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2025 DIGILAW 475 (GUJ)

Shaikh Malka Ishakbhai v. Union Of India

2025-06-17

D.N.RAY, SUNITA AGARWAL

body2025
ORDER : SUNITA AGARWAL, J. ORDER IN CIVIL APPLICATION NO.5339 of 2024:- The delay 17 days caused in filing the main Letters Patent Appeal has been explained to the satisfaction of the Court. The delay is condoned. The Civil Application is disposed of. The Registry is directed to allot the regular number to the Letters Patent Appeal, forthwith. ORDER IN LETTERS PATENT APPEAL NO.743 of 2025:- 1. This is an appeal challenging the judgment and order dated 30.08.2024 passed by the learned Single Judge. By means of the order dated 23.10.2024, we have required the learned counsel appearing for the Corporation to place before us as to whether the Regulations for Residential Township, 2009 framed by the Planning & Urban Development Department of the State Government would be applicable to the building in question. In the response brought before us, it is admitted that the constructions in question were made under the Jawahar Nehru Urban Renewal Mission Scheme, which has not been notified under the Regulations for Residential Township, 2009 and hence, the said Regulations would not be attracted in so far as the issues raised in the writ-petition and in the present appeal. 2. We may note that the writ-petition has been dismissed on the ground that the petitioners have a remedy to approach the competent forum under the Regulations, 2009. In view of the stand of the respondent no.5 namely, Corporation that the Regulations, 2009 would not be applicable, we have proceeded to hear the case of the petitioners/ appellants on merits. 3. In the order dated 22.01.2025, we have noted the contents of the affidavit of the Corporation bringing on record an expert report submitted on 21.01.2025 to assess the physical condition of the existing building with reference to structural safety and integrity. We have adjourned the matter on the submission of the learned counsel for the Corporation that the said report was required to be placed before the higher authorities and a deliberation is to be made as to the manner in which the restoration/ repair work can be carried out by the society, which is managing the building in question at present. 4. 4. We may record that the challenge in the writ-petition is to the notices dated 03.07.2023 issued by the Corporation to the occupants of the flats stating therein that the building is in dilapidated condition and they are required to carry out the necessary repairs. The petitioners [124 in numbers] seek to challenge the individual notices issued to them on the ground that they belong to the economically weaker section and as such they are not in a position to carry out the repairs. The constructions in question were carried out around the year 2010-14 and were allotted to the occupants in the year 2013 onwards, for resettlement and rehabilitation of occupants living at the banks of Sabarmati river, with a view to develop the Sabarmati River Front. 5. The submission of the petitioners is that the notices issued by the Corporation, within 10 years of the delivery of the possession to the occupants, asking them to repair the constructions terming the building being in a dilapidated condition itself reveals the fraud in raising of the faulty constructions and use of substandard materials. The contention is that many blocks in the society are in dilapidated condition on account of the poor quality of constructions and for not providing proper drainage facility in the society. The petitioners had approached the Municipal Authorities by writing a representation dated 12.09.2023 that they cannot be forced to carry out repairs as the petitioners belonging to economically weaker section and the constructions cannot be demolished terming them as dilapidated constructions. 6. As noted hereinabove, a report for conditional assessment of EWS housing Scheme namely, constructions in question dated 21.01.2025 has been appended alongwith the affidavit dated 21.01.2025 filed on behalf of the Ahmedabad Municipal Corporation. The key findings of the report as extracted in paragraph-4 of the said affidavit, relevant to be noted are hereinunder:- “4. The key findings of the said Report are as under:- a. It was observed by the team that there was deterioration of the RCC cover at multiple locations which resulted in exterior of the building being exposed. b. The growth of vegetation at several locations has caused localised damage to the RCC structure at multiple locations. c. Deterioration in protective bottom concrete cover has lead to exposed lintel projections. d. Certain slabs having exposed bottom reinforcement due to concrete deterioration. b. The growth of vegetation at several locations has caused localised damage to the RCC structure at multiple locations. c. Deterioration in protective bottom concrete cover has lead to exposed lintel projections. d. Certain slabs having exposed bottom reinforcement due to concrete deterioration. e. The concrete deterioration at the washroom areas resulted in exposed reinforcement. f. Plant chimneys near the site potentially contributed to the deterioration of the exposed concrete. g. There were multiple units that showed better conditions due to correct maintenance carried out by the residents. That the well maintained household units indicated good exterior concrete surfaces. 