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2023 DIGILAW 547 (BOM)

Vikram Arvindlal Siswawala v. Union Of India

2023-02-21

A.S.CHANDURKAR, M.W.CHANDWANI

body2023
JUDGMENT A.S. Chandurkar, J. - Rule. Rule made returnable forthwith and heard learned counsel for the parties. 2. The challenge raised in this Writ Petition is to the decision of the Technical Advisory Committee (for short 'TAC'), declaring 'A' and 'B' wing buildings, that are part of respondent no.5-Bhoumik Co-op. Housing Society Ltd. (for short 'Housing Society'), as 'C1' category. In addition, a challenge is also raised to the Intimation of Disapproval (for short 'IOD') dated 10th December 2019 as well as the Commence Certificate dated 3rd February 2023 issued in favour of respondent no.6-Developer. After the writ petition was filed, it was amended and a challenge is also raised to the notice dated 1st February 2023 issued under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short 'Act of 1888'). Considering issuance of the said notice under Section 354 of the Act of 1888, the learned counsel for the parties have been heard at length. 3. Facts relevant for considering the aforesaid challenges are that the Housing Society consists of three buildings called as 'A', 'B' and 'C' wings. It is common ground that 'C' wing has already been demolished and the present dispute pertains to 'A' and 'B' wings. There are in all thirty-six tenements, out of which three flats in 'A' wing and three flats in 'B' wing are presently occupied. On 29th September 2022, notice under Section 353B of the Act of 1888 was issued. Pursuant thereto, the Housing Society sought a Structural Audit Report and accordingly on 17th November 2022, M/s. V.S. Tech & Associates submitted its Structural Audit Report dated 14th November 2022. As per the said report, 'A' wing and 'B' wing were placed in classification of 'C1', requiring immediate demolition. The petitioners herein, who continue to occupy the said premises, obtained another Structural Audit Report dated 28th December 2022 issued by M/s. Epicons Consultants Private Limited. The classification of the said structure was shown to be 'C2-A', which indicated that major structural repairs were required either after evacuation and / or partial demolition. In the light of these two reports, the matter was referred to the TAC. On 24th January 2023, the TAC undertook site inspection. It thereafter considered both the reports and proceeded to accept the report submitted by M/s. V.S. Tech & Associates. In the light of these two reports, the matter was referred to the TAC. On 24th January 2023, the TAC undertook site inspection. It thereafter considered both the reports and proceeded to accept the report submitted by M/s. V.S. Tech & Associates. Since the structure was classified as 'C1' category, the Municipal Corporation issued notice on 1st February 2023 under Section 354 of the Act of 1888 stating therein that the said structures were liable to be demolished within a period of seven days. 4. Mr. Rajendra Pai, learned Senior Advocate for the petitioners raised a two fold challenge to the report of the TAC. According to him, the TAC merely on the basis of visual inspection and without conducting any further test, proceeded to accept the Structural Audit Report that was submitted by M/s. V.S. Tech & Associates. In the entire report, there were general observations without indicating the reasons for preferring the Structural Audit Report submitted by M/s. V.S. Tech & Associates and for discarding the other report that was submitted by M/s. Epicons Consultants Pvt. Ltd. Inviting attention to the interim directions issued by the Division Bench of this Court in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra and Ors. Writ Petition (Lodging) No.1135 of 2014, decided on 23rd June 2014 2 (2016) 1 AIR Bom R 359 , it was submitted that the guidelines issued in paragraph 9 of the said decision required the TAC to carry out specific tests to determine the structural stability of the building in question. This was besides carrying out visual inspection of the structure. The TAC failed to carry out such tests and hence, the report submitted by it was faulty. It also did not indicate any reason for not carrying out such tests that were part of the guidelines framed by this Court. Reference in that regard was made to the decision of the Apex Court in Bharat Choksey Vs. Life Insurance Corporation of India2 to contend that the TAC ought to have conducted its own tests before concluding that the structure was required to be classified as 'C1'. It was then submitted that the decision of the TAC suffered from legal malice. Reference in that regard was made to the decision of the Apex Court in Bharat Choksey Vs. Life Insurance Corporation of India2 to contend that the TAC ought to have conducted its own tests before concluding that the structure was required to be classified as 'C1'. It was then submitted that the decision of the TAC suffered from legal malice. In that regard, it was submitted that the IOD could not have been granted on 10th December 2019, especially in the light of the Circular issued by the Ministry of Defence as well as the guidelines in the matter of grant of No Objection Certificate from the local Military