Bombay High Court
Jyotsna Rajiv Bhargava vs Maharashtra Housing And Area ... on 8 June, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
909-oswpl-15116-2023.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 15116 OF 2023
Jyotsna Rajiv Bhargava ...Petitioner
Versus
Maharashtra Housing And Area Development ...Respondents
Authority (MHADA) & Ors
Mr Sharan Jagtiani, Senior Advocate, with Kiran Jain, Karl
Tamboly, Ish Jain, D Jain, Krishma S & Mehek Jain, i/b Kiran
Jain & Co, for the Petitioner.
Mr Mayur Khandeparkar, with Amogh Singh & Santosh Pathak, i/b
M/s. Law Origin Advocates & Solicitors, for Respondent No. 5.
Dr Abhinav Chandrachud, with Vaibhav Charalwar & Nimish
Lotlikar, i/b Arachana Karmokar, for Respondent No. 6.
Mr LT Satelkar, AGP, for Respondents Nos. 18 to 20.
Mr Rohan Sawant, with Dipen Furia, i/b M/s. Shah & Furia
Associates, for Respondent No. 29.
Mr Sagar Patil, for the Respondent-MCGM.
Ms Manisha Jagtap, with Karan Rasane, for the Respondent-
MHADA.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 8th June 2023 PC:-
1. There are 96 Petitioners to the four volumes of this Petition. They say in one voice that the four structures called Sankalp, Page 1 of 12 8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc Sanket, Swaroop and Suman of the Ujjawal Nandadeep Cooperative Housing Society Ltd at Evershine Nagar, Malad (West), Mumbai 400 064 are not structurally dilapidated or in the C-1 category requiring them to be demolished and pulled down. They place particular emphasis on a structural audit report of the Veermata Jijabai Technological Institute ("VJTI"). A copy of this report is at page 191 and it is of 29th March 2023.
2. The challenge in the Petition is to a report by the Technical Advisory Committee ("TAC"). That report is dated 15th May 2023 and 17th May 2023. It rejects the VJTI report. It accepts two other reports. It notes a site visit by the members of the Technical Advisory Committee and confirms the finding that the buildings are structurally dilapidated and fall in the C-1 category.
3. On its own, we would not in any case have been inclined to interfere because where there are conflicting reports and an opinion of the TAC, then it seems to us self-evident that the TAC and the Court must always lean in favour of the safer option.
4. But that discussion is entirely unnecessary on account of what Mr Khandeparkar and Dr Chandrachud point out for the contesting Respondents. They point directly to a blatant suppression of material facts in the Petition. This is by Petitioners Nos. 38 and 89 to 96, namely, Shreyash Ramkirti Tripathi, Dylan Francis Coelho, Francis X Coelho, Vipul Ashok Swant, Mangesh Vasudeo Ghadigaonkar, Satish Pandurang Kharat, Jeetu Rajeshwar Kotpalliwar, Rajaram Shankar Malvankar and Akshay Anil Sawant.
Page 2 of 128th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc All of them were Petitioners before this Court in Writ Petition (L) No. 5466 of 2023. That Petition sought a reference to the Technical Advisory Committee. There is no mention of this earlier Writ Petition in the present Writ Petition. There is also no mention of the fact that the earlier Writ Petition was dismissed by a Division Bench of this Court of AS Chandurkar and AS Waghwase JJ on 28th February 2023 by a detailed speaking order.
5. In light of what we propose to do, and to avoid all further controversy, we reproduce that order fully below:
"1. Heard.
2. The challenge raised in this writ petition is to the notice dated 17.02.2023 issued under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short "the Act of 1888").
3. The petitioners, who are nine in number, are residents of the Ujjawal Nandadeep Co-operative Housing Society Ltd.-Respondent No.4. The said housing society comprises of four buildings. It is their case that initially on 23.03.2017 a notice under Section 353B of the Act of 1888 came to be issued directing the Society to carry out a structural audit report. Pursuant thereto, an inspection was carried out and such report classifying the building by name "Sanket" was categorized as C-3 meaning thereby that no eviction was called for and only minor repairs were required.
