Bombay High Court
Drishti Hospitality Company Pvt Ltd. ... vs The Municipal Corporation Of Greater ... on 17 November, 2022
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
Digitally signed
SUMEDH by SUMEDH
NAMDEO
NAMDEO SONAWANE
SONAWANE Date: 2022.11.23
09:04:39 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.34703 OF 2022
Drishti Hospitality Company Pvt
Ltd. and Anr. .. Petitioners
v/s.
The Municipal Corporation of
Greater Mumbai and Ors. .. Respondents
Mr. Nitin Thakkar, Senior Advocate a/w. Mr. Manoj Agiwal, for the
petitioners.
Ms. Vandana Mahadik i/by Mr. Sunil Sonawane, for respondent Nos.1 to
5 - MCGM.
Mr. Dhiraj Karande - AE (B&F) D Ward, Present in the Court.
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
DATED : 17TH NOVEMBER, 2022.
P.C. :
1. Rule. Ms. Mahadik, learned counsel for the respondent waives service. Rule is made returnable forthwith.
2. By this petition filed under Article 226 of the Constitution of 1/7
906.wpl.34703.22.doc SNS India, petitioners have prayed for writ of mandamus directing the respondent to inform in writing, with copy to the Petitioner, to the I.I.T., Mumbai and V.J.T.I., Mumbai to continue the structural audit of the building viz, Drishti House situated at 15 Mathew Road, Opera House, Mumbai 400004. The petitioners also seeks a writ of mandamus against respondent - Corporation to issue notice under Section 488 of the Mumbai Municipal Corporation Act, 1888 to all the occupants of the building to permit access to the audit teams of I.I.T and V.J.T.I. when they undertake the audit of the building.
3. It is not in dispute that the Technical Advisory Committee had opined that the building can be repaired by the occupants. It is however grievance of the petitioners that though, the Technical Advisory Committee had opined that the building can be repaired and is not required to evacuated, no steps were taken by the parties to carry out repairs resulting in further deterioration of the building. The petitioners therefore applied to the Municipal Corporation to permit structural audit to be carried out by an independent consultants.
4. In response to the correspondence of the petitioner, the Municipal 2/7
906.wpl.34703.22.doc SNS Corporation addressed a letter on 1 st July 2022 to the owner/Applicant Mr. Ashish Sheth, Members of Association of Co-owners/block holders of Mehta Mahal Building to take necessary precautions to avoid any mishap due to incomplete work of structural repairs and to complete the structural repairs at the earliest. It is the case of the petitioners that though those letters were addressed, there was hardly any progress by the occupants/NOC holders in carrying out the repairs.
5. It is admitted by the Municipal Corporation that the last structural audit was conducted on 14 th September 2020 and the ongoing structural repairs have come to a halt except superficial plastering and waterproofing work, leaving the building in dangerous condition. The Municipal Corporation clarified that the petitioner should carry out fresh structural audit report of the building through IIT Mumbai, Academic Section, Infinite Corridor, I.I.T. Area, Pawai, Mumbai Maharashtra - 4000 076 or VJTI, Matunga, Mumbai. After receipt of the fresh structural audit report of the same, further needful will be done on its merits, if required.
6. It is the case of the petitioner that in view of the said letter dated 3/7
906.wpl.34703.22.doc SNS 2nd August 2022, the petitioners appointed both these structural auditors for carrying out structural audit. As per convenience of the Municipal Corporation, the consultants visited the site in the last week of October 2022.
7. Mr. Thakkar, learned senior counsel for the petitioners invited our attention to the email dated 2nd November 2022 from VJTI recording that the structural auditor had visited the site on 31 st October 2022 and 1st November 2022. Unobstructed access to the premises was ensured on 31st October 2022 in the presence of officials from the Municipal Corporation and the Police Personnel.
On 1st November 2022, the Police Personnel and Municipal Corporation representatives were not there at site. Someone from Municipal Corporation had visited and instructed the team to stop the ongoing work of structural audit.
8. The VJTI accordingly brought this fact to the notice of the petitioners and made it clear that the audit is not completed and can be completed in the presence of the Municipal Corporation, Police Personnel and with due information to all the occupants. In view of these communications, the petitioners filed this petition with a limited prayer that the Municipal Corporation be directed 4/7
906.wpl.34703.22.doc SNS to permit the structural audit by petitioners to continue the structural audit. Learned senior counsel vehemently urged that an officer of the Municipal Corporation had orally instructed the consultant to stop the structural audit report.
9. Ms. Mahadik, learned counsel for the Municipal Corporation on instructions states that an officer of the Municipal Corporation had instructed the structural auditor orally to stop carrying out structural audit in view of the oral complaint received by the Municipal Corporation from one of the occupant. In our view, the oral instructions issued by the Municipal Corporation to stop the audit is contrary to the communication dated 2 nd August 2022 by which the Municipal Corporation had permitted the petitioners to carry out fresh structural audit from I.I.T. and/or VJTI. Petitioners have engaged these two structural auditor as suggested by the Municipal Corporation.
10. A perusal of the said order dated 2nd August 2022 clearly indicates that the Municipal Corporation had made it clear that after receipt of the fresh structural audit report, further needful would be done on its merits, if required. We are not proposing to pass any order at this stage whether the Municipal Corporation 5/7
906.wpl.34703.22.doc SNS shall consider such report and to pass a fresh order or not. It is for the petitioners to consider further course of action based on the said report that would be submitted by the structural auditor and as mentioned in the said letter dated 2nd August 2022.
11. Mr. Thakkar, learned senior counsel for the petitioner on instructions states that the ongoing repair, if any, would not be hampered while carrying out such structural audit report. Statement is accepted.
12. In view of the suggestion made by the structural auditor in the communication dated 2nd November 2022, we direct the Municipal Corporation and the Police Personal to remain present at the time of structural audit. The Municipal Corporation is directed to communicate this order to the NOC holders who are granted permission to carry out repairs with a direction to remain present at the time of structural audit and also a direction to them not to obstruct the structural auditor to carry out structural audit. It is made clear that the parties shall maintain decorum at the time of structural auditor carrying out structural audit and shall not exchange any arguments at the time of such audit. 6/7
906.wpl.34703.22.doc SNS
13. Copy of such structural audit report shall be made available by the petitioners to the NOC holders as well as Municipal Corporation for their information and record.
14. Mr. Thakkar, learned senior counsel for the petitioners states that the next visit of the structural auditor may be fixed after period of 15 days from today. Statement is accepted. The structural auditor shall accordingly inform the Municipal Corporation one week in advance before their proposed visit to enable the Municipal Corporation to issue notice to the NOC holders as well as occupants for such visit with request to remain present.
15. Writ petition is allowed in aforesaid terms. Rule is made absolute.
16. Liberty to apply in case of difficulty.
(KAMAL KHATA, J.) (R.D.DHANUKA, J.)
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