimum. This admittedly means that the concrete is of doubtful quality. Despite this, the consultant then opines at page 114 that with repairs the life of the structure can be extended by eight to ten years and that it does not require reconstruction or demolition. In fact at page 115 we fnd a very peculiar endorsement. The frst conclusion was "E"to be evacuated and/or partial demolitionW. This has been scored out for reasons unclear and replaced with the phrase "E"requiring major structural repairsW. Apart from anything else this consultant says that the projected reconstruction cost for sq ft would be Rs. 3000 per sq ft. This is simply unbelievable given the fact that there is no cost of acquisition of land, no foundation worka and no fnishing worka but only structural worka involved in this reconstruction cost. The cost is clearly overstated by at least 300%. It is inconceivable that such limited reconstruction worka Wwithout cost of land, excavation, piling of foundation worka and internal fnishing, could ever cost Rs.3000/- per sq ft. Ex facie this report is not credible.
24. re are constrained to note that these reports, made lika e this in respect of buildings that are otherwise said to be ruinous, themselves present a danger. re fnd in matter after matter that consultants are signing of on such reports but without assuming any liability whatsoever. re are now maka ing it clear that if any Petitioner wants, in the face of such facts, an order allowing a building to be repaired rather than brought down and reconstructed, we will demand a personal undertaka ing from the structural consultant accepting full responsibility including for loss of life and property should anything untoward happened. re do not demand Page 20 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC this undertaka ing from Petitioners. re have already set out in previous decisions how such undertaka ings have no basis in law and serve no purpose. But if the professional consultant maka es such a report then he must be prepared to defend it and he must be prepared to stand by it. re will hold such persons to the contents of their assertions. re will not maka e an order only on the basis of assertions to which a consultant is unprepared to give a personal undertaka ing.
25. Learned Counsel for 3rd Respondent, the society, maka es only two points. The frst is that these are the only three persons in occupation. Everybody else has vacated because of the precarious condition of the building. He also shows us a set of photographs of the building and indeed the picture that emerges is alarming and bears out almost everything that Haveliwala said. re can see for ourselves the cracka s running up and down the structural members of this building.
26. re have gone into this exercise, though to some limited extent, only because of Mr Vanoo's repeated submissions that his clients' consultant's report shows that the building can be repaired. The law remains what it is. It is not for us to assess whether the building is ruinous or not. This exercise that we have undertaka en is to assess whether Mr Vanoo is able to maka e out any case of perversity, mala fdes or rednesbury unreasonableness. re are unable to fnd that he has made out any such case.
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27. Mr Vanoo's submission that we must await the TAC report is also without merit. As we have noted, the entire edifce of a reference to the TAC is in the event of an ambiguity or a con ict. That con ict must be not merely some stray sentence from a conclusion but from the report viewed as a whole. re fnd that, in fact, the petitioners' consultant's report is not only on a limited inspection and without complete access, but his conclusion is entirely unsupported by his own observations and test results. A reference to the TAC is not a legal entitlement or a legal right. It is to resolve a patent and apparent factual, technical inconsistency. rhere there is no inconsistency, therefore, and it can be demonstrated or seen that there is none, no question arises of awaiting any TAC report. rhat Mr Vanoo's submission really means is that every occupant now gets 'to taka e his chances' over and over again: frst by assailing the Section 354/353-B notices, and then later by assailing the TAC report on exactly the same, solitary ground: that some consultant says the building 'can be repaired'. This means nothing to us. It is bereft of logic. The test is not whether the building can be repaired, but whether it is safe for continued human habitation; and whether it is shown that despite being safe, on account of perversity, demonstrated and proved mala fdes or rednesbury unreasonableness, the authorities have ordered it to be brought down. re reiterate our approach: we will now demand that such consultants affirm and stand by their opinions and reports, and that they accept responsibility for what they say in their reports. re do so because it is now our belief that the conclusions in many such reports are worthless, and are given despite an easily discerned inconsistency between the conclusion and the observations and test results. If a consultant is, therefore, so Page 22 of 23 22nd August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 17/04/2020 10:50:40 ::: KHALIL AHMED MOHD ALI HAMDULAY V MCGM & ORS OSWPL2417-19-J.DOC emphatic that no demolition is necessary, his opinion must be that the building is not ruinous, i.e. that it is entirely safe for human habitation, and that he accepts full responsibility for this. Nothing short of this will now do. This Court will not, in exercise of its writ jurisdiction, riska the lives and property of occupants year after year. Our taska demands that we frst looka to the safety of occupants and of third parties, not that we give utmost precedence to the contractual or property rights or claims of a handful. The wider public interest will always outweigh narrow private concerns.
28. As we have seen, in this case, there is absolutely no dispute that the building requires reconstruction. Even the petitioners have accepted this. There petition says so. Their real dispute is, therefore, not in respect of the impugned notices at all, but only in regard to the re-development proposal, agreement or arrangement. That is not a reason to justify our interference or to stay, let alone quash, the impugned notices.
29. The Petition is dismissed. In the facts and circumstances of the case there will be no order as to costs. re direct the MCGM to act forthwith on the notices that it had issued.
30. The photographs tendered on behalf of 3rd Respondent are taka en on record and marka ed 'X' for identifcation collectively.
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