Dismissed

Haji Mohamed Sussain v. the State of Maharashtra and 4 Ors.

Bombay HC29 Jun 2016WP/879/2015

Case brief

AI extract

What is this about?

The Court considered a writ petition challenging a notice to vacate premises due to a dilapidated building. A Technical Advisory Committee recommended demolition after site inspection. The Court found no perversity in the Committee's report and declined to interfere, dismissing the petition noting the petitioner had already vacated.

What did the court decide?

The petitioner's petition to challenge the Technical Advisory Committee's report was dismissed; no further orders required as premises were already vacated.

Haji Mohamed Sussain Vs the State of Maharashtra and 4 Ors. — Property and Title | Bombay HC (2016)

WP.879/2015(S-907)

mnm

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

WRIT PETITION NO. 879 OF 2015

¶6

Hari Mohd. Husain Haji Yusuf Merchant Vs.

¶7

State of Maharashtra & Ors.

¶8

...Petitioner

¶9

...Respondents

¶10

Mr. A.G. Damle, Senior Advocate a/w. Mr. S.S. Prabhune Advocate for the Petitioner Mr. Anil Singh, Senior Advocate a/w. Ms. Shobha Ajitkumar Advocate for BMC, Respondent No.2 Mr. J.S. Saluja, AGP for Respondent No.1 State

¶11

CORAM : SHANTANU S. KEMKAR &

¶12

M.S. KARNIK, JJ. DATED : 29^TH JUNE, 2016

¶13

ORDER: (PER JUSTICE SHANTANU S. KEMKAR):

¶14

With consent heard finally. By filing this Petition under

¶15

Article 226 of Constitution of India the Petitioner has challenged the notice dated 30^th December, 2014 asking the Petitioner to vacate the premises in question on the ground

¶16

that the same is in dilapidated condition.

¶17

According to the Petitioner the building in question is

¶18

not in a dilapidated condition and it is repairable, to that

¶19

WP.879/2015(S-907)

¶20

¶21

effect he had submitted a structural report indicating that the

¶22

building is repairable. During the pendency of the Petition noticing that there waere conflicting reports one obtained by the Petitioner / tenant and other one given by the officers of

¶23

the Municipal Corporation, the Municipal Corporation referred the matter to the Technical Advisory Committee in confirmity of the directions issued by this Court in similar matter in the case of Municipal Corporation of Greater Mumbai Vs. State of Maharashtra & Ors. (Writ Petition (L) No. 1135 of 2014) decided on 23^rd June, 2014.

¶24

The said report of the TAC has been filed by the Respondent Corporation before this Court. By way of rejoinder, the Petitioner has challenged the said report.

¶25

We have gone through the said report dated 6^th April, 2016 of the TAC. We find that the TAC after considering both the reports and after visiting the site and considering the various technical aspects of the structure gave the impugned report. The TAC report recorded the finding, which is as

WP.879/2015(S-907)

follows:

TAC CONCLUSION:

¶30

The TAC held on 29^th January, 2016 at 3.30 p.m when both the consultants were present, test reports submitted by them were taken on record by TAC members.

¶31

The site was inspected by the Ward and Estate staff. In the TAC meeting they appraised to TAC members that the structure under reference is Gr.+ 5 storied and is a municipal property, constructed in 1960. Propping is done by the Ward staff and two shops on the ground floor are occupied, while rest of the building is evacuated and the said structure needs to be demolished. The site was also inspected by TAC members on 21.3.2016 as per the direction of Hon. High Court vide W.P. No.1135 of 2014.

¶32

Further, it was informed that the tenants of the structure under reference had filed W.P.No.879 of 2014 restraining MCGM from taking any coercive action towards evacuation of the premises.

¶33

The site was also inspected on 21.03.2016 by TAC members when ward staff, Estate dept. staff and post graduate engineers appointed by MCGM were present. The observations made by ward and Estate staff in TAC meeting were found correct. TAC members also observed

¶34

WP.879/2015(S-907)

¶35

¶36

that staircase portion is separated. Left side column at the entrance of the bldg. is having major vertical cracks. Steel are exposed at many locations and found corrugated.

¶37

Shri V.J. Joshi of M/s. V.J. Joshi Consultants informed that the South side portion of the building under reference is damaged which is repairable by jacketing the columns. He further informed that the structure is more than 50 years old and after repairs its life span would be 10 years at a repair cost of Rs.600 per sq. ft. for structural repairs only.

¶38

It was enquired with Shri V.J. Joshi whether core test was conducted when he stated that he had carried out core test on beams and not extracted core from the columns as they were in a dangerous condition.

