Bombay High Court
Smruti Dixit vs The Municipal Corporation Of Gr. Mumbai ... on 4 May, 2021
Author: G. S. Kulkarni
Bench: Dipankar Datta, G. S. Kulkarni
27-WPL.7521.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) 7251 OF 2020
Smruti Dixit } Petitioner
Versus
The Municipal Corporation of }
Greater Mumbai and Ors. } Respondents
Mr.Sharan Jagtiani-Senior Advocate with Mr.Rahul
Dwarkadas, Mr.Neveille Mukerji, Mr.Areez Gazdar
and Mr.Asim Tirmizi i/b. Veritas Legal for the
petitioner.
Ms.Vandana Mahadik for the Municipal Corporation.
Dr.Milind Sathe-Senior Advocate with Mr.Prakash
Shah i/b. Mr.Durgaprasad Poojari for respondent
nos. 2 to 4.
Mr.Kunal Dwarkadas i/b. Zain A.K. Najam-es-Sani
for respondent nos.15, 19 and 20.
Mr.Cyrus Ardeshir with Mr.Siddharth Samantray and
Mr.Prakash Shah i/b. Mr.Durgaprasad Poojari for
respondent no.16.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- MAY 4, 2021 PC :-
1. The petitioner is the owner of a G+3 storied building named "Jitendra Building" in Khar (W), Mumbai, consisting of 13 flats (hereafter referred to as "the said building"). The respondent nos. 2 to 20 are the tenants and/or occupiers of Page 1 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 the 13 flats in the said building. It is, however, claimed by the petitioner that out of the aforesaid 19 tenants/occupants, only the respondent nos. 5 and 7 have been occupying their respective flats while the respondent no.16 is using the tenement for commercial use as a corporate office to carry on business.
2. The said building was constructed sometime in the early eighties of the last century. According to the petitioner, there was a partial slab collapse in or around March, 2012 followed by a further partial slab collapse in or around July, 2017. Such collapses have been attributed by the petitioner to unauthorized additions/alterations effected by some of the private respondents in their respective flats. These collapses led the petitioner to conceive redevelopment upon demolition of the said building and it is also claimed by the petitioner that most of the tenants/occupants urged her to demolish the said building and reconstruct the same. On the insistence of some of the tenants/occupants and as required by law, the petitioner carried out a structural audit by engaging M/s. S.P. Civil Engineers Private Limited (hereafter referred to as "SPCE", for short), who submitted a report dated 11th September 2017 classifying the said building as C-1 (not repairable/to be demolished). To be extra sure about the condition of the said building, the petitioner engaged two other structural engineers and their reports corroborated the report of SPCE. The petitioner submitted the three reports of the structural engineers engaged by her to the Municipal Corporation of Greater Mumbai, the respondent no.1, on 9th Page 2 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 March 2018. It is at this stage that certain tenants of the said building submitted before the respondent no. 1 a structural audit report prepared by M/s. Rehab Consultants (hereafter "Rehab", for short). The report of Rehab classified the building as C-2B category, i.e., "repairs without eviction". While so classifying, the report concluded that the said building, upon repairs estimated at Rs.86.3 lakhs, would have an extended life of 10 to 15 years. Although the petitioner doubted the correctness of the report of Rehab, for various reasons as indicated in the writ petition, to avoid any doubt, she commissioned the Indian Institute of Technology, Bombay (hereafter referred to as "the IIT Bombay", for short) for a structural audit and a structural analysis of the said building. The structural audit report dated 20 th August 2018 of the IIT Bombay classified the said building as C-1 and it was concluded that the same is in a severely deteriorated condition, which might suffer a partial or full collapse any time. Such a conclusion rested on several tests employed by the IIT Bombay.
3. The reports of SPCE, Rehab and the IIT Bombay came to be placed before the Technical Advisory Committee (hereafter referred to as "the TAC", for short) of the respondent no.1. The TAC, upon conducting a site inspection as well as on consideration of the structural audit reports of SPCE, Rehab and the IIT Bombay, concluded as follows:
"TAC Conclusion:
The site has been inspected on 03.05.2019 at 11:00 am by TAC members along with H/west ward Page 3 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 staff. Thereafter, TAC meeting was held on 28.05.2019 at 11:00 am when all the structural consultants/representatives of structural consultants were present. In the meeting, structural audit reports of all the structural consultants were taken into consideration.
During site visit by TAC members and H/West ward staff it is observed that the building is partly Gr+2 and partly Gr+3, RCC framed structure having completed approximately more than 36 years of age. TAC members inspected the structure from externally and internally. The structural members in individual units in the building at each floor along with terrace are inspected by TAC members. During inspection, it is observed that at ground floor enclosed parking, reinforcement of beam and slab is exposed. Column near duct is found buckled. Cracks are observed in columns of bedroom of flat no. 102 on 1st floor, in balcony of flat no. 203 on 2nd floor and in column of bedroom of flat no.201 on 2nd floor. Apart from this no cracks are observed in flats in the building under reference. Part terrace at 3rd floor is used to keep small plants. The columns, slabs and beams supporting overhead water tank is found cracked and vegetation growth is observed therein. The observations of the site visit were discussed in the meeting in detail.
