Bombay High Court
Harsha Balkrishna Bhatt And 22 Ors vs The Municipal Corporation Of Greater ... on 29 March, 2019
Author: S. C. Dharmadhikari
Bench: S. C. Dharmadhikari, B. P. Colabawalla
913.wpl.3139.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3139 OF 2018
Harsha B. Bhatt and Others ..Petitioners
Vs.
The Municipal Corporation of
Greater Mumbai and Others ..Respondents
Mr. Mohit Jadhav a/w Ms. Megha Shigavan, for the Petitioners.
Ms. K. H. Mastakar, for Respondent Nos.1 to 5.
Ms. Dhawani Bokaria i/b Purnanand and Co, for Respondent No.7.
Ms. Deepali Patankar, Honorary Asstt. to G. P. Respondent No.8.
CORAM:-S. C. DHARMADHIKARI &
B. P. COLABAWALLA, JJ.
DATE :- MARCH 29, 2019.
ORAL JUDGMENT (PER S. C. DHARMADHIKARI,J.)
After having heard both sides, we are not inclined to grant any relief in this Writ Petition for the simple reason that on 27th May, 2014 a notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short "MMC Act") was issued to the owner.
2 That notice, copy of which is at page 19 of the Petition Aswale 1/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc reads as under:-
"BRIHANMUMBAI MAHANARPALIKA Office of the Assistant Engineer (Bldg. & Fact.) 'N' Ward, 'N' Ward Municipal Office, 5th floor, Jawahar Road, Ghatkopar (E), Mumbai 400 077. Notice under Section 354 of the Mumbai Municipal Corporation Act. Notice No.N/BF/B-120/D.O.III/547/354 of MMC Act of 2014-2015 dt.27/05/2014.
To, The Owner /Occupier/Developer / Architect.
Sri Sai Nidhi Realtors Private Ltd ., Crystal Shopping Arcade, Second Floore, Opp. Indian Bank, S.V. Road, Santacruz (W), Mumbai-400086.
WHEREAS it appears to me that the certain structure, to wit, a portion of the bulding known as Jamanadas CHS Ltd situated at Gangawadi ,L.B.S. Road, Ghatkoper (W), Mumbai- 400 086 of which you are owner/ occupier & Devloper of the building which is in a ruinous condition likely to fall and dangerous to any person occupying, resorting to or passing by the same. I hereby require you under Section 354 of the Mumbai Municipal Corportation Act to carry out the following requisition to prevent all cause of danger there form- Pull Down the structures of Jamnadas CHS Ltd., Gr. Floor + 2nd Upper floor as shown in sketch of notice overleaf in red colour situated at Gangawadi, L.B.S. Road, Ghatkoper (W), Mumbai - 400 086. Utmost care/ precautions should be taken to safe guard the structures & occupants on the neighbouring plots/ bldg, while pulling down the dilapidated structures. It may further be stated that the above observations are without prejudice to the rights of the tenants / occupants if any of the said building.
I further hereby require you under the aforesaid section of the Mumbai Municipal Corporation Act, forthwith before proceeding to secure the said structure to setup a proper and sufficient board of fence for the protection of passersby and other persons. I give you Notice that, if within 30 (thirty) days from the service or receipt hereof this requisition be not complied with you will render yourself liable to prosecution under Section 475-A of the said Act and I may thereafter, pursuant to the provisions of Section 489 of the said Act take such measures or cause such work to be executed or such thing to be done as mentioned in the notice under Section 354 of MMC Act as shall in my opinion be necessary for given due effect to this requisition and you will be liable for the expenses thereof which will be recovered from you in the manner provided by Section 491 of the said Act before the appropriate forum/court of law. No portion of the structure within the regular line of the street may be reconstructed nor may anything within the scope of Section 342 of the said Municipal Corporation Act, other than the work which you are expressly required by this Notice to do, be made or done without previously giving notice thereof as required by Section 342 aforesaid.
Sd/-
(Asstt.Engineer(Bldg. & Factory) N-Ward Aswale 2/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc Note
1) Under Section 68 of the Mumbai Municipal Corporation Act, the Municipal Commissioner for Greater Mumbai has empowered i.e. Assistant Engineer 'N' Ward to exercise preform and discharge all the power, duties and functions conferred and imposed upon and vented in the Commissioner by Section 354 and 489 and recovery under section 491 of the MMC Act and subject to punishment under section 475-A of MMC Act.
