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[Cites 27, Cited by 0]

Bombay High Court

Kishore Satyani vs Municipal Corporation Greater Mumbai ... on 10 October, 2023

Author: G.S. Patel

Bench: G.S. Patel

2023:BHC-OS:11669-DB                                                      909-OSWP-19-2023.DOC




                                                                                               Talwalkar



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           ORDINARY ORIGINAL CIVIL JURISDICTION
                                     WRIT PETITION NO. 19 OF 2023


                 Kishore Satyani                                ...Petitioner
                      Versus
                 Municipal Corporation of Greater Mumbai & Ors ...Respondents
                                             WITH
                           CONTEMPT PETITION NO. 16 OF 2023
                                                IN
                               WRIT PETITION NO. 19 OF 2023

                 Mangal Saran CHS Ltd                                                 ...Petitioner
                      Versus
                 Kishore Satyani                                                   ...Respondent



                 Ms Tanmayi Rajadhyaksha, i/b SJ Khera, for the Writ Petitioner
                      and Respondent No.1 in the Contempt Petition.
                 Mr Kinnar Shah, with Divya Shah Associates, for the Petitioner
                      Society in the Contempt Petition
                 Mr Kunal Waghmare, for the Respondent-MCGM.



                                               CORAM     G.S. Patel &
                                                         Kamal Khata, JJ.
                                               DATED:    10th October 2023
                 PC:-




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1. The Contempt Petition has been disposed of by a previous order. So has the Writ Petition itself. What remained was compliance with our direction of 21st August 2023.

2. In our order of 21st August 2023, we did not permit the first Respondent to Contempt Petition No. 16 of 2023 namely Kishore Satyani, the original Writ Petitioner, to obstruct inspection of the Society Building. He owns Flat No. 101 on the first floor. He obstructed a survey for structural audit and obstructed officers of MCGM as also from the Civil Engineering Department of the Sardar Patel College of Engineering. The Technical Advisory Committee ("TAC") of the MCGM was also before us as Respondent No. 3. We directed that a report be submitted by the Sardar Patel College of Engineering, and which the TAC had called for.

3. After some adjournments, that report dated 4th October 2023 is now available to us on file. It is a detailed structural condition assessment. The report runs into nearly 100 pages with annexures. It notes the corrosion, damage and deterioration of the building at many places including on load bearing structural elements such as slabs and columns including important columns at the stilt level and the terrace slabs. Various non-destructive tests were carried out. The unambiguous observation is that the building is dilapidated and that repairs are not recommended. It needs to be evacuated and pulled down. Paragraph 16 of the Report at Page 7 has what are called 'critical observations'. These may well serve as a summary of the Report. We quote this portion::

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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 16 Critical observation Most of the external columns and staircase columns are cracked from ground floor till terrace with some columns having cover concrete fallen, reinforcement exposed and corroded.

Some of the columns at stilt level are in dangerous condition. Many of the internal columns have developed wide longitudinal cracks and some have cover concrete fallen, reinforcement exposed and corroded. Most of the external and stilt floor beams have developed multiple wide cracks with many having cover concrete fallen, reinforcement exposed, corroded and area of steel reduced significantly. Most of the tie beams are cracked with many having cover concrete fallen reinforcement exposed, corroded and area of steel reduced significantly and some of these beams are in dangerous condition. Many balcony beams are cracked. Most of the internal beams have developed wide longitudinal cracks with many having cover concrete fallen, reinforcement exposed, corroded and area of steel reduced significantly. Few internal beams are in dangerous condition. Most of the stilt slab are cracked, sound hollow with many having cover concrete fallen, reinforcement exposed, corroded and steel area reduced significantly. Most of the internal slabs have developed multiple cracks and sound hollow and many having cover concrete fallen, Page 3 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC reinforcement exposed and highly corroded. Few slabs have reinforcement bars broken and are in dangerous condition. Some of stilt slabs are sagged. At some places flooring tiles have cracked and undulations are observed indicating probable deflection of slabs. Most of the staircase columns and beams are cracked. Most of the staircase waist slabs and midlanding slabs have developed wide cracks and sound hollow. Some midlanding slabs and waist slab have cover concrete fallen reinforcement exposed, corroded and area of steel reduced. Terrace columns are cracked. Terrace slab is cracked at many places indicating that water proofing is in poor condition. Overhead tank is present on terrace. The bottom slab of reinforcement tank has developed multiple cracks. The water tank wall is cracked and vegetation growth and heavy marks of dampness is observed. The columns and beams of lift machine room have developed wide longitudinal cracks. The slab of lift machine room is cracked and sounds hollow. Cap room slab is cracked and sounds hollow. Cap room slab is cracked and marks of leakages are observed. Most of the chajjas have developed multiple wide cracks while some are partly broken. Many of the chajjas drop beams are cracked having cover concrete fallen, reinforcement exposed corroded, Page 4 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC area of steel reduced significantly & some are partly broken and in dangerous condition.

