Bombay High Court
Canara Bank vs The Municipal Corporation Of Greater ... on 10 June, 2019
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S. Patel
(503)WPL1747.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1747 OF 2019
Canara Bank ... Petitioner
Vs
1 The Municipal Corporation of
Gr. Mumbai & Ors. ... Respondents
Mr. G.S. Godbole with Ms. Radha M. Bhandari and Mr. S.D. Shetty
i/b M.V. Kini & Co. for the Petitioner.
Ms. Vandana Mahadik for the Respondent No.1 - Municipal
Corporation.
Mr. Prasad Dani, senior advocate with Mr. Ooril Panchal i/b
Mahimtura & Co. for the Respondent Nos. 4 & 5.
Mr. Milind Shringarpure, Manager of the Petitioner present.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
MONDAY, 10TH JUNE, 2019 P.C. :
1 By this Writ Petition under Article 226 of the Constitution of India, the petitioner - Canara Bank challenges the order dated 29th May, 2019. By the impugned order, the Technical Advisory Committee has concluded as under :SRP 1/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 :::
(503)WPL1747.19.doc " In this case, after going through the details from both the consultant and site visit, it is observed that the parameters of the structural audit report of both the consultant like Ultrasonic pulse velocity test, Rebound hammer test, Half cell potential meter test, carbonation test, core test are not confirming to the provision of I.S. Code. As per the site observation reinforcement, structural members found cracked, damaged and corroded.
Considering both the structural consultant test results, age of the structure 57 years old and site observations, TAC members have unanimously concluded that said Building is declared as C-1 category and should be vacated and pulled down immediately following due process of law as the said building is unsafe for habitation and may collapse without giving any warning thereby endangering the life and property of resident and passerby."
2 The submission of Mr. Godbole, learned advocate appearing in support of this petition is that the fourth respondent to the petition is the owner of the land on which this structure or building belonging to the petitioner - Canara Bank is standing. True it is that the building is more than five decades old, but it is not imminently likely to fall or is in such a dangerous or ruinous condition that it will adversely affect the safety of those residing in its neighbourhood and passing by.
SRP 2/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 :::
(503)WPL1747.19.doc 3 Mr. Godbole submits that the location of the building is such that there is enough space around it. Even if parts of the structure of the building fall, they are not likely to fall on somebody passing by the road or in the neighbourhood. Apart from that, even in the second round, the petitioner is dissatisfied with the approach of the Technical Advisory Committee and the Municipal Corporation. The fourth respondent brings a report after the hearing before the Committee is concluded. The fourth respondent engages an advocate who gives an additional report and photographs to the Committee. Without this material being placed before the petitioner and its version being considered with regard thereto, the Committee, in utter disregard to the principles of natural justice, considers this report and passes an order categorizing the building as C-1. This means it is not capable of being repaired, but has to be necessarily brought down. 4 Mr. Godbole submits that the petitioner-Bank has vacated the building. There are no employees residing in the building. All arrangements have been made to shift them elsewhere. However, the building is repairable and the request of SRP 3/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 ::: (503)WPL1747.19.doc the petitioner deserves and merits consideration and for that purpose, the demolition of this building may be stayed. 5 After having perused the writ petition and all its annexures, particularly the documents relied upon by Mr. Godbole, we are unable to agree with him.
6 Firstly, the Architect or Consultant was engaged by the petitioner-Bank. The petitioner-Bank relied upon the report of B.J. Mehta Architectural and Structural Consultants Private Limited. A Consultant Structural Engineer M/s. A.K. Associates were consulted and engaged by the fourth respondent - landlord. True it it that the concept of dual ownership allows the petitioner to assert its right, title and interest in the building although the land does not vest in it, still, we are not concerned with that aspect of the matter. The Municipal Corporation of Greater Mumbai has even otherwise an enormous task ahead of it. In disputes of the nature brought before us, it is eventually the safety of all concerned, including the occupants of such structures, that the Municipal Corporation considers to be paramount. Section 354 appearing under the sub-heading SRP 4/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 ::: (503)WPL1747.19.doc "Dangerous Structures" empowers the Municipal Corporation to cause a removal of the structures which are ruinous or likely to fall. Sub-section (1) employs the words "If it shall at any time appear to the Commissioner that any structure (including under this expression, any building, wall or other structure and anything affixed to or projecting from any building, wall or other structure) is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner can issue the notice." 7 Therefore, it is not the perception or view of those occupying or those owning the structure which is important, but it is the Commissioner's satisfaction and that it can be in relation to any building which is not a public building, but a private one, which invites the action under this section. The structure may be in a ruinous condition or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such structure. In relation to that, the consistent view of the Municipal Corporation and its Technical Advisory Committee is that a perusal of the reports produced by both parties demonstrates SRP 5/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 ::: (503)WPL1747.19.doc that there is no dispute that the building is more than fifty seven years old. The representatives of M/s. B.J. Mehta who are the Consultants of the petitioner state that they have inspected the site visually again. There are some technical points submitted in their report and their opinion is that the structure is repairable without eviction.