2) Service of this notice will not change the existing status of the structure whether authorised/unauthorized/tolerated etc.
3)This notice should not be treated as a documentary evidence to prove authenticity of structure.
3 Upon such a notice, the Municipal Corporation found that it may invite needless complications, and therefore, it decided to provide the details and accordingly provided the details through its Assistant Commissioner, 'N' Ward styled as 'Area Statement Certificate'. The notice, copy of which is at Exhibit-A and reproduced above, was also pasted on the property on 15 th April, 2015.
4 Then, on receipt of such notice, the Petitioners, who are occupiers of the building, approached the structural consultant M/s Sachdev and Associates. They are stated to be Consulting Civil Engineers and Structural Consultants. They have submitted a report styled as 'Structural Audit Report' on 18 th April, 2015 opining that the building should be repaired to eliminate the minor defects and to enhance the life of the building and that the repair cost of the building is only Rs.60/- per square Aswale 3/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc feet.
5 Pertinently, no copy of this report is annexed to the Petition. However, the Petitioners themselves in paragraph 5 say that there were two different opinions. The reports were placed before a Technical Advisory Committee. The Petitioners were called upon, together with Respondent No.7, to submit a fresh Structural Audit Report and that was also done by the Petitioners. A copy of that report is at Exhibit-D. The owner of the property- Respondent No.7 also submitted his Structural Audit Report. 6 The Petitioners in paragraphs 8 and 9 state as under:-
"8:-The Petitioners state that, Respondent No.4 by their letter dated 28/02/2018 called upon the Petitioners and Respondent No. 7 to submit reports of the Core Cutting Test, Chemical Analysis and Cement Aggregate Ration Test of the said Building. The Petitioners state that, accordingly they carried out the said tests and by their forwarding letter dated 16/03/2018 submitted the said reports on the record of Respondent No.4. Hereto annexed and marked EXHIBIT "F" is the copy of the said forwarding letter dated 16/03/2018.
9:-The Petitioners state that, upon hearing and perusing the said two reports, the said TAC gave their findings by their Order dated 09/07/2018. Hereto annexed and marked EXHIBIT"G" is the copy of the said Order of the TAC dated 09/07/2018."
7 Now, the Petitioners are aggrieved by the findings/recommendations in the Technical Advisory Committee's Report and the disconnection of the electric supply of the building. 8 In such a Petition, they challenge the notice under Aswale 4/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc Section 354 as also the recommendations/opinions of the Technical Advisory Committee 9 We have heard Mr. Mohit Jadhav, learned counsel appearing for the Petitioners.
10 Section 354 of the MMC Act prior to its amendment and thereafter reads as under:-
Section 354 prior to its amendment "354:-Removal of structures etc, which are in ruins or likely to fall.
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from, any building, wall or other structure) is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure, [subject to the provisions of section 342], and to prevent all cause of danger therefrom.
(2] The Commissioner may also if he thinks fit, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, with a convenient platform and handrail, if there be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence.
Section 354 after its amendment "354:-Removal of structures etc, which are in ruins or likely to fall.
(1) If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from, any building, wall or Aswale 5/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc other structure) is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure, [subject to the provisions of section 342] and to prevent all cause of danger therefrom.
(2] The Commissioner may also if he thinks fit, require the said owner or occupier, by the said notice, either forthwith or before proceeding to pull down, secure or repair the said structure, to set up a proper and sufficient hoard or fence for the protection of passers by and other persons, with a convenient platform and handrail, if there be room enough for the same and the Commissioner shall think the same desirable, to serve as a footway for passengers outside of such hoard or fence.
[3] If it shall appear to the Commissioner that any building is dangerous and needs to be pulled down under sub-section (1), the Commissioner shall call upon the owner, before issuing notice thereunder, to furnish a statement in writing signed by the owner stating therein the names of the occupiers of the building known to him or from his record, the area in occupation and location of premises in occupation, possession of each of the respective occupiers or tenants, as the case may be. [4] If he fails to furnish the statement as required by sub-section (3) within the stipulated period, then the Commissioner shall make a list of the occupants of the said building and carpet area of the premises in their respective occupation and possession along with the details of location.
[5] The action taken under this section shall not affect the inter se rights of the owners or tenants or occupiers, including right of re- occupation in any manner.
