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TMI Blog2021 (7) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that the stability of the building could be restored by repair in the manner directed. The High Court patently erred in passing the impugned order. The impugned order cannot be sustained. The appeal is, accordingly, allowed, for the reasons discussed above. The impugned final judgment and order is set aside and the writ petition is dismissed. - Civil Appeal No. 2848 of 2021 (Arising out of SLP (C) No. 1837 of 2021) - - - Dated:- 20-7-2021 - Hon'ble Judges Indira Banerjee and V. Ramasubramanian, JJ. For the Appellant: Dilip Annasaheb Taur, AOR For the Respondent: Vishakha, Karthik Raj Shakher, Advs., Atul Kumar, AOR, Pallavi Pratap, Adv. and Aruna Savla, Adv. for Pratap and Co., AOR 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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, for demolition of the premises in question to safeguard human life, as the building had been declared as of C-1 category. 12. According to the Appellant, the notice Under Section 354 of the Bombay Municipal Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were declared as of C-1 category. 20. On 02.07.2020, the Respondent-Municipal Corporation issued a notice revoking the 50 days' time earlier granted to file objection on the decision of the Technical Advisory Committee, since the Technical Advisory Committee had declared the structure to be of C-1 category. 21. On 02.02.2020, a notice Under Section 354 of the Municipal Corporation Act was issued to the Appellant and to the tenants including the Respondent No. 1 directing them to vacate the buildings in question. Thereafter, on 09.07.2020, the Appellant sent letters to all the tenants including the Respondent No. 1 informing them of the Technical Advisory Committee Report and requesting them to vacate the premises in question. The Respondent No. 1 however filed writ petition WP-LD-VC-No. 163 of 2020 challenging the notice issued by the Respondent-Municipal Corporation Under Section 354 of the Municipal Corporation Act. 22. On 29.9.2020, M/s. Shetgiri and Associates, Architects submitted a report to the effect that the life of the structure could be enhanced for further 5 to 6 years after repairs, subject to the condition of monitoring and periodic maintenance every yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediate attention. Any further delay even if marginal to initiate the major restoration and repair works could lead to a part or complete failure and leading to mishaps, even without warning signals. This could be serious fatal to both the occupants of the building structure as well as the passerbye s (sic passers by) in close proximity to the structure . 26. It is well settled that the High Court exercising its extraordinary writ jurisdiction Under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable. 27. Moreover, the High Court has overlooked the Notes and Limitations mentioned in the report of Shetgiri and Associates, set out hereinbelow: 1) The report is based on visual inspection done as on date, of an accessible area and data provided by client and ND tests results. This report serves a basis of preliminary health heck-up of structure and should not be treated as stability certificate of the building. 2) ........ 3) Inspection of Substructure was not possible and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been satisfied that the stability of the building could be restored by repair in the manner directed. The High Court patently erred in passing the impugned order. The impugned order cannot be sustained. 30. It is recorded that the Appellant being the land lord has given a proposal to the Respondent No. 1, similar to the proposal offered to the other tenants. The proposal, as contained in Annexure P-6 to the Additional documents filed on behalf of the Appellant, which is a very reasonable proposal, is extracted hereinbelow for convenience: A) I am the owner of the property which is subject matter of the Special Leave Petition No. 1837 of 2021 before the Hon'ble Supreme Court of India. The Respondent No. 1 is the occupant/tenant of the room No. 21 admeasuring 28 sq. Mtr. As per the area statement issued by the MCGM. B) Now the MCGM have issued orders dated 02.07.2020 to the owner and the Respondent No. 1 along with all other tenants/occupants in the building to vacate their houses and evict the building on the Subject Property. C) As per the area certificate issued by the MCGM, it has protected the area of the Respondent No. 1 and all other tenants. D) It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea which mentioned in the 'Area Certificate' and Assessment Extract in respect of subject house in the proposed building. 6. I undertake that I will be providing newly constructed flat to the Respondent No. 1 in the newly constructed redeveloped building, equivalent to the authorised/legal area which mentioned in the 'Area Certificate' on ownership basis and I shall not have any right over the said flat once it is handed over to the Respondent No. 1. 7. I undertake that I will not charge any amount from the Respondent No. 1 towards new Alternate Accommodation which is to be provided in the proposed building. G) I have already submitted the proposal before the competent authority for the redevelopment of the subject property and I am awaiting for the approval. H) I assure that all the permissions no-objection certificates required for the new building under this redevelopment as well as all legal action will be taken by me. I) I assure that no legal charges, stamp duty, registration fee other charges will be levied to Respondent No. 1 for all redevelopment costs and the full cost will be borne by me. J) For this redevelopment, the deposit amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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