The second aspect is the trend of making an order directing
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case
of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.
We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.
dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019
Mahendra Bhalchandra Shah Vs Municipal Corporation of
Grater bombay
CORAM : S. C. Dharmadhikari & G.S.Patel, JJ.
DATED : 24TH JUNE 2019
1. We have heard Mr Damani for the Petitioners at great length
in this writ petition under Article 226 of the Constitution of India.
We have also heard Mr Sakhare, learned Senior Counsel, for the
Municipal Corporation of Greater Mumbai (“MCGM”) and its
officers, Respondents Nos. 1 to 4. With the assistance of appearing
counsel, we have carefully considered the materials on record. For
the reasons that follow, we are not inclined to grant the Petitioners
relief. We have rejected the writ petition.
2. The facts are few, and quickly noticed. The five Petitioners
claim to be tenants in occupation for nearly three decades of
tenements in a ground floor chawl called the Lalji Vanmali Chawl at
CTS No. 118 (pt) at Bapu Bagwe Marg, Village Dahisar, Taluka
Borivali, Mumbai. These tenements, the Petitioners say, are seven
structures with 16 rooms. The structures have pitched roofs covered
with Mangalore tiles. We note this because Mr Damani based at
least one argument on the built form of these structures. We will
turn to that presently.
3. In 2006, the 6th Respondent, Nikunj Realtors, said to be a
firm of developers, acquired the plot on which these structures
stand. The previous developer, Model Construction, had
constructed two buildings called Maheshwar-I and Maheshwar-II
here. The original owner was one Rambhabai Vanmali. She gave
powers of attorney to these developers. In 2006, Model
Construction is said to have in some way transferred its rights to the
remaining development to the Nikunj Realtors, which used to
collect rent from the Petitioners. Some of the earlier occupants or
tenants of this chawl were shifted to Maheshwar-I and Maheshwar-
II. These Petitioners remained. They say they were never
approached for re-accommodation. By 2006, there are said to have
been only 10 tenants continuing in this chawl. In 2018, Nikunj
Realtors apparently struck some sort of deal with some of these 10
tenants and took over three tenanted premises. These were
demolished. The Petitioners and their structures remained on site.
We are not concerned with any contractual dealings between Nikunj
Realtors and the Petitioners.
4. The petition says that a notice dated 19th December 2018 was
pasted by officers of the MCGM on the chawl in question. That
notice said the chawl was dangerous, and categorised by the MCGM
as ‘C-1’, i.e. in imminent danger of collapse and therefore requiring
urgent intervention. This, according to the Petitioners in paragraph
7, meant propping. The notice also said that if the tenants and
occupants did not agree with this structural assessment, they could
submit their own consultants’ structural report within 30 days. The
Petitioners say they did get the structure or structures
independently assessed by one DARV Engineers and Consultants
Pvt Ltd (“DARV Engineers”) on 27th December 2018. This was
forwarded to the MCGM on 17th January 2019 by the Petitioners’
advocate. The Petitioners claim they received no response. They
were not told that the matter had been referred to the MCGM’s
Technical Advisory Committee or TAC. According to the
Petitioners, there was no further action. Instead, they say, the
MCGM abruptly and without forewarning issued a notice dated 4th
April 2019 under Section 354 of the Mumbai Municipal Corporation
Act, 1888 (“the MMC Act”) and had it pasted on the site. There
was no individual notice. The Petitioners’ advocate wrote to the
MCGM on 18th April 2019, drawing attention to the DARV
Engineers’ report, demanding a reference to the TAC and asking for
the date of the TAC meeting. According to the Petitioners, there is
no reply to this either.
5. On 31st May 2019, the MCGM put up a board saying that the
chawl (described as a ‘building’) was declared to be in the ‘C-1’
category, and that the occupants would be evacuated on account of
the danger to life and property that the dilapidated and ruinous
condition of the structure posed. There is an allegation in paragraph
11 that some site meeting was proposed, but since this is
undocumented, it need not delay us any further.
6. According to the Petitioners, there followed yet another
notice, now dated 3rd June 2019. This was addressed to the owner,
Rambhabai Lalji Vanmalidas. It threatened disconnection of water
and power supply. The Petitioners say they were given no notice of
this threatened disconnection. On 6th June 2019, say the
Petitioners, a MCGM officer arrived on site with a team and forcibly
cut off the water and power supply.
7. Hence this petition. What the Petitioners seek is a quashing of
all these notices and evacuation orders by a writ of certiorari; then a
writ of mandamus to restore the water and power supply; and
interim reliefs pending the petition.
8. The matter was listed on 14th June 2019. At that time, there
was no Affidavit in Reply from the MCGM. We were shown a report
of the TAC meeting. There was also an attendance sheet. One of the
persons said to have been in attendance at the TAC meeting was one
Ravindra Utagi of DARV Consultants, the consultancy engaged by
the Petitioners. Utagi was said to have signed the attendance sheet.
Noting this, we called for an affidavit with the relevant documents
from the MCGM. There is now such an affidavit dated 19th June
2019. Mr Damani has, in response, prepared a bulky Affidavit in
Rejoinder affirmed on 20th June 2019 by the 4th Petitioner. It is said
to have a compilation of documents obtained by the Petitioners
under the Right to Information Act.
9. We will first take up the MCGM affidavit. It is filed by one
Rohan Nipunte, the Assistant Engineer (R/N) Ward, Building &
Factory Department. He is present in court today. In this affidavit,
while he accepts that the chawl is a ground floor structure with a
Mangalore-tiled pitched roof of 16 tenements, he says on visual
inspection this was found to be in bad structural condition.
Therefore, the MCGM issued its letter of 3rd December 2018
calling on the owner and occupants to carry out a structural audit.
He says the owner did so, and submitted a report dated 10th
December 2018 of Space Design & Development, a structural
consultancy. This report said the chawl was too dilapidated to be
repaired. Incidentally, we note that there is no dispute that the
structure in question dates back to about 1960, i.e. it is nearly sixty
years old. Then Nipunte refers to certain policy guidelines, to which
we will turn shortly, to say that the MCGM issued a public notice
calling for propping as an interim measure, and giving time to the
occupants to produce their own structural assessment report. He
says the Petitioners refused to accept personal service of this notice,
and hence it was pasted. There is absolutely no traverse of this
averment in the Affidavit in Rejoinder. On receiving the DARV
Engineers report from the Petitioners, contending that the structure
could be repaired and was therefore a ‘C-3’ category structure, and
since this report conflicted with the Space Design report submitted
by the owner, the matter was referred to the TAC under the extant
policy. The TAC inspected the site on 6th March 2019. It held a
hearing on 15th March 2019 at 12 noon in the chamber of the TAC
Chairman. Representatives of both Space Design and DARV
Engineers were present. The latter was represented by Ravindra
Utagi. He was informed of the meeting by email sent to the email id
or address on the cover of his report. After hearing both sides, and
considering both reports, the TAC concluded that the Space Design
report was more accurate and acceptable. It therefore recommended
that the structure be placed in the ‘C-1’ category and be brought
down. The TAC report was sent to both structural engineers (i.e.
Space Design and DARV Engineers) on 1st April 2019. A copy of
that letter is annexed at page 131. There then followed the MCGM
notice of 4th April 2019 to the owner to pull down the structure in
30 days. Again, the MCGM attempted to personally serve the
Petitioners, and again they refused to accept service. Again, this
averment at page 118, paragraph (g) finds no traverse in the Affidavit in
Rejoinder. On account of this non-compliance, the MCGM
disconnected power and water supply. The Petitioners were later
served with a notice dated 30th May 2019 (copy at pages 145 and
146) to be held by the Assistant Commissioner to alert them to the
dangers posed by the structure’s condition, especially in view of the
impending monsoon season. This notice, too, was pasted on the
property.
