Bombay High Court
Rajiben Mavji Patel And 7 Ors vs Mumbai Municipal Corporation And 5 Ors on 17 October, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
24-25-OSWP-3892-2022.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3892 OF 2022
Rajiben Mavji Patel & Ors ...Petitioners
Versus
Mumbai Municipal Corporation & Ors ...Respondents
WITH
WRIT PETITION NO. 4289 OF 2022
Cherrysons Estates Pvt Ltd ...Petitioner
Versus
Mumbai Municipal Corporation & Ors ...Respondents
Mr Sharan Jagtiani, Senior Advocate, with Apurva Manwani, i/b
Jeet Gandhi, for the Petitioner in both Writ Petitions.
Mr Amogh Singh, with Rahul Arora, for Respondent No. 4 in both
Writ Petitions.
ASHWINI Mr Sagar Patil, for the MCGM in both Writ Petitions.
HULGOJI
GAJAKOSH
Digitally signed by
ASHWINI HULGOJI
GAJAKOSH
Date: 2022.10.18
09:57:33 +0530
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 17th October 2022
PC:-
1. These two Writ Petitions presents an extremely sorry state of affairs. They relate to a building called Akbar Villa, a ground and one Page 1 of 4 17th October 2022 24-25-OSWP-3892-2022.DOC floor structure at Hill Road, Bandra (West), Mumbai 400 050. The building is more than 140 years old. The dispute today is whether or not the structure is sufficiently dilapidated to merit a categorisation as a C1 category building requiring evacuation and demolition. The eight petitioners claim to be eight of the nine tenants of the building. The ninth tenant is one Yasin Esmail Gulam Hussain Esmail. She is Respondent No. 4 in the companion Writ Petition filed by Cherrysons Estates Pvt Ltd, the owner and landlord of the property. Cherrysons is Respondent No. 6 to the tenants' Petition.
2. We will first get out of the way an astonishing submission made by Yasin Esmail. She says that the other eight tenants are not tenants, and that she is the only tenant. Her landlord, Cherrysons, does not say so. It is never for one tenant to say that another person is not a tenant of the premises. That is always a matter between landlord and tenant.
3. This matters greatly because while the eight tenants who are Petitioners in Writ Petition No. 4289 of 2022 and Cherrysons, the landlord, agree that the building is dilapidated, inhabitable, dangerous and requires demolition, Yasin Esmail has taken the contrary stand. Cherrysons submitted a structural audit report to the MCGM and to its Technical Advisory Committee ("TAC") constituted pursuant to 2014 directions of this Court in another matter. Yasin Esmail submitted her own report. On that basis and on a visual inspection the TAC seems to have concluded that the building is not dilapidated and is a category C2A building requiring eviction for the purposes of major repairs. The building does not Page 2 of 4 17th October 2022 24-25-OSWP-3892-2022.DOC appear to be an RCC or PCC structure. Nonetheless, there are a range of tests that can be carried out beyond a usual inspection. Yasin Esmail's consultant has done none of these. None of the mandatory tests have even been addressed. That report only says that those tests are not necessary. This is entirely unsatisfactory. Then Yasin Esmail got another report which also does not reflect that any mandatory tests were carried out. The two reports seem to be in conflict. We cannot understand how Yasin Esmail is more or less conducting herself as if she is the owner of the property. The approach of the TAC is entirely unsatisfactory. It could have called for its own report with adherence to its own guidelines. We do not understand why the TAC report at "Exhibit M" at page 208 of the first Petition prefers one report over the other or on what basis, other than the reports, TAC has concluded that the building only needs repairs.
4. We require TAC to reconsider its opinion and to obtain an independent structural audit report from any reputed engineering college of its choice. The costs of this report will be paid for by the landlord, which is before us and which agrees to bear these costs. The independent consultant will assess Akbar Villa's structural stability without any regard whatsoever to the reports prepared by the consultants engaged by Yasin Ismail or by the landlord Cherrysons.
5. An Affidavit by the MCGM with the revised TAC report and the independent structural audit report is to be filed in both matters by 25th November 2022.
Page 3 of 417th October 2022 24-25-OSWP-3892-2022.DOC
6. Even more curiously we find that in a building of which she is admittedly and demonstrably not the owner, Yasin Esmail has managed to get a 'repair permission' from the MCGM. We do not see how and by what authority a sole tenant can get permission for or carry out structural repairs to a building that is the ownership of somebody else. Indeed, paragraph 1 of an Additional Affidavit filed by the Petitioners shows a copy of this permission at "Exhibit A". This notice is addressed by the MCGM solely to Yasin Esmail and calls upon her to submit an online application complete in all respects for structural repairs. There is no question of allowing Yasin Esmail to effect any such repairs. The 25th August 2022 repair permission by the MCGM is stayed until further orders.
7. The MCGM will not grant any permissions to any of the parties without prior leave of the Court irrespective of whether there are messages and communications from any political person. We say this because paragraph 19 of the Petition mentions the intervention of an MLA in this matter. The MCGM will now follow orders of this Court and ignore all outsiders.
8. List the matter on 30th November 2022.
(Gauri Godse, J) (G. S. Patel, J)
Page 4 of 4
17th October 2022