This Court in the case of Mahendra Bhalchandra Shah & Ors. Vs. Municipal Corporation of Greater Bombay & Ors. in Writ Petition (L) No. 1755 of 2019 has set out at length the governing principles, in relation to subject issue;
“(a) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition;
(b) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the field regarding tenancies of built premises in Maharashtra.
(c) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ Court will not prefer the view of one expert over another.
(d) In order to succeed a Petitioner before the Court must be able to show that the impugned action suffers from Wednesbury unreasonableness, (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.) i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoking the doctrine of proportionality. (State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.) In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.
(e) It is never sufficient merely to allege mala fides without particulars. While direct evidence may not always be available as proof of mala fides, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fides are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility. (Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272.) Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and they are made against one who holds an office of responsibility in the administration.(EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579.) Mala fides are the last refuge of a losing litigant. (Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.) Hence, whenever mala fides are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala fides is well settled and we will draw no such general conclusion.
(f) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment. There can be no order of status quo against natural elements. It is one in one thing to direct the parties to a contract to maintain the status quo. This may be an order against one person seeking another's eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.
(g) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself suffers an unfortunate mishap.” {Para 14}
15. The structural audit report of the tenants, landlords and inspection report of the TAC were material considerations, on which the Committee concluded that structure is in ruinous condition and required to be pulled down. This Court in the case of Mahendra Shah (Supra), while dealing with the identical arguments has held that it is not open to the Court, to sit in judgment over that satisfaction of the Technical Advisory Committee i.e. to substitute that opinion with its own.
16. Thus, taking into consideration the material before us, we do not see any reason to reject the conclusion reached by the Technical Advisory Committee. The argument that the notices have been issued at the instance of the landlord in collusion with Municipal Official is without any foundation and no particulars of alleged collusion were furnished to this Court in the pleadings or otherwise. In the circumstances, we do not think that we should afford any challenge to this notice, on this ground.
17. In the case of Makarand Dattatreya Sugavkar Vs. Municipal Corporation of Greater Mumbai and Others : (2013) 9 Supreme Court Cases 136 it is held in paragraph no. 20 that,
“The primary object underlying Section 354 is to safeguard the public from the danger of being forced to live in a structure, which includes any building, wall or other structure and which is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying the same. This section is also intended to protect those who may pass by such structure. A reading of the plain language of Section 489 gives an impression that it is only an enabling provision but if the same is read keeping in view the purpose of its enactment and the setting in which it is placed, it becomes clear that the Commissioner is duty-bound to ensure that the written notice given to the owner or occupier under Section 354(1) is implemented in its letter and spirit. The duty cast upon the Commissioner is in the nature of a public law obligation and in appropriate case, the court can issue direction for its enforcement.”
18. Thus, once it is found that building is in ruinous condition, Corporation owes its duty to take appropriate steps, to ensure and safeguard the public from likely danger. It is to be noted that when there are conflicting opinions of experts opining that the building structure should be pulled down or removed, such opinion cannot be discarded because the primary object of Section 354 is to protect the public at large and the passerby, of a building, which is in ruinous state.
Bombay High Court
JUSTICE SANDEEP K. SHINDE JUSTICE S. C. DHARMADHIKARI
Richard Gasper Mathias & Ors. Vs. The Municipal Commissioner & Ors.
WRIT PETITION NO. 2108 OF 2018
1st August 2019
Author: Sandeep K. Shinde, J.
Citation: 2019(5) ALL MR 377
1. Rule. Rule made returnable forthwith. With consent of the parties, petition is taken up for final hearing at the admission stage.
2. Petitioners stated that they are the tenants of building known as 'Omar Manzil' situated at Kalina Church Road, Santacruz (East), Mumbai 400029 and petitioner no. 12 is the Society formed by the tenants. Respondent No. 1 is a Municipal Commissioner and Respondents No. 2 and 3 are respectively the Assistant Municipal Commissioner and the Designated Officer of the Mumbai Municipal Corporation's H/ East Ward.
