Partly allowed

Ramanlal Vyas and 12 Ors. v. Municipal Corporation of Greater Mumbai

Bombay HC1 Jul 2016WP/1951/2015

Case brief

AI extract

What is this about?

This writ petition challenged an evacuation notice issued by the BMC for dilapidated buildings. The court held that since the dilapidated condition was undisputed and the law was already settled, it did not intervene regarding the need for alternate accommodation but granted a four-week window to vacate.

What did the court decide?

Grant of four weeks time to petitioners to facilitate them to vacate the building in question.

Ramanlal Vyas and 12 Ors. Vs Municipal Corporation of… — Landlord and Tenant | Bombay HC (2016)

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wp 1951.15.doc

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Urmila Ingale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 1951 OF 2015

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Mr.Ramanlal Vyas and ors.

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.. Petitioners

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Vs.

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Municipal Corporation of Greater Mumbai and anr. .. Respondents

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Mr.Altaf Khan i/bMr.Tushar Kochale, for the Petitioners. Ms.Shobha Ajitkumar, for Respondents - BMC.

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CORAM : SHANTANU.S.KEMKAR &

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M.S.KARNIK, JJ. DATE : 01^st JULY, 2016

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P.C. :

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. Heard the parties through their Counsel. By filing

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this Petition, the petitioners have challenged the notice issued

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by the respondents – Corporation under Section 354 read with Section 489 of the Mumbai Municipal Corporation Act, 1888 (for short 'MMC Act'). The contention of the petitioners is that without framing any scheme and offering the alternate accommodation, the petitioners cannot be evacuated even if the

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building is in dilapidated condition. He placed reliance on

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various provisions of the MMC Act including Sections 354(c), 61(t) and Chapter XII-A of the MMC Act.

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On the other hand, learned Counsel appearing for the respondents - Corporation has argued that the building is in highly dilapidated condition. On the basis of structural report submitted by the landlord, the Ward Executive Engineer of the concerned ward had visited the site on 02/08/2014. During the visual observations, he found that the building is in dilapidated condition and it needs to be evacuated urgently and pulled down immediately. The note forwarded by the Executive Engineer was considered by the Deputy Chief Engineer (Bldg. Proposal) W.S. II and after examining the report he has observed thus :

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“The Ward Executive Engineer has requested for the sanction to pull down the building under reference and has also forwarded the report of the A.E.(B&F) P/N Ward wherein it has been mentioned that

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. That the building reference known as Balubhai Niwas is Gr. + 4 upper floors R.C.C. framed 50 years old building & Chandravati Niwas is Gr.+1 upper floors R.C.C. framed 45 years old building.

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. R.C.C. Members of building such as beams, columns & slab on front side have developed extensive cracks due to heavy corrosion of reinforcement. . Severe cracks are observed to the main south

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side corner at ground level.

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. Cracks are observed to the internal face staircase portion of the building which may detach from the building.

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. Severe cracks are observed in the beams.

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. Huge cracks are observed in the internal walls of the building.

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. Huge cracks are observed in the south side column of the building.

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. Reinforcement is exposed at various pleases in the building.

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. Cracks are observed in the North West corner of the building.

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. Huge peepul tree have grown on the wall of the building.

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. Rank vegetation is observed on the outer face of building.

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. The Ward Executive Eng. has also forwarded the Structural Audit Report from structural Engineer Shri Yogesh Patel wherein it has been concluded that the structural members have developed wide longitudinal cracks and few are in dangerous condition and strength of the concrete is below the minimum requirement, the stability of the building is doubtful; The structure is unsafe and needs to be immediately dismantled. The Ultrasonic Pulse Velocity test shows the disintegrated & poor quality of concrete & therefore, the entire building is in dilapidated condition due to lack of proper maint. & repairs.

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In this regard there is specific circular No. Ch.E/8577/DP-Gen-dtd. 19/06/13 in respect of action to be taken against dilapidated condition and the procedure to be adopted and the appropriate authority is clearly mentioned therein.

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It is stated in the said circular that in case of old bldg. (Residential or commercial), it is necessary to initiate action under section 354 of the M.M.C. Act if the structure is decided to be in dilapidated condition after survey carried out by ward staff and verification done by the concerned E.E.(Spl.) i.e. Ward E.E.(Ward). This notice action is to be further pursued as per the provisions of the MMC Act (photo copy of said circular is attached herewith which may please be referred)

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In view of the circumstances and facts put up by

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the Structural Engineer (Shri Yogesh Patel), looking at the condition of the building on plot under reference and most importantly the recommendation of the Ward Exe.Eng.(P/N) Ward, the building is required to be pulled down, by following due process off law.”

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In view of the aforesaid categorical observations,

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according to the learned Counsel for the Corporation, the building required to be demolished.

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In reply to the petitioners's contention that the building cannot be demolished without first providing alternate accommodation, she placed reliance on the judgment of the Division Bench of this Court delivered on 08/10/2014 in the case of Mr.Zubair Malik and ors. Vs. Municipal Corporation of Greater Mumbai and ors. in Writ Petition (Lodging) No. 2371 of 2014 .

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We have considered the submissions made by the learned Counsel for the parties. We find that question raised in this Petition has already been considered and decided by the Division Bench vide aforesaid judgment dated 08/10/2014.

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The contention of the learned Counsel for the

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petitioners that, since, against the said order dated 08/10/2016, SLP is pending before the Supreme Court, this matter be deferred, cannot be accepted in view of the fact that no dispute has been raised by the petitioners to the effect that the building is in dilapidated condition and requires demolition. We have also gone through the interim order passed by this Court on 25/02/2016 in which the similar prayer made by the petitioners

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was declined by this Court. Following order is passed on 25/02/2016.

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“Adjournment is sought on the ground that advocate for the petitioners is not present. It is contended that a Special Leave Petition is pending before the Apex Court in which the issue raised in this petition is involved. We make it clear that it is no ground to delay the proceedings of this writ petition. Unless the Apex Court has granted stay of proceedings of this petition, the hearing of the petition cannot be deferred on the ground that the Special Leave Petition is pending.

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Reply of the Municipal Corporation shall be filed within a period of one week from today. Place the petition on 31^st March, 2016 in the category of “Fresh Matters”.

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4 . Ad-interim relief granted earlier to continue till then.”

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7. Undisputedly, the said order has not been challenged

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by the petitioners in the Supreme Court till today.

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In the circumstances, we decline to interfere in the impugned action of the Corporation. However, looking to the fact that interim protection granted by this Court is operative till today, we grant 4 week's time to the petitioners in order to facilitate them to vacate the building in question. Undertaking given by the petitioners shall remain operative till they vacate the building.

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( M.S.KARNIK, J.) (SHANTANU.S.KEMKAR, J.)

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Ramanlal Vyas and 12 Ors. v. Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

Ramanlal Vyas and 12 Ors. v. Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

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