Bombay High Court
Sundar R. Gavaskar And 12 Ors vs Municipal Corporation For Gr. Mumbai ... on 29 July, 2019
Equivalent citations: AIRONLINE 2019 BOM 2042
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, S. K. Shinde
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29.7.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 602 OF 2019
1. Sundar R. Gavaskar
Aged : Major, Occ : Housewife
R/o: Flat No.1, Narsinha
Prasad Building, Plot No.
1018, 1080/1 to 3.
Village : Vile Parle (East)
Mumbai-400 057.
2. Ramesh P. Revankar,
Aged : Major, Occ : Retired
R/o : Flat No.2, Narsinha
Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
Mumbai-400 057.
3. Anjali A.Gokhale,
Aged : Major, Occ : Housewife
R/o : Flat No.3 & 4, Narsinha
Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
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Mumbai-400 057.
4. Ponnamma P. Thomas,
Aged : Major, Occ : Housewife
R/o : Flat No.5, Narsinha
Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
Mumbai-400 057.
5. Dhanvant Savla,
Aged : Major, Occ : Housewife
R/o : Flat No.6, Narsinha
Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
Mumbai-400 057.
6. Sharmila M. Potnis,
Aged : Major, Occ : Housewife
R/o : Flat No.7, Narsinha
Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
Mumbai-400 057.
7. Kanaiyalal T. Sheth,
Aged : Major, Occ : Retired
R/o : Flat No.8, Narsinha
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Prasad Building, Plot No.1018,
1080/1 to 3, Village :
Vile Parle (East),
Mumbai-400 057.
8. Pramila I. Kamra,
Aged : Major, Occ : Housewife
R/o : Flat No.2, Narsinha
Prasad Annex Building,
Plot No.1018,1080/1 to 3,
Village : Vile Parle (East),
Mumbai-400 057.
9. Chunilal D. Savla,
Aged : Major, Occ : Retired
R/o : Flat No.3, Narsinha
Prasad Annex Building,
Plot No.1018,1080/1 to 3,
Village :Vile Parle (East),
Mumbai-400 057.
10. Ratanchand L. Jain,
Aged : Major, Occ : Retired
R/o : Flat No.4, Narsinha
Prasad Annex Building,
Plot No.1018, 1080/1 to 3,
Village : Vile Parle (East),
Mumbai-400 057.
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11. Virendra D. Vora,
Aged : Major, Occ : Service,
R/o : Flat No.5, Narsinha
Prasad Annex Building,
Plot No.1018, 1080/1 to 3,
Village : Vile Parle (East),
Mumbai-400 057.
12. Suresh J. Gala,
Aged : Major, Occ : Business
R/o : Flat No.2, Narsinha
Prasad Annex Building,
Plot No.1018, 1080/1 to 3,
Village : Vile Parle (East),
Mumbai-400 057.
13. Ramesh H. Gada,
Aged : Major, Occ : Business,
R/o : Flat No.9, Narsinha
Prasad Annex Building,
Plot No.1018, 1080/1 to 3,
Village : Vile Parle (East),
Mumbai-400 057. ....Petitioners
:VERSUS:
1. Municipal Corporation for
Greater Mumbai, Through
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Commissioner, 10, Mahapalika
Marg, Dhobi Talao, CST Terminus
Area, Fort, Mumbai-400 001.
2. Assistant Engineer (B & F)
"K" East Ward, MCGM, Azad
Road, Andheri (East),
Mumbai-400 069.
3. Nitin Naik,
Aged : Major, Occ : Not known,
R/o : Flat No.9A, Narsinha
Prasad Annex Building,
Plot No.1018, 1080/1 to 3,
Village : Vileparle (East),
Mumbai-400 057.
4. M/s. Ashish Enterprise,
Through its Partner,
Shri. Hitendra K. Shah,
12, Dadi House, Irla Society
Road, Vile Parle (West),
Mumbai-400 056. ....Respondents
****
For petitioners : Mr.Anilkumar Patil a/w. Mr. Pankaj
Pandey.
