Bombay High Court
Adarsh Dahisar Gaurav Co-Op. Housing ... vs The Designated Officer, Assistant ... on 6 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 1096
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
AO-ST-96081-2020.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER [STAMP] NO.96081 OF 2020
A/W
INTERIM APPLICATION [STAMP] NO.96082 OF 2020
Adarsh Dahisar Gaurav Co-op ]
Housing Society Ltd., a Co-operative ]
Housing Society duly Registered ]
Under Maharashtra Co-operative ]
Societies Act, Having its office at ]
Harishankar Joshi Road, ]
Dahisar (East), Mumbai - 400 068. ] Appellants/
Orig. Plaintiffs
Versus
1. The Designated Officer, ]
Assistant Engineer, ]
M.C.G.M (Bldg & Fact) ]
(R/North Ward), ]
Below Sangeetlkar Sudhir Phadke ]
Jaywant Sawant Marg, ]
Dahisar (West), Mumbai - 400 068. ]
2. The Asst. Commissioner ]
R/North Ward, ]
Below Sangeetkar Sudhir Phadke ]
Jaywant Sawant Marg, ]
Dahisar (West), Mumbai - 400 068. ]
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3. The Municipal Corporation of ]
Greater Bombay, A body ]
Corporate constituted under the ]
Bombay Municipal Corporation ]
Act, 1888, having its officer at ]
Mahapalika Marg, Opp. C.S.T, ]
Fort, Bombay - 400 001. ] Respondents
(Original Defendants)
.....
Mr. Ashok M. Saraogi a/w Mr. Sushil Upadhyay, for
Appellant/Applicant.
Mr. Narendra V. Walawalkar, Senior Advocate a/w Ms. Madhuri More,
for Respondents-M.C.G.M.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 31st MARCH, 2021.
PRONOUNCED ON : 6th MAY, 2021.
[THROUGH V.C.]
JUDGMENT:
1. By this appeal, the appellants have impugned an order dated 14th September, 2020 passed in Notice of Motion No.1946 of 2018 in L.C. Suit No.2361 of 2015 by which, the City Civil Court has restrained the defendants/respondents from disconnecting the electricity supply of building known as 'Gaurav' at Harishankar Joshi Road, Dahisar (East), Mumbai (for short the 'suit building') till one day prior to the eviction of the occupants therein. The trial Court had rejected relief sought in terms of prayer clause (b).
2. Facts in brief are as under;
2 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc The appellant is a Co-operative Housing Society Limited having its office at Dahisar. The suit building was constructed in the year 1973-1974. It comprises total 44 flats and 8 shops. The occupants of the suit building having found that it requires huge expenditure for repair work, majority of the members of the society thought it fit to go for re-development and, therefore, appointed an architect.
3. Meanwhile, the respondents-Municipal Corporation of Greater Mumbai (for short 'M.C.G.M') issued a notice qua the suit building under section 353B of the Mumbai Municipal Corporation Act, 1888 on 2nd July, 2015. After inspecting the same, by another notice dated 9th July, 2015, the respondents had asked the appellants to get the structural audit done as the suit building was found to be in a highly dilapidated and dangerous condition.
4. By a notice dated dated 28th July, 2015, the respondents issued another notice under section 354 of the M.M.C Act (impugned notice) on the basis of structural audit carried out by M/s. Space, Design and Development at the behest of the respondents. Since there were two conflicting structural audit reports, the matter was referred to Technical Advisory Committee (for short "TAC".) The respondents declared the suit building in C- 1 category. The appellants, therefore, approached the City Civil Court by way of the present suit.
5. Meanwhile, the respondents had asked Reliance Energy to disconnect the electricity supply to the suit building vide notice 3 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc dated 9th May, 2018. On 18th May, 2018, the respondents issued a letter to the appellants to attend the meeting on 19 th May, 2018 before the Assistant Commissioner, R/North Ward qua the suit building.
6. On 8th June, 2018, another notice under section 353B under the M.M.C Act came to be issued asking the appellants to carry out structural audit of the suit building through M.C.G.M Panels Structural Engineer namely Mr. Nilesh Pandit on 16 th July, 2015. According to the appellants, Nilesh Pandit was not authorized to inspect the suit building as he has a licence only to carry out structural audit of buildings comprising of ground plus three, whereas, the suit building is ground plus four.
7. Grievance of the appellants is also that the order of TAC has neither been communicated nor an opportunity of hearing has been given to them. The TAC has not sent its Engineer to inspect the suit building.