10. The 4th Petitioner’s Affidavit in Rejoinder does not contain a
specific traverse of the MCGM’s Affidavit in Reply. Instead, what is
alleged is that the entire record of the MCGM is not only false but consists
of a set of fabrications and forgeries. Mr Damani would have it that
these documents show that no notice was ever given to the
Petitioners. It is also alleged that the communication to DARV
Engineers, the Petitioners’ Structural Consultants of the TAC
meeting has been fabricated and is fraudulent. Mr Damani alleges
that this notice was given on WhatsApp and such a novel method of
service cannot be relied on. The Affidavit then alleges that on the
attendance sheet the initials are not those of the representatives of
the DARV Consultants and that there is no signature.
11. In itself, this raises an impermissible factual dispute. In our
limited writ jurisdiction, we cannot go into such disputed questions
of fact. If indeed the Petitioners alleged that everything is fabricated
and forged, this will have to be proved by proper evidence. Prima
facie the contentions do not appear to be correct. Intimation was
given to Mr Ravindra Utagi not by WhatsApp. That was the mode
of communication to the representative of Space Design, one
Harshad Shinde. Ravindra Utagi was given notice at his email
address, darvcpl@gmail.com and the very compilation produced by
Mr Damani itself shows at page 312 that as regards Ravindra Utagi
intimation was given on 7th March 2019 by email at this email
address. Now this is the email address on DARV Engineers’
structural report. More pertinently, this allegation is made without
any disclosed basis by the 4th Petitioner. Mr Ravindra Utagi does
not himself say that he received no notice, that he did not know of
the TAC meeting, that he did not attend it, or that the details on the
attendance sheet including the initial were not made by him. We also
note that the attendance sheet contains Mr Utagi’s mobile number.
This mobile number is not to be found anywhere on DARV
Engineers’ report. Obviously, this could only have been provided by
Utagi himself. As to the attendance sheet, it is true that the
attendance sheet shows only Utagi’s initials and not his full
signature, but that hardly makes a difference. It is not possible for us
to enter into any great forensic handwriting analysis or to decide
whether the letters “R” and “U” in the initials are sufficiently
similar to those in Mr Utagi’s full signature. That is a matter that
clearly requires evidence.
12. Consequently, on facts it is not possible to accept Mr
Damani’s submission that everything in this file is a forgery and has
been got up.
13. In itself this would have been sufficient to dismiss the writ
petition. However, Mr Damani raises three other points and,
therefore, we will proceed to consider them. He first argues that the
chawl, being a ground floor structure with a tiled roof, it is not a
‘building’ within the meaning of the MMC Act. He argues that
since the chawl allegedly has no slab or RCC column or beam and
has only a Mangalore-tile roof and, therefore, too it is not a building.
We do not know where Mr Damani gets this peculiar requirement
from. Certainly there is nothing in the MMC Act to support any
such interpretation. There is simply no substance to this argument.
We only have to look at the definition of ‘building’ in Section 3(s),
set out below, to see at once that the submission needs only to be
stated to be rejected.
(s) “building” includes a house, out-house, stable, shed,
hut, tank (except tank for storage of drinking water in a
building or part of a building) and every other such
structure, whether of masonry, bricks, wood, mud,
metal or any other material whatever;”
(Emphasis added)
14. It also appears to us Mr Damani’s submission that this is not a
‘load-bearing structure’ is based on a fatal misconception about
structural engineering. Every built structure carries loads. This load
or the weight of whatever is above, whether it be a floor or a roof,
may be distributed in a variety of ways. The oldest and perhaps most
common is to distribute the load along outer walls. These may be of
different material. There is absolutely no basis for the statement that
unless there is a concrete beam or a slab, the structure is not ‘a load
bearing structure’. The roof itself is a load and the walls bear its
load. That is sufficient. In any case, Section 354 is not limited to
load-bearing structures. Neither is the definition of a ‘building’,
noted above.
15. The second submission by Mr Damani is that the TAC report
itself is vulnerable for non-application of mind apart from violation
of principles of natural justice. He claims there was never any site
visit by the TAC. Again, this is a factual dispute that we cannot
examine. What Mr Damani forgets is that we are not concerned
with the merits of the decision but only the decision-making
process. Now the TAC report shows quite clearly that it was on
account of the conflicting structural reports obtained by the owner
on the one hand and the Petitioners on the other that a reference
was made to the TAC in accordance with the extant policy. The
TAC also considered the detailed report of the Executive Engineer
of the R/North Ward as also the rival structural reports. Contrary to
the assertions by Mr Damani before us today, the TAC found that
the structure did have load-bearing walls and that these were
severely damaged with cracks in them and an exposure of bricks.
The supporting wooden members were also damaged and cracked.
There were termite problems. The floor tiles were damaged. The
wooden framing of the pitched or sloping roofs was also damaged.
There were open joints and gaps and severe leakages. There was
extreme deterioration of the load bearing members. Considering all
these factors, the TAC concluded that the structure had to be
evacuated. The TAC did note that the structure used brick masonry
as a structural member, but this needed to be tested for strength and
durability. The mortar also had to be checked to ensure that it had
not become brittle. There was no report before the TAC in regard
to serviceability and the wooden structural members were also not
checked. None of the structural engineers had checked the
foundations. With specific reference to the DARV Engineers report,
the TAC noted that the cement sand mortar had deteriorated and
found that it was brown in colour. No component or ingredient of
the cement could reach this colour except when it had deteriorated
due to an admixture of soil or mud and the colour was probably
derived from iron oxides contained in this soil. Not only are all these
technical aspects that we are not entitled to examine in our limited
remit under Article 226 of the Constitution of India, but the weight
of authority is that it is not the province of a court to determine
whether a building subjected to a Section 354 notice is truly
ruinous.
16. The final submission is that the MCGM has violated its own
policy. Again we find this to be incorrect. For the sake of
completeness, we proceed to outline the history and origins of this
policy. While doing so, we will also look at the relevant statutory
provisions, and notice, too, certain recent trends that fall short of
actually constituting any sort of jurisprudence but seem to have
become, nonetheless, common and frequent in such cases relating to
dilapidated buildings.
17. The TAC-reference policy now in place owes its provenance
to a Division Bench order of this Court passed on 23rd June 2014 in
Municipal Corporation of Greater Mumbai v State of Maharashtra and
Ors).1 That order specifically said that, in the absence at that time of
any policy, certain guidelines were necessary. The Court issued
these transitory guidelines, pending the formulation of a policy.
These guidelines required the MCGM to conduct an independent
inspection and assessment before classifying a building as category
C1. A structural audit was required. It was to be taken into account.
The Corporation was to consider structural reports produced by
owners or occupants. If these conflicted with those obtained by the
MCGM or the owners, the Corporation was to refer the case to this
TAC. The TAC was thus set up under this order. It was to be under
the Chairmanship of the Director (ES&P) with at least three other
members viz., the City Engineer, the Chief Engineer (DP) and Chief
Engineer (P&D). The TAC was to make a visual inspection,
consider the rival reports and then form its independent technical
assessment as to whether repairs were possible or not.
1 (2018) 5 AIR Bom R 460 : 2018 SCC Online Bom 816; Writ Petition No.
1080 of 2015.
18. There can be no doubt that guidelines in the 23rd June 2014
order were interim or transitory provisions pending the formulation
by the MCGM of a policy of its own. That Writ Petition (along with
an associated matter) was finally disposed by an order of 28th
February 2018 (AS Oka J as he then was, and RI Chagla J). By this
order the Division Bench accepted the statement made by MCGM
on affidavit. The Bench directed that previous policy guidelines
dealing with ‘C-1’ category buildings would stand modified to the
extent provided in a note dated 22nd February 2018 prepared by the
Chairman of the TAC.