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For Respondent-
M.C.G.M. : Ms. Vandana Mahadik.
For Respondent
No.4 : Mr. R.M. Haridas a/w. Mr. Neel
Gala.
CORAM : S.C. DHARMADHIKARI, &
SANDEEP K. SHINDE, JJ.
Monday, 29 th July, 2019.
ORAL JUDGEMENT ( Per : S.C. Dharmadhikari, J)
1. The two notices, both dated 10th September, 2018 issued under Section 354 of the Mumbai Municipal Corporation Act (Exhibits-A-1 and A-
2)and the subsequent impugned communication dated 24th November, 2018 (Exhibit-B-1) issued by the respondent no.2 are challenged in this petition.
2. The further challenge is to the report of a structural audit dated 12th June, 2018 and it is ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 7/43 WP-602-2019 9(sr.18) 29.7.2019 prayed that the same be set aside and respondents no.1 and 2 be directed to conduct a structural audit through any registered Structural Engineer and submit that report together with the structural audit report proposed to be submitted by the petitioners before a Technical Advisory Committee (TAC) of the first respondent.
3. To appreciate the arguments of Mr. Anilkumar Patil, we deem it appropriate to reproduce the two notices and the impugned communication, copies of which are Exhibits-A-1, A-2 and Exhibit-B :
"NOTICE DTD. 10TH SEPTEMBER, 2018-(Exh-A-1) :
WHEREAS, it appears to me that, the certain structure to which a portion of the building or premise, known as ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 8/43 WP-602-2019 9(sr.18) 29.7.2019 `Narsinha Prasad' situated at Plot no.1018, 1018/1 to 3 of Village Vileparle, Malviya Road, Vileparle (E), Mumbai-400 057 of which, you are the owner / landlord/ occupier of 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 Corporation Act and as per structural audit submitted by you, recommendation of Executive Engineer, K/East order vide no.WEE/1148/K/E dtd : 03.08.2018 and as per remarks from Dy.Ch.E.BP vide no.Dy.Ch.E/BP/5108/WS-(I) dtd : 14.08.2018, to pull down the dangerous building known as `Narsinha Prasad' comprising of G+2 floor situated at the above mentioned address, through a registered approved contractor under the strict supervision of a Licensed Structural Engineer and to prevent all cause of danger there from.
IMPORTANT NOTES :
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1. The rooms any, occupied shall be vacated immediately making alternate accommodation arrangement for the existing occupants shall be solely owner's responsibility. The rooms which are vacated shall be demolished or pull down immediately.
2. The adequate propping, scaffolding and other safety measures shall be taken while executing the pulling down work.
3. Utmost care shall be taken that to prevent the falling of debris or any other R.C.C. members/walls egc. On adjacent chawls/structures occupied by the various occupants.
4. Damages, if any caused to the property or loss/injuries to the lives, while executing the pulling down work, the responsibility of the same shall be exclusively to be borne by the you and it will be at your risk and cost.::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 :::
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5. The status of tenancy rights of the tenants of the said building will not change due to issue of this notice and M.C.G.M. will not be party to any litigation in this manner.
6. This notice is issued without prejudice to the right of the M.C.G.M. and any Court cases pending against Owner/occupant.
7. The notice is not applicable to repair work, which will amount to reconstruction of entire or part of the existing structure.
8. This notice is issued without prejudice / without verification of the approved plan or status of the structure. In case of any work attracting provisions of section 337 of the M.M.C. Act, separate proposal shall be submitted to Executive Engineer Building Proposal (W.S.) K/East Ward.
9. The purpose of issuing this notice is ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 11/43 WP-602-2019 9(sr.18) 29.7.2019 primarily to avoid any mishap/accident on account of probable collapse of the building due to dilapidated condition of the building and or the ensuring monsoon.