Explanation- For the purposes of this section, "the tenant" shall have the same meaning as assigned to it in clause (15) of section 7 of the Maharashtra Rent Control Act, 1999."
11 The Section itself enables the Commissioner to satisfy himself that any structure is in a ruinous condition or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the Aswale 6/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc neighbourhood thereof, and then to issue a notice in terms of the Section. The power under Section 354 is subject to Section 342 of the MMC Act, 1988.
12 Post its amendment, we find that the Commissioner has to be satisfied and ought to be of the opinion as above and thereafter it is now provided by subsection 3 that before issuing any notice, the Commissioner shall call upon the owner to furnish a statement in writing signed by the owner stating therein the names of the occupiers of the building known to him or from his record, the area in occupation and location of the premises in occupation, possession of each of the respective occupiers or tenants, as the case may be. If the statement as required by the Municipal Commissioner is not forwarded, then, the Commissioner is empowered to make a list of the occupants of the building and carpet area of the premises in their respective occupation and possession along with the details of location. By subsection 5, it is clarified that the action taken under Section 354 shall not affect the inter-se rights of the owners or tenants or occupiers, including right of reoccupation in any manner.
13 It is on all these safeguards, in the present case, the Aswale 7/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc Commissioner's satisfaction is that, the building which is occupied by the Petitioners, is required to be pulled down. Now, according to the Petitioners this satisfaction is sought to be assailed on permissible grounds and enabling us to exercise our powers of judicial review.
14 Mr. Jadhav would submit that in this case the structure is not at all dangerous or unsafe for human habitation. The structure is capable of being repaired. If repairs are carried out, there is no danger and then the Petitioners can safely occupy the structure or the portion thereof. He, therefore, submits that the Technical Advisory Committee and the Municipal Commissioner failed to follow the guidelines laid down by this Court in its order dated 23 rd June, 2014 in Writ Petition (L) No.1135 of 2014 (Municipal Corporation of Greater Mumbai, through the Municipal Commissioner v/s State of Maharashtra and Others). Mr. Jadhav would submit that the Committee ought to have appreciated the fact that the Corporation neither conducted any independent inspection and assessment of the building with the help of their own Engineers nor carried out any survey thereof by taking on record the structural audit reports. Further, the structural audit report submitted by the Petitioners Aswale 8/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc and the owner being conflicting, the Corporation should have independently acted through its officials before any drastic action is taken. That is not done. Our attention is invited to the affidavit in reply which has been filed in this Petition by the Assistant Engineer of the Municipal Corporation.
15 After perusing the Writ Petition and Annexures thereto so also the affidavits placed on record, we are unable to agree with Mr. Jadhav.
16 Mr. Jadhav only reads the copy of the notice at Exhibit- A and reproduced above rather than the contents of the further communication to the Petitioners. The notice is traceable to Section 354 of the MMC Act. The Assistant Engineer, who is the delegate of the Municipal Commissioner, in clearest terms, says that the building is in a ruinous condition, likely to fall and dangerous to any person occupying, resorting to or passing by the same. Further, the communication to the owner and occupiers refers not only to this notice but the order passed by this Court in Writ Petition (L) No. 1135 of 2014. It says that this building comprising of ground plus two upper floors has been examined by Aswale 9/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc way of an independent inspection and assessment with the help of the Engineers of the department and classified as 'C-1' and declared as dilapidated and dangerous within the meaning of Section 354 of the MMC Act. The Petitioners were informed that they have to comply with this notice but having failed to do so and bearing in mind the current status of the building, it is a potential threat and dangerous for the occupiers to continue occupying it. It will also affect the adjoining buildings and their occupants and passers by. It should be therefore vacated and pulled down forthwith and such a notice was issued.
17 In the affidavit of the Municipal Corporation, in answer to this Petition, it is stated as under:-
"3.I say that in this case letter dt.28.10.2012 is received from M/s Sri Sai Nidhi Realtors Pvt Ltd, regarding dangerous condition of the said building accompanying with structural audit report which is carried out by M/s S. P. Civil Engineers Pvt Ltd.
4.I say that the consultant M/s. S. P. Civil Engineers Pvt Ltd, has submitted their audit report with 'NDT' report i.e. ultrasonic pulse velocity test half cell potential test. In the said report it is mentioned that "the concrete grade is of doubtful quality and which indicate that the structures are beyond repair".