19. We now find that a formal policy or set of guidelines has
thereafter been issued on 25th May 2018. As a general principle we
note that the entire scheme of reference to a TAC was simply to
ensure transparency and accountability in the recommendation and
assessment process of the ultimate fate of structure. The purpose
was, evidently, to ensure that unscrupulous owners or landlords
could not contrive one-sided report to the detriment of lawful
occupants and tenants. Neither the interim provision nor the final
policy was intended to create a separate appellate tribunal or a quasijudicial
authority. The policy itself is clear. It categorizes structures
into those in private hands and those owned by the MCGM. Where
privately owned buildings are more than 30 years old, or where there
are complaints about the condition of a building of less vintage and
the MCGM is of the view, on a visual inspection, that it is indeed
dilapidated, a notice is to be issued requiring the owners, occupiers
or tenants to carry out a structural audit. There are specific tests
mentioned. There are default provisions. The structural audit is to
be made known by displaying it on the premises. Tenants/occupants
who object to the audit are at liberty to obtain their own structural
report within 30 days, which can be extended by another 15 days. If
there are conflicting reports, the matter is referred to the TAC. Its
decision is final and binding. The TAC must give a hearing to the
contesting structural consultants. Then there are a series of steps
set out to be followed if the TAC concludes that the building is
unsafe and needs to be brought down. There are parallel provisions
for MCGM-owned buildings.
20. The process before the TAC is of technical evaluation or an
assessment. No rights of occupants or tenants in respect of the
premises are in any way affected by this process; they cannot be.
This is inter alia because the whole of the TAC edifice is founded on
Section 354 of the MMC Act. This is how that section, as amended,
reads:
354. (1) 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 a 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 may, by
written notice, require the owner or occupier of such
structure to pull down, secure or repair such structure
Subject to the provisions of section 342, of danger
therefrom.
(2) The Commissioner may also if he thinks fit, require
the said owner or occupier, by the said notice, either
forthwith or before proceeding to pull down, secure or
repair the said structure, to set up a proper and sufficient
hoard or fence for the protection of passers by and other
persons, with a convenient platform and hand-rail, if there
be room enough for the same and the Commissioner shall
think the same desirable, to serve as a footway for
passengers outside of such hoard or fence.
(3) It is shall appear to the Commissioner that any
building is dangerous and needs to be pulled down under
sub-section (1), the Commissioner shall call upon the
owner, before issuing notice thereunder, to furnish a
statement in writing signed by the owner stating therein the
names of the occupiers of the building known to him or
from his record, the area in occupation and location of
premises in occupation, possession of each of the respective
occupiers or tenants, as the case may be.
(4) If he fails to furnish the statement as required by subsection
(3) within the stipulated period, then the
Commissioner shall make a list of the occupants of the said
building and carpet area of the premises in their respective
occupation and possession along with the details of
location.
(5) The action taken under this section shall not affect
the inter se rights of the owners or tenants or occupiers,
including right of re-occupation in any manner.
Explanation.— For the purposes of this section, “the
tenant” shall have the same meaning as assigned to it in
clause (15) of section 7 of the Maharashtra Rent Control
Act, 1999”.
21. As sub-section clearly shows, the rights of tenants and
occupants are wholly unaffected by the operation of the Section 354.
This is only logical. There is no warrant in law for the presumption
that if a building is deliberately brought down by human
intervention, this will somehow end all tenancy and occupancy
rights, but that if the building collapses as a result of years of
neglect, these rights are somehow preserved.
22. Indeed, we believe this to be the settled law in regard to
demolition notices including under Section 354 of the MCGM Act.
We are fortified in this view by the observations of a Division Bench
of this Court in a decision rendered nearly half a century ago in
Diwanchand Gupta v NM Shah & Ors.2 There, the Division Bench
had four writ petitions against an order of the Chief Judge of the
Small Causes Court. The litigation was in respect of a notice of 1965
under Section 354 of the MCGM Act 1888 served on owners of a
ground and two floor tenanted building at Clive Road, Danabunder
requiring them to pull the whole structure down to plinth level. The
tenants of course resisted. One of their arguments before the Small
Causes Court was that the demolition order was wholly
unnecessary, and that the entire situation had been contrived by the
owners to get rid of the tenants — precisely the apprehension Mr
Damani voices five decades later. Considering the provisions of the
MCGM Act and particularly Sections 354 to 507, and an earlier
Division Bench decision of this Court in Nathubhai Dhulaji v
Municipal Corporation,3 the Diwanchand Gupta court found no
substance in the opposition to the notice. It said that that all that the
authority had to do was to act bona fide and not capriciously or with
an improper motive. But if the authority considered the facts
objectively, honestly and bona fide, that authority’s satisfaction
2 AIR 1972 Bom 316, KK Desai and GN Vaidya JJ.
3 AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ.
would not be open to challenge. As Nathubhai Dhulaji said, whether
or not a building should be repaired or pulled down is a matter of
which the authority was the sole judge. So long as the empowered
agency confined himself to the limits of the statutory power
conferred by Section 354, the discretion in that section did not lend
itself to interference. The Diwanchand Gupta Division Bench said it
was bound by the previous decision in Nathubhai Dhulaji. So are we.
For, as the Division Bench observed in Diwanchand Gupta, the
satisfaction on facts is that of the authorized officer under Section
354. It is not open to the Court (or any other authority), unless
empowered by law to sit in judgment over that satisfaction, i.e. to
substitute that opinion with its own. For, the power conferred under
Section 354 is a power manifestly in the public interest. It is also a
reasonable restriction on the right to carry on trade or business
within the meaning of Article 19(1)(g) read with Article 19(6) of the
Constitution, since the latter empowers the State to make any law
imposing, in the interests of the general public, reasonable
restrictions. It is never for the Court to satisfy itself whether the
building was in a dangerous condition when the notice was issued.
Thus, absent a clear demonstration of abuse of discretion, mala
fides, caprice or perversity, a Court will not interfere to set aside
such a notice. It is not done for the asking. It is certainly not done
because an alternative view may be possible, or is one that some
occupants find more palatable. It is, therefore, never for a court to
decide whether a building is actually so ruinous as to require its
demolition.
23. We believe we would do well to remind ourselves, and parties
who petition us, of the half-century of wisdom in Diwanchand
Gupta. It has stood the test of time. We ignore its words at our peril.
Here, too, we are being asked in exercise of our discretion under
Article 226 of the Constitution of India to decide whether the
building is truly ruinous.
24. Equally therefore, any apprehensions that the Petitioners’
‘rights’ in the property will somehow be obliterated along with the
building’s demolition are without basis. The same apprehension was
expressed in Diwanchand Gupta. Nearly 50 years ago, the same
argument was found to be without merit. Five decades have lent it
no heft. It is still without merit.
25. Therefore, the remedies of such tenants or occupants vis-Ã vis
their tenancies or occupancies lie elsewhere. In any case, it
should be evident that continuing in occupation of a ruinous and
dangerous building does nothing at all to safeguard those rights. In
saying this, we are mindful of the distinction drawn by the Supreme
Court in Vannattankandy Ibrayi v Kunhabdulla Hajee4 in the context
of the extinguishing of a tenancy. Noticing Section 108(B)(e) of the
Transfer of Property Act, 1882, the Supreme Court held that
provision, which give the lessee the option of voiding the lease in the
event the premises are destroyed by natural calamity, would have no
application where built premises are fully controlled by a complete
rent control legislation. In fact, we find the decision in Ibrayi
supports our view. In that case, the structure in which the tenanted
premises existed (a shop) was destroyed by fire. Claiming that the
4 (2001) 1 SCC 564 : AIR 2003 SC 4453; That Section 108(B)(e) applies
to leases of land is well settled: see Raja Dhruv Chand v Raja Harmohinder Singh,
AIR 1968 SC 1024.
tenancy continued even though the premises no longer existed, the
erstwhile tenant constructed a new shop on the now-empty land
without the landlord’s permission. The Supreme Court held that
this could not be done. The local rent control legislation fully
occupied the field. It was a self-contained code. There was no scope
for invoking Section 108(B)(e) of the Transfer of Property Act. The
word tenancy could not be held to mean that the tenant would be
entitled to squat on open land in expectation of occupying any new
structure put up by the landlord. However, it is an entirely different
situation where a landlord himself pulls down a building governed by the
State Rent Act. In our case, resort may be had in such a situation to
Section 19, 20 and 21 of the Maharashtra Rent Control Act, 1999. In
any case, Section 354(5), quoted above, makes specific provision to
save tenancy rights in the case of demolition.