3. This petition impugns a notice under Section 354 and 488 of the Mumbai Municipal Corporation Act, 1888 (for short, “MMC Act”) and the report of Technical Advisory Committee dated 08.11.2017 concerning the building known as 'Omar Manzil' situated at Kalina Church Road, Santacruz (East), Mumbai. Besides, the petitioners are seeking writ, commanding officials of Corporation to grant permission to repair the building at their cost.
4. It is stated in para no. 3 of the petition that the building 'Omar Manzil' is a ground plus three RCC, residentialcumcommercial building with 9 flats and 5 shops, constructed about 40 years ago of which, one Mohd. Yusuf Omar was the owner. It is further stated that Mr. Mohd. Omar sold building to Respondents No. 4 to 8 in the year 2007. Petitioners have placed on record the particulars of the rent (old and revised) for the premises in their occupation. Petitioners stated that though they were paying rent regularly, the landlord neglected to repair the building and failed to keep it in habitable condition and as such in the year 2011 all the tenants expended about 25 lakhs and repaired it. In para no. 6 of the petition, it is stated that Corporation issued a notice to the tenants under Section 354 of the MMC Act on 24.05.2017, without first issuing notice under Section 353-B(3) of the MMC Act. It is further stated that before issuing notice under Section 354 of the MMC Act, the officials of the Corporation are required to inspect the building and if found necessary then issue notice. It is petitioners' contention that the notice under Section 354 is never issued in isolation but Corporation is under obligation to ask the tenants and landlords to conduct structural audit and submit report to the Corporation. It is only after receiving audit report from tenants and landlord, the Corporation is required to place it before The Technical Advisory Committee (TAC). It is stated the Technical Advisory Committee is expected to conduct its own inspections, tests and then decide whether the building is required to be pulled down. It is submitted that having not carried out the exercise, the impugned notice cannot be executed. In para no. 7, it is alleged that the notice dated 24.05.2017 issued under Section 354 of the MMC Act was issued at the behest of the landlord in as much as the notice makes a reference to report submitted by the landlord to the Corporation. It is therefore stated in para no. 7 that the Official of the Corporation, without being satisfied about the condition of the building, mechanically acted upon a report submitted by the landlord and issued notice under Section 354 of MMC Act. It is denied that the building is in ruinous condition and is likely to fall. It is petitioners' case that after receiving impugned notice, they appointed a structural Engineer namely M/s. CSR Consultants and Associates, to conduct structural audit. It is further stated that the audit report prepared by M/s. CSR Consultants and Associates was forwarded to the Corporation on 18.09.2017 and only thereafter the Corporation constituted a Technical Advisory Committee. It is stated that committee members visited building on 07.11.2017 and held a farcical hearing on 08.11.2017.
5. Petitioners, in para no. 8(b) alleged that one of the landlords Mr. Rafiq Khan was a former Municipal Corporator from the ward within which the building falls and he influenced officials of the Corporation, even though he demitted the Corporatorship. It is further alleged that Mr. Rafiq Khan is believed to have gratified the Corporation Officers to persuade them to issue the notice under Section 354 of the MMC Act. In ground no. (h), the petitioners have denied that the building is included in the category C-1. In the aforesaid circumstances, the petitioner approached this Court in December, 2017 and sought reliefs, as stated herein above.
6. On 22.12.2017, when the matter was heard by this Court, the Municipal Commissioner tendered a report dated 08.11.2017 of Technical Advisory Committee and thereafter the petitioners amended the petition and challenged the report of the Technical Advisory Committee and the notice dated 15.12.2017 served under Section 488 of the MMC Act. This Court on the same day i.e. on 22.12.2017 restrained the Corporation from taking further steps on the basis of impugned notice as well as notice dated 15.12.2017 subject to condition of first 14 petitioners filing the undertaking in this Court.
