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Vivek Shantaram Kokate & Others v/s The Municipal Corporation of Greater Mumbai & Others

    Writ Petition No. 931 of 2019

    Decided On, 19 August 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE G.S. PATEL

    For the Petitioners: Shreepad Murthy I/b Abhishek Patil, Advocates. For the Respondents: R1 to R3, Vandana Mahadik, R4, Ashutosh Mishra I/b Ramchandra Pandey Kundan Valvi, Assistant Engineer (B&F), P/North.



Judgment Text

G.S. Patel, J.

1.“According to the structural consultants’ report obtained by the Petitioners, their building can be repaired. Therefore, the notices saying it is ruinous, dangerous and dilapidated and requiring it to be pulled down, and the report of the Technical Advisory Committee to that effect, should all be quashed.” This is the entirety of Mr Murthy’s submission on behalf of the Petitioners. The submission is contrary to settled law, as set out below, and is unsupported on undisputed facts.

2. The Petitioners occupy various rooms or tenements of about 285 sq ft in a building known as Martand Prasad at Pannalal Ghosh Marg, Somwari Bazar, Malad (West), Mumbai 400 064. The building has two wings, Wing A and Wing B. The Petitioners’ rooms are all in Wing A (though paragraph 1 of the Petitioner claims, wrongly, that some of the Petitioners are in Wing B). It is undisputed that Wing B and Wing A are interconnected, at least structurally, and that Wing B has been evacuated as being dangerous, and has been either wholly or partly demolished.

3. This Petition, brought under Article 226 of the Constitution of India, follows the usual trajectory we have noticed in a raft of several dozen petitions in the last few months; there are probably hundreds of such petitions. The pattern runs like this. The building in question is always more than 30 years old. Sometimes it is much older. It has not been maintained either by the owner, who probably earns a meagre income from rent, nor by the occupants. Over time, and through sheer neglect, the building’s structural condition has inevitably deteriorated. Structural members and elements are severely damaged. The 1st Respondent, the Municipal Corporation of Greater Mumbai (“MCGM”), issues a notice, usually under Section 354 of the Mumbai Municipal Corporation Act, 1888 (“the MMC Act”) following an independent inspection and assessment. Typically, the owner or landlord has a structural audit report saying the building is dangerous and must be pulled down. The MMC Notice calls on occupants to vacate. Under the extant MMC policy, evolved as a result of an interim decision of 23rd June 2014 of this Court, (Municipal Corporation of Greater Mumbai v State of Maharashtra & Ors, Writ Petition No. 1080 of 2015) the occupants have 30 days to produce their own report. Sometimes they do, and sometimes they do not. When they do, it is almost invariably a report saying the building can be repaired. The policy now demands that with conflicting reports,

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the matter is to be referred to a specially constituted Technical Advisory Committee under the chairmanship of the Director (ES&P), the present 3rd Respondent, of the MCGM. The rival consultants are given notice and are heard. The TAC is to make a site visit or visual inspection. After considering all material, it is then to make its independent technical assessment. There are different categories into which a building may be placed. A C-1 categorization is that the building is ruinous and cannot be repaired. A C-2B categorization is assigned when the building can be repaired without requiring to be evacuated. The interim order mentioned above held the field until final disposal of the Petition on 28th February 2018 (2018) 5 AIR Bom R 460 : 2018 SCC Online Bom 816).

4. The entire policy was evidently set up precisely to allay fears that rapacious landlords in connivance with venal municipal officers were issuing Section 354 pull-down notices almost indiscriminately without any regard to the facts. This was meant as a fail-safe, or as another level of check and balance. The TAC is not a quasi-judicial authority. It was not ever intended that the independent assessment of the TAC, arrived at after an open consideration of rival contentions, would itself be susceptible to interference on facts — i.e. that a writ court in exercise of its discretionary and jurisprudentially constrained jurisdiction under Article 226 of the Constitution of India would substitute its own opinion as to whether the building is or was actually ruinous or not. The purpose of the setting up the TAC mechanism was to give occupants an opportunity of putting forward before technical experts discharging a statutory duty the occupants’ rival contentions. A writ court will, therefore, only assess the decision-making process; see if there is demonstrated perversity; or if the decision of the TAC suffers from Wednesbury unreasonableness. A mere expression of desirability or possibility is insufficient in law to successfully invoke the writ jurisdiction of this Court, or to support the issue of a high prerogative writ remedy in the form of a certiorari or a mandamus.