7. As per the recommendations of the expert team, the following measures are required to be taken:- “5. Furthermore, it is respectfully submitted that the recommendations of the Expert Team in the Report are as follows: 5.1 Structural Strengthening Measure 5.2 Waterproofing and Dampness Control 5.3 Vegetation Removal 5.4 Preventive Maintenance Plan” 8. The Fact Finding Committee, thus, reached at the following conclusion:- "Conclusion: Based on the observations during the site inspection, the structural issues identified such as exposed reinforcements, cracks, dampness and localized damage that indicates deterioration primarily due to environmental factors, poor maintenance and material degradation over time. However, the structural integrity of the buildings is not compromised to the extent that demolition is required. The damage is deemed repairable and appropriate interventions can restore the strength, durability and functionality of the structures. Apparently it is observed that the deterioration is mainly due to lack of maintenance, mainly at toilet & kitchen areas and due to vegetation growth." 9. As per the findings of the expert team, the damage is deemed to be repairable and appropriate interventions can restore the strength, durability and functionality of the structures. The deterioration is due to lack of maintenance, mainly at the toilet and kitchen areas and due to vegetation growth. The structural issues identified are exposed reinforcements, cracks, dampness and localized damage that indicates deterioration primarily due to environmental factors, poor maintenance and material degradation over time. 10. In the another affidavit filed on behalf of the Corporation at Page-‘249’ of the Paper-book, it is contended that the notice was issued to the Chairman/Secretary of the Society namely, Sikandar Bakhtnagar Part-1, 2, 3 Co-operative Housing Service Society Limited [in short as the ‘Association’], which is responsible for the management and maintenance of the building in question. 10. In the another affidavit filed on behalf of the Corporation at Page-‘249’ of the Paper-book, it is contended that the notice was issued to the Chairman/Secretary of the Society namely, Sikandar Bakhtnagar Part-1, 2, 3 Co-operative Housing Service Society Limited [in short as the ‘Association’], which is responsible for the management and maintenance of the building in question. The said notice also highlighted the responsibility of the Association. A reminder notice dated 03.02.2025 has further been issued to the Chairman/ Secretary of the Association reminding the concerned stake- holders to undertake maintenance and repair works. The third reminder notice was sent on 06.02.2025. 11. It is also stated that the respondent – Corporation had earlier sent communications dated 31.12.2019 and 24.12.2020 to the Association stating that as a result of the expiry of the defect liability period, the responsibility of the maintenance and upkeep of the society would vest with the Association of the residents. These communications are brought on record as Annexure R4 to the affidavit dated 08.02.2025. 12. The contention is that the Association has not responded to any of the communications till date. The Officers of the Corporation have been threatened, attacked and refused entry in the Society, at the time of pasting of the notices dated 03.07.2023. Repeated attempts made by the Corporation to engage in dialogue with the beneficiaries, who are integral part of the Association, have consistently proven futile, as they have persistently refused to cooperate with the authorities. 13. An affidavit in response, dated 10.06.2025 has been filed on behalf of the appellants, without giving any para-wise reply to the affidavits filed on behalf of the Corporation, with the assertion that the said affidavit is being filed in support of the Letters Patent Appeal and the Civil Application. It is stated therein that the appellants have been recently served with the notices dated 09.06.2025 issued by the Corporation purportedly under Section-268 of the Gujarat Provincial Municipal Corporations Act, 1948 to each occupants of the flats in building in question, stating that the subject premises are in dangerous and dilapidated condition and that no repairs have been undertaken by the residents. The contention is that as per the report of the Fact Findings Committee given in February 2025, the structure is in repairable condition and does not warrant demolition. The contention is that as per the report of the Fact Findings Committee given in February 2025, the structure is in repairable condition and does not warrant demolition. The Ahmedabad Municipal Corporation has, thus, taken a diametrically opposite stand in issuing notices under Section- 268 without addressing or even referring to the Fact Finding Committee Report. 