Bombay High Court
Mr. Deepak Nanalal Nagadia vs The State Of Maharashtra And Ors on 6 January, 2020
Bench: S.J.Kathawalla, B.P.Colabawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION Stamp No. 31791 OF 2019
Deepak Nanalal Nagadia ..Petitioner.
Vs
The State of Maharashtra & Ors ..Respondents.
Mr. Kalpesh Joshi a/with Ms. Vaibhavi Parchake, advocate Prachi Shah i/by Kalpesh
Joshi Associates, Advocates for the Petitioner.
Mrs. M.P. Thakur, AGP for Respondent No.1-State.
Mr. Sandeep D. Shinde for Respondent Nos. 2 to 4.
CORAM : S.J.KATHAWALLA, &
B.P.COLABAWALLA, JJ.
DATE : 6th JANUARY, 2020 P.C. :
1 The above Writ Petition pertains to a building named "Sadhna Mansion" at Old Station Road, Opposite Laxmi Market, Kalyan (West), District Thane. The Kalyan Dombivali Municipal Corporation, (KDMC) Kalyan had issued a notice under Section 268 of the Maharashtra Municipal Corporation Act, 1949 (for short the MMC Act) in the year 2014. One Mr. Premjibhai Gada and Ors have fled Writ Petition being No. 8248/2014 impugning the said notice. The said Premjibhai and Ors were in occupation of the ground foor and part of frst foor premises of the said Sadhna Building. They submitted before the Court that the building is not required to be demolished and the notice should be quashed and set aside. This ::: Uploaded on - 03/02/2020 ::: Downloaded on - 07/06/2020 20:42:33 ::: Ladda 2 / 5 10-wp-st-31791-19.doc Court therefore suggested that a Structural Engineer on the Panel of Municipal Corporation be appointed to submit the Structural Audit Report of the said building.
Accordingly, by order dated 20th December, 2019 the report of Shri Rajesh Mhatre, Structural Engineer was taken on record. Paragraph Nos. 4 and 5 of the said order are reproduced hereunder for ready reference:-
"4. Pursuant to this order, Mr. Rajesh Mhatre(the Structural Engineer) has submitted his detailed structural audit report. In the report it is stated that the Structural Engineer has carried out a structural examination of the subject building and has personally visited and checked all structural components of the building. After the aforesaid examination, the following certifcate is submitted by the Structural Engineer which reads thus:-
"I Rajesh T. Mhatre hereby certify that the aforesaid building is safe and stable for human habitation subject to condition i.e. partial demolish of structure frst foor to third foor including terrace, so it is possible to safe ground foor. I hereby recommend that the following corrective repairs be taken immediately within a period of 4 months in order to make the building structurally safe.
1. The Building goes in C2-A Category i.e. to be evacuated, certain dangerous portion that have to be demolished and major structure repairs.
2. Building should be vacated on immediate basis.
3. By using M. S. propping building can demolish from frst foor to third foor (including terrace, passage, staircase, headroom etc. and especially in common passage) step wise to avoid sudden collapse and it is possible to keep ground foor safe.
4. Demolition should be carry out manually, carefully and safely under the supervision of experienced structural engineer to ensure the demolition operation do not, at any stage, and endanger the safety of the adjoining building and human life.
5. M. S. props supposed to be provided near the column and highly damaged slab immediately in this structure where it is ::: Uploaded on - 03/02/2020 ::: Downloaded on - 07/06/2020 20:42:33 ::: Ladda 3 / 5 10-wp-st-31791-19.doc required to avoid sudden collapse and sure it tight in position.
6. After demolish of frst to third foor Repair and Re- strengthening work to R. C. C. Members should be carried out immediately (micro-concreting & jacketing work, polymer treatment to the both Internal and External Members).
7. External and Internal plaster, crack flling, Plumbing and drainage work, Water tank repair work, Terrace area plaster & waterproofng work & painting work, plinth protection.
8. Extra frame steel supports/structure should be provided to regain the strength wherever R. C. C. members are heavily damaged.
9. After repairing work Regular periodic maintenance should be done in time to time and check by experience person in this feld engineers etc.
10. Society/ owner should be informed to all members/ tenants/ concerned person about repairing work and safety precautions of building on prior basis.
11. All non-used material should be disposed/scraped. Barricade should be provided from all sides of the building.
12. All the sources of leakages shall be attended on urgent basis.
13. Structure may be occupied after demolish of frst to third foor and after repair work of ground foor.
14. Sign board of safety should be provided near the building so that people will stay away from the building.
15. After demolish repair of structure shall be carried out under experienced engineer and experienced contractor. Stability shall be taken by structural engineer after completion of successful repair of ground foor."
5. As can be seen from the aforesaid report, the Structural Engineer has categorized the building in C2-A category, namely, it is to be evacuated, the 1 st to 3rd foors of the subject building have to be demolished, and major structural repairs are required. In other words, there is to be a partial demolition of the subject building. The said report further opines that the building should be evacuated on an immediate basis.
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2. In view of the above, on 20th December, 2019, the Advocate appearing on behalf of the petitioner in Writ Petition No. 8248 of 2014 accepted the fndings of the said Structural Engineer and agreed to evacuate the premises occupied by the petitioner in the subject building within a period of two weeks. The statement was accepted and Writ Petition No.8248 of 2014 was disposed of by Order dated 20 th December, 2019. At the time of passing of the said order, one Deepak N. Nagadia i.e. the petitioner in the above Writ Petition moved an Interim Application No.1 of 2019 dated 16th December, 2019 claiming to be the occupant of the premises of the 1st foor and prayed that the 1st foor should not be demolished. He was asked to take out independent proceedings. He has therefore fled the above Writ Petition impugning the notices dated 15th May, 2014 and 23rd June, 2014 as well as the Structural Auditor's report.
3. As stated earlier, the notice under Section 268 of the Act was issued to the owners/occupiers by the Municipal Corporation as far back as in the year 2014. The above petitioner did not impugn the said notices for the next fve years. In any event, this Court appointed a Structural Engineer who was on the Panel of the Municipal Corporation who has submitted his detailed report and fndings which are already reproduced in the order dated 20 th December, 2019 as also herein above. The Court cannot keep on entertaining petitions fled by diferent occupants of the same structure qua the diferent foors and the orders passed by the Court have to attain ::: Uploaded on - 03/02/2020 ::: Downloaded on - 07/06/2020 20:42:33 ::: Ladda 5 / 5 10-wp-st-31791-19.doc fnality at some stage. The Court has by its order dated 20 th December, 2019 already accepted the report of the Structural Engineer pursuant to which the Court has also passed orders by accepting the statement of the Petitioner that they would vacate the premises within a period of two weeks to enable demolition of the 1 st to 3rd foors. We are not satisfed with the objections, now raised, by the Petitioner qua the Structural Auditor's Report. In view thereof, the question of setting aside the notice issued by the Municipal Corporation in the year 2014 after fve years and in view of the Structural Engineer's Report, does not arise. The above Writ Petition is therefore dismissed.
( B.P.COLABAWALLA, J. ) ( S.J.KATHAWALLA, J. )
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