26. The Petitioners’ argument also entirely overlooks the 28th
February 2018 decision of AS Oka J (as he then was) and RI Chagla
J in MCGM v State, mentioned earlier. That final judgment set out
in great detail the various statutory provisions of the MCGM Act as
also the corresponding provisions of the Maharashtra Municipal
Corporations Act, 1949. We are in entire agreement with the
findings returned by the Division Bench on 28th February 2018.
The Division Bench referred to the Supreme Court decision in
Makarand Dattatreya Sugavkar v. Municipal Corporation of Greater
Mumbai,5 and relied on paragraphs 19 and 20 of the Supreme Court
decision. We, too, draw support from paragraph 20 of the Supreme
Court decision that the Division Bench quoted: the primary object
of Section 354 is to protect the public at large and passers-by from
5 (2013) 9 SCC 136.
the danger posed by buildings in so ruinous a state. It is not the
prerogative, but the statutory duty of the Corporation to implement
a Section 354 notice in letter and spirit. That duty is in the nature of
a public law obligation. In a given case, the Court can compel it. As
the Division Bench in MCGM v State noted, this element of public
duty cast on officials by Section 354 has been repeatedly emphasized
by this Court. MCGM v State, paragraphs 18–20, supra. See also: Tadeshwar Wadi Cooperative
Housing Society Ltd v State of Maharashtra & Ors, 2013 (2) Mh LJ 681.
27. We turn now to some other facets of what has virtually
become a ‘dilapidated building jurisprudence’, at least in this Court.
28. First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.
(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain
the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is
contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.
30. To our mind, the principle, succinctly summarised in York
Corporation v Henry Leetham & Sons Ltd,7 a decision of the Chancery
Court summarised below, fully applies to the present position of the
MMC. In the case before the Chancery Division, York Corporation
was by statute entrusted with the control and management of the
Rivers Ouse and Foss in Yorkshire. It could charge tolls, within
limits, as it deemed necessary to carry on the two navigations in
which the public had an indubitable interest. In 1888, the
corporation entered into two agreements with the firm of Henry
Leetham & Sons. These allowed the firm and its successors and
assigns to transport cargo on the River Ouse for a monthly fee in
place of authorised dues and charges, with an agreement for a
refund to the firm of the difference between the annual fee and the
ordinary charges. The River Foss agreement was one by which the
firm covenanted to pay the corporation £200 per annum for 20 years
as a composition for the ordinary tolls, in exchange for free use of
that waterway. York Corporation sued for a declaration that the two
7 [1924] 1 Ch 557.
agreements were illegal and invalid being ultra vires. The Chancery
Court held for the corporation, saying that:
no matter what emergency might arise, it had disabled itself
from exercising its statutory powers ...
Disposing of the witness action before him, Russell J held that no
body charged with statutory powers for public purposes may divest
itself of such powers or fetter itself in the use of such powers. He
said:
As I have already indicated, the plaintiffs are invested with
statutory powers of charging such tolls, within limits, as
they may deem necessary for the purpose of carrying on
these two undertakings in which the public are interested.
The effect of these two agreements is that they bind
themselves for a period, the duration of which depends
upon the volition of the defendants, not to exercise those
powers as against them. No matter what emergency may
arise during the currency of the agreements the
Corporation have deprived themselves of the power to
charge the defendants such increased tolls as might enable
them to cope with the emergency. They have for so long a
time as the defendants desire to that extent wiped out or
fettered their statutory power. If that be, as I think it is, the
effect of these agreements, they are, in my opinion,
agreements which are ultra vires the Corporation.
31. The second aspect is the trend of making an order directing
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case
of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.
32. We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.
dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).
33. It is now clear that a Court is not permitted or even capable of
determining whether a building is truly so ruinous as to warrant its
demolition. We do not assess the structural condition of the building
(and the chawl in question is very much a ‘building’), or its
structural vulnerability. We only assess the vulnerability in law of
demolition notices or the TAC recommendation or order. In other
words, we address ourselves not to the decision itself, but to the
process by which it was reached. We do not suggest that the mere
age of a structure invariably and unquestionably means that it is
‘ruinous’ or dilapidated. By that reasoning, the High Court building,
which is 150 years old, or other heritage structures such as CST
railway station or the Mumbai University’s Fort campus would all
be deemed to be in imminent danger of collapse. They are not. But
even these buildings, like all built structures, require periodic and
timely intervention for their preservation and upkeep. There are
several buildings in the Island City that have been well-maintained
for decades, or have been restored and do not pose a danger. Should
any of these buildings, in demonstrably good condition, be subjected
to such a demolition notice, a Court will have no hesitation in
concluding that the decision is perverse. But that perversity has to
be shown. It is not to be assumed. Therefore, when there is material
available to show deterioration, and the lack of timely and periodic
maintenance and repairs over time, the writ Court will be slow to
interfere without clear demonstration and proof of mala fides,
arbitrariness and perversity.
34. It follows therefore that without a clear and specific prima
facie finding that the TAC order or a take-down notice are vitiated
for the reasons we have mentioned earlier (arbitrariness, perversity,
or mala fides), no pro tem order of status quo is ever legitimate or
permissible. Consequently, it is our considered view that there is no
scope whatsoever in the context of a dilapidated building subjected
to a Section 354 notice for passing or continuing any such order of
status quo (whether or not subject to any undertaking).
35. Lastly, we reiterate that it is not in every case that the
intervention of the Court can be sought. Unless a Petition makes out
sufficient cause for interference on one or more of the grounds that
we have indicated earlier in this order, in our view a High Court is
not entitled to intervene in exercise of its limited jurisdiction under
Article 226 of the Constitution of India. To put it differently, in
exercise of this limited jurisdiction the High Court cannot substitute
its view for the technical view of the members of the TAC. It is only
where that TAC is clearly demonstrated to have acted arbitrarily,
mala fide, or in a manner that is can fairly said to be perverse i.e. by
passing an order that is implausible or one that no reasonable or
rational person could ever take, that this Court will intervene.
36. This is also, incidentally, not a question of deciding whether
the TAC is a purely administrative body (it is) or a quasi-judicial one
(it is not), for in going about its business, the TAC never determines
any of the legally enforceable rights of any tenant or occupant.
Those are fully protected in law. There is, therefore, also no
necessity of entering into any larger controversy regarding the
powers of the TAC, whether these are administrative or quasijudicial,
or for a more detailed scrutiny of the law on this aspect
from AK Kraipak v Union of India10 onwards. As we have noted, the
TAC was brought into being as a transitory measure absent a policy
at that time, to allay fears and ensure greater transparency and
accountability, as an inbuilt balance on factual and technical matters.
37. We note that in paragraphs 2 to 5 of its 28th February 2018
judgment in MCGM v State, citing the Supreme Court decision in
Census Commissioner v R Krishnamurthy,11 the Division Bench
disapproved of the previous attempt at judicial legislation by the
23rd June 2014 order. We are in entire agreement with those
observations made on 28th February 2018. As the Division Bench
said on 28th February 2018, no one has ever challenged that policy.
It is also clear that no so-called ‘policy’ (which is, in fact, nothing
but a set of guidelines) can over-ride the statute under which it is
framed. Having regard to the settled law, therefore, these guidelines
cannot confer a right, let alone a legally enforceable right, beyond
10 (1969) 2 SCC 262.
11 (2015) 2 SCC 796.
the provisions of the parent statute. These guidelines are, at the
highest, an administrative smoothening for greater efficiency,
transparency and to provide a fail-safe, and nothing more. They are
meant to ensure that the statutory power is not exercised arbitrarily,
i.e. that the demolition order is not contrived without sufficient
basis.
38. As to Mr Damani’s submission that there is no risk to any
others because there is no one who passes by this building, we find
that to be wholly irrelevant. This submission assumes that there will
never be any development or construction in the proximity or
vicinity of this chawl in future as well. This assumption is simply too
risky to accept, particularly in a city like Mumbai. In any case, the
MCGM as a planning authority must have regard not only to third
parties but also to the occupants themselves.
39. It is in these circumstances that we are not unable to find any
merit whatsoever in this writ petition. It is rejected. There will be
order as to costs.
(S.C. DHARMADHIKARI, J)
(G. S. PATEL, J)
Print Page
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case
of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.