4. Thereafter, on 15.02.2021 another notice under Section 353B of the Act of 1888 came to be issued and pursuant thereto, another structural audit report came to be submitted classifying the buildings "Swaroop & Sumant" as C2-A meaning thereby that the buildings would be required to be evacuated and/or partially Page 3 of 12 8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc demolished requiring major structural repairs. A time period of seven months was indicated for undertaking structural repairs. A third notice under Section 353B came to be issued on 13.02.2023. It is thereafter that the notice under Section 354 of the Act of 1888 came to be issued on 17.02.2023 requiring all the four buildings of the society to be pulled down.
5. Learned counsel for the petitioners submitted that since issuance of the first notice under Section 353B of the Act of 1888, on 23.03.2017 the buildings of the society were inspected and it was found that except minor repairs, there was no need to demolish the same as has been proposed by the impugned notice. The initial structural audit report had categorized the buildings as C-3 not requiring any eviction, but only minor repairs. The subsequent notice also required partial demolition and not demolition of the entire structures. Despite aforesaid, the Municipal Corporation proceeded to issue another notice on 13.01.2023 under Section 353B and shortly thereafter notice under Section 354 of the Act of 1888 came to be issued on 17.02.2023. There was no opportunity for the petitioners to obtain a fresh structural audit report pursuant to the notice under Section 353B of the Act of 1888. Considering the earlier reports as issued, the petitioners ought to be permitted to obtain a fresh structural audit report after which if the same did not categorize the buildings as C-1, the matter could be referred to the Technical Advisory Committee - TAC. Learned counsel referred to an order passed by the Co- operative Court in a dispute pending between Petitioner No.1 and the Society wherein the resolution passed in the Annual General Meeting had been stayed. The petitioners being occupants of their respective flats, they were entitled to obtain a fresh structural audit report in the matter. Though the petitioners were not opposed to the re-Page 4 of 12
8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc development of the buildings, it was necessary for the Municipal Corporation to follow the guidelines prevailing and act in accordance with law. Since the same was not been done, the notice under Section 354 of the Act of 1888 was under challenge.
6. Learned counsel for the Municipal Corporation opposed the aforesaid submissions. According to him, the Corporation was concerned with the four buildings that formed the housing society and the reports relied upon by the petitioners did not pertain to all the said buildings. After the buildings were classified as C2-B, permission to carry out repairs therein came to be granted by the Municipal Corporation on 11.09.2017. After a period of almost seven years, the second notice dated 15.02.2021 came to be issued by the Municipal Corporation with regard to all the four buildings of the society. The structural audit report received thereafter pertained only to two buildings namely Sumant and Swaroop. The said buildings were categorized as C2-A, which indicated that major structural repairs were called for. This structural audit report was not objected to by the petitioners within the prescribed time, and therefore, there was no question of any further reference being made to the TAC. It was pointed out that on 09.01.2023 a slab of one of the buildings had collapsed and in that context, notice under Section 353B of the Act of 1888 came to be issued on 13.01.2023. Since the said report was accepted by the Society, question of referring the matter to the TAC did not arise. The Municipal Commissioner having recorded his satisfaction as contemplated by Section 354 of the Act of 1888, he was justified in sanctioning the issue of the notice dated 17.02.2023. The entire action was taken in accordance with law, and therefore, there was no case to interfere in writ jurisdiction.Page 5 of 12
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7. Learned counsel representing the Society at the outset submitted that there were 208 members of the said Society, who were residing in four buildings. About 53 of the said members had vacated the said buildings and it was only the nine petitioners who had objected to the same. Six of the said petitioners were residing at Swaroop building while three others were residing in Sankalp building. The petitioners as members of the society had no locus to seek the reliefs as prayed for in the writ petition and the rights as members could be agitated through the Society. In that regard, learned counsel placed reliance on the decision in Daman Singh & Ors. Vs. State of Punjab & Ors. (1985-II-SCC-670). Learned counsel referred to the pleadings in the writ petition to urge that it was not pleaded that the notice dated 31.01.2023 issued under Section 353B of the Act of 1888 was not noticed by the petitioners. There were no allegations of malafides either. Referring to the guidelines for declaring private and municipal buildings as C-1 category it was submitted that since no objection was raised by the Society in terms of Clause 1.04, the matter was governed by Clause 1.07. Since the Society through majority of its members had accepted the notice issued under Section 354 of the Act of 1888, the writ petition at the instance of only nine members was not liable to be entertained. It was submitted that the writ petition was thus without any merit.