8. The respondents, on the other hand, have come up with the case that the suit building is more than 30 years old which has been classified in C-1 category on the basis of the inspection report of the structural Engineer. An opportunity has been given to the appellants whose authorized persons were present when the members of the TAC conducted the inspection. According to the respondents, when the suit building was inspected on 1 st July, 2015, Mr. R.R. Karnik and Mr. Ashish Pandya, Secretary and Chairman of the Society were present. It is the contention of the 4 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc respondents that structural members at the ground floor are in a highly dilapidated condition due to which the suit building is likely to collapse. Reinforcement in the structural members has been corroded badly and horizontal cracks throughout the length have been developed in the beam. Therefore, the respondents were constrained to issue a notice dated 2 nd July, 2015 under section 353B of the M.M.C Act to the appellants for carrying out structural audit of the suit building. However, the appellants did not pay any heed to the said notice and had not carried a structural audit of the suit building and, therefore, the respondents were constrained to carry structural audit of the suit building through it's panel structural Engineer on 16th July, 2015. As per the structural audit report, the building was, therefore, declared in C-1 category.
9. I heard Mr. Saraogi, learned Counsel for the appellants at length and Mr. Walawalkar, learned Senior Counsel for the respondents-M.C.G.M.
10. Mr. Saraogi took me through the record and documents tendered before the trial Court. According to him, only because the building is 30 years old, it should not have been classified in C- 1 category. He would argue that the structural auditor of the respondents-M.C.G.M who prepared the report is not authorized to carry out inspection of the suit building which comprises ground plus four floors. According to Mr. Saraogi, the guidelines laid down by this Court in Writ Petition No.1135 of 2014 in respect of demolition of the buildings which are in a dilapidated condition have not been scrupulously followed. He stressed that without any 5 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc inspection, the respondents have issued an impugned notice and were threatening to disconnect the electricity supply, which, according to Mr. Saraogi is an illegality. He further argued that the TAC has not taken any independent inspection to arrive at a conclusion that the suit building falls in C-1 category.
11. On the other hand, Mr. Walawalkar, the learned Senior Counsel appearing for the respondents-M.C.G.M has strongly argued that despite issuing a notice under section 353B of the M.M.C Act on 2nd July, 2015, the appellants did not perform its statutory obligation. They had not furnished structural audit report. The list of Architects submitted by the appellants is not authentic one as there is no seal and signature of any competent authority. Mr. Walawalkar has drawn my attention to the structural audit report subsequently tendered by the appellants of one M/s. Dhaware & Associates which, in fact, supports the case of the Corporation qua the suit building. He drew my attention to column No.7 of the said report which says that the condition is very serious.
12. In support of his case, Mr. Walawalkar has pressed reliance on certain pronouncements of this Court, which I shall refer subsequently. However, according to Mr. Walawalkar, the conduct of the appellants speaks volume in the sense that they have not assigned any reason as to why they have not filed the report of M/ s. Dhaware & Associates who was the auditor appointed by the appellants.
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13. At the outset, it is worthwhile to note that TAC was required to be appointed since there were two conflicting structural audit reports. TAC accepted the structural report submitted by M/s. Space Design & Development which classified the suit building in C-1 category indicating that it requires immediate evacuation and demolition. A request letter came to be issued by the respondents to Reliance Infrastructure Limited to disconnect the electricity supply of the suit building and accordingly Reliance Infrastructure Limited issued intimation of disconnection to the appellants. The appellants had, in that background, took out a Notice of Motion.
14. It is pertinent to note that the subsequent events regarding passing of an order by TAC and issuance of notice of disconnection of electricity supply have not been pleaded in the plaint by making suitable amendment. Therefore, in fact, no cognizance of these facts which have not been pleaded should have been taken. Nevertheless, following few factors would indicate that the learned City Civil Court has rightly considered almost all the facts placed before it to arrive at a conclusion that no case had been made out by the appellants to seek a relief of temporary injunction restraining the respondents from demolishing the suit building.
15. The first notice under section 353B of the M.M.C Act was issued on 2nd July, 2015 by which the appellants were directed to submit structural audit report within 30 days. Despite receipt of the notice, the appellants did not pay any heed by not carrying out any structural audit qua the suit building. The respondents, therefore, rightly appointed a structural auditor on 23 rd July, 2015 7 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc to conduct the audit of the suit building. The respondents had filed a letter to that effect dated 23 rd July, 2015 issued to M/s. Space Design and Development. Having conducted inspection and audit of the suit building on 9 th July, 2015, the structural auditor submitted it's report to the respondents. It reveals that the said auditor having conducted necessary test including ultra sound pulse, velocity test, rebound hammer test carbonation depth test, half cell potential test, core test, chemical analysis and reinforcement mapping concluded that the suit building falls in C- 1 category which requires immediate evacuation and demolition. The report was brought to the notice of the appellants by the respondents by the impugned notice, inter alia, directing the occupants to vacate and pull down the structure within 30 days from the date of receipt of the notice.