We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.
dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019
Mahendra Bhalchandra Shah Vs Municipal Corporation of
Grater bombay
CORAM : S. C. Dharmadhikari & G.S.Patel, JJ.
DATED : 24TH JUNE 2019
1. We have heard Mr Damani for the Petitioners at great length
in this writ petition under Article 226 of the Constitution of India.
We have also heard Mr Sakhare, learned Senior Counsel, for the
Municipal Corporation of Greater Mumbai (“MCGM”) and its
officers, Respondents Nos. 1 to 4. With the assistance of appearing
counsel, we have carefully considered the materials on record. For
the reasons that follow, we are not inclined to grant the Petitioners
relief. We have rejected the writ petition.
2. The facts are few, and quickly noticed. The five Petitioners
claim to be tenants in occupation for nearly three decades of
tenements in a ground floor chawl called the Lalji Vanmali Chawl at
CTS No. 118 (pt) at Bapu Bagwe Marg, Village Dahisar, Taluka
Borivali, Mumbai. These tenements, the Petitioners say, are seven
structures with 16 rooms. The structures have pitched roofs covered
with Mangalore tiles. We note this because Mr Damani based at
least one argument on the built form of these structures. We will
turn to that presently.
3. In 2006, the 6th Respondent, Nikunj Realtors, said to be a
firm of developers, acquired the plot on which these structures
stand. The previous developer, Model Construction, had
constructed two buildings called Maheshwar-I and Maheshwar-II
here. The original owner was one Rambhabai Vanmali. She gave
powers of attorney to these developers. In 2006, Model
Construction is said to have in some way transferred its rights to the
remaining development to the Nikunj Realtors, which used to
collect rent from the Petitioners. Some of the earlier occupants or
tenants of this chawl were shifted to Maheshwar-I and Maheshwar-
II. These Petitioners remained. They say they were never
approached for re-accommodation. By 2006, there are said to have
been only 10 tenants continuing in this chawl. In 2018, Nikunj
Realtors apparently struck some sort of deal with some of these 10
tenants and took over three tenanted premises. These were
demolished. The Petitioners and their structures remained on site.
We are not concerned with any contractual dealings between Nikunj
Realtors and the Petitioners.
4. The petition says that a notice dated 19th December 2018 was
pasted by officers of the MCGM on the chawl in question. That
notice said the chawl was dangerous, and categorised by the MCGM
as ‘C-1’, i.e. in imminent danger of collapse and therefore requiring
urgent intervention. This, according to the Petitioners in paragraph
7, meant propping. The notice also said that if the tenants and
occupants did not agree with this structural assessment, they could
submit their own consultants’ structural report within 30 days. The
Petitioners say they did get the structure or structures
independently assessed by one DARV Engineers and Consultants
Pvt Ltd (“DARV Engineers”) on 27th December 2018. This was
forwarded to the MCGM on 17th January 2019 by the Petitioners’
advocate. The Petitioners claim they received no response. They
were not told that the matter had been referred to the MCGM’s
Technical Advisory Committee or TAC. According to the
Petitioners, there was no further action. Instead, they say, the
MCGM abruptly and without forewarning issued a notice dated 4th
April 2019 under Section 354 of the Mumbai Municipal Corporation
Act, 1888 (“the MMC Act”) and had it pasted on the site. There
was no individual notice. The Petitioners’ advocate wrote to the
MCGM on 18th April 2019, drawing attention to the DARV
Engineers’ report, demanding a reference to the TAC and asking for
the date of the TAC meeting. According to the Petitioners, there is
no reply to this either.
5. On 31st May 2019, the MCGM put up a board saying that the
chawl (described as a ‘building’) was declared to be in the ‘C-1’
category, and that the occupants would be evacuated on account of
the danger to life and property that the dilapidated and ruinous
condition of the structure posed. There is an allegation in paragraph
11 that some site meeting was proposed, but since this is
undocumented, it need not delay us any further.
6. According to the Petitioners, there followed yet another
notice, now dated 3rd June 2019. This was addressed to the owner,
Rambhabai Lalji Vanmalidas. It threatened disconnection of water
and power supply. The Petitioners say they were given no notice of
this threatened disconnection. On 6th June 2019, say the
Petitioners, a MCGM officer arrived on site with a team and forcibly
cut off the water and power supply.
7. Hence this petition. What the Petitioners seek is a quashing of
all these notices and evacuation orders by a writ of certiorari; then a
writ of mandamus to restore the water and power supply; and
interim reliefs pending the petition.
8. The matter was listed on 14th June 2019. At that time, there
was no Affidavit in Reply from the MCGM. We were shown a report
of the TAC meeting. There was also an attendance sheet. One of the
persons said to have been in attendance at the TAC meeting was one
Ravindra Utagi of DARV Consultants, the consultancy engaged by
the Petitioners. Utagi was said to have signed the attendance sheet.
Noting this, we called for an affidavit with the relevant documents
from the MCGM. There is now such an affidavit dated 19th June
2019. Mr Damani has, in response, prepared a bulky Affidavit in
Rejoinder affirmed on 20th June 2019 by the 4th Petitioner. It is said
to have a compilation of documents obtained by the Petitioners
under the Right to Information Act.
9. We will first take up the MCGM affidavit. It is filed by one
Rohan Nipunte, the Assistant Engineer (R/N) Ward, Building &
Factory Department. He is present in court today. In this affidavit,
while he accepts that the chawl is a ground floor structure with a
Mangalore-tiled pitched roof of 16 tenements, he says on visual
inspection this was found to be in bad structural condition.
Therefore, the MCGM issued its letter of 3rd December 2018
calling on the owner and occupants to carry out a structural audit.
He says the owner did so, and submitted a report dated 10th
December 2018 of Space Design & Development, a structural
consultancy. This report said the chawl was too dilapidated to be
repaired. Incidentally, we note that there is no dispute that the
structure in question dates back to about 1960, i.e. it is nearly sixty
years old. Then Nipunte refers to certain policy guidelines, to which
we will turn shortly, to say that the MCGM issued a public notice
calling for propping as an interim measure, and giving time to the
occupants to produce their own structural assessment report. He
says the Petitioners refused to accept personal service of this notice,
and hence it was pasted. There is absolutely no traverse of this
averment in the Affidavit in Rejoinder. On receiving the DARV
Engineers report from the Petitioners, contending that the structure
could be repaired and was therefore a ‘C-3’ category structure, and
since this report conflicted with the Space Design report submitted
by the owner, the matter was referred to the TAC under the extant
policy. The TAC inspected the site on 6th March 2019. It held a
hearing on 15th March 2019 at 12 noon in the chamber of the TAC
Chairman. Representatives of both Space Design and DARV
Engineers were present. The latter was represented by Ravindra
Utagi. He was informed of the meeting by email sent to the email id
or address on the cover of his report. After hearing both sides, and
considering both reports, the TAC concluded that the Space Design
report was more accurate and acceptable. It therefore recommended
that the structure be placed in the ‘C-1’ category and be brought
down. The TAC report was sent to both structural engineers (i.e.
Space Design and DARV Engineers) on 1st April 2019. A copy of
that letter is annexed at page 131. There then followed the MCGM
notice of 4th April 2019 to the owner to pull down the structure in
30 days. Again, the MCGM attempted to personally serve the
Petitioners, and again they refused to accept service. Again, this
averment at page 118, paragraph (g) finds no traverse in the Affidavit in
Rejoinder. On account of this non-compliance, the MCGM
disconnected power and water supply. The Petitioners were later
served with a notice dated 30th May 2019 (copy at pages 145 and
146) to be held by the Assistant Commissioner to alert them to the
dangers posed by the structure’s condition, especially in view of the
impending monsoon season. This notice, too, was pasted on the
property.
