RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. versus MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. on 25 August 2022

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[2022] 16 S.C.R.

ARATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS.

v.

MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATIONOF GREATER MUMBAI & ORS.

(Civil Appeal No. 5825 of 2022)

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AUGUST 25, 2022

[N. V. RAMANA, CJI, KRISHNA MURARI ANDHIMA KOHLI, JJ.]

Mumbai Municipal Corporation Act, 1888 – ss.353B and 354C– Demolition of building – Notice issued to Respondent No. 4-housingsociety u/s.354 of MMC Act in respect of whole building which wasidentified as dilapidated and dangerous – The said notice was issuedafter satisfaction of the Municipal Commissioner in accordance withthe provision of s.354 of MMC Act – An eviction notice was alsoDissued to the appellants for eviction from flat occupied by them –There was an earlier dispute between appellant and society relatingto some unauthorised changes in the structure of disputed flatoccupied by the appellant – Civil suit filed by the appellant in thisregard was dismissed and High Court in appeal directed the partiesto maintain status quo – Appellant challenged the two notices issuedEby the Municipal Corporation – High Court refused to set aside thetwo notices on the ground that the building was ruinous, dilapidatedand dangerous and unfit for human dwelling – On appeal, held:Appellant did not set out anything specific to demonstrate anyperversity or manifest illegality in the satisfaction recorded by theFMunicipal Commissioner – Merely because the MunicipalCorporation was made party to proceedings initiated by theappellants against society regarding alterations made in theiroccupied flat (earlier dispute) would not mean that MunicipalCorporation cannot carry out an audit of the structure as a whole,as mandated by law – The satisfaction recorded by the MunicipalGCommissioner was in accordance with the due procedure prescribedby law and it was not vitiated by any perversity or illegality, thus,there existed no ground to interfere with the impugned notices.

Dismissing the appeal, the Court

HELD: 1. Building in question had been constructed inthe year 1967 and is about 55 years old. It is settled law underthe MMC Act that once a building completes the prescribedperiod of life under the statute i.e., 30 years, a structural audit isrequired to be carried out for certifying its stability and safety forhuman dwelling mandatorily under the provisions of Section 353Bof the 1888 Act. The audit has to be carried out in terms of thelegal provisions and within the time specified and if not, then it isthe Municipal Commissioner who can ensure that such an auditis carried out, or if there is no co-operation, he can come to anindependent conclusion. [Para 14][205-G-H; 206-A-B]

2. The appellants did not set out anything specific in theWrit Petition demonstrating any perversity or manifest illegalityin the satisfaction recorded by the Municipal Commissioner toinvoke the powers of the High Court to interfere with the same.The dispute in the First Appeal and the Writ Petition arecompletely different having different dimensions and no inter seconnection. Merely because the Municipal Corporation is a partyto the proceedings initiated by the appellants with regard toalterations made in the flat existing in the dilapidated buildingwill not mean that the Municipal Corporation cannot carry out anaudit of the structure as a whole, as mandated by law, to judgethe stability and safety. [Para 17][209-D-F]

3. The building in question is in a ruinous condition andneeds to be repaired at the earliest for the simple reason that itis unsafe for human habitation. Once the satisfaction recorded bythe Municipal Commissioner is in accordance with the dueprocedure prescribed by law and is not vitiated by any perversityor any illegality, there exists no ground to interfere with theimpugned notices. [ Paras 21 and 22][210-E-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5825of 2022.

From the Judgment and Order dated 16.10.2019 of the High Courtof Judicature at Bombay in Writ Petition No.2190 of 2015.

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APetitioner-in-person

Prashant Bhushan, Ms. Alice Raj, Rahul Gupta, Garvesh Kabra,Ms. Pooja Kabra, Kamini Jaiswal, Ms. Rani Mishra, Advs. for theRespondents.

The Judgment of the Court was delivered byB

KRISHNA MURARI, J.

Leave granted.

