RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS.versusMUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.

200                      [2022]REPORTS
               SUPREME COURT   16 S.C.R. 200              [2022] 16 S.C.R.


A       RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS.
                                       v.
       MUNICIPAL COMMISSIONER, MUNICIPAL CORPORATION
                  OF GREATER MUMBAI & ORS.
B                       (Civil Appeal No. 5825 of 2022)
                               AUGUST 25, 2022
             [N. V. RAMANA, CJI, KRISHNA MURARI AND
                         HIMA KOHLI, JJ.]
             Mumbai Municipal Corporation Act, 1888 – ss.353B and 354
C
      – Demolition of building – Notice issued to Respondent No. 4-housing
      society u/s.354 of MMC Act in respect of whole building which was
      identified as dilapidated and dangerous – The said notice was issued
      after satisfaction of the Municipal Commissioner in accordance with
      the provision of s.354 of MMC Act – An eviction notice was also
D     issued to the appellants for eviction from flat occupied by them –
      There was an earlier dispute between appellant and society relating
      to some unauthorised changes in the structure of disputed flat
      occupied by the appellant – Civil suit filed by the appellant in this
      regard was dismissed and High Court in appeal directed the parties
      to maintain status quo – Appellant challenged the two notices issued
E
      by the Municipal Corporation – High Court refused to set aside the
      two notices on the ground that the building was ruinous, dilapidated
      and dangerous and unfit for human dwelling – On appeal, held:
      Appellant did not set out anything specific to demonstrate any
      perversity or manifest illegality in the satisfaction recorded by the
F     Municipal Commissioner – Merely because the Municipal
      Corporation was made party to proceedings initiated by the
      appellants against society regarding alterations made in their
      occupied flat (earlier dispute) would not mean that Municipal
      Corporation cannot carry out an audit of the structure as a whole,
      as mandated by law – The satisfaction recorded by the Municipal
G
      Commissioner was in accordance with the due procedure prescribed
      by law and it was not vitiated by any perversity or illegality, thus,
      there existed no ground to interfere with the impugned notices.


H
                                      200
    RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                  201
            MUNICIPAL COMMISSIONER, MCGM

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

      2. The appellants did not set out anything specific in the
Writ Petition demonstrating any perversity or manifest illegality
in the satisfaction recorded by the Municipal Commissioner to
invoke the powers of the High Court to interfere with the same.
The dispute in the First Appeal and the Writ Petition are                D
completely different having different dimensions and no inter se
connection. Merely because the Municipal Corporation is a party
to the proceedings initiated by the appellants with regard to
alterations made in the flat existing in the dilapidated building
will not mean that the Municipal Corporation cannot carry out an         E
audit of the structure as a whole, as mandated by law, to judge
the stability and safety. [Para 17][209-D-F]
       3. The building in question is in a ruinous condition and
needs to be repaired at the earliest for the simple reason that it
is unsafe for human habitation. Once the satisfaction recorded by        F
the Municipal Commissioner is in accordance with the due
procedure prescribed by law and is not vitiated by any perversity
or any illegality, there exists no ground to interfere with the
impugned notices. [ Paras 21 and 22][210-E-G]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5825                G
of 2022.
      From the Judgment and Order dated 16.10.2019 of the High Court
of Judicature at Bombay in Writ Petition No.2190 of 2015.

                                                                         H
202               SUPREME COURT REPORTS                       [2022] 16 S.C.R.


A              Petitioner-in-person
           Prashant Bhushan, Ms. Alice Raj, Rahul Gupta, Garvesh Kabra,
      Ms. Pooja Kabra, Kamini Jaiswal, Ms. Rani Mishra, Advs. for the
      Respondents.
               The Judgment of the Court was delivered by
B
               KRISHNA MURARI, J.
               Leave granted.
             2. The instant appeal has been filed assailing the judgment and
      final order dated 16.10.2019, passed by the High Court of Judicature at
C     Bombay (hereinafter referred to as “High Court”) in Writ Petition No.
      2190/2015, whereby the High Court dismissed the writ petition filed by
      the Appellants challenging the Demolition Notice dated 19.01.2015 issued
      under Section 354 of the Mumbai Municipal Corporation Act, 1888
      (hereinafter referred to as “MMC Act”) and eviction notice dated
D     21.02.2015.
               3. Brief facts necessary for the disposal of this appeal are as
      under:
            3.1 The dispute is in respect of Flat No. 9 situated in a Co-operative
      Housing Society, namely, Vasudha Co-operative Housing Society Limited
E     Plot No. D-2/403 Diamond Garden, 7th Cross Road, Chembur, Mumbai.
             3.2 Late Shri Ratilal S. Pujara, husband of the appellant no. 1 and
      father 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 which
      they were declared as legal heirs by virtue of letter of administration
F     dated 30.04.2014, issued by High Court of Bombay. Admittedly, the
      building 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 is
      obligatory on the part of the owner and occupier of the building which is
      in existence and is in use for more than 30 years, to have it inspected
G     through the registered structural engineer with Municipal Corporation of
      Greater Mumbai. Since the Building in question had completed 55 years
      of its existence, a structural audit was conducted on 22.07.2014 by a
      registered structural engineer. The same was submitted to the Respondent
      No. 2. The Building in question had been categorised as C-1 i.e., the
      most dangerous, in the structural audit report dated 29.07.2014. Further,
H
   RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                       203
  MUNICIPAL COMMISSIONER, MCGM [KRISHNA MURARI, J.]

