Bombay High Court
Ansari Rizwan Ahmed Mohd. Umer And 36 Ors vs Municipal Corporation Of Gr. Mumbai And ... on 24 May, 2021
Equivalent citations: AIRONLINE 2021 BOM 2378
Author: Madhav J. Jamdar
Bench: R. D. Dhanuka, Madhav J. Jamdar
1/13 4. WP.895.2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 895 OF 2019
Ansari Rizwan Ahmed Mohd. Umer & Ors. ... Petitioners
Vs.
Municipal Corporation of Greater Mumbai & Ors. ... Respondents
...........
Mr. Chetan Kapadia a/w. Mr. Ankit Lodha a/w. Ms. Kausar
Banatwala a/w. Ms. Gauri Sakhardande a/w. Chirag Sarawagi i/b.
Tushar Goradia Petitioners.
Mr. Yashodeep Deshmukh a/w. Ms. Pooja Yadav i/b. Ms. Aruna Savla
for the Respondent Nos. 1 to 3-MCGM.
Mr. Rajendra Mishra for the Intervenors/Applicant
..........
CORAM: R. D. DHANUKA AND
MADHAV J. JAMDAR, JJ.
(VACATION COURT) DATE : 24th MAY, 2021.
(THROUGH VIDEO CONFERENCE) P. C:-
1. The matter is placed on board on the praecipe filed by the Petitioners' Advocate in view of the notice issued by the Municipal Corporation on the ground that the buildings in question which belongs to Municipal Corporation has been declared under C-1 category.
2. Mr. Kapadia, learned Counsel for the Petitioner invited our Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 2/13 4. WP.895.2019.doc attention to some of the reports submitted by the structural engineers/auditors and would submit that buildings in questions are not required to be demolished as the same can be repaired. Those reports relied upon by the Petitioners clearly indicates that buildings would fall under C-2 A category and not C-1 category. The learned Counsel invited our attention to order passed by this Court on 12 th December, 2017 directing the Municipal Corporation to refer the case of the subject buildings to Technical Advisory Committee with a direction to comply with the direction/guidelines issued in paragraph 9 of the decision of this Court in case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra & Ors.
(2014) SCC Online Bom. 666.
3. It is submitted by the learned Counsel that though the Technical Advisory Committee was directed to comply with various directions in paragraph 9 of the said judgment prescribing the guidelines the Technical Advisory Committee did not carry out any test and once again declared the buildings in question under C-1 category. He submits that three reports produced on record by the Petitioners are contrary to the said TAC report.
4. It is submitted that the Municipal Corporation has not Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 3/13 4. WP.895.2019.doc approved the proposal of the redevelopment of the buildings in question till date and these occupants who are staying in these buildings since last 95 years thus shall not be asked to vacate by the Municipal Corporation.
5. Mr. Kapadia also invited our attention to report dated 12 th August, 2018 submitted by VJTI and more particularly paragraph 6 thereafter and would submit that the said report was submitted by the VJTI after passing of the last order passed by this Court directing TAC to carry out test in compliance with the principles laid down by this Court. He submits that the said report clearly indicates that structures in question are stable and can be repaired and was rightly classified as C-2B category.
6. Mr. Deshmukh, learned Counsel for the Municipal Corporation on the other hand, relied on various orders passed by this Court. He submits that the TAC has complied with the said order passed by this Court and opined that buildings cannot be repaired and will have to be demolished. He invited our attention to the order dated 3 rd September, 2019 and more particularly paragraph 4 and would submit that this Court have made it clear that there was no question Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 4/13 4. WP.895.2019.doc of old and dilapidated municipal buildings housing the tenants continuing at the site for they do not only pose a threat to the life of those occupying but those residing in the neighbourhood or passing by such buildings. Therefore, these buildings ought to be pulled down and that cannot be resisted at any cost. He submits that Municipal Corporation has already submitted a proposal for redevelopment of the buildings and said proposal is pending before the Improvement Committee. The draft tender is already prepared.
