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2019 Supreme(Bom) 2491
IN THE HIGH COURT OF BOMBAY
S.C. Dharmadhikari, Sandeep K. Shinde, JJ.
Gehrilal A. Choudhary and Ors. – Appellants
Versus
Municipal Corporation of Greater Mumbai and Ors. – Respondents
Writ Petition No. 2399 of 2017
Decided On : 17-07-2019
Advocate Appeared:
For the Appellant :N.V. Walawalkar, Senior Advocate, V.R. Tripathi, Rupali Adhate and Amit Shastri, AGP
For the Respondent: Sean Wassoodew and Rupesh Mandhare
Headnote:
Constitution of India, 1950 - Article 226 - Mumbai Municipal Corporation Act - Sections 354, 351 - Purchased Property - After describing as to how construction is carried out petitioners candidly say that each one of them and there in all together with their predecessors have been residing and carrying on their day-to-day affairs for past more than years - It is claimed that fifth respondent purchased property and he started harassing them harassment is stated to be of such an extent that this respondent influenced Municipal Officials into initiating action and other provisions - These notices have been duly challenged in Court of law respondent also filed several eviction suits in Court of Small Causes and they are pending - Held, We are therefore of firm view that such old structure which is highly dilapidated and dangerous at junction of a road near Santacruz Station cannot continue to exist and must be brought down - It is likely to collapse - We have already made extensive reference to arguments of Counsel and we find that petitioners request to grant time to carry out repairs is unacceptable - We do not think that we should allow parties like petitioners or owners to indulge in an exercise of some cosmetic repairs structural repairs to be carried out would require petitioners to vacate their premises and for all we know such a building which is nearly may collapse during such extensive repairs or portions of it may fall - On such occasions it is passers-by who would be suffering consequence equally one cannot afford a traffic congestion after an untoward incident - Petition accordingly disposed of.
ORDER :
1. By these petitions under Article 226 of the Constitution of India, the petitioners are challenging the notice issued under Section 354 of the Mumbai Municipal Corporation Act in Writ Petition No. 2399 of 2017 and in' Writ Petition No. 3323 of 2018. We have heard Mr. Tripathi appearing for the petitioners.
2. The building in question is identified as Gulab Baug. The petitioners do not suppress anything from this Court in para 2 of the Memo of the Writ Petition (Writ Petition No. 2399 of 2017). It is candidly stated that, this building is a L-Shape Building and curved at the corner. The longer side of the building is parallel to M.G. Road facing Santacruz Railway Station and the building comprises of ground plus one upper floor with part sloping mangalore tiles roof and part second floor with terrace floor above it at middle and corner of the building. The ground floor is commercial floor where shop line exists. The building is having two R.C.C. staircase from ground floor to first floor forming two wings in the building known as north side wing and south side wing. The middle portion of the building is having access from first floor to second floor by steel staircase. The ground floor of the building is occupied by shops and first floor is residential.
3. After describing as to how the construction is carried out, the petitioners candidly say that each one of them and there in all forty-seven in number together with their predecessors have been residing and carrying on their day-to-day affairs for past more than fifty years. It is claimed that the fifth respondent purchased the property and he started harassing them. The harassment is stated to be of such an extent that this fifth respondent influenced the Municipal Officials (respondent Nos. 1 to 4 to this petition) into initiating action under Section 351 and other provisions of the Mumbai Municipal Corporation Act. These notices have been duly challenged in the Court of law. The fifth respondent also filed several eviction suits in the Court of Small Causes and they are pending.
4. Now on 9th June, 2017, the Municipal Corporation called upon the petitioners to vacate the building as the same is in dilapidated condition and is required to be pulled down. The Technical Advisory Committee of the Corporation met and opined on 6th May, 2017 that the structure is dangerous or in a ruinous condition and likely to fall. After the petitioners are in receipt of this notice, they say that their harassment is such that even the Santacruz Police Station staff informed them about this notice.
5. The original petitioners in para 10 say that, the Municipal Corporation does not call upon the landlord to pull down the building but it calls upon him to repair the building. Merely because he neglects it, does not mean that the petitioners are also neglecting it or particularly the repairs to it. They employed one, M/s. ANA Consultants, a Structural Engineer to evaluate the stability of the said building. This consulting firm inspected the building and submitted its report to the Assistant Engineer, Building and Factory Department, H/W. Ward Office along with the forwarding letter dated 12th July, 2013. Thus, on receipt of the impugned notice, the petitioners stated that they have promptly moved by engaging the services of the Structural Engineer and also through their advocate requested the Municipal Corporation and the fifth respondent to allow them to repair the building.
6. One structural engineer and R.C.C. Consultant, Mr. Kishore N. Bhoir, a Structural Engineer offered his services and the petitioner availed them so as to carry out another structural audit of the building, he clearly says that the building is stable and would only require repairs.
7. However, the Municipal Corporation has been calling upon the petitioners to obtain a report not from such Engineers and Consultants but from institutions of repute like, HT/Sardar Patel College of Engineering or VJTI.
8. The essential argum