8. On hearing the learned counsel for the parties and after perusing the documents on record, we do not find that there is any case made out to grant the reliefs sought by the petitioners. At the outset, we may note that the housing society comprises of 208 members of which only nine have approached this Court by the present writ petition. It is the stand of the Society that by a majority it has been resolved not to object to the notice issued under Section 354 of the Act of 1888.Page 6 of 12
8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc Learned counsel for the Society is justified in contending that the rights of the petitioners, who are members of the housing society would be governed through the Society and any independent rights qua the Society would have to be agitated before another forum. Notwithstanding the aforesaid, on considering the issues raised on merit, we find that prior to issuance of the impugned notice on 17.02.2023 there have been earlier structural audit reports categorizing the buildings of the society as C2- A requiring evacuation and/or partial demolition with major structural repairs in terms of the report dated 29.03.2022. Coupled with the said report, it is further seen that the slab of one of the buildings collapsed on 09.01.2023 after which another notice under Section 353B came to be issued on 13.01.2023. The Structural Audit Report obtained by the Municipal Corporation with regard to all the structures was considered and pursuant thereto, the impugned notice has been issued. Though allegations of malice in law are sought to be urged, there are no sufficient pleadings in that regard. Further as per the guidelines for declaring private and municipal buildings as C-1 category, if no objection is received to a structural audit report by a tenant/occupant within fifteen days, the Municipal Corporation is required to act in accordance with Clause 1.07 and proceed further in the matter of obtaining sanction for declaring the building as C-1 category. It is undisputed that there is no such report pertaining to all the buildings that could be relied upon by the petitioners.
9. We find that the scope for interference in these facts is limited. It has been shown that the Municipal Corporation has acted in accordance with the guidelines framed in this regard and pursuant to the notice issued under Section 353B of the Act of 1888, necessary sanction has been obtained and notice under Section 354 of the Act Page 7 of 12 8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc of 1888 has been issued. It would not be permissible to go into any factual aspects of the dispute. Suffice it to mention that Petitioner No.1 has approached the Co- operative Court by filing a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 against the Society in the matter of conduct of the Annual General Meeting in the year 2020-21. The inter se disputes between the members of the Society can be resolved by invoking appropriate jurisdiction in this regard.
10. In that view of the matter, we do not find any case made out to interfere in exercise of writ jurisdiction under Article 226 of the Constitution of India. Consequently, the Writ Petition stands dismissed with no order as to costs."
(Emphasis added)
6. There is not the slightest ambiguity about this. Paragraph 8 quoted above makes it abundantly clear that the Division Bench rejected the plea canvassed by the nine petitioners inter alia for a reference to the TAC. That plea for a TAC reference is to be found recorded in paragraph 2 of the Division Bench order. All that the Division Bench permitted, and which is the last sentence of paragraph 9, was that inter se disputes in the society could be resolved in a forum of appropriate jurisdiction.
7. There is no doubt that the filing of the Writ Petition and the passing of this order are undoubtedly material facts that were required to be disclosed. The principles of candour and disclosure in any Court proceeding are well settled. The law in this regard, i.e., Page 8 of 12 8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc the consequences of deliberate suppression of material facts, is also well settled; and those consequences are severe. 1
8. We reject immediately Mr Jagtiani's submission for leave to withdraw the Petition with some liberty reserved whether to file a suit or to continue a Petition in the names of the remaining Petitioners other than those who filed the earlier Writ Petition. It seems to us inconceivable that those who were petitioners in the earlier Writ Petition could be excused from this non-disclosure simply because they have now banded together with the larger group. It is equally inconceivable that other neighbours and residences would be so totally unaware of the previous proceedings. That is not how societies normally function.