10. The starting date and completion date of the notice work shall be communicated to the undersigned in writing.
11. The notice is issued without prejudice to the rights and contentions of the parties and subject orders in Suits filed in the Courts in respect of any portion of the notice building.
12. Notwithstanding anything contained in this notice, the present status of the structure shall remain unchanged.
And to prevent all cause of danger therefore, I further hereby require you under the aforesaid Section of the Mumbai Municipal Corporation Act, 1888. Forthwith before processing to pull down and secure the said structure to ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 12/43 WP-602-2019 9(sr.18) 29.7.2019 set up a proper and sufficient board or fence for the protection of passersby and other persons. I give you notice that, if within 30 (Thirty) days from the service or receipt here of this requisition not complied with your 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 measures cause such work to be executed on such thing requirements to be done as mentioned in the notice under Section 354 of M.M.C. Act as shall in my opinion be necessary for giving due effect to the 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 appropriate Forum/Court of Law. Not portion of the structure 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 ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 13/43 WP-602-2019 9(sr.18) 29.7.2019 thereof as required by Section 342 aforesaid."
NOTICE DTD. 10TH SEPTEMBER, 2018-(Exh-A-2) :
WHEREAS, it appears to me that, the certain structure to which a portion of the building or premise, known as `Narsinha Prasad Annex' situated at Plot no.1018, 1018/1 to 3 of Village Vileparle, Malviya Road, Vileparle (E), Mumbai-400 057 of which, you are the owner / landlord/ occupier of 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 Corporation Act and as per structural audit submitted by you, recommendation of Executive Engineer, K/East order vide no.WEE/1148/K/E dtd : 03.08.2018 and as per remarks from Dy.Ch.E.BP vide no.Dy.Ch.E/BP/5108/WS-(I) dtd :
14.08.2018, to pull down the dangerous ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 14/43 WP-602-2019 9(sr.18) 29.7.2019 building known as `Narsinha Prasad' comprising of G+2 floor situated at the above mentioned address, through a registered approved contractor under the strict supervision of a Licensed Structural Engineer and to prevent all cause of danger there from.
IMPORTANT NOTES :
1. The rooms any, occupied shall be vacated immediately making alternate accommodation arrangement for the existing occupants shall be solely owner's responsibility. The rooms which are vacated shall be demolished or pull down immediately.
2. The adequate propping, scaffolding and other safety measures shall be taken while executing the pulling down work.
3. Utmost care shall be taken that to prevent the falling of debris or any other R.C.C. members/walls egc. On adjacent chawls/structures occupied by ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 15/43 WP-602-2019 9(sr.18) 29.7.2019 the various occupants.
4. Damages, if any caused to the property or loss/injuries to the lives, while executing the pulling down work, the responsibility of the same shall be exclusively to be borne by the you and it will be at your risk and cost.
5. The status of tenancy rights of the tenants of the said building will not change due to issue of this notice and M.C.G.M. will not be party to any litigation in this manner.
6. This notice is issued without prejudice to the right of the M.C.G.M. and any Court cases pending against Owner/occupant.
7. The notice is not applicable to repair work, which will amount to reconstruction of entire or part of the existing structure.
8. This notice is issued without ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 16/43 WP-602-2019 9(sr.18) 29.7.2019 prejudice / without verification of the approved plan or status of the structure. In case of any work attracting provisions of section 337 of the M.M.C. Act, separate proposal shall be submitted to Executive Engineer Building Proposal (W.S.) K/East Ward.
9. The purpose of issuing this notice is primarily to avoid any mishap/accident on account of probable collapse of the building due to dilapidated condition of the building and or the ensuring monsoon.
10. The starting date and completion date of the notice work shall be communicated to the undersigned in writing.
11. The notice is issued without prejudice to the rights and contentions of the parties and subject orders in Suits filed in the Courts in respect of any portion of the notice building.::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 :::
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12. Notwithstanding anything contained in this notice, the present status of the structure shall remain unchanged.
