Bombay High Court
Simplex Auto Industries And 6 Ors vs Municipal Corporation Of Greater ... on 18 February, 2019
Author: K.R. Shriram
Bench: K.R.Shriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.398 OF 2019
IN
SUIT (L) NO.181 OF 2019
M/s Simplex Auto Industries & Ors ..Plaintiffs/Applicants
Vs.
Municipal Corporation of Greater Mumbai & Anr ..Defendants
Mr. Sunny Shah a/w Ms Roshni Bhandary I/b Bhandary & Bhandary for
Plaintiffs / Applicants
Mr. Anil Sakhare Senior Advocate a/w Mr. Ravi Shirshikar for Defendant
No.1 (MCGM)
Mr. T. N. Subramanian, Senior Advocate, a/w Mr. Saket Mone, Mr. Suneet
Tyagi, Ms Neha Joshi and Mr. Vishesh Katra I/b Vidhi Partners for
Defendant No.2
CORAM : K.R.SHRIRAM, J.
DATE : 18th FEBRUARY, 2019 P.C.:
1 The above notice of motion is taken out for restraining defendant no.1 from acting in furtherance of the Technical Advisory Report dated 21st December, 2018 and notice dated 1st January 2019, issued by the Technical Advisory Committee (TAC) of defendant no.1. Plaintiff nos.1, 6 and 7 (hereinafter collectively referred to as plaintiffs) are members of defendant no.2 society. Plaintiff nos.2, 3, 4 and 5 are partners of plaintiff no.1.
2 Plaintiffs are the occupants of industrial gala in a building called United Industrial House Premises Co-op Society Limited, situate at 3-
Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 2/9 nmsl-398-19(33).doc B, Shantinagar, Vakola, Santacruz (E), Mumbai 400055 (the said building). The said building is ground plus two storey RCC frame structure, ground floor and first floor have been constructed before 1968 and second floor is added in the year 1985. There are total 8 units on ground floor, 8 units on 1st floor and 4 units on 2 nd floor. Defendant No.2 has 15 members three of whom are plaintiffs. Plaintiffs are opposing demolition of the building and according to plaintiffs the building can be repaired structurally. Plaintiffs rely upon report of one R. S. Karnavat, consultant. 3 Plaintiffs also agree that the condition of the building is not very happy, but according to plaintiffs and as advised by their consultant, the building falls under C2-A category and can be repaired by carrying out major structural repairs. Per contra, society is relying upon a structural audit report issued by VJTI which has categorised the building as C-1 category, i.e., to be evacuated and pulled down.
4 Mr. Shah for plaintiffs state that defendant no.1 should be restrained from acting on the Technical Advisory Report dated 21 st December, 2018 or its notice dated 1st January, 2019, because the TAC has not independently carried out a structural audit in view of conflicting reports given by VJTI and Karnavat. Mr. Shah relied upon an order dated 7th February, 2018 passed by a Division Bench of this court in Writ Petition Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 3/9 nmsl-398-19(33).doc No.2295 of 2017, an order dated 26 th March, 2018 in Writ Petition No.917 of 2018 and an order dated 19th March, 2018 in Writ Petition No.602 of 2018, to submit that TAC was under an obligation to make its own independent assessment of the structural status of the building and when there is no independent application of mind by the TAC, the report has to be set aside or no action can be taken based on the said report. Mr. Shah also relied upon another order of the Division Bench in Writ Petition (L) No.1135 of 2014 passed on 23rd June 2014.
5 Mr. Sakhare, appearing for Defendant No.1 submitted that order dated 23rd June 2014, came to be passed because there was no policy in place and subsequently a policy has been framed by defendant no.1 on 25th May 2018. Mr. Sakhare states that this policy has not been set aside and it is still in force and while taking the policy decision, defendant no.1 has taken into consideration the order in Writ Petition (L) No.1135 of 2014 and other orders.
6 What we have to see at the ad-interim stage is whether the decision of TAC dated 21st December, 2018, copy whereof is at Exhibit-Z to the plaint, is prima-facie flawed.