10. The 4th Petitioner’s Affidavit in Rejoinder does not contain a
specific traverse of the MCGM’s Affidavit in Reply. Instead, what is
alleged is that the entire record of the MCGM is not only false but consists
of a set of fabrications and forgeries. Mr Damani would have it that
these documents show that no notice was ever given to the
Petitioners. It is also alleged that the communication to DARV
Engineers, the Petitioners’ Structural Consultants of the TAC
meeting has been fabricated and is fraudulent. Mr Damani alleges
that this notice was given on WhatsApp and such a novel method of
service cannot be relied on. The Affidavit then alleges that on the
attendance sheet the initials are not those of the representatives of
the DARV Consultants and that there is no signature.
11. In itself, this raises an impermissible factual dispute. In our
limited writ jurisdiction, we cannot go into such disputed questions
of fact. If indeed the Petitioners alleged that everything is fabricated
and forged, this will have to be proved by proper evidence. Prima
facie the contentions do not appear to be correct. Intimation was
given to Mr Ravindra Utagi not by WhatsApp. That was the mode
of communication to the representative of Space Design, one
Harshad Shinde. Ravindra Utagi was given notice at his email
address, darvcpl@gmail.com and the very compilation produced by
Mr Damani itself shows at page 312 that as regards Ravindra Utagi
intimation was given on 7th March 2019 by email at this email
address. Now this is the email address on DARV Engineers’
structural report. More pertinently, this allegation is made without
any disclosed basis by the 4th Petitioner. Mr Ravindra Utagi does
not himself say that he received no notice, that he did not know of
the TAC meeting, that he did not attend it, or that the details on the
attendance sheet including the initial were not made by him. We also
note that the attendance sheet contains Mr Utagi’s mobile number.
This mobile number is not to be found anywhere on DARV
Engineers’ report. Obviously, this could only have been provided by
Utagi himself. As to the attendance sheet, it is true that the
attendance sheet shows only Utagi’s initials and not his full
signature, but that hardly makes a difference. It is not possible for us
to enter into any great forensic handwriting analysis or to decide
whether the letters “R” and “U” in the initials are sufficiently
similar to those in Mr Utagi’s full signature. That is a matter that
clearly requires evidence.
12. Consequently, on facts it is not possible to accept Mr
Damani’s submission that everything in this file is a forgery and has
been got up.
13. In itself this would have been sufficient to dismiss the writ
petition. However, Mr Damani raises three other points and,
therefore, we will proceed to consider them. He first argues that the
chawl, being a ground floor structure with a tiled roof, it is not a
‘building’ within the meaning of the MMC Act. He argues that
since the chawl allegedly has no slab or RCC column or beam and
has only a Mangalore-tile roof and, therefore, too it is not a building.
We do not know where Mr Damani gets this peculiar requirement
from. Certainly there is nothing in the MMC Act to support any
such interpretation. There is simply no substance to this argument.
We only have to look at the definition of ‘building’ in Section 3(s),
set out below, to see at once that the submission needs only to be
stated to be rejected.
(s) “building” includes a house, out-house, stable, shed,
hut, tank (except tank for storage of drinking water in a
building or part of a building) and every other such
structure, whether of masonry, bricks, wood, mud,
metal or any other material whatever;”
(Emphasis added)
14. It also appears to us Mr Damani’s submission that this is not a
‘load-bearing structure’ is based on a fatal misconception about
structural engineering. Every built structure carries loads. This load
or the weight of whatever is above, whether it be a floor or a roof,
may be distributed in a variety of ways. The oldest and perhaps most
common is to distribute the load along outer walls. These may be of
different material. There is absolutely no basis for the statement that
unless there is a concrete beam or a slab, the structure is not ‘a load
bearing structure’. The roof itself is a load and the walls bear its
load. That is sufficient. In any case, Section 354 is not limited to
load-bearing structures. Neither is the definition of a ‘building’,
noted above.
15. The second submission by Mr Damani is that the TAC report
itself is vulnerable for non-application of mind apart from violation
of principles of natural justice. He claims there was never any site
visit by the TAC. Again, this is a factual dispute that we cannot
examine. What Mr Damani forgets is that we are not concerned
with the merits of the decision but only the decision-making
process. Now the TAC report shows quite clearly that it was on
account of the conflicting structural reports obtained by the owner
on the one hand and the Petitioners on the other that a reference
was made to the TAC in accordance with the extant policy. The
TAC also considered the detailed report of the Executive Engineer
of the R/North Ward as also the rival structural reports. Contrary to
the assertions by Mr Damani before us today, the TAC found that
the structure did have load-bearing walls and that these were
severely damaged with cracks in them and an exposure of bricks.
The supporting wooden members were also damaged and cracked.
There were termite problems. The floor tiles were damaged. The
wooden framing of the pitched or sloping roofs was also damaged.
There were open joints and gaps and severe leakages. There was
extreme deterioration of the load bearing members. Considering all
these factors, the TAC concluded that the structure had to be
evacuated. The TAC did note that the structure used brick masonry
as a structural member, but this needed to be tested for strength and
durability. The mortar also had to be checked to ensure that it had
not become brittle. There was no report before the TAC in regard
to serviceability and the wooden structural members were also not
checked. None of the structural engineers had checked the
foundations. With specific reference to the DARV Engineers report,
the TAC noted that the cement sand mortar had deteriorated and
found that it was brown in colour. No component or ingredient of
the cement could reach this colour except when it had deteriorated
due to an admixture of soil or mud and the colour was probably
derived from iron oxides contained in this soil. Not only are all these
technical aspects that we are not entitled to examine in our limited
remit under Article 226 of the Constitution of India, but the weight
of authority is that it is not the province of a court to determine
whether a building subjected to a Section 354 notice is truly
ruinous.
16. The final submission is that the MCGM has violated its own
policy. Again we find this to be incorrect. For the sake of
completeness, we proceed to outline the history and origins of this
policy. While doing so, we will also look at the relevant statutory
provisions, and notice, too, certain recent trends that fall short of
actually constituting any sort of jurisprudence but seem to have
become, nonetheless, common and frequent in such cases relating to
dilapidated buildings.
17. The TAC-reference policy now in place owes its provenance
to a Division Bench order of this Court passed on 23rd June 2014 in
Municipal Corporation of Greater Mumbai v State of Maharashtra and
Ors).1 That order specifically said that, in the absence at that time of
any policy, certain guidelines were necessary. The Court issued
these transitory guidelines, pending the formulation of a policy.
These guidelines required the MCGM to conduct an independent
inspection and assessment before classifying a building as category
C1. A structural audit was required. It was to be taken into account.
The Corporation was to consider structural reports produced by
owners or occupants. If these conflicted with those obtained by the
MCGM or the owners, the Corporation was to refer the case to this
TAC. The TAC was thus set up under this order. It was to be under
the Chairmanship of the Director (ES&P) with at least three other
members viz., the City Engineer, the Chief Engineer (DP) and Chief
Engineer (P&D). The TAC was to make a visual inspection,
consider the rival reports and then form its independent technical
assessment as to whether repairs were possible or not.
1 (2018) 5 AIR Bom R 460 : 2018 SCC Online Bom 816; Writ Petition No.
1080 of 2015.
18. There can be no doubt that guidelines in the 23rd June 2014
order were interim or transitory provisions pending the formulation
by the MCGM of a policy of its own. That Writ Petition (along with
an associated matter) was finally disposed by an order of 28th
February 2018 (AS Oka J as he then was, and RI Chagla J). By this
order the Division Bench accepted the statement made by MCGM
on affidavit. The Bench directed that previous policy guidelines
dealing with ‘C-1’ category buildings would stand modified to the
extent provided in a note dated 22nd February 2018 prepared by the
Chairman of the TAC.
