Bombay High Court
Savitri Ramasubramanyum Lyer And Ors vs State Of Maharashtra And Ors on 6 July, 2021
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION (ST) NO.12464 OF 2021
IN
WRIT PETITION NO.7146 OF 2016
IN THE MATTER OF
1.Kalyan dombivli Municipal Corporation
2.The Ward Officer, Ward-F. ...Applicants
IN BETWEEN
1.Savitri Ramasubramaniam Iyyer & Ors. ...Petitioners.
Versus
State of Maharahstra & Ors. .. Respondents
AND
WRIT PETITION NO.7146 OF 2016
1.Savitri Ramasubramaniam Iyyer & Ors. ...Petitioners.
Versus
State of Maharahstra & Ors. .. Respondents
---
Mr.A.S.Rao, for the Applicants.
Mr.Rahul Shivaji Kadam, for the Petitioner.
Mr.M.M.Pable, AGP for the State.
----
C0RAM: DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE : JULY 6, 2021
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PC:
INTERIM APPLICATION (ST) NO.12464 OF 2021
1. This is an application filed by the Kalyan Dombivli
Municipal Corporation (for short 'the KDMC') in the above petition
which is pending, praying that the interim order dated July 8, 2016
passed by the Co-ordinate Bench of this Court be vacated and the KDMC
be permitted to remove two dangerous buildings known as "Valku Joshi
building" and "Shiv Krupa Building".
2. The original petitioner nos.1 to 24 filed the above writ
petition interalia praying that a notice dated August 5, 2015 issued by
the KDMC under the provisions of Section 264(1)(c)(2), (3), (5) read
with Section 265 and Section 268(1)(c)(2), (3), (5) be quashed. By
such notice the petitioners were informed that the construction of the
buildings in question was not of the prescribed standard and as per law.
The petitioners were also informed that as the buildings were not
repaired they were rendered dangerous for occupation, as also a portion
of the building was likely to collapse at any time which would result
into loss of human lives and property. The petitioners were hence
called upon to undertake a structural audit of the said buildings failing
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which, an action would be resorted to vacate the buildings forcibly, with
the police help.
3. In the writ petition, the petitioners have averred that they
apprehended that respondent nos.4 to 9 - landlords would evict the
petitioners to redevelop the building and it is for such reason that the
landlord had managed to get the impugned notice issued to the
petitioners, and in such manner evict the petitioners.
4. A co-ordinate Bench of this Court on June 24, 2016, while
issuing notice on the writ petition, directed that no coercive action be
taken subject to the petitioners submitting an undertaking that they
would occupy the premises at their own risk. Paragraph 2 of the said
order reads thus:-
"2. Till the next date of hearing, on Petitioner's submitting
Undertaking within a week to the effect that they will be
occupying premises in question at their own risk and the
respondents would not be liable for any damage to the person
of the petitioners or the property, no coercive action for eviction
be taken against the Petitioner."
5. By a subsequent order dated July 8, 2016 passed on the
writ petition, the Court recorded that there was a possibility of an
amicable settlement in the matter, and adjourned the hearing of the
petition to July 19, 2016, however, continuing the interim orders passed
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earlier. The Court also recorded a statement made on behalf of the
petitioners that none of the petitioners were residing in the building
known as 'Sapna building' and the petitioners were residing in other
buildings in the same vicinity known as 'Valku Joshi Building' and
'Shivkrupa Building'. Hence, the Court ordered that the interim order
passed earlier would operate only in regard to these two buildings. It
was also observed that the KDMC was free to proceed on the notice
issued for demolition of Sapna building, in accordance with law. It
would be relevant to note the contents of paragraph (3) of the said
order which reads thus:-
"3. The interim order, if any, to continue. However, it has
been made clear by the learned Counsel appearing for the
Petitioners on instructions that none of the Petitioners is
residing in the building known as Sapna building and the
Petitioners are residing in other buildings int eh same vicinity
known as Valku Joshi Building and Shivkrupa Building. In the
circumstances the interim order passed will be operative only in
regard to the two buildings known as Valku Joshi Building and
Shivkrupa Building. The Corporation is free to proceed in
regard to its notice issued for demolition of Sapna Building in
accordance with law. Adjourned to 19th July, 2016."