And to prevent all cause of danger therefore, I further hereby require you under the aforesaid Section of the Mumbai Municipal Corporation Act, 1888. Forthwith before processing to pull down and secure the said structure to set up a proper and sufficient board or fence for the protection of passersby and other persons. I give you notice that, if within 30 (Thirty) days from the service or receipt here of this requisition not complied with your 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 measures cause such work to be executed on such thing requirements to be done as mentioned in the notice under Section 354 of M.M.C. Act as shall in my opinion be necessary for giving due effect to the requisition and you will be liable for the expenses thereof which ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 18/43 WP-602-2019 9(sr.18) 29.7.2019 will be recovered from you in the manner provided by Section 491 of the said Act before appropriate Forum/Court of Law. Not portion of the structure 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."
EXHIBIT-B-1 DTD. 24TH NOVEMBER, 2018 :
With reference to the above subject matter, this is to inform you that this office has declared building known as Narsinha Prasad Annex as C-1 category dilapidated building. As per Hon'ble High Court order in Writ Petition (L) No. 1135 of 2014 dtd. 23.06.2014 copy of area statement of your premises is attached herewith for your information.
However please note that, this office has provided the copy of the same to concerned local police station with ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 19/43 WP-602-2019 9(sr.18) 29.7.2019 request to vacate the building / premises under reference in order to avoid any mishap as the said building / premises is in very dangerous condition and may collapse at any moment.
Further, it is to inform you here that this office will proceed with disconnection of water supply, electric supply and Gas Supply by instructing to the concerned agencies. Therefore, you being an owner/occupier/tenant of the building is hereby once again instructed to vacate the building immediately and demolish the unsafe building. No further correspondence will be made in this regard which may please be noted. If you fail to comply the same then action deem fit will be initiated as per MMC Act. Also, if any mishap happened due to not taking necessary action as per notice u/s 354 of MMC Act, this office will not be held responsible. Which may please be noted."
4. The notices are addressed to one, Nitin ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 20/43 WP-602-2019 9(sr.18) 29.7.2019 Naik and M/s. Ashish Enterprises. The petitioners before us state that, the said Nitin Naik is respondent no.3 and M/s. Ashish Enterprise is respondent no.4. Respondents no.1 and 2 are the Municipal Corporation for Greater Mumbai and the Assistant Engineer (B & F), K/East Ward of this Corporation. The petition says that, the petitioners are monthly tenants of the units described in the title. The respondents no.3 and 4 are the owners and developers of the property on which the structure/building consisting of Flats occupied by the petitioners is presently standing. The petitioner says that, public notice was issued on 27th April, 2018 under Section 353B of the M.M.C. Act calling upon the owners/occupants of the old buildings which are in existence and in use for more than thirty years to have them inspected through ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 21/43 WP-602-2019 9(sr.18) 29.7.2019 qualified Structural Engineers registered with the Municipal Corporation of Greater Mumbai.
5. The two building structures having total sixteen flats, are admittedly more than thirty years old but it is claimed that they are not dilapidated and dangerous. They do not pose any threat to the life of the petitioners who are occupants or those residing in the neighbourhood and passing by the same. Infact, the developers and landlords are in negotiations for their own interests in pulling down this building and that is why they have influenced the municipal decision as contained in the notice. The notice is thus issued at their instance. This is with ulterior motives.
6. It is then claimed that the structural ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 22/43 WP-602-2019 9(sr.18) 29.7.2019 audit of the two structures was directed to be carried out and it says that such an audit was carried out by respondent no.4 through M/s. SPACE & DESIGN DEVELOPMENT and they have called a report of such audit to be submitted to the Municipal Corporation. It is that report based on which, the impugned notices have been issued.