7. The learned Counsel states that developer has already made proposal for development of the said buildings. He submits that the said proposal would be submitted by the Improvement Committee at the earliest and appropriate decision in this regard would be taken. It is submitted by the learned Counsel for the Municipal Corporation that Corporation has also offered temporary alternate accommodation to the occupants of the buildings in question at S. G. Chemicals premises, Vashi Naka, Chembur. The Petitioners however, are not vacating the tenaments though offered in the year 2020 itself. He submits that since the redevelopment may be finalized by the Improvement Committee/Corporation, the developer that would be approved by the Improvement Committee would make an Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 5/13 4. WP.895.2019.doc appropriate arrangement for temporary alternate accommodation at subsequent stage till the buildings are redeveloped under the said project. Large number of other affected occupants of the buildings are already shifted to said temporary alternate premises. No complaint has been made by any of those parties. It is submitted by the learned Counsel that Petitioners have not challenged the order dated 3rd September, 2019 passed by this Court and thus cannot refuse to vacate the premises though the buildings are in dilapidated condition and declared as C-1 category. It is submitted that the said developer has made proposal on behalf of the society formed by the Petitioners.
8. A perusal of the order dated 30th July, 2019 passed by this Court indicates that this Court has made it clear that if Petitioners are not willing to accept the temporary or transit accommodation, then, such monetary reliefs, as are extended by the developer in the scheme, should be extended to them and the Municipal Corporation should ensure that the developer makes the monthly payment regularly. In addition, it would be an obligation of the Municipal Corporation to ensure that construction of rehabilitation building is complete within the given time frame and that after the permissions Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 6/13 4. WP.895.2019.doc and approvals are in place, the Petitioners are brought back in such rehabilitation building.
9. This Court passed several orders in this matter. By an order dated 3rd September, 2019, this Court clarified both parties that there is no question of old and dilapidated municipal buildings housing the tenants continuing at the site, for they do not only pose a threat to the life of those occupying but those residing in the neighbourhood or passing by such buildings. Therefore, these buildings ought to be pulled down and that cannot be resisted at any cost. The Municipal Corporation should not burden itself by allowing occupants to occupy such structures any longer. The Municipal Corporation may have to compensate all or such of them who suffer on account of untimely collapse of these buildings. It is not in dispute that said order has not been challenged by the Petitioners.
10. In so far as the order dated 12th December, 2017 passed by the Division Bench of this Court relied upon by Mr. Kapadia, learned Counsel for the Petitioners is concerned, a perusal of the said order clearly indicates that in paragraph 8(i), the discretion was given to the Technical Advisory Committee to decide whether it was Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 7/13 4. WP.895.2019.doc necessary to carry out certain tests which are specified in the order of this Court or not. The TAC however will have to record the said conclusion alongwith brief reasons for coming to the said conclusion.
11. A perusal of the TAC report submitted pursuant to the said order in the meeting held on 11th January, 2018 clearly indicates that TAC has considered various aspects at page 321. The TAC members have gone through the structural audit report submitted by M/s. Rehab Consultants Pvt. Ltd., and noticed that they had submitted Structural Audit Report on 30.04.2014, concluding the building as repairable without conducting any test. Further as per the conclusion of the structural audit report submitted by M/s. Rehab Consultants Pvt. Ltd., severe damages were observed at few places in the columns and ceilings and recasting will have to be carried out at such places. The damaged RCC frame inside and outside the building needs to be repaired immediately. As the building is 90 years old and ageing, it is advisable to remove the additional load of the extended area beyond the building line and advisable to remove the additional load of the extended area beyond the building line and lofts inside the flats wherever required and possible.
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12. The structural audit reports, proforma 'B' and facts put up by all the structural consultants, opinions/reports of ward staff, Estates staff as well as representatives of TAC and observations made during the site visit by TAC members on 09.01.2018 were discussed during the meeting in detail. TAC members also noticed that the building is more than ninety yearS old and has already lived its useful life. The highly distressed structural members are repaired in cosmetic way, hence the defects are merely hidden and does not provide any strength and stability to the structure. TAC members unanimously felt that the explanation given by M/s. Infra Consults for not preparing tests viz. Half Cell Potential test, Core test, Chemical analysis and cement aggregate ratio is justified and feels that it is not safe to conduct the core test. The reinforcement is highly corroded and hence corrosion potential mapping (Half Cell Potential test) is not required to be performed. Further Chemical analysis and cement aggregate ratio test are used as preliminary test to judge the grade and quality of the concrete and need not be conducted for highly distressed structure. It is observed that the N.D. Tests conducted by M/s. Infra Consults are sufficient to judge the quality and strength of the concrete and steel. The tests were carried out approximately four years back and the ninety year old structure is Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 9/13 4. WP.895.2019.doc further deteriorated.
