Bombay High Court
Andheri Purab Paschim Co-Operative ... vs Municipal Corporation For Greater ... on 12 September, 2023
Author: Gs Patel
Bench: G.S. Patel
2023:BHC-OS:9825-DB Andheir Purab Paschim CHSL v MCGM & Ors
917-oswpl-4234-2023+J.doc
Ashwini
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 4234 OF 2023
Andheri Purab Paschim Co-
operative Housing Society
Ltd.,
217, Gilbert Hill Road, Behind Andheri
Recreation Club, Andheri (West),
Mumbai 400 058. ...Petitioner
~ versus ~
Digitally
signed by
ASHWINI
ASHWINI
1. Municipal Corporation for
H GAJAKOSH
GAJAKOSH Date:
2023.09.13
Greater Mumbai,
10:45:01
+0530 a Body Corporate constituted under the
provisions of M.M.C. Act, 1888 and
having its Main Office at Mahapalika
Bhavan, Mahapalika Marg, Fort,
Mumbai 400 001.
2. The Assistant
Commissioner,
K/West Ward, Paliram Road, Near
Swami Vivekananda Rd, Andheri
(West), Mumbai, Maharashtra 400 058. ...Respondents
WITH
CONTEMPT PETITION NO. 40 OF 2023
IN
WRIT PETITION (L) NO. 4234 OF 2023
Page 1 of 21
12th September 2023
::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 :::
Andheir Purab Paschim CHSL v MCGM & Ors
917-oswpl-4234-2023+J.doc
Andheri Purab Paschim Co-
operative Housing Society
Ltd.,
217, Gilbert Hill Road, Behind Andheri
Recreation Club, Andheri (West),
Mumbai 400 058. ...Petitioner
~ versus ~
1. Municipal Corporation for
Greater Mumbai,
a Body Corporate constituted under the
provisions of M.M.C. Act, 1888 and
having its Main Office at Mahapalika
Bhavan, Mahapalika Marg, Fort,
Mumbai 400 001.
2. The Assistant
Commissioner,
K/West Ward, Paliram Road, Near
Swami Vivekananda Rd, Andheri
(West), Mumbai, Maharashtra 400 058.
3. Pankaj Bansod,
The Assistant Engineer
4. Ganesh Sangle,
The Sub-Engineer
5. Aniket Bankar,
Junior Engineer 3 to 5 having address at
K/West Ward, Paliram Road, Near,
Swami Vivekananda Rd, Andheri
(West), Mumbai, Maharashtra 400 058. ...Respondents
A PPEARANCES
for the petitioner Mr Induprakash Tripathi, with
Bhagyashri Gawas, i/b CK
Page 2 of 21
12th September 2023
::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 :::
Andheir Purab Paschim CHSL v MCGM & Ors
917-oswpl-4234-2023+J.doc
Tripathi.
for respondent - Ms Pooja Yadav, i/b Sunil
mcgm Sonawane.
Mr Aniket Bankar, Jr Engineer
(Building and Factory) K/West
Ward, is present.
CORAM : G.S. Patel &
Kamal Khata, JJ.
DATED : 12th September 2023
ORAL JUDGMENT (Per GS Patel J):-
1. There is a persistent attempt to misread, misconstrue and misapply the interim directions of this Court in Writ Petition (L) No. 1135 of 2014 (later finally numbered as Writ Petition No. 1080 of 2015, Municipal Corporation of Greater Mumbai v State of Maharashtra & Ors). There, a Division Bench of this Court made an interim order on 23rd June 2014 on a case presented to it that buildings that were otherwise structurally sound, or at best required repairs, were being declared as structurally unsafe, unfit for human habitation, ruinous and dangerous and were being ordered to be pulled down. The allegation was that this was done at the instance of rapacious landlords and property owners with the active connivance of municipal officials. The Court therefore, framed a series of guidelines by its order dated 23rd June 2014. The Writ Petition was ultimately disposed of by a Division Bench of this Court (AS Oka, J, as he then was and RI Chagla, J) on 28th Page 3 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc February 2018.1 By that time, the Municipal Corporation of Greater Mumbai ("MCGM") had adopted the guidelines framed by the interim order of 23rd June 2014. An earlier version of these 'policy guidelines' of the MCGM were put on affidavit before the Division Bench (of Oka J, as he then was and RI Chagla J) at the final disposal of the Petition. The final policy guidelines are of 25th May 2018, captioned GUIDELINES FOR DECLARING PRIVATE AND MUNICIPAL BUILDINGS AS C-1 CATEGORY (DANGEROUS, UNSAFE).
