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2022 Supreme(Bom) 46
IN THE HIGH COURT OF BOMBAY AT GOA
A. K. Menon, J.
Mrs. Radha Kavlekar, Wife of Mr. Hemant and Others – Appellant
Versus
Margao Municipal Council, Margao, Thr. Its Chief Officer and Others – Respondents
Writ Petition No. 596 of 2022 (Filing) With Misc. Civil Application No. 630 of 2022 (Filing)
Decided On : 28-03-2022
Advocate Appeared:
For the Appellant :Mr. G. Agni, Advocate
For the Respondent:Mr. S. Karpe, Advocate, Mr. A. D. Bhobe, Advocate Mr. Vibhav Amonkar, Advocate
The majority decision of a cooperative society to demolish and reconstruct a building prevails, and absent a challenge to the resolution, there is no basis for interference.
Headnote:
Demolition - Goa Municipalities Act - Section 190 - 190 - Summary: The court considered a challenge to two orders under Section 190 of the Goa Municipalities Act, 1968, directing occupants of a residential structure to vacate and subsequently rejecting the challenge. The court found that the Society had unanimously resolved to demolish and reconstruct the building, and the impugned orders were justified based on the condition of the building and the Society's decision.
Fact of the Case:
The Society unanimously resolved to demolish and reconstruct the building due to its dilapidated condition. The Petitioner and intervenors opposed the demolition, arguing that the building could be repaired.
Finding of the Court:
The court found that the impugned orders were justified based on the condition of the building and the Society's decision to demolish and reconstruct it.
Issues: The main issues were the justification for the demolition notice under Section 190 and the Society's unanimous decision to demolish and reconstruct the building.
Ratio Decidendi: The court held that absent a challenge to the Society's resolution, there was no basis to interfere with the decision to demolish the building. The court also noted that the Petitioner had previously supported the need for urgent reconstruction.
Final Decision: The Writ Petition was dismissed, and the impugned orders were upheld.
JUDGMENT :
1. The challenge in this Writ Petition is to two Orders. The first Order dated 16.06.2021 is passed by the Chief Officer, Margao Municipal Council ('the Council'), by which he confirmed a Notice under Section 190 of the Goa Municipalities Act, 1968, (herein after referred to as 'the said Act') issued on 20.10.2014 and directed all occupants of residential structures of the Sanskar Co-operative Housing Society Ltd., to vacate within 30 days of the receipt of the Order, failing which, the occupants were to he held personally responsible for any untoward incident. The second order is dated 14.03.2022, whereby the Director of Urban Development, Panaji, Goa, rejected the challenge to the Order of the Chief Fire Officer thereby dismissing the Petitioner's appeal. An interim stay granted was vacated.
2. The Petitioner is aggrieved by these two Orders. At the hearing of this Petition, all parties agreed to final disposal at the stage of admission and accordingly, I issue Rule. By consent, Rule made returnable forthwith. Learned Counsel for the Respondents waive notice. The Petition is taken up for final disposal.
3. I have heard the Counsel for the Petitioner, the Municipal Council and the Co-operative Society and certain intervenors, Five other persons, who were members of the Respondent no.2-Society, have filed an impleadment/intervention application on 19.03.2022 claiming to be impleaded in the above Writ Petition since their cause was identical to that of the Petitioner. The intervenors were not the complainants but they support the Petitioner's case. Intervenors are also aggrieved by the Order directing members of the Society to vacate.
4. Before we consider the cases canvassed by the parties, it would be appropriate to briefly set out the relevant facts. The Respondent no.2 is a Co-operative Housing Society whose Chairman had made application to the Municipal Council-Respondent no.1, for demolition of the Society Building which was said to be more than 30 years old and in a dilapidated condition. It was contended that the Council invoked powers under Section 190 of the said Act, pursuant to the conclusion of Structural Stability Certificate dated 27.01.2012 issued by a Civil Engineer. The Council issued a notice dated 20.01.2014 calling upon the residents to vacate the building within 30 days after which the building would have to be demolished.
5. On 28.01.2014, some members of the Society sought time to vacate the building citing the reason that a redevelopment process was at its final stages with the builder and the Society required some more time. One Pavan Buildcon Pvt. Ltd., had meanwhile been engaged as a builder but no redevelopment agreement had been entered into at that stage. An Additional Structural Report was called for by the Council from the Goa College of Engineering (GEC). The GEC submitted a report dated 13.06.2014, suggesting various methods for restoration of the building which it found to be marginally distressed. Repairs were possible, along with retrofitting to provide sufficient service life for the building. The matter rested there and apparently negotiations between the Society and the Builder resulted into an agreement being entered into. Later, the agreement not having been performed, was terminated.
6. The parties during the course of hearing before me, did refer to the agreement in the passing but it is not relevant as on date since it is not part of the record and no serious arguments have been advanced on that basis since the agreement was already terminated. The objections of the Petitioner and presumably of the intervenors is that in the garb of the building being in a ruinous condition, Section 190 has been invoked without justification and that this attempt at demolition was only to defeat objections of members who had objected to redevelopment. It is not disputed that all members except one had vacated the building. There are a total of 28 members in the Society and the Petitioner herse