7. Ms. Reshma Ravi, learned counsel for the petitioners submits that since inception, officials of the Corporation acted and initiated to action at the behest of the landlord, as is apparent from the notice dated 24.05.2017 issued under Section 354 of the MMC Act. Learned counsel has taken us through first para of the notice, which reads as under :-
“WHEREAS it appears as per audit report submitted by you that the building known as “Umar Manzil”, is situated at Kalina Kurla Road, Santacruz (East), Mumbai – 400098, of which you are the owner of the building which is in ruinous condition 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. I hereby require you under section 354 of Mumbai Municipal Corporation Act to vacate and pull down the structure/ building and to prevent all cause of danger there from.”
8. It is further submitted that one of the landlords being ex-Corporator, exerted political influence and thus Official of the Corporation unilaterally acted upon the audit report submitted by the landlord, without affording an opportunity to the petitioners, as required under Section 353-B (3) of the MMC Act. Learned counsel further submits that in the year 2011, all the tenants expended huge amount and carried out substantial repairs and therefore conclusion drawn by TAC in their meeting is not acceptable. Learned counsel further submits that TAC in their meeting conveniently overlooked the observations made, in their structural audit report. Based on the aforesaid facts, learned counsel submits that the petitioners may be permitted to repair the building, as suggested by their consultant and the impugned order and notice may be quashed and set aside.
9. Learned counsel for the Corporation however brought to our notice, structural audit report submitted by the petitioners and findings of the TAC. She submits that the subjective satisfaction of the TAC is based on cogent and relevant material. He submits it is a report of experts and therefore no interference is called in the findings rendered by the TAC.
10. In the present case, the building is more than 30 years old and fully occupied. It consists of ground plus three RCC construction structure. Admittedly, structure being more than thirty years old, petitioners being occupiers, did not cause the building to be examined by a structural Engineer and obtained structural stability certificate. The Technical Advisory Committee in its meeting dated 08.11.2017, after considering structural audit report submitted by the landlords and petitioners-tenants concluded that :-
“The structural audit report, proforma 'B' and facts put up by both the structural consultants, opinions/reports of ward staff and representatives of TAC were discussed during meeting in detail. After going through both the structural audit reports submitted by both the structural consultants, opinions/ reports of ward staff and representatives of TAC and looking at the deteriorated condition of the structure, TAC does not feel it necessary to appoint another structural consultant to reassess the structure and to carry out structural audit. Hence, as per unanimous TAC opinion the said building known as 'Umar Manzil' is in severely dilapidated condition and the repair methodology and repair cost suggested by M/s. CSR Consultants and Associates is not realistic, practical and acceptable. Moreover, Shri. Rajesh Barapatre, also agreed that the building is in highly deteriorated condition. Further, the building under reference may collapse without giving any warning thereby endangering the life and property of the residents and the people residing in adjoining properties and passersby. Hence the structure under reference is not habitable and needs to be vacated and demolished immediately by following due process of law under the supervision of structural consultant.
In the meantime, H/East ward staff shall direct owner/ occupiers to vacate the building immediately and to take necessary preventive measures, such as additional propping, if required, barricading etc. and cautionary board showing that,“The structure is in dangerous condition” shall be provided, which will be helpful to passersby, to avoid any mishap, till evacuation and demolition”.
11. We have perused the report of the Technical Advisory Committee as well as report of M/s. CSR Consultants and Associates appointed by the petitioners/ tenants. In fact, the consultant appointed by the petitioners says that the root cause of the damages are leakages/seepages, decaying of chajjas, attack of weather vagaries, exposure of the building to saline coastal environment and carbonation attack on concrete. The consultant thus concluded that damages are at an acceleration stage and it should be attended immediately to avoid further deterioration of the structure. The consultant summarized the findings;
“Damages due to leakages are in acceleration stage and it would continue to accelerate further if the structure is not restored and the leakages are not stopped on a regular basis. Hence, we recommend proping of damaged areas, internal repairs, external repairs, terrace waterproofing work, replacement of damaged plumbing lines, structural repairing work by micro concreting, polymer treatment, rebar, plumbing improvement work and elastomeric waterproof painting of the building and taking preventive measures including weather protection measures to avoid recurrence of such damage and serviceability problems in near feature. Revamping of plumbing lines and replacement of damaged plumbing pipes need to attend. All type of vegetations around plumbing pipes and building walls need to remove.”