2. The instant appeal has been filed assailing the judgment andfinal order dated 16.10.2019, passed by the High Court of Judicature atCBombay (hereinafter referred to as “High Court”) in Writ Petition No.2190/2015, whereby the High Court dismissed the writ petition filed bythe Appellants challenging the Demolition Notice dated 19.01.2015 issuedunder Section 354 of the Mumbai Municipal Corporation Act, 1888(hereinafter referred to as “MMC Act”) and eviction notice dated21.02.2015.D3. Brief facts necessary for the disposal of this appeal are asunder:

3.1 The dispute is in respect of Flat No. 9 situated in a Co-operativeHousing Society, namely, Vasudha Co-operative Housing Society LimitedEPlot No. D-2/403 Diamond Garden, 7[th] Cross Road, Chembur, Mumbai.

3.2 Late Shri Ratilal S. Pujara, husband of the appellant no. 1 andfather of the appellants no. 2 and 3 was the owner member of said flat.He executed a will in favour of three appellants on the basis of whichthey were declared as legal heirs by virtue of letter of administrationFdated 30.04.2014, issued by High Court of Bombay. Admittedly, thebuilding was constructed in 1967 and is about 55 years old.

3.3 As per the provisions of Section 353(B) of the MMC Act, it isobligatory on the part of the owner and occupier of the building which isin existence and is in use for more than 30 years, to have it inspectedGthrough the registered structural engineer with Municipal Corporation ofGreater Mumbai. Since the Building in question had completed 55 yearsof its existence, a structural audit was conducted on 22.07.2014 by aregistered structural engineer. The same was submitted to the RespondentNo. 2. The Building in question had been categorised as C-1 i.e., themost dangerous, in the structural audit report dated 29.07.2014. Further, H

the building in question was again inspected on 06.12.2014 by theRespondents and it was observed that the structure was in a dangerousand dilapidated condition. The inspection report and the structural auditreport were put up by Respondent No. 2 requesting Respondent No. 3to opine regarding the structure category. Vide opinion dated 15.12.2014,Respondent No. 3 declared that the building in question is of C-1 categoryand required to be pulled down after being vacated by the occupants.

3.4 In view of the aforesaid factual position with respect to thecondition of the building, Respondent No. 4 society entered into a Re-development agreement dated 19.12.2014 with the Respondent No. 5,Harita Developers. A draft copy of the said agreement was circulatedamong the members of the society and at a special general body meetingon 10.11.2014, the Re-development agreement was approved andsubsequently, the same was duly registered on 22.12.2014. Thereafter,all the occupants of the flats in the building were put to notice fordemolition of the existing building and to vacate the flats in theiroccupation.

3.5 Similar notice dated 19.01.2015 under Section 354 of 1988Act was also issued to the Respondent No. 4 for demolishing the existingbuilding. An eviction notice dated 21.02.2015 was also issued to theappellants for eviction from Flat No. 9, occupied by them.

3.6 Being aggrieved, the appellants filed Writ Petition No. 2190/2015 before the High Court challenging the two notices issued by theMunicipal Corporation of Greater Mumbai. Vide judgment and orderdated 16.10.2019, the High Court upon detail consideration of the factsand evidence on record came to conclusion that the building in which thedisputed flat exists is ruinous, dilapidated and dangerous and unfit forhuman dwelling and also dangerous for the passersby. The High Courtaccordingly refused to set aside the two notices dated 19.01.2015 and21.02.2015 issued by the Respondent No. 1 and dismissed the writpetition.

4. Challenging the judgment of the High Court, the appellants arebefore this court by way of the present appeal. Vide order dated22.10.2019, this Court issued notice and granted stay by directing thatno demolition order will be passed or acted upon in the meanwhile. TheBuilder/Developer (Respondent No. 5) was added as Party Respondentin the proceedings vide order dated 10.12.2019.

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A5. The genesis of the present dispute emanates out of an earlierdispute between the appellants, on one hand, and the society on theother hand relating to some unauthorized changes in the structure ofdisputed Flat No. 9. The appellants have not clearly pleaded in detail thefacts about the said dispute but what can be culled out from the pleadingsis that there was a dispute regarding the regularization of the terrace ofBFlat No. 9 owned by the appellants in the building in question. Subsequently,Respondent society got Flat No. 9 approved as an unauthorized flat intwo plans dated 07.07.2005 and 03.05.2006 and the regularization of theterrace adjoining Flat No. 9 was kept in abeyance by the RespondentNo. 3. It further appears that a civil suit was filed by the appellants inCthis regard which was dismissed. Thereafter, First Appeal No. 813/2012was filed before the High Court wherein, vide order dated 19.12.2013,the parties were directed to maintain status quo.