2. Some of the observations in the final order disposing of that writ petition are important for our purposes today. The Division Bench said:
5. The necessity of passing interim order dated 23rd June 2014 was the absence of a policy or guidelines. That is very clear from the observations made in the paragraph 8 of the said order. In view of the policy guidelines which are placed on record by the affidavit dated 8th February 2018 as modified on 23rd February 2018 now it is no longer necessary for this Court to exercise Writ Jurisdiction by issuing policy guidelines. We may make a useful reference to the decision of the Apex Court in the case of Census Commissioner v. R. Krishnamurthy [(2015) 2 SCC 796]. In paragraph 25 of the said decision, the Apex Court reiterated the well settled legal position that it is not within the domain of the Court to legislate and it is the function of the Courts to interpret the law by adopting certain creative process. In paragraph 25, the Apex Court observed thus:--
"25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different.
1 2018 SCC OnLine Bom 816.Page 4 of 21
12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy-making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the executive. If a policy decision or a notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner."
(Emphasis in the original order)
6. Therefore, in the light of the policy guidelines adopted by the said Corporation, it will not be appropriate Page 5 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc for this Court to add to the policy or to amend the said policy especially when this Court is not called upon to decide the legality and validity of the policy.
(Emphasis added)
3. The time is not far, we suspect, when the legality and validity of the policy will be called into question. The observations of the Division Bench at the final disposal of the matter may not be, strictly speaking, a question of 'jurisdiction', but it will almost certainly affect the binding nature of such directions. Equally important is the fact that this has remained in the form of policy guidelines; that is to say, it is entirely unsupported by any statute.
4. We had occasion to visit some aspects of this law in a Division Bench judgment (one of us GS Patel, J was a member of that Bench with Gauri Godse, J) in Hind Rubber Industries Pvt Ltd & Ors v State of Maharashtra & Ors.2
5. What is being persistently misunderstood and misconstrued is the jurisprudential impact of these guidelines (irrespective of the source). These were to provide some sort of checks and balances against arbitrariness and unilateralism in public action, i.e., in the actions of the Municipal Corporation, an instrumentality of the state within the meaning of Article 12 of the Constitution of India, such actions always being susceptible to judicial review under Article 226 of the Constitution of India. The guidelines were not meant to, and could not, legislate. They were not intended to create new statutory or vested rights.
2 2022 SCC OnLine Bom 1640 : (2023) 1 Bom CR 342.
Page 6 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc
6. The Technical Advisory Committee ("TAC") set up by these guidelines is a technical expert body. Its constitution is drawn from experts from the Municipal Corporation itself. What this has unfortunately generated is a whole new species of litigation where the TAC's expert opinion on technical structural engineering matters is now seen or said to be some sort of administrative or quasi-judicial action rather than what it is, i.e., a factual report on technical aspects of structural stability. Therefore, TAC reports and recommendations are now being perennially sought to be subjected to judicial review of a Writ Court under Article 226 of the Constitution of India.
7. The TAC is not a quasi-judicial nor an administrative body. Other than a procedural irregularity or some form of violation of the principles of natural justice or a violation of Article 14 of the Constitution of India that is facially demonstrated, no interference is possible with the recommendations of the TAC.
8. In any view of the matter, it is not possible to substitute the opinion of a TAC with an opinion of a court, least of all the Writ Court.
9. Where there are conflicting views about the structural stability of a building, and unless the TAC report is shown to be vulnerable in law for one or more of the reasons well established in law for interference by a writ court, a court cannot possibly interfere at the behest of one party.