16. The appellants have not disputed the notice dated 2 nd July, 2015 under section 353B of the M.M.C Act and the impugned notice. Rather, the plaint reveals that in the General Body Meeting of the Society, it was decided to go for re-development and accordingly an Architect came to be appointed by the appellants who was expected to commence the work shortly. As already stated, it was the contention of the appellants that the repair work of the suit building required huge expenditure and, therefore, an inspection was conducted by engaging a Contractor wherein majority of the members of the society expressed that the Society should go for re-development of the suit building. There is clear admission on behalf of the appellants that a notice dated 2 nd July, 2015 came to be issued under section 353B of the M.M.C Act.
8 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc This admission itself is sufficient to show the negligent and callous attitude of the appellants not to proceed further in accordance with law. The appellants have clearly stated about the visit of the respondents to the site and taking inspection of the suit building with respective tenements/flats occupied by the members of the society. They also admit the issuance of notice dated 9 th July, 2015 under section 488 of the M.M.C Act informing about the structural audit of the suit building through municipal panel structural auditor. Despite having due knowledge of the seriousness of the correspondence made by the respondents, the appellants appears to have turned Nelson's eye to the same. No explanation is forthcoming as to why no structural audit of the suit building was conducted by the appellants through structural auditor within stipulated time. However, later on, it appears, that report of one M/s. Dhavare and Associates Consultants was filed by the appellants when much water had flown under the bridge.
17. Now, going to the TAC order in which the consultant auditor of the appellants as well as the auditor appointed by the respondents were present along with the members of the TAC. The TAC order indicates that the structural auditor appointed by the appellants has categorized the suit building in C-2-A category, which requires major structural repairs with partial evacuation during repairs. TAC order further shows that report submitted by the structural auditor appointed by the appellants has been considered at length by the TAC by considering all the aspects including costs of the repairs. The Members of the TAC on 9 th August, 2019, prior to the meeting has also inspected the suit building.
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18. Following are the salient features qua the inspection report of the suit building;
(a) The building is fully occupied with commercial shops at ground floor;
(b) External plaster of the suit building is found to be damaged and exhibit cracks;
(c) The internal and external RCC members of the building were found to be in severally damaged condition and exhibit cracks;
(d) The steel reinforcement is exposed and rusted at several places in the building;
(e) The vegetation growth seen at many locations on the exterior face of the building;
(f) The RCC members in the staircase area are in deteriorated condition.
19. Thus, it can be seen from the TAC order that the TAC has granted opportunity of hearing to the structural auditor appointed by the appellants and also considered it's report. Having considered the structural audit report submitted by the auditor appointed by the respondents-Corporation, the report submitted by the structural auditor appointed by the appellants, inspection report and inspection conducted by the TAC members, TAC came to the conclusion that the suit building is not fit for human habitation and, therefore, it must be immediately evacuated and pulled down by following due process of law. The photographs placed on record also prima facie indicate precarious and dangerous condition of the suit building.
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20. Needless to state that this Court cannot be expected to look into the aspect as to whether the suit building is in fact so ruinous as to warrants its demolition. This Court is not supposed to assess structural condition of the building or its structural vulnerability. The Court will only assess the vulnerability in law of demolition notice on the recommendations or order. In other words, this Court would address not to the decision of TAC report but to the process by which it was reached.
21. I am supported in my view with the observations made by a Division Bench of this Court in case of Mahendra Bhalchandra Shah and others Vs. Municipal Corporation of Greater Bombay and others, Writ Petition (L) No.1755 of 2019. Paragraph 33 of the said judgment reads thus;
"33.It is now clear that a Court is not permitted or even capable of determining whether a building is truly so ruinous as to warrant its demolition. We do not assess the structural condition of the building (and the chawl in question is very much a 'building'), or its structural vulnerability. We only assess the vulnerability in law of demolition notices or the TAC recommendation or order. In other words, we address ourselves not to the decisions itself, but to the process by which it was reached. We do not suggest that the mere age of structure invariably and unquestionably means that it is 'ruinous' or dilapidated. By that reasoning, the 11 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc High Court building, which is 150 years old, or other heritage structures such as CST railway station or the Mumbai University's Fort campus would be deemed to be in imminent danger of collapse. They are not. But even these buildings, like all built structures, require periodic and timely intervention for their preservation and upkeep. There are several buildings in the Island City that they have been well-maintained for decades, or have been restored and do not pose a danger. Should any of these buildings, in demonstrably good condition, be subjected to such a demolition notice, a Court will have no hesitation in concluding that the decision is perverse. But that perversity has to be shown. It is not to be assumed. Therefore, when there is material available to show deterioration, and the lack of timely and periodic maintenance and repairs over time, the writ Court will be slow to interfere without clear demonstration and proof of mala fides, arbitrariness and perversity".