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6. We have heard the Appellant-in-person and Mrs. GarveshKabra, learned Counsel appearing for the Respondent Nos. 1, 2 and 3Dand Mr. Prashant Bhushan, Learned Counsel appearing for theRespondent No. 4. We have also gone through the pleadings of theparties, and the written arguments filed by the appellants.

CONTENTIONS ON BEHALF OF THE APPELLANTS

7. It was submitted that the appellants filed First Appeal No. 813/E2012 before the High Court which is pending wherein an order passeddirecting the parties to maintain status quo pending appeal is operativeand the impugned notices being in the teeth of the said order, was notsustainable. It was further submitted that as the appellants’ flat no. 9was wrongly shown as unauthorized in the approved plans of 07.07.2005Fand 03.05.2006 by the Respondent No. 3 and the Respondent No. 4, andin case the building is demolished, all evidences and proofs of injusticethat has been caused by the wrongly approved plans of 07.07.2005 and03.05.2006, would be destroyed, causing serious and irreparable loss tothe appellants.

G8. It was further submitted that the act of the Respondent No. 2issuing the impugned notices amounts to willful disobedience and non-compliance of the stay orders dated 19.12.2013 and 12.02.2014 passedby the High Court in Civil Application No. 1745/2012 in FA No. 813/2012.

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CONTENTIONS ON BEHALF OF THE RESPONDENTS

9. It was submitted that the impugned order passed by the HighCourt in dismissing the writ petition is neither perverse nor suffers fromirregularity.

10. It was further submitted that the High Court has rightly heldthat after the redevelopment of the property, the appellants will have adecent, safe, and stable structure, and their rights in the building in regardto her flat, are sufficiently and fully protected.

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I1. It was vehemently submitted that there is a dispute regardingregularization of the terrace of the flat owned by the appellants in thebuilding in question. The issue of regularization of the terrace is a totallydifferent and distinct issue and only because that issue is pending, thebuilding which is not safe for human dwelling cannot be allowed to beinhabited by the appellants more so when all other residents of the buildinghave vacated the building and no one except the Appellants havechallenged the notice issued under Section 354 of the MMC Act.

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12. We have carefully considered the submissions made at thebar and perused the materials placed on record.

ANALYSIS

13. Before adverting to the facts of the case, it is important toEnotice that the buildings in Mumbai that need repair are classified intothe following categories:

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14. In the case at hands, the building in question had beenconstructed in the year 1967 and is about 55 years old. It is settled lawunder the MMC Act that once a building completes the prescribed periodof life under the statute i.e., 30 years, a structural audit is required to becarried out for certifying its stability and safety for human dwelling H

Amandatorily under the provisions of Section 353B of the 1888 Act. Theaudit has to be carried out in terms of the legal provisions and within thetime specified and if not, then it is the Municipal Commissioner who canensure that such an audit is carried out, or if there is no co-operation, hecan come to an independent conclusion. Section 353B of the MMC Acttalks about Structural Stability Certificate which reads as under:B

“353B. (1) Every owner or occupier of a building in respectof which a period of thirty years, from the date of, —

(i) issue of its completion certificate by the Corporation;or C

(ii) issue of permission to occupy a building under section353A; or

(iii) its physical occupation of at least 50 per cent., of itsbuilt-up area, Dwhichever is earlier, has expired, shall cause such buildingto be examined by a Structural Engineer registered with theCorporation for the purposes of certifying that the buildingis fit for human habitation (such certificate hereinafterreferred to as “the Structural Stability Certificate”). TheStructural Stability Certificate issued by such StructuralEEngineer shall be submitted to the Commissioner.

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(2) The Structural Stability Certificate shall be submitted withinone year from the expiry of a period of thirty years referredto in sub-section (1), and every ten years thereafter or suchearlier period as the Commissioner may determine havingFregard to the condition of the building and the correctiverepairs carried out by the owner or occupier.