6. The above interim orders have continued to operate. It is
on this backdrop the KDMC has filed the present application contending
that even at the time when the impugned notice was issued to the
petitioners, the buildings were in a dilapidated condition and were
required to be demolished. It is stated that by passage of time, the
buildings have become further dangerous and unsafe for human
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habitation. The KDMC has contended that except for about four shop-
holders on the ground floor, the buildings have been vacated by the
tenants/occupants. It is stated that considering the deteriorated
condition of the buildings, there is an imminent likelihood that the
buildings would collapse, causing loss of human lives and property. It is
contended that not only the occupants on the ground floor are exposed
to such danger but also the neighbouring residents and passers-by. The
KDMC has also stated that the officers of the KDMC had visited the
buildings and have drawn a panchanama and also taken photographs of
the buildings which depict that the buildings are in ruinous and
dilapidated condition.
7. Mr.Rao, learned Counsel for the KDMC has submitted for
our perusal, photographs of such buildings. On a bare perusal of the
photographs, it is evident that the buildings are in extremely ruinous
condition as also they are abutting a busy street. Hence, it appears to us
that an unfortunate collapse would certainly result in loss of innocent
lives and damage to property, as rightly contended by the KDMC.
8. Mr.Rahul Kadam, learned Counsel for the petitioners has
submitted that only four petitioners are in occupation of the ground
floor premises which are shops and rest of the building has been
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vacated long back. His contention is that respondent no.4-landlord
ought to provide alternate accommodation to the petitioners in
premises which would be constructed by the landlords-respondent nos.4
to 9 on redevelopment. It is also his contention that the landlord may
not redevelop the premises and use the premises by putting up
temporary sheds which would be unfair to the tenants. Mr.Kadam,
however, would not dispute that the buildings are in extremely
dilapidated condition and have become dangerous.
9. In so far as Mr.Kadam's contention that the petitioners who
are tenants, be rehoused in similar alternate premises in the event a
construction is put up by the landlords, such contention, in our opinion,
is legitimate, as it would certainly be an obligation on the part of the
landlord or such person who is undertaking development to rehouse the
petitioners/tenants by giving them similar premises on the same terms,
conditions and rights as they exist today. The law in this regard is well
settled. (See: Order dt.June 15, 2021 in Writ Petition (St) No.9834 of
2021; George Mendonca & Anr. Vs. Vasai-Virar City Municipal
Corporation & Ors.)
10. As regards Mr.Kadam's contention that respondent no.4
may put up a temporary construction and will not construct the
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building, in our opinion, cannot be the subject matter of any
adjudication in the present proceedings as any issue between the
tenants and the landlords in regard to the terms and conditions of any
tenancy agreement entered between them and/or qua any statutory
rights of the tenants need to be asserted by the petitioners in the
appropriate proceedings. In any event such an apprehension cannot
detain us to overlook the immediate concern of the KDMC in the
present application.
11. In the above circumstances, we are of the opinion that the
prayers as made by the KDMC in this application are required to be
granted and the KDMC ought to be permitted to demolish the said
building. We accordingly allow this application by the following order:-
ORDER
(I) The petitioners, who are in occupation, are directed to vacate the premises at the earliest and in any case within seven days from today. In the event the petitioners do not vacate, the municipal corporation is permitted to forcibly evict the petitioners and if required, with the police aid.
(II) The KDMC is also directed to maintain record of the respective areas occupied by each of the petitioners. The KDMC on completing such formalities, as permissible in law, may proceed to undertake demolition of the building.
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4-IA-st-12464-21=wp7146-26.docx (III) In the event, the petitioners are tenants, they shall be entitled to alternate premises of the same area in any redeveloped premises that may be constructed by the landlords, which shall be occupied by them on the same terms and conditions and with the same legal rights as they exist today, as held by a coordinate Bench of this Court in Writ Petition (St) No.9834 of 2021; George Mendonca & Anr. Vs. Vasai-Virar City Municipal Corporation & Ors., Order dt.June 15, 2021 (supra). (IV) It is clarified that till the building is demolished, the petitioners or any other occupants shall occupy the premises at their own risk and consequences and they shall not hold the KDMC or any other authority or the landlords liable in the event of an unfortunate collapse. Also the undertakings furnished by the petitioners in pursuance of the Court order dated June 24, 2016 shall continue to operate. (V) An action taken report on affidavit, be placed on record of this petition by the KDMC within two weeks from today. (VI) The application is accordingly disposed of in the above terms. No costs.
WRIT PETITION NO.7146 OF 2016
8. In view of the order order passed on the Interim application, this Writ Petition would not survive. It is accordingly, disposed of.
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