Page 7 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc
10. This is precisely the dispute raised in this Petition. The Petitioner society says that its building of two wings of ground and seven floors and other of ground and six floors at Gilbert Hill Road, Andheri (West) is structurally sound, but the TAC has in its report dated 24th January 2023 at pages 46 to 52 held it to be in a deteriorated condition and in the C1 category requiring that it be evacuated and pulled down immediately.
11. Under the guidelines there are four categories. C-1 is the most dangerous. Category C-2A buildings are those that are partly unsafe. Category C-2B buildings require major structural repairs without vacating the structure. Category C-3 buildings require only minor repairs.
12. The Petition challenges a consequential notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 ("MMC Act").
13. This Section exists for an entirely salutary purpose, one that seems to have wholly escaped these Petitioners. It finds a place in a sub-section called 'Dangerous Structures' and that is part of Chapter XII of the MMC Act which deals with building regulations. We now reproduce the whole of Section 354.
Dangerous Structures.
354. Removal of structures, etc., which are in ruins or likely to fall.
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to Page 8 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc or projecting from any building, wall or other structure) is in a ruinous condition, or likely 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.
(2) The Commissioner may also if he thinks fit, 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 be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence.
(Emphasis added)
14. It is now well-settled that Section 354 is a power vested in the Corporation in the larger public interest and as part of wide civic planning and civic administration.
15. The mistake in every one of these Petitions is to assume that the condition of a building only affects the owner of the building and its occupants. That is far from the truth. Almost anywhere in Mumbai a building collapse poses danger to others in the vicinity, including passers-by. That is the larger interest to be served.
Page 9 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc
16. There is also the complete elision in these Petitions of well- settled principles in both tenancy and municipal law, viz., that tenancies and occupancies are not eradicated and do not vanish because a building is brought down for redevelopment. As regards tenancies, that law is now firmly settled by a decision of the Supreme Court, repeatedly reiterated by this Court: See: Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd & Ors.3
17. In Hind Rubber Industries, the Court surveyed the law on the subject. We reproduce the relevant portions.
19. In Tushar Ranglidas Notaria v Municipal Corporation of Greater Mumbai,4 a Division Bench of which one of us (GS Patel J) was a member considered the legal position in such situations.5 In paragraphs 3 and 4, the Court said:
3. The conspectus of the petition is almost identical to nearly two dozen petitions we have heard and dealt with in the last two or three months: tenants of a building that is over 30 years old having received an evacuation notice from the MCGM, and having taken no steps by themselves or by compelling the owner to carry out essential structural repairs, then rush to court and claim (a) that the building does not need demolition or evacuation; (b) that it is structurally sound; and (c) that the petitioner-tenants will continue to live 3 (2014) 14 SCC 1.
4 2019 SCC OnLine Bom 1798 : (2020) 1 Bom CR 559. 5 The SCC OnLine report inaccurately portrays Tushar Notaria as being a single-judge bench decision. It was actually rendered by a Division Bench of SC Dharmadhikari and GS Patel JJ.Page 10 of 21
12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc there 'at their own risk' and will give an 'undertaking' to assume all liability, including to third parties. In at least nine separate judgments delivered recently we have set out the law on the subject. We begin this discussion, therefore, by noting these decisions and summarizing the principles in law that apply to such a situation. The decisions are:
(a) Mahendra Bhalchandra Shah & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition (L) No. 1755 of 2019, decided on 24th June 2019;
(b) Inderjit Singh Sethi & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 880 of 2018, decided on 9th July 2019;
(c) Ramesh Nathubhai Patel & Ors v State of Maharashtra & Ors, Writ Petition No. 1500 of 2016, decided on 9th July 2019;
(d) Kutbi Manzil Tenants Welfare Association v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2451 of 2018, decided on 16th July 2019;
(e) Sundar R. Gavaskar & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 602 of 2019, decided on 29th July 2019;
Page 11 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc (f ) Richard Gasper Mathias & Ors v Municipal Commissioner, Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2108 of 2018 decided on 1st August 2019.