7. Mr. Anilkumar Patil, would submit that on this petition on 19th December, 2018 this Court passed the following order :
"1. Heard learned counsel for the respective parties.
2. The Petitioners, by this Petition, are challenging the notices under Section 354 of the Mumbai Municipal Corporation Act.
3. Ms. Mastakar, learned counsel for the ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 23/43 WP-602-2019 9(sr.18) 29.7.2019 M.C.G.M. submits that subsequent to issuance of the above notices, notices under Section 488 of the Mumbai Municipal Corporation Act, are also issued on 29th October, 2018.
4. Learned Counsel for the Petitioners submits that the above referred notices are issued on the basis of Structural Audit Report submitted by the Respondent Nos.3 and 4 - owners. He, disputes the Structural Audit Report submitted by the Respondent Nos.3 and 4 and relied upon by the M.C.G.M. He submitted that the Petitioners wants to appoint their registered Structural Engineer to take Structural audit of the subject property. He submitted that the Petitioners will appoint a registered Structural Engineer, within a period of two weeks from today. Statement accepted.
5. In the event, the Structural Audit Report, submitted by the Petitioners is contrary to the Structural Audit Report submitted by the owners i.e. Respondent Nos.3 and 4, in that case the matter will have to be referred to the Technical ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 24/43 WP-602-2019 9(sr.18) 29.7.2019 Advisory Committee ('TAC'). If the Structural Audit Report is similar to the Structural Audit Report submitted by the owners i.e. Respondent Nos.3 and 4, then, of course the Corporation can proceed in pursuance to the impugned notices.
6. Mr. Patil, learned counsel for the Petitioners asserts that the buildings in question are not dilapidated and it requires repairs and for that purpose, the Petitioners want to appoint a registered Structural Engineer.
7. In the above circumstances, in order to enable the Petitioners to get their Structural Audit Report, we defer the hearing of this Petition to 21st January, 2019.
8. In the meanwhile, no coercive steps shall be taken, in pursuance to the impugned notices, subject to the condition that the Petitioners file an undertaking in this Court within a period of ten days from today, stating therein, that the Petitioners will occupy the premises in their possession at their own ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 25/43 WP-602-2019 9(sr.18) 29.7.2019 risk. Undertaking to further state that in the event the building or any part thereof collapses and any loss is caused to any third party, the Petitioners shall be solely responsible for the same.
9. If such undertakings are not filed in this Court, within a period of ten days from today, ad-interim relief shall stand vacated, without further reference to the Court. A copy of the said undertakings to be served on the other side."
8. He would therefore submit that, such an order having been passed on a prima-facie satisfaction and now that the structural audit has been carried out by the petitioners, we must sustain the challenge to this notice.
9. It is not possible to agree with him for more than on reason. Section 353B of the MMC Act ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 26/43 WP-602-2019 9(sr.18) 29.7.2019 reads as under :
"353B. Structures Stability Certificate (1) Every owner or occupier of a building in respect of which a period of thirty years, from the date of -
(i) issue of its completion certificate by the Corporation;
or
(ii) issue of permission of occupy a building under section 353A; or
(iii) its physical occupation of at least 50 per cent of its built-up area, whichever is earlier, has expired, shall cause such building to be examined by a Structural Engineer registered with the Corporation for the purposes of certifying that the building is fit for human habitation (such certificate ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 27/43 WP-602-2019 9(sr.18) 29.7.2019 hereinafter referred to as "the Structural Stability Certificate"). The Structural Stability Certificate issued by such Structural Engineer shall be submitted to the Commissioner. (2) The Structural Stability Certificate shall be submitted within one year from the expiry of a period of thirty years referred to in sub-section (1), and every ten years thereafter or such earlier period as the Commissioner may determine having regard to the condition of the building and the corrective repairs carried out by the owner or occupier.