5. In six judgments delivered in similar cases involving challenges to almost identical notices, this court summarised the applicable legal principles. These decisions are:

(a) Mahendra Bhalchandra Shah & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition (L) No. 1755 of 2019, decided on 24th June 2019;

(b) Inderjit Singh Sethi & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 880 of 2018, decided on 9th July 2019;

(c) Ramesh Nathubhai Patel & Ors v State of Maharashtra & Ors, Writ Petition No. 1500 of 2016, decided on 9th July 2019;

(d) Kutbi Manzil Tenants Welfare Association v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2451 of 2018, decided on 16th July 2019;

(e) Sundar R. Gavaskar & Ors v Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 602 of 2019, decided on 29th July 2019;

(f) Richard Gasper Mathias & Ors v Municipal Commissioner, Municipal Corporation of Greater Mumbai & Ors, Writ Petition No. 2108 of 2018 decided on 1st August 2019.

In these decisions, this Court examined the scope of Section 354, the settled law on the subject in the context of writ jurisdiction, the provisions of Section 353B of the MMC Act, and its statement of objects and reasons, and dealt, too, with the argument that demolition of a tenanted structure adversely affects tenancy or occupancy rights. The principles of law culled from these decisions are these:

(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: see: Diwanchand Gupta v NM Shah & Ors. (AIR 1972 Bom 316, per KK Desai and GN Vaidya JJ); Nathubhai Dhulaji v Municipal Corporation, (AIR 1959 Bom 332, YV Dixit & VM Tarkunde, JJ).

(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. The Supreme Court decision in Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd & Ors. (2014) 14 SCC 1) now makes it clear that the rights of tenants and occupants are unaffected by the required demolition.

(c) Tenants have rights but also remedies to keep their structure in tenantable repair. We have referred extensively to Section 14 of the Maharashtra Rent Control Act, 1999. So far, we have not seen a single case where any tenant or group of tenants has invoked his or their rights under this Section.

(d) Section 353B casts an obligation not only on owners but also on occupiers of structures that are more than 30 years old to furnish a structural stability certificate. We have yet to see one so furnished unbidden, or, when demanded, one with anything meaningful in it.

(e) 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.

(f) 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.

(g) It is never sufficient merely to allege mala fdes 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.

(h) 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 (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). There can be no order of status quo against natural elements. It is one in one thing to direct to 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.

(i) 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 sufers an unfortunate mishap.

6. It only remains to apply these legal principles to the facts of the case at hand. We proceed to do so.

7. The Petition accepts that the Martand Prasad building has two wings with a connecting block. Wing A is ground and three floors. All tenements are residential. Respondent No. 4 is a developer who claims to have purchased the property. The whole building earlier belonged to one B.G. Keni. Respondent No. 4 took a conveyance of the property in 2009. The Petitioners say it was in a perfectly good condition then, and having bought the building, Respondent No. 4 promptly started getting demolition notices issued on the ground that it was dilapidated. A Section 354 notice was issued on 9th September 2009. A copy is at Exhibit “A”. This was before the 4th Respondent bought the property. A second notice followed on 1st June 2010 (Exhibit “B”) after the 4th Respondent purchased the property. On 26th June 2010, the 4th Respondent’s advocates informed the Petitioners of the change in ownership and demanded possession. The Petitioners denied that the building needed to be evacuated because it was dangerous. In April/May 2011, the 4th Respondent appointed one Yogesh Patel to carry out a structural audit. He made a report of 16th May 2011 saying that Wing B was ruinous and should it fall it would bring down Wing A too. The report said only plastering work had been done a decade earlier. It also opined that even Wing A was not repairable. On 12th April 2013, the MCGM issued a notice calling the occupants/tenants to attend a joint meeting with the Assistant Commissioner, P North Ward. A few of the Petitioners went to this meeting. A third Section 354 notice followed on 11th May 2013 superseding all previous notices, in respect of Wing B. Another notice dated 20th June 2014 came to be issued in respect of Wing B. That wing was evacuated. Then there followed a notice dated 17th July 2014 to the occupants and tenants of Wing A, calling on them to vacate and pull down that wing. The Petitioners appointed a structural auditor. They also fled a LC Suit No. 1728 of 2014 in the City Civil Court. The Petitioners appointed a fresh structural consultant, one Nanak Shah, who opined that no demolition was necessary. On 24th April 2017, the Petitioners submitted a revised structural audit report dated 20th April 2017 of another structural consultant, one Chintan Patel. He, too, opined the building could be repaired. The Petitioners complain that the TAC took no decision. They were however told that some decision had been taken, to the efect that the building was indeed ruinous, but no copy of this report was given to the Petitioners. On 6th March 2018 and 19th March 2018, the MCGM issued two further evacuation and demolition notices.