14. It is further sought to be submitted that shifting burden upon poor residents, who lack technical knowledge or financial means to detect or repair deep structural faults, is not only unjust, but a blatant abdication of statutory responsibility upon the Ahmedabad Municipal Corporation. Instead of acknowledging the role of those responsible for constructing the buildings in an unsafe manner under the public housing scheme, the Ahmedabad Municipal Corporation is trying to penalize the very beneficiaries for its own systemic failures. 15. It is stated that the appellants are denying unsubstantiated allegations made by the respondents that repeated attempts to engage in dialogue with the residents were rendered futile due to alleged non-cooperation. The residents-in-question are not only belonging to the economically weaker sections of the Society but also belong to a class of socially and financially vulnerable people. Far from being non-cooperative, such residents would readily welcome any assistance, support or clarification from the government authorities, especially where their housing and livelihoods are concerned. It is stated therein that it is expected that concerned Officers being government functionaries shall document the written complaint/ contemporaneous report before making any allegation of any attempt to engage or threaten or assault or obstruct any Officer or representative of the Ahmedabad Municipal Corporation. 16. In the affidavit filed on 10.02.2025, the appellant herein have responded to the Fact Finding Report submitted by the Committee appointed by the Ahmedabad Municipal Corporation by terming it as a superficial assessment. The allegations are about the quality of the constructions built by the Corporation. 17. Considering the above, we may note that the constructions in question were handed over to the occupants of the building as early as in the year 2013 and with the formation of the Association, the management and maintenance of the building residents with the Association. It seems that the Corporation did not have any responsibility or liability to carry out maintenance after the detect liabiling period was over. It seems that the Corporation did not have any responsibility or liability to carry out maintenance after the detect liabiling period was over. The question, however, is as who is responsible for non-maintenance or the present condition of the building which is posing threat to its occupants itself. This question would require a factual inquiry and cannot be adjudicated within the scope of Article 226 of the Constitution of India. 18. Moreover, when the resident Association itself has not come forward, to challenge the notice issued by the Corporation, the present petition filed by the occupants of the building against the individual notices issued in the year 2023 and fresh notices issued in the year 2025, would not bring the dispute to its logical end. We, therefore, find it just and proper to dispose of the present petition with the observation that the petitioners/ occupants of the building as well as the resident association shall file their response to the notices issued by the Corporation in the year 2023 and 2025, by submitting the relevant documents in support of their grievances. If such replies are filed within a period of four weeks from the date of receipt of the copy of this order, it would be the duty of the Zonal Estate Officer Ahmedabd Municipal Corporation to deal with each representation filed by the petitioners/Association by passing a reason and speaking order in accordance with law after giving due opportunity of hearing to each representationist including the representatives/ office bearers of the Association. 19. We may also observe that this issue shall be brought to the personal notice of the Municipal Commissioner of the Ahmedabad Municipal Corporation, who shall make an endeavour to find out a permanent solution of the problem, inasmuch as, the occupants of the building claim to be belonging to the economically weaker section of the society and are in precarious financial condition. They have approached this Court with a categorical assertion that they have no means to carry out the major repairs as are sought to be suggested by the Fact Finding Committee. We direct that the Municipal Commissioner of the Ahmedabad Municipal Corporation shall call upon the Officer bearers of the Association to enter a dialogue to find out a solution, inasmuch as, the residents of the building cannot be allowed to occupy such a building, which is posing threat to their own life. 20. We direct that the Municipal Commissioner of the Ahmedabad Municipal Corporation shall call upon the Officer bearers of the Association to enter a dialogue to find out a solution, inasmuch as, the residents of the building cannot be allowed to occupy such a building, which is posing threat to their own life. 20. With the above directions, the present appeal stands disposed of. Consequently, the connected Civil Application stands disposed of.