22. As regards unreasonableness or perversity on the part of the TAC is concerned, following observations of the Division Bench in case of Vivek Shantaram Kokate and others Vs. The Municipal Corporation of Greater Mumbai and others, 2020 (1) ALL MR 656. would be relevant. I am in full agreement with the observations made in paragraphs 18,19 and 20 which read thus;
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18. In all this, where is the perversity? Where is there the slightest demonstration of any element of unreasonableness on the part of the TAC, leave alone Wednesbury unreasonableness? We find none. There is no requirement anywhere that the TAC must necessarily commission an independent structural report or audit or have fresh tests carried out. After all, its composition is of technical experts. They are best placed to decide which of two competing reports, having regard to all circumstances, should be preferred. Outside of demonstrated perversity or Wednesbury unreasonableness, therefore, we cannot accept the prima facie that the TAC was bound to appoint an independent consultant, carry out fresh tests or could not rely on one report over another. If this approach is to be adopted then we would not be addressing the decision-making process but, contrary to law, the actual decision itself. That we cannot and will not do.
19. Even as we were taking up case after case, around 15th July 2019, there was a catastrophic collapse of a building at Dongri. Many lives were lost. In Richard Gasper Mathias (supra), we noted that the entire reason for introducing Section 353B requiring a cautionary structural stability certificate for buildings of over 30 years age was the fact of just such a disastrous building collapse. How many lives must be 13 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc lost before occupants and tenants learn what is in their own interest? What these Petitioners and others like them seem not to understand is that when they obtain orders of stay and status quo in this fashion, they ask for precisely that which the Diwanchand Gupta court said cannot be granted: the substitution of a judicial view for a technical view on whether the building is actually ruinous. All their much-vaunted undertakings notwithstanding, these entreaties to the Court really put the responsibility for citizens' safety on the Court.
20. We have said this before, and we will say it again, and yet again, as often as we must: this Court will always err on the side of caution. For human lives matters. Buildings can be reconstructed. A life lost is lost forever. The alternative is unimaginable: 'the building was not demolished because of a stay granted by the Court. The building collapsed. People died. Therefore, people died because the Court granted a stay.' This is the conclusion devoutly to be avoided. A built structure is, in many ways, like the human body. Both require routine care and maintenance, and early intervention when serious problems are detected. Without this, both fail. To say then, as Mr. Murthy says today, 'that the building can be repaired' is very like saying a life can be artificially prolonged for a little while. Whether or not to keep a life going may pose an 14 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc ethical, legal or moral dilemma. A building presents no such challenge. On the contrary, it is the lives in the building that are our paramount, primary, and, perhaps, only concern. It is for this reason that we insist that unless there is a prima facie finding there cannot be an order of injunction in such matters; and in no case can such an injunction be rendered weak- kneed by tacking onto it a wholly unenforceable and redundant 'undertaking'. That undertaking, as we said elsewhere, is useless as soon as the undertaker meets his maker. There can also be no generalized order of status quo without knowing what that status quo is, because in matters such as these, that would inevitably involve an injunction against the annual monsoons. We have also noticed, in more than one case, that while these status quo orders were pending -and for precisely this reason, i.e. weathering -some portions of such judicially protected structures (some on busy roads near stations) actually collapsed.
23. In the case at hand, the appellants have failed to demonstrate even a slightest element of unreasonableness or absence of principles of natural justice on the part of the TAC. The Committee of technical experts having compared the rival reports of the two different entities and after application of it's independent mind reached a conclusion which cannot be interfered with by this Court, as has already been observed that 15 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc this Court cannot assess the structural condition of the suit building or its structural vulnerability. This Court also cannot go into the aspect of the decision arrived at by the TAC but only the process by which it was reached.
24. Having gone through the entire record and the impugned order, I am of the considered view that interference of this Court is not at all warranted under Order-XLIII, Rule-1 (r) of the Code of Civil Procedure. Consequently, the appeal deserves to be dismissed.
25. The appeal stands dismissed.
26. In view of dismissal of the appeal, pending applications if any stand disposed of.
[PRITHVIRAJ K. CHAVAN, J.] At this stage, Mr. Saraogi, learned Counsel appearing for the appellants seeks stay to the order passed by this Court for a period of 12 weeks considering the pandemic situation and in view of the fact that no society will accept the tenants.
On the other hand, Mr. Walawalkar, learned Senior Counsel appearing for the respondents-M.C.G.M strongly objects for staying the effect of this order by contending that it would amount to giving a fresh lease to the appellants to protract the matter.
16 of 17 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 11:35:32 ::: AO-ST-96081-2020.doc Having considered the respective submissions, I am of the view that in the interest of justice, two weeks would be sufficient for the appellants to get themselves accommodated elsewhere looking to the prevalent Covid-19 situation. It is made clear that there shall be no further extension of time beyond the period of two weeks. After a period of two weeks, the respondents shall proceed in accordance with law.
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