¶39

M/s. Scecon Consultants informed that the building is vacated and the building is in a dilapidated condition and hence, requires to be pulled down. He also informed that core could not be extracted as the columns have corroded and were in a bad shape and could collapse. Further, he stated that if repairs are carried out to the structure, it would exceed more than 70% of the reconstruction cost.

¶40

Considering the submissions of the Ward & Estate staff and both the Consultants, TAC is of the opinion that as the building is in a dilapidated condition the results

¶41

WP.879/2015(S-907)

¶42

¶43

submitted by both the structural consultants are doubtful and negative. The repairs to the structure may not increase the life of structure. As both the consultants have carried out N.D. Tests, which are poor and below par. Hence TAC members do not felt necessary to carry to carry out fresh N.D. Tests. Further, as per the submission of Shri V.J. Joshi that he could not extract core from the columns as they were distressed and as they were in a dangerous condition, also considering the repair cost of Rs.600/- sq. ft. for structural repairs only. As the structural repair cost is higher side, which is not technoeconomically viable, steel are exposed at many locations and found corrugated. It is also observed during visit of TAC members that there is no proper access to residential portion of said building and even Fire Engines cannot enter near the entrance of residents which is on back side. Hence, TAC opined that the building is not fit for human habitation and in order to prevent any untoward incident to the neighbouring residents and passersby, it is advisable to evacuate the occupied shops and to demolish the structure. Hon. Court may be appraised, being a matter is in court under W.P.No.879 of 2014.

¶44

In the meantime, concerned staff of Asstt. Commissioner (Estate) and Asstt. Commissioner, 'D' Ward shall keep the structure under observation and shall take

¶45

WP.879/2015(S-907)

¶46

¶47

necessary preventive measures such as propping, barricading etc. till demolition of the building”.

¶48

Learned Counsel for the Petitioner submits that the TAC

¶49

has not considered the earlier reports in its correct perspective and has declined the Petitioner's contention on the ground that there is no proper access to residential portion of the said building and even Fire Engines cannot enter near the entrance of residents which is on back side. He submits that the TAC should not have rejected the Petitioner's contention for these extraneous considerations.

¶50

On the other hand the learned Senior Counsel appearing for Municipal Corporation has supported the TAC report. He drew our attention to the entire conclusion of the TAC. He submits that the members of the TAC visited the site on 21st March, 2016. The TAC has elaborately dealt with the

¶51

matter and recorded the finding that the building requires to be pulled down as the same is in dilapidated condition. He further submits that this Court need not to interfere into the

¶52

TAC report which is based on proper appreciation of both the

¶53

WP.879/2015(S-907)

¶54

¶55

reports and the visit of the site by the members of the TAC who are experts of the subject.

¶56

Having considered the submissions of the learned

¶57

Counsel for the parties and having gone through the report of the TAC we find that the TAC has elaborately dealt with the matter and on the basis of spot inspection and after going through the relevant material recorded the finding. The finding of the TAC is based on the sound appreciation of both the reports and the material placed before it and no fault can be found in the same. In the absence of any perversity in the TAC report no case is made out for invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The additional reason assigned by the TAC that there is no proper access and even Fire Engines cannot enter near the entrance of the residents which is on back side cannot be said to be irrelevant and on that basis the TAC report which is otherwise based on sound reasons cannot

¶58

be brushed aside. Accordingly, we decline to interfere into the TAC report and also the decision of the Corporation to

¶59

WP.879/2015(S-907)

¶60

¶61

demolish the building in question.

¶62

At this stage the learned Senior Counsel for the Petitioner on instructions stated that the Petitioner has already vacated the premises. He however submits that the Corporation is required to comply with the direction of this Court under clause 9(n) passed in Writ Petition (L) No. 1135 of 2014. To this learned Senior Counsel appearing for the Respondent BMC submits that the Corporation has already offered alternate accommodation to the Petitioner and shall abide by the directions contained in Clause 9(n) of the said order passed in WP.(L) NO.1135 of 2015. We find no further orders in this regard are necessary. The Petition is dismissed.

¶63

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

Haji Mohamed Sussain v. the State of Maharashtra and 4 Ors.

Case brief

What is this about?

What did the court decide?

Haji Mohamed Sussain v. the State of Maharashtra and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Salim Shamim Shaikh Vs the Municipal Corporation of Greater Bombay and 4 Ors.

Mauli Bharat Udyog Nagar Welfare Association and 2 Ors. Vs Municipal Corp. of Greater Mumbai and 2 Ors.

M/S Rajmaitri Corporation Vs the State of Maharashtra and 20 Ors.

Sandeep Ladu Dharne Vs State of Maharashtra and Ors.

Dhanaji Ganpati Vaidha Vs the State of Maharashtra and Ors.

Mr. Hardas Hazarimal Tharwani Vs State of Maharashtra through Its Principal Secretary and Ors.