(3) Notwithstanding anything contained in sub-section (1), the Commissioner may, at any time, after having recorded the reasons, in writing, direct the owner or occupier of a building, to cause such building to be examined by such Structural Engineer and to submit to the Commissioner, the Structural Stability Certificate as required under sub- ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 28/43 WP-602-2019 9(sr.18) 29.7.2019 section (1), within the period not exceeding thirty days as specified by the Commissioner, in such direction. (4) If the Structural Engineer recommends any corrective repairs for securing the structural stability of the building such corrective repairs shall be carried out by the owner or occupier of a building to the satisfaction of the Commissioner.
(5) Any owner or occupier, as the case may be, who fails to carry out corrective repairs for securing structural stability, within a period of six months from the date of report of the Structural Engineer, shall be punished with the fine as provided in Section 471.
(6) Notwithstanding anything contained in sub-section (5), the Commissioner may, after giving the owner or occupier, a notice in writing, require him to carry out, within the period specified in the notice, corrective repairs for securing structural stability of a building. If the ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 29/43 WP-602-2019 9(sr.18) 29.7.2019 owner or occupier fails to carry out such corrective repairs within the period specified in the notice, the Commissioner may carry out the same and the expenses incurred by the Commissioner on such repairs shall, on demand if not paid within thirty days, be recovered from the owner or occupier as arrears of property tax.
(7) If there is any dispute about the amount of expenses for which demand is made under sub-section (6), an appeal may be preferred to the Chief Judge of the Small Causes Court, but no such appeal shall be entertained by the said Chief Judge,unless-
(i) it is preferred within twenty-one days from the date of receipt of notice of such demand;
(ii) the amount for which demand is made is deposited with the Corporation and a true copy of the receipt showing that the amount has ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 30/43 WP-602-2019 9(sr.18) 29.7.2019 been so deposited accompanies the appeal.
(8) In case the appeal is decided in favour of the appellant and the amount of expenses deposited with the Corporation is more than the amount payable by the appellant, the Commissioner shall adjust the excess amount with interest at 6.25 per cent per annum from the date on which the amount is so deposited by the appellant, towards the property tax payable by the owner in respect of such building thereafter.]"
10. On a bare perusal of the same, it is clear that, the legislature stepped in case a Structural Stability Certificate was required of such buildings which are benchmarked in this Section.
There are buildings in respect of which period of thirty years from the date of issuance of completion certificate by the Corporation or issuance of ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 31/43 WP-602-2019 9(sr.18) 29.7.2019 permission to occupy a building under Section 353A or its physical occupation of atleast 50% of its built-up area, whichever is earlier, has expired.
Such building has to be examined by a Structural Engineer registered with the Corporation for the purpose of certifying that the building is fit for human habitation. The Structural Stability Certificate issued by such Structural Engineer shall be submitted to the Commissioner.
11. That has to be submitted within a period of one year from the expiry of a period of thirty years referred to in sub-section (1) of Section 353B and every ten years thereafter or such earlier period as the Commissioner may determine having regard to the condition of the building and importantly the corrective repairs carried out by the owner or ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 32/43 WP-602-2019 9(sr.18) 29.7.2019 occupier. There is non-obstante clause in sub-
section (3) which empowers the Commissioner to record reasons in writing and to direct the owner or occupier of a building, to cause such building to be examined by a Structural Engineer and to submit a the Structural Stability Certificate as required under sub-section (1), within the period not exceeding thirty days as specified by the Commissioner, in such direction. It is a failure to carry out the repairs which are styled as corrective repairs and recommended by the Structural Engineer, which repairs have to be carried out by the owner or occupier of the building to the satisfaction of the Commissioner, which results in that being termed as an offence and sub-section (5) is clear in that behalf. By sub-sections (6), (7) and (8), there is a provision by which failure of such corrective ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 33/43 WP-602-2019 9(sr.18) 29.7.2019 repairs by the owner or occupier, despite notice from the Commissioner, enables the Commissioner to carry out the same and recover the expenses for the purpose thereof from the owner or occupier.