(g) Vivek Shantaram Kokate & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 931 of 2019, decided on 19th August 2019.
(h) Khalil Ahmed Mohd Ali Hamdulay & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition (L) No. 2147 of 2019, decided on 22nd August 2019.
(i) Pandurang Vishnu Devrukhar & Ors v State of Maharashtra & Anr, Writ Petition No. 2687 of 2018, decided on 27th August 2019 (pertaining to Municipal tenants).
4. The principles of law culled from these decisions are these:
(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:
Page 12 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc Diwanchand Gupta v NM Shah & Ors. 6;
Nathubhai Dhulaji v Municipal
Corporation;7
(b) The rights of
tenants/occupants are not harmed by demolition ordered and carried out.
These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the field regarding tenancies of built premises in Maharashtra. The Supreme Court decision in Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd & Ors.8 now makes it clear that the rights of tenants and occupants are unaffected by the required demolition.
(c) Tenants have rights but also remedies to keep their structure in tenantable repair. We 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 invoked his or their rights under this Section.
(d) Section 353B casts an obligation not only on owners but also on occupiers of structures that 6 AIR 1972 Bom 316, per KK Desai and GN Vaidya JJ. 7 AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ. 8 (2014) 14 SCC 1.Page 13 of 21
12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc are more than 30 years old to furnish a structural stability certificate. We have yet to see one so furnished unbidden, or, when demanded, one with anything meaningful in it.
(e) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ 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 suffers from Wednesbury unreasonableness,9 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 invoking the doctrine of proportionality.10 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 fides without particulars. While direct evidence may not always be available as proof of mala fides, they 9 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.
10 State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.
Page 14 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc must nonetheless be established. In the words of the Supreme Court, allegations of mala fides are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility.11 Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and they are made against one who holds an office of responsibility in the administration.12 Mala fides are the last refuge of a losing litigant. 13 Hence, whenever mala fides 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. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala 11 Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272. 12 EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579. 13 Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.
Page 15 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc fides 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 seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment.14 There can be no order of status quo against natural elements. It is one in one thing to direct to parties to a contract to maintain the status quo. This may be an order against one person seeking 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) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner 14 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC 312, the Supreme Court said it was not proper to order a status quo (there, in respect of premises) without indicating what the status quo was.
Page 16 of 2112th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity, then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself suffers an unfortunate mishap.
(Emphasis added)
18. A writ court is never assessing the merits of the decision -- no writ court is in a position to decide a question of civil engineering or structural stability -- but only the decision-making process; if there is indeed a 'decision' properly so called, i.e., one that determines the rights of parties. No rights of any party are ever determined by any TAC Report. It only assesses the structural condition of a building. Rights to parts or the whole of that building are entirely unaffected by the TAC Report.
19. In Hind Rubber Industries, we also observed:
22. ... It is difficult to see how the occupants and tenants can hope to dictate to a property owner what should or should not be done with the property in an absolute sense. The rights of the occupants and owners to their premises are fully and sufficiently protected in law under the MMC Act, the Development Control Regulations and also under Rent Control Legislation (as we noted in Tushar Notaria and previous cases). Only because the building is demolished it does not follow that the rights Page 17 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc of occupancies or tenancies will be lost. Quite the reverse:
the obligations of the owner are well settled in law. It is pointless repeating these again and again. There is, as the TAC noted, an element of public interest or public law because a dangerous building presents a threat to the occupants inside it. But there is an even larger public interest involved, one with which courts are routinely confronted, and that is the possibility of danger caused to others, i.e., outsiders and passers-by and consequent disruptions. We have had any number of instances of such collapses specially in the annual monsoon period. There is always some loss of life.
24. Therefore, while we do not think that a TAC report such as this can be invalidated merely because there is a rival report. Once we have rejected the absolutist argument that a report that recommends repairs is always to be preferred, and also found no procedural infirmity, the resultant order must inevitably be of rejection of the Writ Petition. ...
