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Monday, 29 th July, 2019.

ORAL JUDGEMENT ( Per : S.C. Dharmadhikari, J)

1. The two notices, both dated 10th September, 2018 issued under Section 354 of the Mumbai Municipal Corporation Act (Exhibits-A-1 and A-

2)and the subsequent impugned communication dated 24th November, 2018 (Exhibit-B-1) issued by the respondent no.2 are challenged in this petition.

2. The further challenge is to the report of a structural audit dated 12th June, 2018 and it is Rane 7/43 WP-602-2019 9(sr.18) 29.7.2019 prayed that the same be set aside and respondents no.1 and 2 be directed to conduct a structural audit through any registered Structural Engineer and submit that report together with the structural audit report proposed to be submitted by the petitioners before a Technical Advisory Committee (TAC) of the first respondent.

4. Learned Counsel for the Petitioners submits that the above referred notices are issued on the basis of Structural Audit Report submitted by the Respondent Nos.3 and 4 - owners. He, disputes the Structural Audit Report submitted by the Respondent Nos.3 and 4 and relied upon by the M.C.G.M. He submitted that the Petitioners wants to appoint their registered Structural Engineer to take Structural audit of the subject property. He submitted that the Petitioners will appoint a registered Structural Engineer, within a period of two weeks from today. Statement accepted.
5. In the event, the Structural Audit Report, submitted by the Petitioners is contrary to the Structural Audit Report submitted by the owners i.e. Respondent Nos.3 and 4, in that case the matter will have to be referred to the Technical Rane 24/43 WP-602-2019 9(sr.18) 29.7.2019 Advisory Committee ('TAC'). If the Structural Audit Report is similar to the Structural Audit Report submitted by the owners i.e. Respondent Nos.3 and 4, then, of course the Corporation can proceed in pursuance to the impugned notices.
3. The Bill seeks to achieve the above objectives."

13. This Court, had on numerous occasions and commencing from the judgments in the case of Mahendra Bhalchandra Shah and Ors. V/s. Mumbai Municipal Corporation and Ors. (Writ Petition (Lodg) No. 1755 of 2019) decided on 24th June, 2019,then the judgment and order in Writ Petition No. 880 of 2018 (Inderjit Singh Sethi & Ors. V/s. The Municipal Corporation of Greater Mumbai & Ors.) decided on 9th July, 2019 together with Writ Petition No. 1500 of 2016 (Ramesh, son of Nathubhai Patel & Ors. V/s. The State of Maharashtra & Ors.) decided on 9th July, 2019 Rane 36/43 WP-602-2019 9(sr.18) 29.7.2019 emphasized that none can claim an absolute right in matters of the nature covered by Section 354, for preceding that section, is Section 353B and if somebody, despite the benchmark being reached, fails to carry out his obligation and duty, he cannot be heard then to say that, the independent satisfaction of the Municipal Commissioner is vitiated and which on facts as well, we do not think is vitiated in this case. In the instant case, the notice informs the respondents no.3 and 4 that a structural audit was carried out by them and there was a recommendation also of the Executive Engineer (K/East Ward) vide order dated 3rd August, 2018 and as per the remarks of the Deputy Chief Engineer (Building and Proposals) dated 14th August, 2018 to pull down this dangerous building comprising of ground plus two floors, it is in ruinous condition, Rane 37/43 WP-602-2019 9(sr.18) 29.7.2019 likely to fall and dangerous to any person. This notice refers to all the three documents and thereafter there is a notice which is issued to the occupant of Room No.3, first floor of this building at page-34 of the paper-book. It is clear that the building was declared dangerous and of C-1 category. It is not as if there is no prior satisfaction for it is evident that, at page-36 is a copy of the public notice, directing compulsory structural audit of private buildings. That this public notice was duly published and that all concerned have a knowledge of the same, is evident. We do not see why the petitioners could not carry out an audit at that stage and pursuant to the said notice. It is no good urge that, after issuance of the impugned notice and after the matter was pending before this Court, a structural audit has been Rane 38/43 WP-602-2019 9(sr.18) 29.7.2019 carried out by the petitioners which does not say that the building should be pulled down. M/s. Ashish Enterprises had written to the Assistant Engineer that the building is more than fifty years old. It has outlived its life. Every now and then, the plaster of the building keeps falling down and at many places the steel has been exposed. The said M/s. Ashish Enterprises relies upon some photographs.