12. Now, this provision was inserted by Maharashtra Act, VI of 2009 with a specific purpose and object. The Statement of Object and Reasons leading to this Act reads as under :
"While sudden collapse of "Laxmi Chhaya" Building in Borivali, Mumbai, and consequent loss of life, was being discussed in the State Legislature, the Government has assured that, to avoid recurrence of such incidents, the necessary amendments in the Municipal laws in operation in the State will be carried out.
2. The Government considers it expedient to amend the Mumbai Municipal ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 34/43 WP-602-2019 9(sr.18) 29.7.2019 Corporation Act, the Bombay Provincial Municipal Corporations Act, 1949, the City of Nagpur Corporation Act, 1948 and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, so as to make it obligatory on every owner or occupier of a building to submit a certificate from the Structural Engineer that the building is fit for human habitation. It is also proposed to provide that, if the Structural Engineer recommends certain corrective measures, it shall be obligatory on the owner or occupier of the building to carry out such repairs to the satisfaction of the Commissioner or the Chief Officer, as the case may be. It is also proposed to provide that the failure to carry out the directions by the Commissioner or the Chief Officer shall be punishable with fine. It is also proposed to empower the Commissioner or the Chief Officer, as the case may be, to undertake repairs, if the corrective repairs are not ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 35/43 WP-602-2019 9(sr.18) 29.7.2019 undertaken by the owner or occupier of a building and that the cost of such repairs shall be recoverable as an arrears of property tax.
3. The Bill seeks to achieve the above objectives."
13. This Court, had on numerous occasions and commencing from the judgments in the case of Mahendra Bhalchandra Shah and Ors. V/s. Mumbai Municipal Corporation and Ors. (Writ Petition (Lodg) No. 1755 of 2019) decided on 24th June, 2019,then the judgment and order in Writ Petition No. 880 of 2018 (Inderjit Singh Sethi & Ors. V/s. The Municipal Corporation of Greater Mumbai & Ors.) decided on 9th July, 2019 together with Writ Petition No. 1500 of 2016 (Ramesh, son of Nathubhai Patel & Ors. V/s. The State of Maharashtra & Ors.) decided on 9th July, 2019 ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 36/43 WP-602-2019 9(sr.18) 29.7.2019 emphasized that none can claim an absolute right in matters of the nature covered by Section 354, for preceding that section, is Section 353B and if somebody, despite the benchmark being reached, fails to carry out his obligation and duty, he cannot be heard then to say that, the independent satisfaction of the Municipal Commissioner is vitiated and which on facts as well, we do not think is vitiated in this case. In the instant case, the notice informs the respondents no.3 and 4 that a structural audit was carried out by them and there was a recommendation also of the Executive Engineer (K/East Ward) vide order dated 3rd August, 2018 and as per the remarks of the Deputy Chief Engineer (Building and Proposals) dated 14th August, 2018 to pull down this dangerous building comprising of ground plus two floors, it is in ruinous condition, ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 37/43 WP-602-2019 9(sr.18) 29.7.2019 likely to fall and dangerous to any person. This notice refers to all the three documents and thereafter there is a notice which is issued to the occupant of Room No.3, first floor of this building at page-34 of the paper-book. It is clear that the building was declared dangerous and of C-1 category. It is not as if there is no prior satisfaction for it is evident that, at page-36 is a copy of the public notice, directing compulsory structural audit of private buildings. That this public notice was duly published and that all concerned have a knowledge of the same, is evident. We do not see why the petitioners could not carry out an audit at that stage and pursuant to the said notice. It is no good urge that, after issuance of the impugned notice and after the matter was pending before this Court, a structural audit has been ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 38/43 WP-602-2019 9(sr.18) 29.7.2019 carried out by the petitioners which does not say that the building should be pulled down. M/s. Ashish Enterprises had written to the Assistant Engineer that the building is more than fifty years old. It has outlived its life. Every now and then, the plaster of the building keeps falling down and at many places the steel has been exposed. The said M/s. Ashish Enterprises relies upon some photographs.