Authority. As per the parameters laid down by the Ministry of Defence in the communication dated 21st October 2016, any construction or repair work within a restricted zone of 10 meters required a prior No Objection Certificate from the Local Military Authority. This restriction was increased by another communication dated 23rd December 2022 and construction activity was not permissible within a distance of 50 meters radius and the structure in question fell within the distance parameters. One of the Members of the TAC was the Executive Engineer (Building Proposal Department) of the Municipal Corporation and the said officer was aware of the defence restrictions, under which reconstruction of the structure was not possible. Ignoring these aspects, the IOD came to be issued and thereafter the TAC proceeded to classify the structure as 'C1'. Despite being aware of these aspects, the Commencement Certificate came to be issued on 3rd February 2023. It was thus submitted that the Municipal Corporation had not acted in a reasonable manner while issuing the notice under Section 354 of the Act of 1888, especially when the report of the TAC could not have been relied upon. In that regard, the learned counsel for the petitioners referred to the decision of the Division Bench of this Court in Farzin Ardeshir Adel and Ors. Vs. Municipal Corporation of Greater Mumbai and Ors. along with connected matter Writ Petition (Lodging) No.13705 of 2022, along with Writ Petition (Lodging) No.12803 of 2022, decided on 11th August 2022, and urged that this Court could examine as to whether the TAC had acted arbitrarily, malafide, unreasonably or in a perverse manner. Vs. Municipal Corporation of Greater Mumbai and Ors. along with connected matter Writ Petition (Lodging) No.13705 of 2022, along with Writ Petition (Lodging) No.12803 of 2022, decided on 11th August 2022, and urged that this Court could examine as to whether the TAC had acted arbitrarily, malafide, unreasonably or in a perverse manner. It was thus submitted that the report of the TAC ought to be discarded and the IOD dated 10th December 2019, the Commencement Certificate dated 3rd February 2023 and the notice issued under Section 354 of the Act of 1888 dated 1st February 2023 were liable to be set aside. 5. Mr. A.Y. Sakhare, learned Senior Advocate for the Municipal Corporation opposed the aforesaid submissions. At the outset, he submitted that the 'C' wing building, that was part of the Housing Society comprising of twelve flats, was demolished on 1st January 2023. The IOD was issued on 10th December 2019 and the Commencement Certificate for that open plot, where the 'C' wing building was earlier located, was granted on 3rd February 2023. Since the structures that were existing had been constructed prior to thirty years, the notice under Section 353B of the Act of 1888 came to be issued. Accordingly, the Structural Audit Report that was submitted by the Housing Society on 17th November 2022 categorized the structures as 'C1'. Insofar as the report obtained by the petitioners was concerned, the structures were categorized as 'C2-A' and hence both the reports were placed before the TAC. After considering these reports, the TAC unanimously held that the structures were liable to be categorized as 'C1'. It was submitted that on perusing the entire decision of the TAC, it was clear that there was due application of mind by it and the said report was not liable to be interfered with on the grounds urged by the petitioners. It was urged that though in paragraph 9(d) of the decision in Municipal Corporation of Greater Bombay (Supra) Writ Petition (Lodging) No.1135 of 2014 , this Court had laid down guidelines in the matter of issuance of notice under Section 354 of the Act of 1888, the same were to operate till the policy was framed by the Municipal Corporation. Such policy was accordingly framed and the said proceedings were finally decided by this Court on 28th February 2018. Referring to the final judgment in Municipal Corporation of Greater Mumbai Vs. Such policy was accordingly framed and the said proceedings were finally decided by this Court on 28th February 2018. Referring to the final judgment in Municipal Corporation of Greater Mumbai Vs. State of Maharashtra and Ors. (2018) 5 AIR Bom R 460 and especially paragraph 28 thereof, it was submitted that the Municipal Corporation was permitted to follow its own policy guidelines that came to be framed. It was clear that with the policy having been framed by the Municipal Corporation, the interim directions issued earlier on 23rd June 2014 ceased to operate. There was no challenge to the said policy and the said policy did not contemplate any independent test to be conducted by the TAC before submitting its report. On this count, it was urged that the submission made on behalf of the petitioners that the TAC failed to carry out any independent test was without any legal basis. In addition, the learned Senior Advocate for the Municipal Corporation referred to the decision of the Division Bench of this Court in Mahendra Bhalchandra Shah and Ors. Vs. Municipal Corporation of Greater Bombay and Ors. (2019) 5 Bom CR 451 and the decision of the learned Single Judge of this Court in Tushar Ranglidas Notaria and Ors. Vs. Municipal