13. It is observed that the required test applicable in this case are carried out. TAC members unanimously opined that the earlier decision of TAC holds good and the said building known as "Lambi Cement Chawl A & B" is in severely dilapidated condition and may collapse without giving any warning thereby endangering the life and property of the residents and the people residing in adjoining properties and passerby. Further the structure under reference is not habitable and needs to be vacated and demolished immediately by following due process of law under the supervision of structural consultant.
14. The TAC directed 'E' ward staff and staff of Estate Department to direct owner/occupiers to vacate the building immediately and to take necessary preventive measures. In our view, the report submitted by the TAC is in compliance with the order passed by this Court on 12th December, 2017 and does not warrant any interference.
15. The matter was referred to TAC in view of the conflicting Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 10/13 4. WP.895.2019.doc reports obtained by the Petitioners. TAC has already opined that buildings cannot repaired and is required to be demolished.
16. This Court in the order dated 3rd September, 2013 has already made clear that the Municipal Corporation should not burden itself by allowing occupants to occupy such structures any longer. The Municipal Corporation may have to compensate all or such of them who suffer on account of untimely collapse of these buildings. There is no question of old and dilapidated municipal buildings housing the tenants continuing at the site for they do not only pose a threat to the life of those occupying but those residing in the neighbourhood or passing by such buildings. The said order passed by this Court has attained finality.
17. We accept the statement made by Mr. Deshmukh, learned Counsel for the Municipal Corporation that the proposal for redevelopment submitted by the developer on behalf of the Petitioners would be considered in the next meeting of the Improvement Committee. We also accept the statement made by the learned Counsel that if the said proposal is accepted by the Improvement Commission, the same would be placed before the Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 11/13 4. WP.895.2019.doc Corporation for further approval. The developer as may be approved would have to provide for temporary alternate accommodation to these occupants as may be agreed upon or would pay transit rent. We accept the statement made by the learned Counsel that several other occupants have already shifted to said alternate premises offered by the Municipal Corporation at S. D. Chemicals, Vashi Naka, Chembur.
18. A perusal of the structural audit report submitted by the Petitioners obtained from VJTI also clearly indicates that building is about 95 years old. Maintenance of the building has not been done at required intervals. The reinforcement has 50% probability of corrosion at locations where they are exposed to moisture. The terrace has also developed a lot of weakness due to the water ingress. Before any repairs can be carried out, the covering to the terrace and the mangalore tiles should be constructed to protect the building from the water hitting its various parts. All the distressed RCC members must be repaired as soon as possible. A large amount of vegetation is observed at joints between masonry and RCC members. This should be removed as soon as possible. The loose concrete of the RCC slabs, beams, pardis and chajjas in all floors, Sonali ::: Uploaded on - 24/05/2021 ::: Downloaded on - 24/05/2021 23:27:57 ::: 12/13 4. WP.895.2019.doc should be broken down and should be repaired using polymer modified cement mortar. Leakage is observed in the toilet blocks also. This should be arrested at the earliest.
19. A perusal of the photographs on record placed by the Petitioners also indicates that building is in dilapidated condition. We thus cannot allow the occupants of the said building to occupy the said building any more to avoid any risk to their life and to the life of occupiers of the adjoining buildings. We accordingly direct the occupants of the buildings in question to occupy the temporary alternate premises offered by the Municipal Corporation within two weeks from today without fail. If occupants do not vacate within two weeks, Municipal Corporation is at liberty to take forcible possession of the premises.
20. For this period of two weeks, it is made clear that Petitioners would continue to occupy, the same at their own risk and cost. The Petitioners would not hold the Municipal Corporation or any other Authority responsible in case of any untoward incident happens during the period of these two weeks.
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21. It is made clear that order passed by this Court is subject to the orders as may be passed by the Improvement Committee as well as by the Corporation in the meetings proposed to be held in the near future. If the Improvement Committee or the Municipal Corporation does not approve the redevelopment proposal, Petitioners would be at liberty to apply for appropriate orders.
22. The Application made by the learned Counsel for the Petitioners for stay of this order is rejected.
23. Place the matter on board for admission on 23rd June, 2021.
24. Parties to act on the copy of this order authenticated by the Associate of this Court.
(MADHAV J. JAMDAR, J.) (R. D. DHANUKA, J.)
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