5.I say that thereafter these Respondent received letter from M/s. Shri Sai Nidhi Realtors Pvt Ltd dt. 27.12.2013 addressed to AMC (ES), A. C. N., E. E. 'N' ward regarding condition of the building accompanying with a structural audit report issued by another consultant M/s Retro Fitters Consulting Engineer who is in the list of MCGM's panel of consultants.
6.I say that in the said report, consultant have mentioned that they have carried out N. D. T. test such as ultrasonic pulse velocity test. Rebound hammer test and they have enclosed the test results accompanying said audit report. Aswale 10/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc
7.I say that The structural consultants in their accompanying report have offered remarks that concrete quality is doubtful and R. C. members of the buildings are not safe for living purpose.
8. I say that the site under reference has been inspected by the office staff of these Respondent on 04.04.2014. It is Ground +2 storied Partly R. C. C. and partly load bearing structure.
9.I say that accordingly the report to that effect was submitted by Designated Officer, 'N' ward was to the then Executive Engineer, 'N" ward on 30.04.2014 vide No. ACN/0034/B & F/Gen. dt. 30.04.2014. Then E. E. N ward orders to issue the notice u/s 354 of MMC Act to pull down the building by following due process of law. Accordingly, the office of these Respondent has issued notice u/s. 354 of MMC Act to pull down the referred building (Exhibit-I)." 18 We see no substance in the argument that under the influence of Respondent No.7- owner, the Municipal Corporation issued the subject notice. There are no allegations of malafides at all. This is a case where the Municipal Corporation not only considered all the reports but because there was contradiction in the reports of the structural auditor, commissioned by the Petitioners and by the owner, the matter was referred to the Technical Advisory Committee. The Technical Advisory Committee also perused all the documents placed on record. 19 It is also apparent from the exercise carried out that the Committee as also the Municipal Corporation gave enough opportunities to the parties to satisfy it that the notice is not called for or should be withdrawn.
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913.wpl.3139.18.doc 20 The Petitioners by their rejoinder affidavit would only insist on the Technical Advisory Committee not giving them an elaborate hearing but proceeding only to accept the rival version. No orders of this Court much less the order passed by a Division Bench in Writ Petition (L) No. 1863 of 2017 dated 9th October, 2017 or a subsequent order of 7th August, 2018 in Writ Petition No. 191 of 2017 mandate that the Technical Advisory Committee should accept the version of the occupants or of the owner and in the event of conflicting version, the committee should recommend not to pull down the structure. Far from it, in peculiar facts and circumstances, the Division Benches of this Court have passed orders. The order passed in Writ Petition (L) No. 1867 of 2017 was once again challenging the report of the Technical Advisory Committee. Now, in that matter assuming that this Committee conducts or carries out any quasi judicial function, this Court found that the specific tests to be conducted or carried out as per the guidelines, were not conducted by the Technical Advisory Committee. This report was set aside and it was directed to carry out those tests and thereafter come to a fresh conclusion. 21 We do not see any such facts and circumstances Aswale 12/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc emerging in this case. On 7 th August, 2018, in Writ Petition No. 191 of 2017, this Division Bench found that the electricity and water supply to the premises were already disconnected. After the Technical Advisory Committee submitted its report, the earlier notice could not have been pursued and the Corporation should not have issued a fresh notice under Section 354 of the MMC Act. Therefore, the electricity and water supply was reconnected and guidelines were given to the Corporation and the Committee to proceed accordingly.