Corporation of Greater Mumbai and Ors. (2020) 1 Bom CR 559 and submitted that the notice issued under Section 354 of the Act of 1888 was the consequence of the report of the TAC. On the aspect of the parameters prescribed by the Ministry of Defence, it was submitted that the grant of building permission and the aspect of demolition were independent with each other. If the requirements of Section 354 of the Act of 1888 were satisfied, the structure in question could be directed to be demolished. While granting building permission, the relevant Development Control Regulations were required to be considered by the Planning Authority. There was no merit in the contention raised by the petitioners that since there were restrictions imposed by the Ministry of Defence within a distance of 50 meters, the structure in question was not liable to be demolished. On these counts, it was submitted that there was no case made out to interfere in writ jurisdiction. 6. Mr. Milind Sathe, learned Senior Advocate for the Housing Society supported the stand taken by the Municipal Corporation. On these counts, it was submitted that there was no case made out to interfere in writ jurisdiction. 6. Mr. Milind Sathe, learned Senior Advocate for the Housing Society supported the stand taken by the Municipal Corporation. According to him, there were no sufficient pleadings in the Writ Petition to substantiate the challenge to the report of the TAC on the ground of legal malafides. The TAC had considered both the Structural Audit Reports and had, after due application of mind, concluded that the structures fell in 'C1' category. Since it was the body of experts, the opinion expressed by the TAC ought to be honoured. It was not expected to write a detailed order in the form of a judgment. The scope for interference with such order was limited in the light of the law laid down by the Division Bench of this Court in Farzin Ardeshir Adel (Supra) Writ Petition (Lodging) No.13705 of 2022, dated 11th August 2022. Since the guidelines framed by the Municipal Corporation were silent with regard to any test being required to be conducted by the TAC, no fault could be found with the report of the TAC. It was submitted that the Ministry of Defence, by issuing a Circular on 23rd December 2022, had superseded the earlier Circular dated 21st October 2016. In any event, it was urged that the aspect of Defence restrictions was independent of the provisions of Section 353B and Section 354 of the Act of 1888. The petitioners had failed to make out any ground for interference and hence the Writ Petition was liable to be dismissed. 7. We have heard the learned counsel for the parties at length and with their assistance, we have perused the documents filed on record. As regards the challenge raised to the report submitted by the TAC, it was specifically urged that the TAC did not itself conduct any test and instead relied upon the Structural Audit Reports for basing its conclusion. By referring to the observations of the Division Bench of this Court in Municipal Corporation of Greater Mumbai (Supra) and especially paragraph 9(a) of the interim order dated 23rd June 2014, it was contended that the guidelines, as framed, require the TAC to carry out specific tests stated therein. By referring to the observations of the Division Bench of this Court in Municipal Corporation of Greater Mumbai (Supra) and especially paragraph 9(a) of the interim order dated 23rd June 2014, it was contended that the guidelines, as framed, require the TAC to carry out specific tests stated therein. By failing to carry out those tests, the TAC abdicated its duty and instead, merely considered the Structural Audit Reports that were placed before it. We however find that the guidelines, as framed in the interim order dated 23rd June 2014, were in the absence of existence of any appropriate policy guidelines of the Municipal Corporation / State Government in that regard. Such policy guidelines were subsequently framed by the Municipal Corporation on 23rd February 2018. Considering this position, the Division Bench, while disposing of the proceedings in Municipal Corporation of Greater Mumbai (Supra) on 28th February 2018, has observed in clear terms that in the light of the policy guidelines that had come into force, it was not found necessary to continue the interim order dated 23rd June 2014 as the Municipal Corporation was bound to follow its own policy guidelines. In this context, when the said policy is perused, it becomes clear that it is now not mandatory for the TAC to itself conduct various tests that were referred to in the interim order dated 23rd June 2014. The TAC is required to consider the conflicting Structural Audit Reports and thereafter take a decision as to acceptance of a particular Structural Audit Report. Dependent on that decision, the Municipal Corporation can consider whether notice under Section 354 of the Act of 1888 is required to be issued or not. Reference in that regard can be made to Clause 1.01 of the said guidelines. In that view of the matter, we do not find that the TAC erred in not conducting its own tests while considering the conflicting Structural Audit Reports. Its conclusion therefore cannot be faulted on that ground. 