(3) Notwithstanding anything contained in sub-section (1),the Commissioner may, at any time, after having recorded thereasons, in writing, direct the owner or occupier of a building,to cause such building to be examined by such StructuralEngineer and to submit to the Commissioner, the StructuralStability Certificate, as required under sub-section (1), withinthe period not exceeding thirty days as specified by theCommissioner, in such direction.

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(4) If the Structural Engineer recommends any correctiverepairs for securing the structural stability of the building,such corrective repairs shall be carried out by the owner oroccupier of a building to the satisfaction of the Commissioner.

(5) Any owner or occupier, as the case may be, who fails tocarry out corrective repairs for securing structural stability,within a period of six months from the date of report of theStructural Engineer, shall be punished with the fine asprovided in section 471.

(6) Notwithstanding anything contained in sub-section (5),the Commissioner may, after giving the owner or occupier, anotice in writing, require him to carry out, within the periodspecified in the notice, corrective repairs for securingstructural stability of a building. If the owner or occupierfails to carry out such corrective repairs within the periodspecified in the notice, the Commissioner may carry out thesame and the expenses incurred by the Commissioner on suchrepairs shall, on demand if not paid within thirty days, berecovered from the owner or occupier as arrears of propertytax.

(7) If there is any dispute about the amount of expenses forwhich demand is made under sub-section (6), an appeal maybe preferred to the Chief Judge of the Small Causes Court,but no such appeal shall be entertained by the said ChiefJudge, unless— (i) it is preferred within twenty-one days fromthe date of receipt of notice of such demand ; (ii) the amountfor which demand is made is deposited with the Corporationand a true copy of the receipt showing that the amount hasbeen so deposited accompanies the appeal.

(8) In case the appeal is decided in favour of the appellantsand the amount of expenses deposited with the Corporationis more than the amount payable by the appellants, theCommissioner shall adjust the excess amount with interest at6.25 per cent, per annum from the date on which the amountis so deposited by the appellants, towards the property taxpayable by the owner in respect of such building thereafter.”

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A15. In the case at hand, the structure audit report dated 29.07.2014of the building in question has found it to be dangerous for human dwellingand also for the passers-by. Relevant concluding part of the structuralaudit report dated 29.07.2014 is reproduced here under:

“In view of the above conclusions, we feel that most of theBstructural elements have lost their strength and hence designload carrying as per the provisions and requirements of I.Scodes. Deterioration in these structural elements are widespread and severe at several locations. Partial collapse ofthe brick work has at the side of building occurred at manyplaces and common passage has sagged at few locations andCheavy cracks seen in the common rear passage slab panelsat many places is imminent, which are likely to cause severeinjury to occupants and maybe loss of their life. Because ofpartial collapse of structural audit such as walls and woodenbeams (wooden as well as additional steel elements) of theDbuilding, there is possibility of loss of lateral stiffness andstability of the entire building and subsequent collapse of theentire building in case of earthquake and any naturalcalamities. The said structure is beyond logical repairs andalso unsafe for habitation. In our opinion, the said building isin C1 category and has to be evacuated immediately to avoidEthe mishaps.”

16. A notice under Section 354 of the MMC Act was issued andit is pertinent to mention that the notice was issued in respect of thewhole building which has been identified as dilapidated and dangerous.The said notice was issued only after the satisfaction of the MunicipalFCommissioner in accordance with the provisions of Section 354 of theMMC Act which reads as under:- “354. (1) If it shall at any time appear to the Commissionerthat any structure (including under this expression anybuilding, wall or other structure and anything affixed to orGprojecting from any building, wall or other structure) is in aruinous condition, or likely to fall, or in any way dangerousto any person occupying, resorting to or passing by suchstructure or any other structure or place in the neighborhoodthereof, the Commissioner may, by written notice, require theowner or occupier of such structure to pull down, secure or H

repair such structure 1[subject to the provisions of section342], of danger therefrom.

(2) The Commissioner may also if he thinks fit, require thesaid owner or occupier, by the said notice, either forthwithor before proceeding to pull down, secure or repair the saidstructure, to set up a proper and sufficient hoard or fence forthe protection of passers-by and other persons, with aconvenient platform and hand-rail, if there be room enoughfor the same and the Commissioner shall think the samedesirable, to serve as a footway for passengers outside ofsuch hoard or fence.”