12. It is opined by the structural auditors of the tenants that the structural members like column, beam and slab are in deteriorated condition, however are repairable. The report states that bending in the column is observed, however columns can be strengthened and the repairs will have to be carried out phase-wise and if repairs are carried out, the life of the repairs will be 5 to 10 years.
13. The Technical Advisory Committee, after hearing the representative of the petitioners and upon perusing the structural audit reports, concluded that the building known as 'Omar Manzil' is in severely dilapidated condition and the repair suggested by M/s. CSR Consultants and Associates is not realistic, practical and stable. It is observed by the TAC that the representatives of the petitioners also agreed that the building is in highly deteriorated condition. Thus, under these circumstances, the Technical Advisory Committee concluded that the building may collapse at any time, endangering the life of the residents, people residing in adjoining property and passersby, hence the structure under reference is not habitable and needs to be vacated immediately by following due process of law under the supervision of the structural consultant.
14. This Court in the case of Mahendra Bhalchandra Shah & Ors. Vs. Municipal Corporation of Greater Bombay & Ors. in Writ Petition (L) No. 1755 of 2019 has set out at length the governing principles, in relation to subject issue;
“(a) It is never for a Court in exercise of its limited writ jurisdiction under Article 226 of the Constitution of India to decide whether a particular structure is or is not actually in a ruinous or dilapidated condition;
(b) The rights of tenants/occupants are not harmed by demolition ordered and carried out. These rights are adequately safeguarded by Section 354(5) of the MMC Act and by the provisions of the governing Maharashtra Rent Control Act 1999 which fully occupies the field regarding tenancies of built premises in Maharashtra.
(c) A Writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. Equally, the Writ Court will not prefer the view of one expert over another.
(d) In order to succeed a Petitioner before the Court must be able to show that the impugned action suffers from Wednesbury unreasonableness, (Associated Provincial Picture Houses Ltd v Wednesbury Corporation, (1948) 1 KB 223 : 1947 (2) All ER 680.) i.e. it is so unreasonable that no rational person could, having regard to the fact of the case, ever have reached it. There is no scope in such cases for any larger judicial review or invoking the doctrine of proportionality. (State of Madhya Pradesh & Ors v Hazarilal, (2008) 3 SCC 273; Coimbatore District Central Cooperative Bank v Coimbatore District Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669.) In other words the decision must be shown to be utterly perverse, or in excess of authority or manifestly illegal.
(e) It is never sufficient merely to allege mala fides without particulars. While direct evidence may not always be available as proof of mala fides, they must nonetheless be established. In the words of the Supreme Court, allegations of mala fides are more easily made than proved, and the very seriousness of such allegations demands proof of high order of credibility. (Union of India v Ashok Kumar, (2005) 8 SCC 760; Government of Andhra Pradesh & Ors v P Chandra Mouli & Anr, (2009) 13 SCC 272.) Courts are slow to draw dubious inferences from incomplete facts, especially when the imputations are grave and they are made against one who holds an office of responsibility in the administration.(EP Royappa v State of Tamil Nadu, (1974) 4 SCC 3; Indian Railway Construction Co Ltd v Ajay Kumar, (2003) 4 SCC 579.) Mala fides are the last refuge of a losing litigant. (Gulam Mustafa v State of Maharashtra, (1976) 1 SCC 800.) Hence, whenever mala fides are alleged, we will demand proof. In case after case we are told that the provisions of the MCGM Act are being abused by rapacious landlords in connivance with venal officers of the MCGM to order the demolition of the buildings that are otherwise structurally sound. We have yet to come across any such case. The argument is in generalities. Though it is an argument of mala fides, it is always made without any particulars whatsoever and we are asked simply to conjecture that this must be so. The law in regard to allegations of mala fides is well settled and we will draw no such general conclusion.
