Bombay High Court
Sachin Rohidas Todankar And 2 Ors vs State Of Maharashtra And 6 Ors on 26 February, 2021
Bench: A. A. Sayed, Madhav Jamdar
1/5
11.WP(L).4879.2021 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.4879 OF 2021
Sachin Rohidas Todankar & Ors. ...Petitioners
V/s.
State of Maharashtra & Ors. ...Respondents
Mr. V. C. Ghosalkar for the Petitioner. Ms. Sharmila Deshmukh for Respondent Nos.2 to 4-MHADA. Premlal Krishnan a/w. Preston Dices, Kailash Tiwari i/b. Mr. Bhimrao A. Powar for Respondent No. 5.
A. L. Patki, Addl. GP for the Respondent-State.
CORAM : A. A. SAYED &
MADHAV JAMDAR, , JJ
DATED : 26th FEBRUARY, 2021
P.C.:
The Petitioners claim to be the owners of a cessed building
being building no. 4 B/A, Vishwalaxmi Building, Old Prabhadevi Road, GS-Ward, Mumbai (hereinafter referred to as "the said building"). The reliefs sought by the Petitioners are as follows:
(a) This Hon'ble Court be pleased to issue the writ of certiorari or the writ in the nature of the certiorari or any other writ or directions and call for the records and proceedings from the ofce of Respondent No. 2 pertaining to the decision of structural repairs of the said tenanted building "Vishwalaxmi" and after going into the legality and validity of the same be pleased to quash and set aside the order of the Respondent No. 2 dated 09.02.2021 and the NOC dated 19.11.2019 in favour of the Respondent Nos. 5 to 7.
AKN 1/5 ::: Uploaded on - 03/03/2021 ::: Downloaded on - 30/08/2021 00:25:09 ::: 2/5
11.WP(L).4879.2021 .doc
(b) This Hon'ble Court be pleased to issue the writ of mandamus or the writ in the nature of mandamus or any other writ order or directions to the Respondent No. 2 to 4 to carry out the structural Repairs of the said tenanted building "Vishwalaxmi" as per the structural auditor report dated 04th October, 2019 report submitted by the Petitioners.
(c) This Hon'ble Court be pleased to issue the writ of mandamus or the writ in the nature of mandamus or any other writ order or directions to the Respondent No. 2 to 4 to carry out the structural Repairs of the said tenanted building "Vishwalaxmi" as per the structural auditor report dated 4th October, 2019 report submitted by the Petitioners dated 04th October, 2021 and in the event of the Respondent No. 2 to 4 intends to carry out the said repairs through the Petitioners then further directions to provide necessary assistance to the Petitioners by issuing necessary NOC for the purpose to the Petitioner being the landlord of the said tenanted building with right to the Petitioners to recover the excess amount from the tenants.
"d. In the alternative If the structural audit report submitted by the Petitioners dated 4th October, 2019 is disputed by the Respondents then this Hon'ble Court be pleased to call for fresh structural audit report from independent agency at the cost of Respondents and thereafter necessary directions be given to the Respondent No. 2 to 4 to carry out the structural Repairs of the said tenanted building "Vishwalaxmi" as per the structural auditor report tabled before the Court through independent agency and for issuance of necessary NOC for the purpose to the Petitioner being landlord of the said tenanted building with right to the Petitioners to recover the excess amount from the tenant.
AKN 2/5 ::: Uploaded on - 03/03/2021 ::: Downloaded on - 30/08/2021 00:25:09 ::: 3/5
11.WP(L).4879.2021 .doc
2. The building is presently being repaired under the NOC issued by MHADA in favour of the Respondent Nos. 5 & 6, who according to the Petitioners are the tenants, and the Respondent No. 7, who is a Contractor. MHADA has proposed repairs to the said building on the basis of the Report dated 3rd April, 2018 submitted by MHADA panel Architect, Shri Suresh Date to the Executive Engineer, G/S Ward. The Mumbai Building Repairs and Reconstruction (M.B.R & R) Board, Mumbai, which is a unit of MHADA, issued work order dated 19 th November, 2019 to the Respondent Nos. 5 & 6 (NOC holders) and Respondent No. 7-Contractor to carry out structural repairs of the said building.
3. The work is to be carried out under the supervision of the Architect M/s. Ashwini Consultants. Mr. Dilip Chaudhary, Dy. Engineer of MHADA is in-charge of the said project.
4. The Petitioners have appointed their own Architect Mr. Suresh Suthar (S. P. Consultants) who submitted his Report (Exhibit - B of the Petition) dated 4th October, 2019, which has also concluded that the said building requires major structural repairs. The grievance of Petitioners is that they being the owners of the building are entitled to carry out the repairs of the said building and not the Respondent Nos. 5 & 6, who are the tenants and who have been granted AKN 3/5 ::: Uploaded on - 03/03/2021 ::: Downloaded on - 30/08/2021 00:25:09 ::: 4/5
11.WP(L).4879.2021 .doc NOC by MHADA.
5. We fnd from the photographs produced before us that the repair work of the said building is presently in progress. In the circumstances, we have suggested to learned Counsel for the parties that the repairs of the said building can be continued under the supervision of Architect appointed by the MHADA i.e. M/s. Ashwini Consultants as well as the Petitioner's Architect Shri Suresh Suthar (who is also a panel Architect of MHADA), who would work in tandem. The Learned Counsel for the parties fairly agreed to the suggestions of the Court, after taking instructions from their respective clients.
6. Hence, by consent of learned Counsel for the parties, we pass the following order:
a. Both the Architects i.e. Architect appointed by MHADA i.e. M/s Ashwini Consultant & Petitioner's Architect i.e. Shri Suresh Suthar (S. P. Consultants), who is also on the panel of MHADA, shall jointly supervise the structural repair works of the said building. Both of them shall decide on the scope of the work of the said building jointly. b. The Respondent No. 7-Mangesh Construction shall continue to be the Contractor, who will take AKN 4/5 ::: Uploaded on - 03/03/2021 ::: Downloaded on - 30/08/2021 00:25:09 ::: 5/5
11.WP(L).4879.2021 .doc instructions from both the Architects.
c. In the event, there is any disagreement, on the scope of the work to be carried out, the fnal call shall be taken by the Respondent No. 4-Dy. Chief Ofcer after visiting the said building.
d. The fees of the Architect Shri. Suresh Sutar (S. P. Consultants) appointed by the Petitioners shall be paid by the Petitioners.
e. We make it clear that we have not gone into the issue of the title of the Petitioners.
d. This order is passed without prejudice to the rights and contentions of the parties and no equities shall be claimed by either of the parties in the pending or future proceedings between the parties.
7. The Writ Petition is disposed of in the aforesaid terms.
(MADHAV JAMDAR, J.) (A. A. SAYED, J.) AKN 5/5 ::: Uploaded on - 03/03/2021 ::: Downloaded on - 30/08/2021 00:25:09 :::