(Emphasis added)
20. At the heart of this there is then a fundamental dispute as to fact. Mr Tripathi's presentation expects us in a Writ Court to resolve this factual dispute about the structural condition of the building. We are not structural engineers. We are not equipped to answer questions like these. That is why the whole edifice of the TAC was created. It has two reports. One says the building is dilapidated. The other says the building can be repaired. The TAC independently surveys, assesses, inspects and tests the structural stability of the building. It hears architects from both sides and there is no case before us that the report was made without hearing experts from both sides. It considers all rival reports. It then makes Page 18 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc its separate independent finding and conclusion. This is now sought to be faulted, strictly and only on the basis of fact by saying "the building can be repaired".
21. This simply puts the entire matter out of the frame of the Writ Court. That was not the purpose of establishing the TAC at all. It was meant to provide some sort of a check, some sort of a balance against unilateral declarations of buildings being dilapidated. It was not intended to provide individuals with yet another cause of action in writ law to attempt to upset findings of the TAC on factual and technical aspects.
22. Mr Tripathi argues that the area verification statements are all wrong and that the guidelines were violated, in particular guideline 1.09. He states that there was no inspection or assessment by the MCGM as required by guideline 1.09. But the root of this submission is, once again, a factual dispute, this time as to area.
23. However, in none of the grounds from pages 17 to 22 of the Petition is there any specific grievance about a discrepancy in the area statement at all.
24. Indeed, the grounds themselves are exceedingly peculiar given that this is a Writ Petition. The first dispute is that the Petitioner had not authorised either of the consultants to appear before the TAC. This is a factual dispute. The fact that the TAC had two reports, one of Supreme Engicons (India) Private Limited and the other by United Engineers and Consultants is clear from the Page 19 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc TAC report itself. Then there are attempts made in grounds (b), (c),
(d) and (e) which are in the nature of a factual dispute on technical aspects.
25. Ground (f ) is even more interesting because it says that if there are two conflicting reports then there should be a third report commissioned leaving aside the fact that there is already a TAC for this very purpose. That submission is contrary to law.
26. Allegations are made in paragraph (g) about the nature of the tests done by one of the structural auditors. There are allegations of bias by the TAC and that in itself raises a disputed question of fact and puts the Petitioners out of Court. The quoted portions above clearly demonstrate that such allegations of mala fides -- a last resort of a losing litigant -- cannot inform the writ court's decision.
27. The matter is listed today at the instance of the MCGM. Ms Yadav points out that the building is now in an exceedingly dilapidated condition. The Section 354 notice was stayed by an order of 15th February 2023, but the members of the society were to occupy at their own risk. That order makes no reference at all to the Division Bench decision of 5th August 2022 in Hind Rubber Industries, where it was held that such undertakings are without any warrant in law. Even at the interim or ad-interim stage, a bench of coordinate strength was bound by the decision in Hind Rubber Industries (unless it held to be not binding or per incuriam). On the contrary, Hind Rubber Industries was not cited or even noticed on 15th February 2023. That order is, therefore, entirely per incuriam, Page 20 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 ::: Andheir Purab Paschim CHSL v MCGM & Ors 917-oswpl-4234-2023+J.doc being made in ignorance of a binding decision of Bench of coordinate strength.
28. Regrettably, the undertakings that are filed here in fact do not say anything worth mentioning other than the fact that members of the society are residing in the building at their own risk and that "no one shall be held responsible for any mishap". This does not even begin to tell us what happens if a third party is affected as contemplated by Section 354 (1) of the MMC Act.
29. We do not see any merit at all in this Petition. It is rejected.
30. The previous interim and ad-interim orders stand vacated forthwith. The MCGM will proceed in accordance with law.
31. The Contempt Petition will not survive. It was filed because water supply and electricity supply were disconnected. They were reconnected. The Contempt Petition is dismissed. Notice, if any issued, is discharged.
32. No costs.
(Kamal Khata, J) (G. S. Patel, J) Page 21 of 21 12th September 2023 ::: Uploaded on - 13/09/2023 ::: Downloaded on - 14/09/2023 00:51:48 :::