Bombay High Court
Vraj Kunj Cooperative Housing Society ... vs The Municipal Corporation Of Greater ... on 23 August, 2023
Author: G.S. Patel
Bench: G.S. Patel
902-OSWPL-22928-2023.DOC
Talwalkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 22928 OF 2023
Vraj Kunj Co-operative Housing Society Ltd ...Petitioner
Versus
The Municipal Corporation of Greater Mumbai ...Respondent
& Ors
Mr BK Barve, with Sandeep Barve, Santosh Wagh, Sonali Patil &
Dushyant Digambar, for the Petitioner.
Ms Pooja Yadav, i/b Sunil Sonawane, for the Respondent Nos. 1 to 3-
MCGM.
Mr Pankaj Bansod, Assistant Engineer, Building and Factory, K/west
Ward.
Mrs MB Oza, Ms. Neeta Parekh, Pravin Mody & Minesh Doshi,
Representatives of Petitioner Society.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 22nd August 2023 PC:-
1. Vraj Kunj CHSL is the sole petitioner before us. Mr Barve mentioned the matter at 2.30 p.m. yesterday, citing great urgency. He said that the water supply to the building has been disconnected at 1.25 p.m. yesterday and that electricity would be disconnected today 22nd August 2023. He said that the Society had received notice under section 354 of the Mumbai Municipal Corporation Page 1 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC Act, 1888. He agreed that the notice to vacate had been given in May 2023. Ms Yadav for the MCGM did not have instructions. At that time, she had just received papers. Accordingly, we directed the water supply to be reconnected immediately until today and that there was to be no disconnection of the power supply until today. We listed the matter first on board today.
2. Ms Yadav has instructions today. She points out and argues quite correctly that there is blatant suppression in the Petition. There is no mention at all in this Petition of the fact that on 17th August 2022, the Society itself wrote to the Assistant Engineer IV (B & F), K West Ward in reference to a notice dated 9th July 2022 under Section 353(B) of the MMC Act forwarding a copy of a structural audit report. Even at that time the Society said that it was in the process of redevelopment. About 50% of the members had consented to the appointment of developer. Within six months' time, the society said, redevelopment would proceed. This is the document on the file of the MCGM and is shown to us. That file also contains the original of the Society's structural report of 5th August 2022 of one Aaryan Consultants forwarded to the MCGM on 17th August 2022. That structural audit report is addressed to the Petitioner Society itself. It clearly shows that Aaryan Consultants were appointed by the Petitioner Society.
3. The Society has two wings, Wing-A and Wing-B. The report is an extensive one of nearly 40 pages or more. It reports on the condition of both wings and in terms it says that both wings are to be Page 2 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC evacuated with demolition immediately; and that both wings are C-1 category.
4. Having got this report in hand, a few months later, on 4th January 2023, the MCGM addressed a letter to the Secretary, Chairman, owners, all occupiers and tenants of the petitioner Society. This references to the structural audit report of the Aaryan Consultants and the Section 353(B) notice. In view of that structural report, the addressees were invited to submit their suggestions, objections, justification, say and opinion as to why building should not be declared as C-1 category.
5. There is no mention of any of this in the present petition. The narrative in the Petition proceeds from 31st December 2020 directly to 8th May 2023 as if nothing at all had happened in between. There is no mention of the appointment of the Aaryan Consultants. There is no mention of the Aaryan Consultants report of 5th August 2022. There is no mention of the notice from the MCGM of 4th January 2023.
6. This is where the matter becomes serious, including alarming. Our attention is now invited by Mr Barve only to another report, this time by H.M. Raje Structural Consultant Pvt. Ltd. A proforma of part of that report is annexed at Exhibit E from page 76. At page 81 is purported certification obtained by the society itself on this report which is dated 15th June 2023 saying that the building is not in C-1 category, not dilapidated, does not require demolition but is in Page 3 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC the C-2A category. This is repeated at page 88 in respect of the second wing-B.
7. The submission by Mr Barve is that the matter should now be referred to the Technical Advisory Committee. We have no hesitation in holding that this is not just a complete inversion but a wholesale perversion of the law with regard to the references to the TAC. That reference is required when there are opposing interests such as that of landlord and tenant, members and society and divergent structural reports are obtained by different parties. There is no possibility at all of one party obtaining different reports at different times, relying on one while suppressing the other and then making this kind of a demand that there should be no demolition of building which according to the Society itself was once said to be category C-1, dilapidated, not in habitable condition and requiring immediate demolition.