All the TAC members have carefully gone through the structural audit reports submitted by three consultants and had discussion on the recommendations and conclusions as seen in the comparison table above. From Comparison table, it can be seen that only Ultra Sonic Pulse Velocity Test doubtful, other test like Rebound Hammer Test, H.C. Potential Test, Carbonation tect (sic. test) are average. The core test result of consultant of Owner and Tenant is good i.e. strength more than 11.25 MPa.
The structural audit reports, proforma B and facts put up by all the structural consultants, opinions/reports of ward staff were discussed during meeting in detail. After going through all the structural audit reports submitted by the structural consultants, opinion/reports of the ward staff and observations made during the site visit by TAC members on 03.05.2019, further meeting with all Structural Consultant and Ward Staff and 36 Page 4 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 years of age building, TAC feel that the subject building requires major structural and general repairs to increase the durability of structure. NO occupancy required during major repairs, it is necessary to repair works to be taken in hand urgently under supervision of Structural Consultant by taking all precautionary preventive and safety measure to avoid accidents. Hence, this building seem to be falls in C2 A category.
TAC Conclusion:-
The structure known as Jitendra Building, Plot no. 276, Near Madhu Park, 12th Road, Khar (W), Mumbai-52 is 36 years old structure.
Considering age of building, test result, site observation and further discussion in the meeting, it is unanimously recommended that the structure known as Jitendra Building, Plot no.276, Near Madhu Park, 12th Road, Khar (W),g Mumbai-52 falls in C2-A category (Eviction during Major Structural Repairs).
Designated officer, H/W ward shall therefore take necessary action as per the policy guidelines dated 25.05.2018."
4. The conclusions recorded by the TAC, extracted above, were preceded by a comparison of non-destructive test results as follows:
"Comparison of Non-Destructive test results as per PROFORMA 'B' Form submitted by above said Consultants in their respective Structural Audit Reports is as follows :
Sr.No. Tests S.P.Civil Prof.Siddhartha Rehab Criteria Engineers Ghosh, Consultants Pvt. Ltd. IIT Bombay Pvt. Ltd.
(Owner) (Owner) (Occupants)
1 Ultra-sonic Avg.2.48 2.06Mpa Below 3.0 Above 4.5-
pulse velocity Km/sec. Km/sec excellent 3.5
(av.) Km/sec.) to 4.5-Good
3.0 to 3.5-
Medium
Below 3.0-
Doubtful/poor
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2 Rebound Avg.12.2 4.02 Mpa 8columns IS code fck
hammer test Mpa show above <20.0 Mpa
20N/mm2
and two
columns
show 15-
20N/mm2
3 Half cell Avg.- More than 90% In between <-200-No
potential test 293.4mV chance of - 200mv to corrosion -
mV corrosion in - 350mv 200to-350-
50% of N/mm2 Just start -
locations 350to-500 -
50%
corrosion >-
500-90%
corrosion.
4 Carbonation 48mm Avg.26.5mm Avg.39mm High Degree
Depth test of
carbonation
48mm
5 Core test Avg.14.2 8.80Mpa Avg. Greater than
MPa 20.12N/mm2 Optimum
limit
11.25MPA is
good
6 Chemical pH- Not submitted pH- Avg. pH (not less
Analysis Avg.8.6 10.4 CL - 2 than 8) CL-
CL- columns for PCC max
0.33KG/M3 show (3.0kg/m3)
SO3- readings For RCC max
<0.5% 0.03 & 1 (0.6kg/m3)
column
shows
1.07kg/m3
SO3-below 4
7 Cement Not 5.53 1-5.9 IS Code ratio
aggregate submitted <5.0
ratio
8 Classification C1 (to C1 (To be C-2B (No
evacuate evacuated eviction
and and only
demolish) demolished structural
immediately) repairs)
It is evident from such comparative chart that chemical analysis test report had not been submitted by the IIT Bombay.
5. The report of the TAC forms the subject matter of challenge in this writ petition at the instance of the aggrieved petitioner.
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6. In course of hearing, Mr.Jagtiani, learned senior counsel for the petitioner has assailed the report of the TAC from various angles.
7. Per contra, Dr.Sathe, learned senior counsel for the respondent nos. 2 to 4 has supported the report of the TAC. Dr.Sathe, while denying and disputing the material allegations levelled in the writ petition, argued that the said building is indeed repairable and that the petitioner to achieve unlawful gains has procured structural audit reports classifying the said building as C-1 to facilitate demolition thereof.
