Points of law : High Court has committed a serious error in directing removal of a wall with assistance of M/s. Shetgiri and Associates, when there were conflicting reports including an earlier report of Technical Advisory Committee on basis of the opinions of other Architects, declaring the building to be of C-1 category.

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal is against a final judgment and order dated 24.11.2020 passed by the Bombay High Court, disposing of the writ petition WP-LD-VC- No.163/2020 filed by the Respondent No.1, a tenant of the Appellant, and giving liberty to the Respondent No.1 to remove an adjoining wall with the assistance of architects M/s. Shetgiri and Associates, without damaging the property of the Appellant.

3. The Appellant is the owner of the structure admeasuring 1069 sqm. at Vishram (Mahavir) Baug Compound, Plot bearing CTS No.792, P.L. Lokhande Marg, Chembur, Mumbai, hereinafter referred to as the "premises in question".

4. The Appellant states that the premises in question is comprised of 3 three-storied inter linked structures, constructed by the predecessors-in-interest of the Appellant in 1930. The first structure has 6 rooms, the second structure has 10 rooms and the third structure has 9 rooms. There were about 24 tenants at the premises in question, including the Respondent No.1.

5. It is the case of the Appellant that the impugned order has been passed, overlooking the submission of the Respondent-Municipal Corporation with regard to the precarious condition of the premises in question, the report dated 15.05.2015 of the Technical Advisory Committee to whom the Respondent-Municipal Corporation had made a reference, and the Structural Audit Report prepared by M/s Manohar Ashatavadhani & Associate opining that the building is in a critical and dangerous situation in C-1 category.

6. Buildings in Mumbai in need of repair are classified into C1, C2-A, C2-B and C3 categories having regard to their condition. Category C1 buildings are those which require immediate evacuation and demolition, Category C2-A buildings are also required to be evacuated. Category C-2A buildings require major structural repairs and/or partial demolition. C-2B buildings are repairable without eviction, but need structural repairs. C-3 buildings do not require eviction. They need only minor repairs.

7. The Appellant says that the Petitioner has entered into arrangements with all the tenants except 6 including the Respondent No.1/writ petitioner who have not agreed to vacate the premises in question. All the other tenants have duly vacated.

8. It is alleged that the structures at the premises in question, which are in a dilapidated and dangerous condition, have been declared as of the C-1 category. One of the structures is of the C-2A category. The Appellant submits that, the structures being inter linked, structural repair of any one structure would affect the stability of the adjacent structure.

9. M/s. Manohar Ashthavadhani and Associates had prepared a Structural Audit Report dated 25.5.2014 of the premises in question, concluding:

"In view of the facts and conditions explained above, it is noticed that the structural condition of almost all buildings (particularly R.C.C. buildings) is dangerous and critical. The buildings are beyond economical repairs and repair is not financially viable. The buildings are dangerous and unsafe to stay. Hence buildings will have to be vacated urgently for safety of occupants.

It is advised to do the propping to dangerous portion of the building immediately for safety of the occupants till the buildings are vacated.

The owner occupants and the local authority has to take urgent decision on the action."

10. On or about 19.07.2014, the Respondent-Municipal Corporation issued a notice under Section 488 of the Bombay Municipal Corporation Act, 1888 (now known as the Mumbai Municipal Corporation Act) and hereinafter referred to as the Municipal Corporation Act, for inspection of the structures at the premises in question.

11. A notice under Section 354 of the Municipal Corporation Act was issued,