8 Now that there is already an eviction or vacation of the structure voluntarily by the petitioner absolves us from considering this aspect of the matter.
9 On merits, what we have is a comparative test result of both Consultants and as far as the petitioner's Consultant is concerned, he does not give a clean chit, much less of the nature as placed before us. Even if the report of the fourth respondent submitted later on is omitted from consideration, still, on the finding of the Structural Consultant engaged by the petitioner - Canara Bank, it is apparent that the structure, though opined to be categorized as C-2B category, has lot of defects. The defects are enlisted. At pages 242 to 243, the Technical Advisory Committee holds that the core issue is that the test results of both SRP 6/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 ::: (503)WPL1747.19.doc the Structural Consultants shows less than the grade required as per the IS provisions. The rebound hammer test results values of both Consultants are indicated and they fall short of the standard prescribed by the Experts in the field. These matters are highly technical in nature. Bearing in mind the age of the building, the Technical Advisory Committee concludes that there is a possibility of more corrosion in future. Thus, repairs is not the solution and the structure is such which must be brought down. That such a structure is now vacated or is empty does not carry the case of the petitioner any further. We are on the condition of the structure, its durability and its potential. It is not capable of being brought in such a condition so as to presently house people and thereafter can continue to house them for decades. On the other hand, it is day-to-day deterioration of the building on account of its age which is also extremely relevant. It is in these circumstances that the technical experts feel that such a structure cannot be repaired as desired by the petitioner, but should be brought down in compliance with the notice. 10 It is, therefore, clear that the conclusion reproduced above is neither vitiated by arbitrariness nor mala fides nor we SRP 7/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 ::: (503)WPL1747.19.doc can say that the opinion or conclusion is so perverse that no reasonable person placed as a Technical Committee would reach the same. The settled tests enabling us to interfere with the opinion of the experts or technicians are thus not satisfied. In writ jurisdiction, we do not sit as a Court of Appeal nor can we re- appraise or re-appreciate the same material to arrive at a different conclusion. So long as the conclusion arrived at is plausible / possible and is not utterly perverse, no writ court can interfere therewith. We have applied only these tests to reject the submissions of Mr. Godbole. We find no merit in the writ petition and it is dismissed.
11 Section 354 has now been amended by the Legislature and post amendment, it categorically inserts sub-section (5) which says that the action taken under this section shall not affect the inter-se rights of owners or tenants or occupants, including right to reoccupation in any manner. Thus, the opinion of the Committee so also our disinclination to interfere therewith would not prejudice the private rights of the petitioner and they can assert them qua the fourth respondent. Even the defence of the fourth respondent is kept open.
SRP 8/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 :::
(503)WPL1747.19.doc 12 At this stage, Mr. Godbole requests that there is no possibility of anybody being harmed, much less the public safety being compromised for the building is adequately protected from all sides and is empty. Hence, he prays that the demolition, which is scheduled for tomorrow, be postponed so as to enable the petitioner to challenge this order in a higher court. Having considered the arguments of both sides on this limited point, we find that this is the second occasion when the petitioner has approached this Court to stall the inevitable. We cannot expect the Municipal Corporation to reschedule its demolition after it has made all arrangements at the site. Apart from the expenditure involved, if the petitioner - Canara Bank is protected in this manner, a wrong message or signal would go to the rest of the occupants and the building owners in the city. We do not think that such a precedent should be set merely because the petitioner before us is a Nationalized Bank. The request of Mr. Godbole is rejected.
G.S. PATEL, J. S.C. DHARMADHIKARI, J. SRP 9/9 ::: Uploaded on - 13/06/2019 ::: Downloaded on - 15/07/2019 01:17:35 :::