4. The attempt now by Ms Rajadhyaksha on behalf of Satyani is to contest the report on merits as if to suggest that either in our writ jurisdiction in a disposed of Petition and a disposed of Contempt Petition or even otherwise we can possibly entertain this. That is not the state of the law.

5. A brief background is set out in our judgments in Andheri Purab Paschim Cooperative Housing Society Ltd v Municipal Corporation of Greater Mumbai & Ors,1 and in Hind Rubber Industries Pvt Ltd & Ors v State of Maharashtra & Ors.2 In Andheri Purab Paschim CHSL, we said:

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 1 Original Side Writ Petition (L) No 4234 of 2023, order dated 12th September 2023.
2 2022 SCC OnLine Bom 1640 : (2023) 1 Bom CR 342.
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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 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 February 2018.3 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

3 2018 SCC OnLine Bom 816.

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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 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. 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 Page 7 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 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 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 Page 8 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 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.4

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.

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 4 2022 SCC OnLine Bom 1640 : (2023) 1 Bom CR 342.

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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.

(Emphasis added)

6. 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,5 a Division Bench of which one of us (GS Patel J) was a member considered the legal position in such situations.6 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 5 2019 SCC OnLine Bom 1798 : (2020) 1 Bom CR 559. 6 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.
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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC demolition or evacuation; (b) that it is structurally sound; and (c) that the petitioner-tenants will continue to live 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 Page 11 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC Greater Mumbai & Ors, Writ Petition No. 602 of 2019, decided on 29th July 2019;

(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 Page 12 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC whether a particular structure is or is not actually in a ruinous or dilapidated condition: see:

Diwanchand Gupta v NM Shah & Ors.7;
                           Nathubhai Dhulaji v Municipal
                           Corporation;8
                           (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.9 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.

7 AIR 1972 Bom 316, per KK Desai and GN Vaidya JJ. 8 AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ. 9 (2014) 14 SCC 1.




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                           (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 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,10 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.11 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. 10 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.

11 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.

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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC While direct evidence may not always be available as proof of mala fides, they 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.12 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.13 Mala fides are the last refuge of a losing litigant.14 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 12 Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272. 13 EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579. 14 Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.

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(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.15 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 15 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.

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10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC statute. An undertaking by a Petitioner 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)

7. 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 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 Page 17 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC 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)

8. We reiterated these views in Andheri Purab Paschim CHSL, supra.

9. The MCGM's TAC is the one that had asked for the report from Sardar Patel College of Engineering. That report is now in hand. The finding by the Sardar Patel College of Engineering only reinforces what a previous report has said. Yet it seems that there is nothing that Satyani will not dispute. He even disputes the report as to the age of the building and the year of its construction as if he alone knows best. He makes allegation of mala fides, collusion, connivance, corruption and worse against everybody including the Society, its office bearers, chairperson, the MCGM, the Sardar Patel College of Engineering -- only he knows best. What is now being suggested is that we must continue to get more and more reports on the mere say-so of Satyani until somebody, perhaps out of sheer exhaustion, says that the building can be repaired.

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10. We refuse to do so. 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. There is not the slightest possibility of a Writ Court under Article 226 serving as a fact- finding court or substituting its view for the expert technical view of the Sardar Patel College of Engineering on the structural distress of the building in question.

11. There is no possibility of entertaining any more grievances on behalf of this person. Apart from anything else, any disputes between Satyani and the Society are internal private disputes pertaining to the business of the Society. There are alternative remedies available under the Maharashtra Co-operative Societies Act, 1960.

12. No further orders are required. The MCGM will obviously proceed now in accordance with law. There is no requirement of a further reference to a TAC.

13. A copy of the report is to be given to Ms Rajadhyaksha.

14. The request for status quo by Ms Rajadhyaksha is rejected outright. Satyani has absolutely no rights to the entirety of the Page 19 of 20 10th October 2023 ::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 03:15:14 ::: 909-OSWP-19-2023.DOC building. He cannot possibly jeopardise the interests of other members of the society in pursuit of whatever it is that Satyani is pursuing, and which appears to us to be nothing more than private personal vendetta.

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