8. The report of the TAC indicates that it inspected the site on 24th January 2023 externally as well as internally. It thereafter considered the opinion expressed by its Members. After observing that there were heavy cracks in the corner columns of the building as well as junctions of the columns - beams, it also noted that the structural steel was found to be exposed and heavily corroded. It thereafter considered the opinion expressed by its Members. After observing that there were heavy cracks in the corner columns of the building as well as junctions of the columns - beams, it also noted that the structural steel was found to be exposed and heavily corroded. The estimated repair cost as per the Structural Audit Report submitted by M/s. Epicons Consultants Pvt. Ltd. was Rs.2,000/- per sq.ft. while the cost of new construction was stated to be Rs.3,000/- per sq.ft. It is thereafter that the TAC proceeded to accept the report of M/s. V.S. Tech & Associates that had classified the building as 'C1'. In this regard, we may refer to the decision of the Division Bench of this Court in Farzin Ardeshir Adel (Supra), wherein this Court has held that in exercise of writ jurisdiction, the Court would not sit in review over conflicting Structural Audit Reports since that was the job of the experts. If the opinion of the experts with regard to the condition of the building is a subjective opinion, that view cannot be substituted by the Court even if the said opinion suffered from some errors. Viewed in this context, we find that the scope for interference with the conclusion of the TAC is limited and in absence of any perversity, we do not find any reason to differ with the opinion of the TAC. 9. It was urged by learned Senior Advocate for the petitioners that the exercise undertaken by the TAC was vitiated on account of legal malice. The Circulars dated 21st October 2016 and 23rd December 2022 prescribing restrictions in the matter of construction with regard to the Defence establishment were within the knowledge of the Members of the TAC, who were from the Building Proposal Department of the Municipal Corporation. Despite being aware of such restrictions and in the light of the communication dated 20th January 2023 issued by the Architect on behalf of the Housing Society seeking issuance of Commencement Certificate, the TAC proceeded to categorize the building as 'C1'. According to the learned Senior Advocate, it was obvious on a plain reading of the Circular dated 23rd December 2022 that reconstruction of the building in the manner proposed was not permissible and despite that 'A' wing and 'B' wing had been directed to be pulled down by issuing notice under Section 354 of the Act of 1888. According to the learned Senior Advocate, it was obvious on a plain reading of the Circular dated 23rd December 2022 that reconstruction of the building in the manner proposed was not permissible and despite that 'A' wing and 'B' wing had been directed to be pulled down by issuing notice under Section 354 of the Act of 1888. It was beyond doubt that the Defence establishments would not grant any No Objection Certificate to the erection of the building in question after its demolition. In these facts, the TAC ought to have acted reasonably and ought not to have categorized the buildings as 'C1'. 10. We find that the basis on which a building has to be categorized as either 'C1', 'C2-A' or 'C2-B' is independent of the aspect as to whether reconstruction after demolition is permissible or not. The parameters for issuance of notice under Section 354 of the Act of 1888 are different from the parameters that are applicable while granting building permission. Merely because fresh permission for reconstruction is not likely to be granted, the same cannot be a reason not to permit pulling down of a structure which is in ruins or likely to fall. It may be a fact that the Members of the Building Proposal Department of the Municipal Corporation were Members of the TAC. Being Ward Executive Engineer or Executive Engineer enabled them to be Members of the TAC and they were not disqualified from being such Members only on the ground that they were also part of the Building Proposal Department. We, therefore, find that on this count, the conclusions drawn by the TAC are not vitiated on the contentions urged by the petitioners. The pleadings in the writ petition to support the challenge to the report of the TAC on the ground of legal malice are also found to be insufficient. 11. We therefore find that there being two conflicting Structural Audit Reports, the matter was rightly referred to the TAC. It inspected the property and after considering both the conflicting reports, proceeded to categorize the building as 'C1'. Consequently, the notice under Section 354 of the Act of 1888 came to be issued. In this background, we do not find any case made out to interfere in writ jurisdiction under Article 226 of the Constitution of India. Writ Petition is thus dismissed. Consequently, the notice under Section 354 of the Act of 1888 came to be issued. In this background, we do not find any case made out to interfere in writ jurisdiction under Article 226 of the Constitution of India. Writ Petition is thus dismissed. Rule is discharged, leaving the parties to bear their own costs.