17. It is not disputed that First Appeal No. 812 of 2012 filed by theappellants herein before the High Court with respect to the dispute withthe society in respect of unauthorized alteration in the disputed flat ispending and orders of status quo is in operation. The appellants furtherfiled a Writ petition challenging the notice under Section 354 of the MMCAct and the eviction notice issued by the Respondent No. 4. To the utterdismay of this court, the appellants did not set out anything specific inthe Writ Petition demonstrating any perversity or manifest illegality inthe satisfaction recorded by the Municipal Commissioner to invoke thepowers of the High Court to interfere with the same. The entire emphasiswas on the order dated 19.12.2013, passed in First Appeal No. 812 of2012 directing the parties to maintain status quo, pending appeal. Thedispute in the First Appeal and the Writ Petition are completely differenthaving different dimensions and no inter se connection with each other.Merely because the Municipal Corporation is a party to the proceedingsinitiated by the appellants with regard to alterations made in the flatexisting in the dilapidated building will not mean that the MunicipalCorporation cannot carry out an audit of the structure as a whole, asmandated by law, to judge the stability and safety.

18. The relentless contention of the appellants is that their right inthe building will not be protected and get further affected after demolitionof the building but the same is not sustainable in our considered view, forthe simple reason that the Re-development agreement dated 19.12.2014,contains a clause protecting the rights of the appellants in the buildingwhich is reproduced hereunder:

1. Eight new flats each measuring 740 sq. ft. carpet area for flatowners i.e., flat no. 1 to 8.

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A2. Two new flats each measuring 1035 sq. ft. carpet area for 2flat owners i.e. flat no. 9 and 10 (including an area to be givenin lieu of an open terrace attached to their respective flats.)

19. The appellants herein are the occupiers of Flat No. 9 whichhas a attached open terrace, therefore they have been given a largerBcarpet area. Further, the agreement also stated that instead of providingtemporary alternative accommodation during the period of constructionto the appellants and other members, Respondent No. 5 shall paydisplacement compensation @ Rs. 30,000/- per month to each member.The said amount was later enhanced to Rs. 40,000/- per month to eachmember vide letter dated 18.12.2019. To add to this, one-monthCdisplacement compensation was to be paid as a brokerage in addition toRs. 20,000 as shifting and transport compensation to each member.

20. As a consequence, the rights of the appellants in the flat ownedby them in the building in question is an independent right and the demolitionof the building nowhere would affect that independent right. In additionDto this, the appellants have also been provided with alternateaccommodation and the rights of the appellants will not be affected byvirtue of demolition or evacuation in exercise of the power under Section354 of the MMC Act. Not only the appellants, but other residents of thebuilding will have a decent, safe and stable structure after theEreconstruction of the building in question.

21. The building in question is in a ruinous condition and needs tobe repaired at the earliest for the simple reason that it is unsafe forhuman habitation. The historic buildings in Mumbai are a reminder ofthe city’s rich and aesthetic architectural styles. Therefore, in order toFpreserve the authenticity of the buildings, it is important that certain legalmeasures need to be taken so that the safety and stability can be certifiedunder Section 353B of the MMC Act, 1888.

22. Once we find that the satisfaction recorded by the MunicipalCommissioner is in accordance with the due procedure prescribed byGlaw and is not vitiated by any perversity or any illegality, there exists noground to interfere with the impugned notices. Merely because theappellants are senior citizens, does not impel us to take any lenient viewin the matter in larger public interest particularly when the private interestsof the appellants have been amply safeguarded.

23. Judicial notice can be taken of various media reports reportingcollapse of many old structures in Mumbai causing serious loss of humanlives and limbs. By making interference of any sort in the matter at thebehest of the appellants, in the existing facts and circumstances, wewould not only be putting the life of the appellants and other residents ofthe building in jeopardy, but also hazarding the life and limb of the generalpublic as well.

24. In our considered view, the High Court has rightly dismissedthe challenge laid to the impugned notices of demolition and eviction.

25. As a result, the appeal stands dismissed. All the pendingapplications as well the contempt petition filed by the appellants alsostand disposed accordingly.

Devika Gujral(Assisted by : Preetam Bharti, LCRA)

Appeal dismissed.

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