8. In paragraph 16, the Petitioners make the usual allegations of mala fides sans all particulars that the municipal authorities are in collusion with Respondent No. 4.

9. The Petitioners say that both their structural consultants have opined that the building is sound.

10. In paragraph 16, there is also a reference to proceedings in the Small Causes Court regarding evacuation and reconstruction, and in which, apparently, Consent Terms were fled. We are not concerned with those proceedings.

11. Mr Murthy’s submission is that two consultants having opined that the building can be repaired, no other view could have been taken. He also submits that there is no order of the TAC in line with the policy and directive, and, in any case, the Petitioners’ consultants were not heard. Page 13 of 19 19th August 2019

12. We will pass over the allegations of mala fdes. The law in that regard is well-settled, and noted above. We can make no order on that basis. The allegations are generalized and without particulars.

13. It seems to us that the real reason for this petition is the tenancy dispute, i.e. the fear of losing tenancy rights. There is no substance to this. The statute and decisions of this Court and of the Supreme Court are clear in that regard.

14. This leaves the question of whether the Petitioners are at all able to demonstrate Wednesbury unreasonableness or perversity in regard to the impugned notice and the TAC order. The writ petition seeks that the notices of 17th July 2014, 6th March 2018 and 19th March 2018 and the TAC report be set aside and not acted on. This Petition was fled on 23rd March 2018. On 27th March 2018, a Division Bench of this Court granted an ad interim stay on demolition subject to the Petitioners fling the usual undertaking that they would occupy their premises at their own risk and would also be solely responsible for all third party claims in the event of a collapse. We have already held as a matter of law that no such order can be made without frst returning at least a prima facie finding of vulnerability against the impugned notices and order; and that such undertakings do not absolve the statutory authorities from their obligations in law.

15. On 6th July 2018, this Court was persuaded to issue Rule. It found that the TAC relied on tests carried out by one Enlab Services, an agency appointed by the 4th Respondent’s consultant. The court held that prima facie the TAC had not conducted tests nor appointed its own agency. Therefore, it issued Rule, and Rule on interim relief. Since the undertakings required had been furnished on 5th April 2018, the previous ad interim order was continued.

16. The order issuing Rule does not make reference to the Affidavit in Reply fled by Kundan Ramsing Valvi, Assistant Engineer (B&F) on 29th June 2018. We have now gone through that Affidavit in Reply carefully. We fnd there is no rejoinder at all, though one year has passed. This Affidavit in Reply points out various facts we think it necessary to note. On 15th April 2013, a cantilever chajja of Wing B collapsed. This caused the MCGM to survey the building. It found it to be dilapidated. The two wings are or were interconnected. Wing B was ruinous. It has since been evacuated. The notice dated 17th July 2014 was pasted on Wing A because the occupants refused to accept it. The occupants challenged that notice in LC Suit No. 1728 of 2014 in the City Civil Court at Dindoshi. On 25th July 2014, the Court referred the matter to the TAC. The TAC fixed a meeting on 1st July 2015. The consultants of both sides were absent. Therefore, a show cause notice was issued on 4th July 2015 calling both consultants to remain present at the next meeting. The 4th Respondent submitted a fresh structural report through Yogesh Patel, saying the building was ruinous and therefore a C-I category building. The Petitioners’ consultant, Nanak Shah, said the building could be repaired and was C-II category. The Petitioners sent the revised report dated 20th April 2017 from Chintan Patel. The matter went back to the TAC, which convened a meeting on 3rd August 2017. This time, Yogesh Patel and Chintan Patel were both present. The TAC considered both and held that the building was C-I, indeed ruinous, and recommended demolition.