(f) Further, it is no answer at all, as we have held in Mahendra Bhalchandra Shah, to seek an order of status quo. We have discussed this aspect quite elaborately and have held that no such order can be passed by any Court without specific reference to the actual state of affairs at that moment. There can be no order of status quo against natural elements. It is one in one thing to direct the parties to a contract to maintain the status quo. This may be an order against one person seeking another's eviction. This has no application whatsoever to a situation where the complaint is about the deterioration day by day of the physical condition of a built structure exposed to the elements.
(g) We have also demonstrated in Mahendra Bhalchandra Shah that the entire trend in this Court in the recent past of obtaining undertakings from occupants allowing them to continue in occupation at their own risk is without any basis in law. The MCGM cannot contract out of a statute. An undertaking by a Petitioner to a Court does not absolve the MCGM from its statutory responsibilities or liabilities under that statute. If the undertaking is intended to function as some sort of an indemnity then we have expressed the gravest doubts about any such undertaking ever being enforceable, let alone when the person who gives the undertaking himself or herself suffers an unfortunate mishap.”
15. The structural audit report of the tenants, landlords and inspection report of the TAC were material considerations, on which the Committee concluded that structure is in ruinous condition and required to be pulled down. This Court in the case of Mahendra Shah (Supra), while dealing with the identical arguments has held that it is not open to the Court, to sit in judgment over that satisfaction of the Technical Advisory Committee i.e. to substitute that opinion with its own.
16. Thus, taking into consideration the material before us, we do not see any reason to reject the conclusion reached by the Technical Advisory Committee. The argument that the notices have been issued at the instance of the landlord in collusion with Municipal Official is without any foundation and no particulars of alleged collusion were furnished to this Court in the pleadings or otherwise. In the circumstances, we do not think that we should afford any challenge to this notice, on this ground.
17. In the case of Makarand Dattatreya Sugavkar Vs. Municipal Corporation of Greater Mumbai and Others : (2013) 9 Supreme Court Cases 136 it is held in paragraph no. 20 that,
“The primary object underlying Section 354 is to safeguard the public from the danger of being forced to live in a structure, which includes any building, wall or other structure and which is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying the same. This section is also intended to protect those who may pass by such structure. A reading of the plain language of Section 489 gives an impression that it is only an enabling provision but if the same is read keeping in view the purpose of its enactment and the setting in which it is placed, it becomes clear that the Commissioner is duty-bound to ensure that the written notice given to the owner or occupier under Section 354(1) is implemented in its letter and spirit. The duty cast upon the Commissioner is in the nature of a public law obligation and in appropriate case, the court can issue direction for its enforcement.”
18. Thus, once it is found that building is in ruinous condition, Corporation owes its duty to take appropriate steps, to ensure and safeguard the public from likely danger. It is to be noted that when there are conflicting opinions of experts opining that the building structure should be pulled down or removed, such opinion cannot be discarded because the primary object of Section 354 is to protect the public at large and the passerby, of a building, which is in ruinous state.
19. Thus, taking into consideration, the facts of the case and the material on record, the challenge fails and the petition is dismissed. All the petitioners are directed to vacate the premises occupied by them in the subject building by name 'Omar Manzil situated at Kalina Church Road, Santacruz (East), Mumbai'. It is made clear that if the petitioners/ occupants of 'Omar Manzil' do not vacate their respective premises, the Corporation shall take steps to secure the vacant possession of 'Omar Manzil' and if necessary, take the assistance of the local police. In-charge police station is directed to provide necessary assistance, if required by the Municipal Officer for securing vacant possession of the building 'Omar Manzil'.
20. With the aforesaid direction, the petition is dismissed with no order as to costs.
21. At this stage, a request is made to grant time to vacate the premises. This request is opposed by the respondents.
22. Having found that the structure/ building is not only old and dilapidated, but in a ruinous condition and likely to fall, we cannot accede to the request of the petitioners' advocate. The writ petition having been dismissed, this request is refused.
Petition dismissed.
Print Page
No comments:
Post a Comment