9. Even more disturbing, and this has more serious consequences is the conduct of the Municipal Corporation of Greater Mumbai ("MCGM") and TAC itself. In light of the order of this Division Bench, and the MCGM was the 1st Respondent to that Petition and was represented before the Division Bench, we do not see how there was any possibility at all of the MCGM making a reference to the TAC. That relief was rejected by the Division 1 SP Chengalvaraya Naidu v Jagannath & Ors, (1994) 1 SCC 1; Ashok Leyland Ltd v State of Tamil Nadu & Anr, (2004) 3 SCC 1; AV Papayya Sastry & Ors v Government of A.P. & Ors, (2007) 4 SCC 221; Dalip Singh v State of UP, (2010) 2 SCC 114; Oswal Fats & Oils Ltd v Additional Commissioner (Administration) & Ors, (2010) 4 SCC 728; Hari Narain v Badri Das, (1964) 2 SCR 203; Rajabhai Abdul Rehman Munshi v Vasudev Dhanjibhai Mody, (1964) 3 SCR 481; A Shanmugam v Ariya Kshatriya Rajakula Vamsathu, etc, (2012) 6 SCC 430; Maria Margarida Sequeira Fernandes & Ors v Erasmo Jack De Sequeira, (2012) 5 SCC 370; Sciemed Overseas Inc v BOC India Ltd, (2016) 3 SCC 70; Dnyandeo Sabaji Naik & Anr v Pradnya Prakash Khadekar & Ors, (2017) 5 SCC 496.
Page 9 of 128th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc Bench in paragraph 8. The finding of C-1 categorisation was accepted. There was no room for the TAC to embark on some other misguided venture to arrive at a different conclusion or at a different categorisation. Adopting that route was from every perspective perilous. For instance, the consequences of TAC perhaps returning a finding that the buildings were not C-1 category are unimaginable because it would really amount to the TAC sitting in appeal or review over a decision of a Division Bench of this Court.
10. We will deal with the Petitioners appropriately but not today. We first want an explanation from the MCGM and from the Chairman of the TAC as to how, despite this Division Bench order, the TAC entertained an application and then proceeded to pass the orders of 15th and 17th May 2023. It makes no difference that those orders are against the present Petitioners. The question is whether the TAC could have taken up a fresh reference after the dismissal of the earlier Writ Petition by a Division Bench of this Court. That explanation needs to be on Affidavit and the Chairman of the TAC is to be personally present in the Court on the next date.
11. What makes the matter even more alarming is that 15th and 17th May 2023 reports at pages 1019 and 1030 of the TAC itself specifically note the fact that the previous Writ Petition was filed and that no relief was granted and that the Petitions were dismissed. This provides no explanation but raises even more questions for the TAC and its Chairman to answer.
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12. Neither the Petitioners nor the TAC could have conducted themselves like this. The previous Petition specifically sought a reference to the TAC. That was rejected. No Special Leave Petition was filed. No Review Petition was filed. It was simply not open to the Petitioners to proceed on the basis that the previous order was immaterial and therefore did not require disclosure. The action of the TAC was entirely unlawful, prima facie, because without an order of the Supreme Court or in Review, the TAC could not conduct a reference to it once this was rejected by the Division Bench. If the TAC could not do it, then the Petitioners cannot get a second chance by now challenging the TAC Report -- in itself entirely unlawful -- once they find that even that report is against them.
13. To our mind, prima facie, this conduct by the TAC amounts to contempt of this Court. It is no doubt an interference with the administration of justice. We will not accept this from any public authority. That Affidavit of the Chairman of the TAC is to be filed by Wednesday, i.e., 14th June 2023 with no possibility of an extension.
14. The matter will be listed on Friday, i.e., 16th June 2023 first on the Supplementary Board. The Chairman of the TAC is to be personally present in the Court. On that day we will pass further orders in regard to the Petitioners.
15. At this stage Mr Jagtiani on fresh instructions states that he will unconditionally withdraw the Writ Petition. We note that Page 11 of 12 8th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 09/06/2023 13:34:54 ::: 909-oswpl-15116-2023.doc statement, but we do not accept it. We do not accept it simply out of concern for Mr Jagtiani's attorneys and his fellow counsel. There are 96 Petitioners and it would not be the first time that a litigant, after an order of the Court, came back saying he or she had given no such instructions. We are therefore not accepting these statements. We will pass whatever order we need to pass on the next date.
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