19. We now find that a formal policy or set of guidelines has
thereafter been issued on 25th May 2018. As a general principle we
note that the entire scheme of reference to a TAC was simply to
ensure transparency and accountability in the recommendation and
assessment process of the ultimate fate of structure. The purpose
was, evidently, to ensure that unscrupulous owners or landlords
could not contrive one-sided report to the detriment of lawful
occupants and tenants. Neither the interim provision nor the final
policy was intended to create a separate appellate tribunal or a quasijudicial
authority. The policy itself is clear. It categorizes structures
into those in private hands and those owned by the MCGM. Where
privately owned buildings are more than 30 years old, or where there
are complaints about the condition of a building of less vintage and
the MCGM is of the view, on a visual inspection, that it is indeed
dilapidated, a notice is to be issued requiring the owners, occupiers
or tenants to carry out a structural audit. There are specific tests
mentioned. There are default provisions. The structural audit is to
be made known by displaying it on the premises. Tenants/occupants
who object to the audit are at liberty to obtain their own structural
report within 30 days, which can be extended by another 15 days. If
there are conflicting reports, the matter is referred to the TAC. Its
decision is final and binding. The TAC must give a hearing to the
contesting structural consultants. Then there are a series of steps
set out to be followed if the TAC concludes that the building is
unsafe and needs to be brought down. There are parallel provisions
for MCGM-owned buildings.
20. The process before the TAC is of technical evaluation or an
assessment. No rights of occupants or tenants in respect of the
premises are in any way affected by this process; they cannot be.
This is inter alia because the whole of the TAC edifice is founded on
Section 354 of the MMC Act. This is how that section, as amended,
reads:
354. (1) 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 a 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 may, by
written notice, require the owner or occupier of such
structure to pull down, secure or repair such structure
Subject to the provisions of section 342, of danger
therefrom.
(2) The Commissioner may also if he thinks fit, require
the said owner or occupier, by the said notice, either
forthwith or before proceeding to pull down, secure or
repair the said structure, to set up a proper and sufficient
hoard or fence for the protection of passers by and other
persons, with a convenient platform and hand-rail, if there
be room enough for the same and the Commissioner shall
think the same desirable, to serve as a footway for
passengers outside of such hoard or fence.
(3) It is shall appear to the Commissioner that any
building is dangerous and needs to be pulled down under
sub-section (1), the Commissioner shall call upon the
owner, before issuing notice thereunder, to furnish a
statement in writing signed by the owner stating therein the
names of the occupiers of the building known to him or
from his record, the area in occupation and location of
premises in occupation, possession of each of the respective
occupiers or tenants, as the case may be.
(4) If he fails to furnish the statement as required by subsection
(3) within the stipulated period, then the
Commissioner shall make a list of the occupants of the said
building and carpet area of the premises in their respective
occupation and possession along with the details of
location.
(5) The action taken under this section shall not affect
the inter se rights of the owners or tenants or occupiers,
including right of re-occupation in any manner.
Explanation.— For the purposes of this section, “the
tenant” shall have the same meaning as assigned to it in
clause (15) of section 7 of the Maharashtra Rent Control
Act, 1999”.
21. As sub-section clearly shows, the rights of tenants and
occupants are wholly unaffected by the operation of the Section 354.
This is only logical. There is no warrant in law for the presumption
that if a building is deliberately brought down by human
intervention, this will somehow end all tenancy and occupancy
rights, but that if the building collapses as a result of years of
neglect, these rights are somehow preserved.
22. Indeed, we believe this to be the settled law in regard to
demolition notices including under Section 354 of the MCGM Act.
We are fortified in this view by the observations of a Division Bench
of this Court in a decision rendered nearly half a century ago in
Diwanchand Gupta v NM Shah & Ors.2 There, the Division Bench
had four writ petitions against an order of the Chief Judge of the
Small Causes Court. The litigation was in respect of a notice of 1965
under Section 354 of the MCGM Act 1888 served on owners of a
ground and two floor tenanted building at Clive Road, Danabunder
requiring them to pull the whole structure down to plinth level. The
tenants of course resisted. One of their arguments before the Small
Causes Court was that the demolition order was wholly
unnecessary, and that the entire situation had been contrived by the
owners to get rid of the tenants — precisely the apprehension Mr
Damani voices five decades later. Considering the provisions of the
MCGM Act and particularly Sections 354 to 507, and an earlier
Division Bench decision of this Court in Nathubhai Dhulaji v
Municipal Corporation,3 the Diwanchand Gupta court found no
substance in the opposition to the notice. It said that that all that the
authority had to do was to act bona fide and not capriciously or with
an improper motive. But if the authority considered the facts
objectively, honestly and bona fide, that authority’s satisfaction
2 AIR 1972 Bom 316, KK Desai and GN Vaidya JJ.
3 AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ.
would not be open to challenge. As Nathubhai Dhulaji said, whether
or not a building should be repaired or pulled down is a matter of
which the authority was the sole judge. So long as the empowered
agency confined himself to the limits of the statutory power
conferred by Section 354, the discretion in that section did not lend
itself to interference. The Diwanchand Gupta Division Bench said it
was bound by the previous decision in Nathubhai Dhulaji. So are we.
For, as the Division Bench observed in Diwanchand Gupta, the
satisfaction on facts is that of the authorized officer under Section
354. It is not open to the Court (or any other authority), unless
empowered by law to sit in judgment over that satisfaction, i.e. to
substitute that opinion with its own. For, the power conferred under
Section 354 is a power manifestly in the public interest. It is also a
reasonable restriction on the right to carry on trade or business
within the meaning of Article 19(1)(g) read with Article 19(6) of the
Constitution, since the latter empowers the State to make any law
imposing, in the interests of the general public, reasonable
restrictions. It is never for the Court to satisfy itself whether the
building was in a dangerous condition when the notice was issued.
Thus, absent a clear demonstration of abuse of discretion, mala
fides, caprice or perversity, a Court will not interfere to set aside
such a notice. It is not done for the asking. It is certainly not done
because an alternative view may be possible, or is one that some
occupants find more palatable. It is, therefore, never for a court to
decide whether a building is actually so ruinous as to require its
demolition.
23. We believe we would do well to remind ourselves, and parties
who petition us, of the half-century of wisdom in Diwanchand
Gupta. It has stood the test of time. We ignore its words at our peril.
Here, too, we are being asked in exercise of our discretion under
Article 226 of the Constitution of India to decide whether the
building is truly ruinous.
24. Equally therefore, any apprehensions that the Petitioners’
‘rights’ in the property will somehow be obliterated along with the
building’s demolition are without basis. The same apprehension was
expressed in Diwanchand Gupta. Nearly 50 years ago, the same
argument was found to be without merit. Five decades have lent it
no heft. It is still without merit.
25. Therefore, the remedies of such tenants or occupants vis-Ã vis
their tenancies or occupancies lie elsewhere. In any case, it
should be evident that continuing in occupation of a ruinous and
dangerous building does nothing at all to safeguard those rights. In
saying this, we are mindful of the distinction drawn by the Supreme
Court in Vannattankandy Ibrayi v Kunhabdulla Hajee4 in the context
of the extinguishing of a tenancy. Noticing Section 108(B)(e) of the
Transfer of Property Act, 1882, the Supreme Court held that
provision, which give the lessee the option of voiding the lease in the
event the premises are destroyed by natural calamity, would have no
application where built premises are fully controlled by a complete
rent control legislation. In fact, we find the decision in Ibrayi
supports our view. In that case, the structure in which the tenanted
premises existed (a shop) was destroyed by fire. Claiming that the
4 (2001) 1 SCC 564 : AIR 2003 SC 4453; That Section 108(B)(e) applies
to leases of land is well settled: see Raja Dhruv Chand v Raja Harmohinder Singh,
AIR 1968 SC 1024.
tenancy continued even though the premises no longer existed, the
erstwhile tenant constructed a new shop on the now-empty land
without the landlord’s permission. The Supreme Court held that
this could not be done. The local rent control legislation fully
occupied the field. It was a self-contained code. There was no scope
for invoking Section 108(B)(e) of the Transfer of Property Act. The
word tenancy could not be held to mean that the tenant would be
entitled to squat on open land in expectation of occupying any new
structure put up by the landlord. However, it is an entirely different
situation where a landlord himself pulls down a building governed by the
State Rent Act. In our case, resort may be had in such a situation to
Section 19, 20 and 21 of the Maharashtra Rent Control Act, 1999. In
any case, Section 354(5), quoted above, makes specific provision to
save tenancy rights in the case of demolition.