7 Admittedly the representatives of VJTI one Prof. K. K. Sangle
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for defendant no.2 and the consultant Mr. R. S. Karnavat for plaintiffs attended the TAC meeting held on 27 th November, 2018. TAC in its report has mentioned that defendant no.2 has submitted structural audit report of VJTI and VJTI, based on NDT test and carrying out visual inspection, has categorised the building in C-1 category. It is also noted that three occupiers of the building (plaintiffs) have also submitted a report of one R.S.Karnavat, who has based on visual inspection and NDT Test categorised the building as C2-A, requiring major structural repairs. TAC has also prepared a comparative chart of the test carried out and its findings. 8 It also records that as per the policy guide lines, TAC members along with Ward Staff, have inspected the said building on 14 th November, 2018. It will be useful to reproduce the following portion from the report:
"As per policy guidelines, the matter was referred to TAC, accordingly TAC members alongwith ward staff have inspected the said building on 14.11.2018 at 11.00 a.m. A.L.O.H/E ward said that, there is no court case related to the above parties in the Hon.City Civil Court.
At the outset, M/s.V.J.T.I has explained that they have inspected the structure under reference in May 2018 and the said report and photographs are attached in the report file, he pointed out that, the instruments used in structural audit by his institute are calibrated and test are performed by trained persons, hence his report is more reliable than the private lab. He also concluded in his report that, "Most of the external structural elements of the building have lost their strength and design load carrying capacity. Deterioration in structural elements such as slabs, beams and columns is wide spread and severe at several locations in the building. Because of partial collapse of structural elements such as Slabs panels, beams and columns, of the building, there is possibility of loss of lateral stiffness and stability of entire building and subsequent collapse of the entire Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 5/9 nmsl-398-19(33).doc building in case of earthquake and any natural calamities". He categorizes the building as C-1 category, i.e. to be evacuated and pull down.
M/s.Rushabh Surendra Karnavat has explained that his report is also based on visual inspection and NDT Test. He further added that, all the private consultants uses private labs for testing samples and are relied upon by all. He elaborated that the building is vacated long time ago and 2nd floor of the building is added in the year 1985. He concluded in his report that, "No routine maintenance of the building carried out in past, 100% carbonation of concrete at some locations, 50% probability of corrosion, average compressive strength of core, Distress RCC members, UPV readings were doubtful at some locations" he categorized the building as C2A category and suggested major structural repairs to the building immediately.
During inspection of the building by TAC, it was observed that the structure under reference is an industrial building. Couple of units in the building are occupied and others are vacated long time ago, hence heavy vegetation is seen on the building at many location, heavy grass growth is seen on terrace of the building, longitudinal cracks are seen at many columns, reinforcement is exposed & corroded. Some beams have cracks developed cover concrete fallen down, reinforcement exposed at many location, uneven flooring surface observed, staircase waist slab is in distressed condition with steel exposed & corroded, Chhajja & cantilever portion may collapse at any given time, few chhajjas are collapsed partly/fully.
TAC members have gone through the Structural Audit Report, Proforma B and facts put up by all Structural Consultants, opinion/ reports of ward staff and observations made during the site visit. The issues related to the structure under reference were discussed during the meeting in detail.
From the comparative statement of non destructive test result as prescribed in proforma-B of both the report indicates that the overall condition of the structure is poor, Quality of concrete is doubtful. Strength of concrete is inadequate, the percentage of corrosion of reinforcement is ranges from 50% to 90% thus the NDT result show that the structure is in poor condition and deteriorated.
Further both consultant in their visual observation stated that, the structural members having cracks, concrete cover fallen, reinforcement is exposed and corroded. Heavy leakage observed in structure.