14. There is a policy which is relied upon and which is stated to be in force. That policy is a recent one according to the petitioners. However, when there has been a repeated call from the Municipal Corporation and even after this policy of 29th May, 2018 at Exhibit-F page 47, the owners and occupants were requested to carry out a structural ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 39/43 WP-602-2019 9(sr.18) 29.7.2019 audit, after their attention was invited to the public notice, then, we do not see what purpose would be achieved by entertaining such petitions. We cannot have a word against word in this case. The Division Bench has already clarified that if the Municipal Commissioner leans in favour of the opinion of an expert recommending pulling down of a building so as to avoid loss of human life, then, this Court will not term that approach of the Municipal Corporation as perverse or utterly contrary to law.
15. Infact, the report of M/s. SPACE DESIGN AND DEVELOPMENT, has not been challenged anywhere. That is on the file of the Municipal Corporation and to be precise from 19th June, 2018. Apart therefrom, what we have noticed is that this building is indeed ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 40/43 WP-602-2019 9(sr.18) 29.7.2019 so old as would have required very extensive repairs. It is deteriorated. This fact is not disputed even by the petitioners and it is clear from Exhibit-H page-156 of the paper-book. They said that "Narsinha Prasad" building is not dilapidated as claimed by the landlord on the basis of the structural audit report obtained from some private auditor. Now, this is factually incorrect statement because the Structural Auditor who has been approached by respondents no.3 and 4 is indeed on the panel of the Municipal Corporation. Further, in this connection it is stated that the owners, Nitin Naik and M/s. Ashish Enterprises have not shown any willingness to comply with the guidelines known to this Court in Writ Petition (Lodg) No. 1135 of 2014. The owners have not arranged for alternate accommodation and they kept silence even in their ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 41/43 WP-602-2019 9(sr.18) 29.7.2019 letters. We do not see how this stand can be reconciled with the contents of para-2 of this communication. There, the petitioners apprehended eviction and hence notices were issued. If that is so, sub-section (5) of Section 354 is a complete answer to the arguments in that behalf. Once the allegation is that the owners have not arranged for alternate accommodation. That means, the petitioners are not seriously disputing the condition of the building.
16. All that they want is, a structural audit report of a Structural Auditor of their choice. It is only then, they would agree to vacate. The Municipal Commissioner would have nothing of this kind. He refused to accept such tactics. Infact, on 2nd November, 2018, Exhibit-I-2 to page-161, it is ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 42/43 WP-602-2019 9(sr.18) 29.7.2019 stated that, the tenants have received all the communications of the Municipal Corporation. The measurements have already been carried out. However, most of the tenants are working and therefore they must be given sufficient time to take leave and remain present at the time of inspection. Some tenants are not in Mumbai. The petitioners want to keep their Architect present for inspection. There are many flats locked. We do not see what purpose is served by addressing such communications. It is clear that, the petitioners have been repeatedly informed that, they must not occupy such buildings and that the building has not been inspected. Some of the owners/occupants did not allow the measurement to be carried out as well.
17. We do not think that in the light of the law ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 ::: Rane 43/43 WP-602-2019 9(sr.18) 29.7.2019 laid down by this Court, we can now accept any of the request of the petitioners. It is too late in the day to allow any structural audit by the petitioners. Their ipse-dixit is not going to be enough for interference under Article 226 of the Constitution of India. We do not think that the challenge to the notices in question deserves acceptance. The Writ Petition is therefore dismissed but without any costs. (SANDEEP K. SHINDE J.) (S.C. DHARMADHIKARI, J.) ::: Uploaded on - 07/08/2019 ::: Downloaded on - 15/04/2020 18:35:54 :::