26. The Petitioners’ argument also entirely overlooks the 28th
February 2018 decision of AS Oka J (as he then was) and RI Chagla
J in MCGM v State, mentioned earlier. That final judgment set out
in great detail the various statutory provisions of the MCGM Act as
also the corresponding provisions of the Maharashtra Municipal
Corporations Act, 1949. We are in entire agreement with the
findings returned by the Division Bench on 28th February 2018.
The Division Bench referred to the Supreme Court decision in
Makarand Dattatreya Sugavkar v. Municipal Corporation of Greater
Mumbai,5 and relied on paragraphs 19 and 20 of the Supreme Court
decision. We, too, draw support from paragraph 20 of the Supreme
Court decision that the Division Bench quoted: the primary object
of Section 354 is to protect the public at large and passers-by from
5 (2013) 9 SCC 136.
the danger posed by buildings in so ruinous a state. It is not the
prerogative, but the statutory duty of the Corporation to implement
a Section 354 notice in letter and spirit. That duty is in the nature of
a public law obligation. In a given case, the Court can compel it. As
the Division Bench in MCGM v State noted, this element of public
duty cast on officials by Section 354 has been repeatedly emphasized
by this Court. MCGM v State, paragraphs 18–20, supra. See also: Tadeshwar Wadi Cooperative
Housing Society Ltd v State of Maharashtra & Ors, 2013 (2) Mh LJ 681.
27. We turn now to some other facets of what has virtually
become a ‘dilapidated building jurisprudence’, at least in this Court.
28. First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.
(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain
the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is
contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.
30. To our mind, the principle, succinctly summarised in York
Corporation v Henry Leetham & Sons Ltd,7 a decision of the Chancery
Court summarised below, fully applies to the present position of the
MMC. In the case before the Chancery Division, York Corporation
was by statute entrusted with the control and management of the
Rivers Ouse and Foss in Yorkshire. It could charge tolls, within
limits, as it deemed necessary to carry on the two navigations in
which the public had an indubitable interest. In 1888, the
corporation entered into two agreements with the firm of Henry
Leetham & Sons. These allowed the firm and its successors and
assigns to transport cargo on the River Ouse for a monthly fee in
place of authorised dues and charges, with an agreement for a
refund to the firm of the difference between the annual fee and the
ordinary charges. The River Foss agreement was one by which the
firm covenanted to pay the corporation £200 per annum for 20 years
as a composition for the ordinary tolls, in exchange for free use of
that waterway. York Corporation sued for a declaration that the two
7 [1924] 1 Ch 557.
agreements were illegal and invalid being ultra vires. The Chancery
Court held for the corporation, saying that:
no matter what emergency might arise, it had disabled itself
from exercising its statutory powers ...
Disposing of the witness action before him, Russell J held that no
body charged with statutory powers for public purposes may divest
itself of such powers or fetter itself in the use of such powers. He
said:
As I have already indicated, the plaintiffs are invested with
statutory powers of charging such tolls, within limits, as
they may deem necessary for the purpose of carrying on
these two undertakings in which the public are interested.
The effect of these two agreements is that they bind
themselves for a period, the duration of which depends
upon the volition of the defendants, not to exercise those
powers as against them. No matter what emergency may
arise during the currency of the agreements the
Corporation have deprived themselves of the power to
charge the defendants such increased tolls as might enable
them to cope with the emergency. They have for so long a
time as the defendants desire to that extent wiped out or
fettered their statutory power. If that be, as I think it is, the
effect of these agreements, they are, in my opinion,
agreements which are ultra vires the Corporation.
31. The second aspect is the trend of making an order directing
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case
of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.
32. We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.
dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).
33. It is now clear that a Court is not permitted or even capable of
determining whether a building is truly so ruinous as to warrant its
demolition. We do not assess the structural condition of the building
(and the chawl in question is very much a ‘building’), or its
structural vulnerability. We only assess the vulnerability in law of
demolition notices or the TAC recommendation or order. In other
words, we address ourselves not to the decision itself, but to the
process by which it was reached. We do not suggest that the mere
age of a structure invariably and unquestionably means that it is
‘ruinous’ or dilapidated. By that reasoning, the High Court building,
which is 150 years old, or other heritage structures such as CST
railway station or the Mumbai University’s Fort campus would all
be deemed to be in imminent danger of collapse. They are not. But
even these buildings, like all built structures, require periodic and
timely intervention for their preservation and upkeep. There are
several buildings in the Island City that have been well-maintained
for decades, or have been restored and do not pose a danger. Should
any of these buildings, in demonstrably good condition, be subjected
to such a demolition notice, a Court will have no hesitation in
concluding that the decision is perverse. But that perversity has to
be shown. It is not to be assumed. Therefore, when there is material
available to show deterioration, and the lack of timely and periodic
maintenance and repairs over time, the writ Court will be slow to
interfere without clear demonstration and proof of mala fides,
arbitrariness and perversity.
34. It follows therefore that without a clear and specific prima
facie finding that the TAC order or a take-down notice are vitiated
for the reasons we have mentioned earlier (arbitrariness, perversity,
or mala fides), no pro tem order of status quo is ever legitimate or
permissible. Consequently, it is our considered view that there is no
scope whatsoever in the context of a dilapidated building subjected
to a Section 354 notice for passing or continuing any such order of
status quo (whether or not subject to any undertaking).
35. Lastly, we reiterate that it is not in every case that the
intervention of the Court can be sought. Unless a Petition makes out
sufficient cause for interference on one or more of the grounds that
we have indicated earlier in this order, in our view a High Court is
not entitled to intervene in exercise of its limited jurisdiction under
Article 226 of the Constitution of India. To put it differently, in
exercise of this limited jurisdiction the High Court cannot substitute
its view for the technical view of the members of the TAC. It is only
where that TAC is clearly demonstrated to have acted arbitrarily,
mala fide, or in a manner that is can fairly said to be perverse i.e. by
passing an order that is implausible or one that no reasonable or
rational person could ever take, that this Court will intervene.
36. This is also, incidentally, not a question of deciding whether
the TAC is a purely administrative body (it is) or a quasi-judicial one
(it is not), for in going about its business, the TAC never determines
any of the legally enforceable rights of any tenant or occupant.
Those are fully protected in law. There is, therefore, also no
necessity of entering into any larger controversy regarding the
powers of the TAC, whether these are administrative or quasijudicial,
or for a more detailed scrutiny of the law on this aspect
from AK Kraipak v Union of India10 onwards. As we have noted, the
TAC was brought into being as a transitory measure absent a policy
at that time, to allay fears and ensure greater transparency and
accountability, as an inbuilt balance on factual and technical matters.
37. We note that in paragraphs 2 to 5 of its 28th February 2018
judgment in MCGM v State, citing the Supreme Court decision in
Census Commissioner v R Krishnamurthy,11 the Division Bench
disapproved of the previous attempt at judicial legislation by the
23rd June 2014 order. We are in entire agreement with those
observations made on 28th February 2018. As the Division Bench
said on 28th February 2018, no one has ever challenged that policy.
It is also clear that no so-called ‘policy’ (which is, in fact, nothing
but a set of guidelines) can over-ride the statute under which it is
framed. Having regard to the settled law, therefore, these guidelines
cannot confer a right, let alone a legally enforceable right, beyond
10 (1969) 2 SCC 262.
11 (2015) 2 SCC 796.
the provisions of the parent statute. These guidelines are, at the
highest, an administrative smoothening for greater efficiency,
transparency and to provide a fail-safe, and nothing more. They are
meant to ensure that the statutory power is not exercised arbitrarily,
i.e. that the demolition order is not contrived without sufficient
basis.
38. As to Mr Damani’s submission that there is no risk to any
others because there is no one who passes by this building, we find
that to be wholly irrelevant. This submission assumes that there will
never be any development or construction in the proximity or
vicinity of this chawl in future as well. This assumption is simply too
risky to accept, particularly in a city like Mumbai. In any case, the
MCGM as a planning authority must have regard not only to third
parties but also to the occupants themselves.
39. It is in these circumstances that we are not unable to find any
merit whatsoever in this writ petition. It is rejected. There will be
order as to costs.
(S.C. DHARMADHIKARI, J)
(G. S. PATEL, J)
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