Bombay High Court
Suresh Mohanlal Jain And 6 Ors vs Municipal Corporation Of Greater ... on 4 August, 2016
Author: Shantanu Kemkar
Bench: Shantanu Kemkar, Makarand Karnik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2437 OF 2014
ALONG WITH
CHAMBER SUMMONS (L) NO. 226 OF 2016
IN
WRIT PETITION NO. 2437 OF 2014
Suresh M. Jain and Ors. ... Petitioners
Versus
and Ors.
The Municipal Corporation of Gr. Mumbai
... Respondents
Mr. Swanand Ganoo with Ms.Neeta Solanki i/by M/s. Kiran Jain
& Co. for the petitioners.
Mr. A.Y. Sakhare, Sr. Advocate a/w Ms. Shobha Ajitkumar for
respondent nos. 1 to 3.
Mr. Sachin Dhakephalkar for the applicant in Chamber
summons.
CORAM : SHANTANU KEMKAR &
MAKARAND KARNIK, JJ.
ORDER RESERVED ON : 29/07/2016
ORDER PRONOUNCED ON: 04/08/2016
ORAL ORDER (Per Shantanu Kemkar, J.):
Not on board. Mentioned for urgent production. Production granted in view of urgency.
2. Petitioner Nos. 1 to 5 claim to be occupying the premises in question for commercial purposes as tenant of the Municipal ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 ::: 2 911-wp-2437.2014.sxw Corporation. They are doing business from the shop existing on the ground floor. Petitioner no. 6 is having its hoarding erected on the roof of the building with the permission of the Municipal Corporation. The owner of the building in question is Municipal Corporation of Greater Mumbai.
3. The Municipal Corporation had issued notices to the petitioners for vacating the premises on the ground that the same being dilapidated, it is required to be demolished. Undisputedly after similar notices being ig issued, all the first floor occupants residing in the building have vacated the premises.
4. As a dispute was raised by the petitioners about the claim of the corporation that the building is dilapidated, this Court vide order dated 23.2.2015 referred the matter to Technical Advisory Committee (TAC) constituted in pursuance of the order dated 23.6.2014 passed by this Court in Writ Petition (L) No. 1135 of 2014. This Court also directed the petitioners to submit report of their structural auditor and the Municipal Corporation was directed to take further steps in accordance with the directions issued by this Court in the aforesaid Writ Petition (L) No. 1135 of 2014.
5. In pursuance of the directions of this Court, TAC submitted its report dated 3.7.2015. TAC after consideration of both the reports ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 ::: 3 911-wp-2437.2014.sxw and after hearing the representatives of the petitioners as also of the Municipal Corporation who had submitted their respective structural audit reports recorded the following finding:
"Accordingly, in today's meeting representative of both the consultants have submitted their report in the prescribed format of "proforma B". Consultant for the petitioners have submitted that they have carried out necessary NDT tests are not good and that are below average permissible values. The consultants further revealed that the internal plaster and external plaster, plumbing arrangements and drains are in very bad condition. Structural steel is found exposed to atmosphere at most of the structural members such as columns, slab, beams etc. Heavy seepages/Leakages are noticed all over in the building. Chajjas and slab in the common area and toilet blocks are in badly distressed condition. Also there is huge rank vegetation seen on major parts of the building. Consultants for Corporation submitted that the structural distress could be inspected by naked eyes. Many of the RCC structures show major cracks. Many of the Non- destructive tests could not be conducted on cracked RCC members. Hence, NDT test is not conducted on the said structure. Both the consultants agreed that Core test cannot be conducted due to the deteriorated and distressed condition of the structural members. It is also agreed that Ultrasonic pulse velocity test, rebound Hammer Test, Half Cell Potential Test are having below average values. Also, Dy. Ch. Eng. B.P. (City) has declared the said building in C1 category based on the site inspection reports of the Junior Engineer T.P., A.E. T.P. (I), G/S & Ward executive engineer G/south Ward.
TAC CONCLUSION :
The High Court, Ordinary Original Civil Jurisdiction (O.O.C.J.) in Writ Petition No. 2437 of 2014 has given ad-interim relief to the Petitioners, subject to the condition that the petitioners will be occupying the premises in their possession at their own risk as to its consequence and also the petitioners will be responsible for the same, in case of any mishap.::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 :::
4 911-wp-2437.2014.sxw Both the consultants agreed that all the relevant test reports shows below average results and the building falls under C-1 category. G/S Ward staff is also of the opinion that the building needs to be demolished.
Chajjas, columns beams are in worst condition, at many places, and chajjas has collapsed. Considering the above reports placed on record by both the Consultants and as the building is G+1 RCC structure having life more than 60 years and 17 residential and 7 commercial tenements are occupied, TAC opined that the building under reference needs to be evacated immediately and demolished under the supervision of Structural Consultant, as overall the building is in dilapidated condition and the same is not fit for human habitation.
Meanwhile, till such time, the ward staff has to take necessary preventive measures by providing adequate propping etc. till evacuation of the building."
6. The petitioners have challenged this TAC report on the ground that TAC has not conducted visual inspection of the structure in question and in the circumstances, TAC report being not in conformity with the directions issued vide order dated 23.6.2014 passed in Writ Petition (L) No.1135 of 2014, the same cannot be taken into consideration. In support of the contention that the building is reparable, petitioners have filed yet another structural report.
7. Having considered the submissions made by the learned counsel for the parties and having gone through the TAC report we find that before the TAC, the representative of the petitioners did ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 ::: 5 911-wp-2437.2014.sxw not dispute that the core test could not be conducted due to deteriorated and distress condition of the structural members. It is also agreed that Ultrasonic pulse velocity test, rebound hammer test, half cell potential test are having below average values.
Therefore, if the TAC has not conducted visual inspection, that itself cannot be made a ground to say that the building is not in a dilapidated condition. The findings of the TAC is based upon consideration of two structural reports and keeping in view the fact that the petitioner's own consultant did not dispute that the building is in dilapidated condition. In the circumstances, no fault can be found with the TAC report merely on the basis that the TAC has not conducted the visual inspection. When the representative of the petitioners accepted the fact that the building is in ruinous condition, there was no occasion for the TAC to further have a visual inspection. We find that the TAC has considered both the reports and has recorded a finding, which in the absence of perversity, cannot be gone into by this Court in exercise of its powers under article 226 of the Constitution of India.
As a result, petition fails and the same is dismissed. As regards yet another report obtained by the Petitioner, suffice is to say that after the TAC has recorded a finding which being based on a sound appreciation of material placed before it, there remains no question ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 ::: 6 911-wp-2437.2014.sxw to go on considering further structural report. The matter has to be given finality. Undisputedly, all the other tenants of the first floor have already vacated. In the circumstances, this Court is not inclined to go in to the further structural report.
5. In view of the above order, Chamber Summons (L) No. 226 of 2016 also stands disposed of. It is needles to say that this order will not affect the rights of the applicant of the chamber summons.
(MAKARAND KARNIK, J.)
ig (SHANTANU KEMKAR, J.)
At this stage, learned counsel for the petitioner no. 7 submits that the contention of the petitioner to continue the hoarding at any other place be kept open. The prayer is accepted. The contention regarding the putting the hoarding at other place since not argued and dealt with, the same is kept open.
(MAKARAND KARNIK,J.) (SHANTANU KEMKAR,J.) ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:38:18 :::