17. Annexed to this Affidavit in Reply are photographs. They are alarming in the extreme. When the affidavit and the TAC speak of ‘rank trees’ in the structural members of Wing B, the phrasing does not begin to do justice to the actual condition on site (page 224). The trees are huge with large, long trunks and descending vines. Nature’s slow vengeance is apparent. This Wing B is connected to Wing A, and the subsequent photographs of Wing A show severe structural distress. The TAC report of 3rd August 2017 is also annexed (from page 199 onwards). It show the presence of the Petitioners’ consultant, Chintan Patel. At pages 202 and 203, we have the TAC conclusions. It clearly says Wing A has not been maintained and there are major cracks in structural members, including columns. The reinforcement — including, importantly, of columns — is exposed and corroded. Even repairs to Wing A will serve no purpose. Interestingly, Nanak Shah’s report, obtained by the Petitioners, says at page 69 that the building is under a fairly advanced stage of deterioration; and that periodic maintenance has not been done. He goes on to add that there is structural damage in different structural members. He opines (page 70) that the building is indeed dilapidated but can be repaired by an experienced contractor provided the adjoining building, i.e. Wing B is separated, as that wing is very unsafe and structurally unsound. For his part, Chintan Patel, the second consultant whose report was obtained by the Petitioners, says that columns have cracks (page 101) with corrosion in the reinforcement, there is vegetation, etc. At page 106, Chintan Patel has clarified that his is a structural audit and not a structural stability certificate. In the TAC report, all this was considered. He, too, clearly said (page 203) that Wing B needed immediate demolition. Despite all repairs, he estimated the future life of the building post-repairs, to be about five to eight years, no more. The TAC concluded that it did not think a further structural audit was necessary, and that Chintan Patel’s recommendations were not practical given the overall view.

18. In all this, where is the perversity? Where is there the slightest demonstration of any element of unreasonableness on the part of the TAC, leave alone Wednesbury unreasonableness? We find none. There is no requirement anywhere that the TAC must necessarily commission an independent structural report or audit or have fresh tests carried out. After all, its composition is of technical experts. They are best placed to decide which of two competing reports, having regard to all circumstances, should be preferred. Outside of demonstrated perversity or Wednesbury unreasonableness, therefore, we cannot accept the prima facie that the TAC was bound to appoint an independent consultant, carry out fresh tests or could not rely on one report over another. If this approach is to be adopted then we would not be addressing the decision-making process but, contrary to law, the actual decision itself. That we cannot and will not do.

19. Even as we were taking up case after case, around 15th July 2019, there was a catastrophic collapse of a building at Dongri. Many lives were lost. In Richard Gasper Mathias (supra), we noted that the entire reason for introducing Section 353B requiring a cautionary structural stability certificate for buildings of over 30 years age was the fact of just such a disastrous building collapse. How many lives must be lost before occupants and tenants learn what is in their own interest? What these Petitioners and others like them seem not to understand is that when they obtain orders of stay and status quo in this fashion, they ask for precisely that which the Diwanchand Gupta court said cannot be granted: the substitution of a judicial view for a technical view on whether the building is actually ruinous. All their much-vaunted undertakings notwithstanding, these entreaties to the Court really put the responsibility for citizens’ safety on the Court.

20. We have said this before, and we will say it again, and yet again, as often as we must: this Court will always err on the side of caution. For human lives matters. Buildings can be reconstructed. A life lost is lost forever. The alternative is unimaginable: ‘the building was not demolished because of a stay granted by the Court. The building collapsed. People died. Therefore, people died because the Court granted a stay.’ This is the conclusion devoutly to be avoided. A built structure is, in many ways, like the human body. Both require routine care and maintenance, and early intervention when serious problems are detected. Without this, both fail. To say then, as Mr Murthy says today, ‘that the building can be repaired’ is very like saying a life can be artificially prolonged for a little while. Whether or not to keep a life going may pose an ethical, legal or moral dilemma. A building presents no such challenge. On the contrary, it is the lives in the building that are our paramount, primary, and, perhaps, only concern. It is for this reason that we insist that unless there is a prima facie finding there cannot be an order of injunction in such matters; and in no case can such an injunction be rendered weak-kneed by tacking onto it a wholly unenforceable and redundant ‘undertaking’. That undertaking, as we said elsewhere, is useless as soon as the undertaker meets his maker. There can also be no generalized order of status quo without knowing what that status quo is, because in matters such as these, that would inevitably involve an injunction against the annual monsoons. We have also noticed, in more than one case, that while these status quo orders were pending — and for precisely this reason, i.e. weathering — some portions of such judicially protected structures (some on busy roads near stations) actually collapsed.

21. Like everyone else, judges, too, must learn from their mistakes; and it is correctly said that those who ignore the lessons of history are condemned to repeat it. We choose to learn from the past.

22. Rule stands discharged. The Petition is dismissed. The ad interim or interim order stands vacated. No costs
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