22 Both these orders are distinguishable on facts. 23 In the instant case, we find that the Technical Advisory Committee had carried out an elaborate exercise. It also considered the materials placed by both the sides. The Technical Advisory Committee has observed that the factors and tests to be applied would depend upon the life and age of the structure, its location and over all situation. In its observations, it has referred to the relevant criteria and concluded that the Structural Engineers have differed but the Committee having gone through all the materials placed on record in an overall manner, opined Aswale 13/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc that the structure will have to be categorized as "C-1". Once it is categorized as such, then, it would have to be pulled down. The records were perused by the Committee. It has specifically referred to the report of the Structural Engineer engaged by the Petitioners. It categorized the structure as "C2-B". However, that Structural Engineer has not carried out any test. No test of masonry elements has been carried out. The structure is in sound condition, according to them, and there is no sign of distress. The concrete is not dense according to the parameters supplied. On the other hand, the owner's Structural Engineer stated that the RCC frame is in severely deteriorated condition and the slabs are sagging and deflected. The deterioration of RCC structure member is leading to stress on weak non-load bearing walls which could lead to failure and collapse. The wooden structure has rotted and broken at various places leading to a precarious situation. He categorized it as "C-1" structure requiring immediate and urgent evacuation and redevelopment. 24 The Technical Advisory Committee came to the independent conclusions and which we have referred above. There is no question of the structure being repaired or termed as capable of being repaired. It is a 55 year old construction. Aswale 14/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc Pertinently, the Petitioners set out no details of its maintenance and repairs. If owners have neglected the building as alleged, then, the efforts that the Petitioners have taken in the past to repair the entire structure ought to be placed on record. In that, it has only been stated before us that the Structural Auditor has referred to the repairs that have been carried out by the Petitioners from time to time. The Structural Auditor of the Petitioners says that there are no structural or architectural drawings of the building available with the tenants. The construction is about 53 years back. The survey was carried out to prepare as built drawings. It is also stated in his report that there is a structural damage observed at various locations. Though it is stated that on visual inspection there are no major defects, such as excessive cracks or disintegration in the RCC structure, however, the minor defects are noticed and according to them, these can be rectified. Most of the RCC beams in the external as well as internal areas of the building are found to be in damaged condition. The Structural Auditor of the Petitioners contradicts himself by saying that there are defects such as minor/major cracks due to the corrosion of steel reinforcements combined with the disintegration of concrete to be noticed in most Aswale 15/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc of the beams in almost all the rooms. It is in these circumstances and when the external plaster has been noticed to have developed minor defects and the repairs are desired to be taken up by the occupants, then, all the findings or conclusions are proving and establishing but only one aspect, namely, that the structure and the building was not maintained and repaired. If that required periodical maintenance and repairs, then, that aspect is neglected equally by the Petitioners.
25 We, therefore, do not think that in writ jurisdiction we should interfere with the findings of fact and opinions of experts based on which the Municipal Corporation has decided to direct pulling down of the structure. That is to take care of the safety, even of its occupants. There is threat and risk to the life of the occupants, if they continue to reside in such structure. In the circumstances, and when the owner is ready and willing to enter into a firm agreement for granting permanent alternate accommodation to each of the occupants and the Municipal Corporation is also ensuring that there will be a wholesome rehabilitation package, all-the-more, we are disinclined to entertain this Petition.
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913.wpl.3139.18.doc 26 To be fair to Mr. Jadhav, he had sought leave to withdraw this Writ Petition but he wanted liberty reserved for the Petitioners to adopt appropriate proceedings. We had clarified and even today we clarified that the liberty would be restricted to the Petitioners to proceed against the owner so as to protect their entitlement and in terms of sub-section (5) of Section 354 of the MCC Act as amended. However, that liberty does not mean that the Petitioners can reopen the issues which are concluded by several reports of experts. We would not have and never could have allowed these issues, particularly with regard to alleged stability and safety of the structure, to be raised again and again. All-the-more, when the impugned notice is of 2014 and the structure may have by now deteriorated further. 27 As a result of the above discussion, the Writ Petition fails. It is dismissed.
28 It is stated that out of the total number of occupants residing in the building (near about 25), 13 have vacated their premises and handed over possession. They are not residing in Aswale 17/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::
913.wpl.3139.18.doc the premises and have vacated the portion of the building in their occupation.
29 When we were about to impose heavy costs, Mr. Jadhav submits that each of these Petitioners be granted three weeks' time to vacate the premises in their possession and occupation. In the event such of the Petitioners are in possession and occupation of the structure or portions thereof, as stated above by Mr. Jadhav, we grant them time to vacate the premises, which they shall vacate on or before 22 nd April, 2019. No further extension will be granted and thereafter not only the structure will be pulled down but all the occupants, if any therein, who remain in the premises after that date, would be forcibly evicted and the nearest or jurisdictional Police Station shall render all the assistance to Respondent No. 7 as also the Municipal Corporation to secure eviction of each of such persons.
( B. P. COLABAWALLA, J. ) ( S. C. DHARMADHIKARI, J. ) Aswale 18/18 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 05/04/2020 04:02:03 :::