8. Equally alarming is the fact that the covering letter from the society of 17th August 2022 is signed by one Minaxi Oza and one DV Gokani, Secretary and Chairman of the Society, respectively. These are the same two people who have, in these very capacities, signed the petition itself at page 37. The verification at pages 37 and 38 is by Ms. Oza and it clearly says that what is stated in paras 1 to 10 the petition is true to the best of her knowledge and that what is stated in the remaining paragraphs 11 to 24 is a legal information and belief and based on records. It is inconceivable that Ms Oza and Mr Gokani could have been unaware on 18th August 2023 when they Page 4 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC filed this petition of the letter that they sent exactly one year earlier on 17th August 2022 to the MCGM.
9. Of equally grave concern is the thrust of the Petition that the actions of the MCGM on 10th August 2023 for disconnection of water supply and electric supply are arbitrary. We now need to reproduce grounds 'b', 'c' and 'f' of the Petition at pages 28 and 29. They read as follows:
"(b) The society building is not ruinous and dangerous which is not required to be pull down immediately as per the impugned notice dated 08/05/2023.
(c) Despite structural audit report dated 15/06/2023 the dispute with regard to categorization of society building from C-1 to C-2A and C-2B is not referred to TAC Committee for taking expert opinion.
(f ) The society building is fit for human habitation and immediate demolition or vacation is not at all required."
10. These statements are patently untrue to the knowledge of the Petitioner Society and specifically to the knowledge of Ms Oza and Mr Gokani. They are directly contrary to the 17th August 2022 letter of the Society itself and the Aaryan Consultants report.
11. Curiously, there is at Exhibit D to the petition an undated letter again signed by Ms Oza and by another office bearer, the treasurer, addressed to MCGM. In this letter also there is no mention of the Aaryan Consultants report or the society's letter dated 17th August 2022. The letter says the building is indeed in a dilapidated condition but now claims, contrary to the society's own Page 5 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC previous assertion a few months earlier, that the building is not in a dangerous or ruinous condition and that therefore no further action should be taken. It is clear that the society is just playing fast and loose with the record and with the facts. There is wholesale suppression and a deliberate attempt to mislead the court. We refuse to exercise our discretion under Article 226 of the Constitution of India.
12. The law in this regard has been well settled for a long time. When there is material misrepresentation of facts meant to mislead a court, the court can at any stage dismiss any form of proceedings and it may even do so with an order of costs.1
13. Mr Barve attempts an explanation based on paragraph-16 to condone the omissions saying that the petition was filed in grave urgency. Paragraph 16 reads as follows:
"16. The Petitioner crave leave to refer to and rely upon all the relevant correspondence and minutes of the meeting of the Petitioner society in respect of redevelopment process as well as completing 79A process under the provisions of MCS Act and structural audit report when produce. In view of urgency if there is any omission and /or 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 6 of 8
22nd August 2023 902-OSWPL-22928-2023.DOC addition which may be condoned with liberty to Petitioner to produce the same before this Hon'ble Court."
14. Of this, the less said the better because, as we have noted, the society, Ms Oza and Mr Gokani knew perfectly well that the building was certified as C-1 category by the society's own previous consultant Aaryan Consultants. There was no possibility of this being an omission or an inadvertent oversight. We can understand if the report was not actually annexed for shortage of time. But the failure to even mention the letter of 17th August 2022, the Aaryan Consultants Report of 5th August 2022 and the MCGM notice of 4th January 2023 cannot have been accidental.
15. As is usual in such cases, Mr Barve is instructed to state that the petitioner's members will give a signed undertaking. That practice has long been deprecated. It is meaningless. If there is a collapse -- and this city is certainly no stranger to building collapses, especially in monsoon season -- with attendant loss of property and even lives, we do not see how these so-called undertakings can be of any assistance. The matter is even worse when a structural collapse affects not only the residents of those building but others in the vicinity and even passers-by.
16. What this society seems to want is a further period of time to negotiate with its chosen developer. That does not require the building to remain in occupation. The only challenge in this case is to the notice of disconnection of water and electricity by the MCGM. It has to be shown on a fair presentation of all relevant material that this action of the MCGM was arbitrary, irrational, Page 7 of 8 22nd August 2023 902-OSWPL-22928-2023.DOC unreasonable and therefore capable of inviting the intervention of the court. On correct appreciation of materials, in fact the opposite is true. Nothing in the MCGM action can be said to be remotely arbitrary or unreasonable. It has in fact been invited by the society itself and the petition conveniently suppresses all the relevant material in that regard.
17. All ad-interim orders are vacated. The Petition is rejected.
18. Since this is a society we refrain from making an order of costs which we would otherwise, in our view, have been entitled to do.
19. The Petition is to be finally numbered for statistical purposes.
(Kamal Khata, J) (G. S. Patel, J)
Signed by: A.S.Talwalkar Page 8 of 8
Designation: PS To Honourable Judge 22nd August 2023
Date: 23/08/2023 15:15:00