8. The attack laid by Mr.Jagtiani to the report of the TAC, at least on two counts, has impressed us.
9. First, Mr.Jagtiani while placing the report of the IIT Bombay has invited our attention in particular to paragraph 2.4 bearing the caption "Non-Destructive Tests" and to sub- paragraph 2.4.3 bearing the caption "Chemical Test". It is the specific contention of Mr.Jagtiani that despite the required tests, as indicated in such sub-paragraph, having been employed by the IIT Bombay with regard to chemical analysis, the TAC turned a blind eye to it and remarked in the comparative chart that the IIT Bombay had not submitted its report on chemical analysis. According to him, the TAC did not apply its mind to the materials on record and discarded relevant and material evidence while recording its conclusion that the said building ought to be classified as C-2A. Mr.Jagtiani further brought to our notice a letter dated 16th August 2019 issued by the IIT Bombay objecting to the report Page 7 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 of the TAC, with clear indication as to where the TAC had gone wrong.
10. Neither Dr. Sathe nor Ms.Mahadik, learned counsel for the respondent no. 1 has any answer to such contention raised by the petitioner. The structural audit report of the IIT Bombay is one prepared by experts in their own field. At this stage, it is not for us to inquire and opine as to what would have been the effect of consideration of the chemical analysis report by the TAC. Suffice it to note, the TAC proceeded on the basis that the structural audit report of the IIT Bombay was deficient qua chemical analysis report and this, in our opinion, is sufficient to hold that there has indeed been a patent non-application of mind on the part of the TAC, thereby vitiating its report.
11. The other contention of Mr.Jagtiani, of there being no reasons at all recorded by the TAC to discredit the report of the IIT Bombay, has also appeared to us to be of substance.
12. The conclusions recorded by the TAC in its report dated 11th July 2019 do suggest of the same being its ipse dixit. A bare perusal thereof would leave none in doubt that the TAC did not employ any of the tests, which SPCE and the IIT Bombay had employed. What weighed in the minds of the members of the TAC were the impressions gathered by them on visual (external and internal) inspection of the said building. The structural audit report of the IIT Bombay classifying the said building as C-1 rested on rigorous tests employed by it. Without employing any of such rigorous tests Page 8 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 that the IIT Bombay had employed to assess the structural stability of the said building, the members of the TAC ought not to have taken a view contrary to that of the IIT Bombay. We do not for a moment doubt the qualifications or competence of the members of the TAC; however, given the reputation the IIT Bombay as an institution of excellence has earned and the comprehensive structural audit report that was prepared by it touching all material aspects, which the members of the TAC failed to note in its entirety, what the members of the TAC felt were of no relevance. In a case of the present nature where the TAC had to consider a structural audit report prepared by the IIT Bombay, the minimum that was required of the members of the TAC to hold such report as 'not creditworthy' was to conduct an independent structural audit by employing similar tests that the IIT Bombay employed, record what its findings were upon such tests being employed, and then to hold that having regard to its own assessment of the structural stability of the said building based on such tests, classification of the said building as C-1 as made by the IIT Bombay was incorrect. In our considered opinion, by the slipshod nature of exercise that was undertaken by it, the TAC was not justified in discrediting the report of a reputed institute like the IIT Bombay.
13. We called upon Ms.Mahadik to justify the report of the TAC, in the light of what we observed in course of hearing after hearing Mr.Jagtiani. The report of the TAC being patently unsustainable, quite obviously, Ms.Mahadik was unable to persuade us uphold it.
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14. For the reasons as discussed above, we are of the clear view that the report of the TAC dated 11th July 2019 cannot be sustained in law and that the entire issue as to structural stability of the said building ought to be considered by by the TAC de novo. We, accordingly, pass the following order:
(i) The report of the Technical Advisory Committee (TAC) dated 11th July 2019 stands set aside.
(ii) The issue is remitted back to the TAC for de novo consideration, upon hearing the necessary parties and in the light of the observations made above and hereafter, as early as possible, but preferably within a month from date of receipt of a copy of this order;
(iii) If upon such consideration the TAC is of the, prima facie, view that the structural audit report of the IIT Bombay is acceptable, it shall give opportunity to those objecting to demolition of the said building opportunity to substantiate that the said building could be repaired and needs no demolition on the basis of the materials on record;
(iv) Should the TAC be of the opinion, prima facie, that the structural audit report of the IIT Bombay is not worthy of acceptance, it shall arrange for such tests as had been employed by the IIT Bombay upon notice to the petitioner, record its independent findings, compare the test results and Page 10 of 11 J.V.Salunke,PS ::: Uploaded on - 06/05/2021 ::: Downloaded on - 10/09/2021 03:41:49 ::: 27-WPL.7521.2020 justify why a contrary view is required to be arrived at; and
(v) Whatever view the TAC takes upon de novo consideration in the manner indicated above, its order must contain reasons for the conclusion it ultimately reaches.
15. We make it clear that since there are serious allegations levelled by the petitioner of unauthorized additions/ alterations having been made by the tenants/occupants of the said building, the respondent no.1 shall make a thorough inquiry into such allegations within a fortnight from date upon notice to the parties and have the resultant inquiry report placed before the TAC, prior to the TAC giving its final opinion in terms of this order.
16. All other contentions are left open.
17. The writ petition stands disposed of with the aforesaid directions. There shall be no order as to costs.
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