In view of the visual observation made and results of NDT tests carried out by structural Auditors, opinion and report of ward staff & above observation of TAC, TAC is of the opinion that the said Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 6/9 nmsl-398-19(33).doc structure needs to be evacuated, since it is deteriorated and dangerous in condition and unsafe for habitation, thereby endangering life & property of workers / occupants and passerby. Therefore it is advisable to vacate and demolish the structure by protecting the rights of tenants as per clause 1.15 of the policy guidelines dated 25.05.2018, which was vetted by Hon.High Court in the matter writ petition 1080 of 2015.
TAC CONCLUSION The structure known as United Industrial House premises Co.op.Society Ltd" situated at 3-B, Shantinagar, Vakola, Santacruz (East), Mumbai-400 055 is deteriorated and dilapidated in condition, may collapse without giving any warning thereby endangering life & property of residents and people residing in adjoining properties and passerby. Hence the structure under reference needs to be vacated and demolished immediately.
In view of above, it is unanimously declared that the structure known as United Industrial house premises Co.op. Society Ltd"
situated at S-B, Shantinagar, Vakola, Santacruz (East), Mumbai- 400 055 falls in C-1 category.
Designated officer, H/E Ward shall therefore take necessary action as per the policy guidelines dated 25.05.2018."
(emphasis supplied) 9 From the report, it is quiet obvious that the TAC after its inspection, may not have done independent NDT Test, but has visually inspected and has come to a conclusion that many of the units of the building are lying vacant and there is heavy vegetation at many locations, heavy grass growth is seen on terrace of the building and longitudinal cracks are seen at many column and reinforcement is exposed and corroded. It is also noted that some beams have cracks developed and concrete cover fallen down and chhajja and cantilever portion may collapse at any time and some Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 7/9 nmsl-398-19(33).doc of the chhajjas have collapsed partly. The TAC has also, after making comparative statement of NDT Test, come to a conclusion that over all condition of the structure is poor, quality of concrete is doubtful, strength of concrete is inadequate, the percentage of corrosion of reinforcement is ranges from 50% to 90%, which shows the structure is in poor condition and deteriorated. It is also noted that both the consultants have stated that the structural members are having cracks, concrete cover fallen, reinforcement is exposed and corroded. Based on these, TAC has come to a conclusion that the building has to be categorised as C-1 that is to be evacuated and pulled down.
10 In the guidelines for declaring the building as C-1 category, VJTI is one of the reputed Engineering Institute to be appointed for carrying out structural audit. One of the reports place before the TAC is by VJTI. The policy also provides that the building will be inspected by Ward Executive Engineer and depending on visual inspection / condition of the building, it will be catergorised. In this case, it is not just the Ward Executive Engineer, but the members of TAC have inspected the building. The policy guidelines requires the hearing to be given. It has been given. 11 I have to also note that R. S. Karnavat does not state that the building is in excellent condition. His report also states that there has been Meera Jadhav ::: Uploaded on - 25/02/2019 ::: Downloaded on - 18/03/2019 00:38:34 ::: 8/9 nmsl-398-19(33).doc no routine maintenance of the building carried out in the past, 100% carbonation of concrete at some locations, 50% probability of corrosion, poor compressive strength of core, distress RCC members, UPV readings were doubtful at some locations. R. S. Karnavat categorised the building in C2-A category, which means it requires major structural repairs immediately.
12 Majority of the members, i.e., 80% (12 out of 15) from the plaint, appear to be in favour of re-development. Mr. Shah tried to say 5 or 6 of the 12 belong to one family and are developers in their own right and, therefore, it cannot be said majority want re-development. Whether they want re-development or not is immaterial as the condition of the building is precarious as noted above.
13 In the circumstances, I am not inclined to accept that there was any flaw in the action taken by the TAC. Ad-interim rejected. 14 Affidavit in reply to be filed and copy served within three weeks from today. Rejoinder, if any, to be filed and copy served within two weeks thereafter. Notice of motion to come up in due course after 8 weeks.
15 Defendants waive service of writ of summons. Defendants to
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file written statement within 6 weeks from today. Suit be listed for
directions on 5th April, 2019.
16 All rights and contentions of the parties are kept open,
including that of defendants to take out an application under Order 7 Rule 11 of the CPC.
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