the building in question was again inspected on 06.12.2014 by the            A
Respondents and it was observed that the structure was in a dangerous
and dilapidated condition. The inspection report and the structural audit
report were put up by Respondent No. 2 requesting Respondent No. 3
to opine regarding the structure category. Vide opinion dated 15.12.2014,
Respondent No. 3 declared that the building in question is of C-1 category
                                                                             B
and required to be pulled down after being vacated by the occupants.
       3.4 In view of the aforesaid factual position with respect to the
condition 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 circulated
among the members of the society and at a special general body meeting       C
on 10.11.2014, the Re-development agreement was approved and
subsequently, the same was duly registered on 22.12.2014. Thereafter,
all the occupants of the flats in the building were put to notice for
demolition of the existing building and to vacate the flats in their
occupation.                                                                  D
      3.5 Similar notice dated 19.01.2015 under Section 354 of 1988
Act was also issued to the Respondent No. 4 for demolishing the existing
building. An eviction notice dated 21.02.2015 was also issued to the
appellants for eviction from Flat No. 9, occupied by them.
       3.6 Being aggrieved, the appellants filed Writ Petition No. 2190/     E
2015 before the High Court challenging the two notices issued by the
Municipal Corporation of Greater Mumbai. Vide judgment and order
dated 16.10.2019, the High Court upon detail consideration of the facts
and evidence on record came to conclusion that the building in which the
disputed flat exists is ruinous, dilapidated and dangerous and unfit for     F
human dwelling and also dangerous for the passersby. The High Court
accordingly refused to set aside the two notices dated 19.01.2015 and
21.02.2015 issued by the Respondent No. 1 and dismissed the writ
petition.
       4. Challenging the judgment of the High Court, the appellants are     G
before this court by way of the present appeal. Vide order dated
22.10.2019, this Court issued notice and granted stay by directing that
no demolition order will be passed or acted upon in the meanwhile. The
Builder/Developer (Respondent No. 5) was added as Party Respondent
in the proceedings vide order dated 10.12.2019.
                                                                             H
204             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A             5. The genesis of the present dispute emanates out of an earlier
      dispute between the appellants, on one hand, and the society on the
      other hand relating to some unauthorized changes in the structure of
      disputed Flat No. 9. The appellants have not clearly pleaded in detail the
      facts about the said dispute but what can be culled out from the pleadings
      is that there was a dispute regarding the regularization of the terrace of
B
      Flat No. 9 owned by the appellants in the building in question. Subsequently,
      Respondent society got Flat No. 9 approved as an unauthorized flat in
      two plans dated 07.07.2005 and 03.05.2006 and the regularization of the
      terrace adjoining Flat No. 9 was kept in abeyance by the Respondent
      No. 3. It further appears that a civil suit was filed by the appellants in
C     this regard which was dismissed. Thereafter, First Appeal No. 813/2012
      was filed before the High Court wherein, vide order dated 19.12.2013,
      the parties were directed to maintain status quo.
             6. We have heard the Appellant-in-person and Mrs. Garvesh
      Kabra, learned Counsel appearing for the Respondent Nos. 1, 2 and 3
D     and Mr. Prashant Bhushan, Learned Counsel appearing for the
      Respondent No. 4. We have also gone through the pleadings of the
      parties, 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/
E     2012 before the High Court which is pending wherein an order passed
      directing the parties to maintain status quo pending appeal is operative
      and the impugned notices being in the teeth of the said order, was not
      sustainable. It was further submitted that as the appellants’ flat no. 9
      was wrongly shown as unauthorized in the approved plans of 07.07.2005
F     and 03.05.2006 by the Respondent No. 3 and the Respondent No. 4, and
      in case the building is demolished, all evidences and proofs of injustice
      that has been caused by the wrongly approved plans of 07.07.2005 and
      03.05.2006, would be destroyed, causing serious and irreparable loss to
      the appellants.

G           8. It was further submitted that the act of the Respondent No. 2
      issuing the impugned notices amounts to willful disobedience and non-
      compliance of the stay orders dated 19.12.2013 and 12.02.2014 passed
      by the High Court in Civil Application No. 1745/2012 in FA No. 813/
      2012.

H
   RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                           205
  MUNICIPAL COMMISSIONER, MCGM [KRISHNA MURARI, J.]

       CONTENTIONS ON BEHALF OF THE RESPONDENTS                                  A
       9. It was submitted that the impugned order passed by the High
Court in dismissing the writ petition is neither perverse nor suffers from
irregularity.
       10. It was further submitted that the High Court has rightly held
that after the redevelopment of the property, the appellants will have a         B
decent, safe, and stable structure, and their rights in the building in regard
to her flat, are sufficiently and fully protected.
       I1. It was vehemently submitted that there is a dispute regarding
regularization of the terrace of the flat owned by the appellants in the
building in question. The issue of regularization of the terrace is a totally    C
different and distinct issue and only because that issue is pending, the
building which is not safe for human dwelling cannot be allowed to be
inhabited by the appellants more so when all other residents of the building
have vacated the building and no one except the Appellants have
challenged the notice issued under Section 354 of the MMC Act.                   D
      12. We have carefully considered the submissions made at the
bar and perused the materials placed on record.
       ANALYSIS
       13. Before adverting to the facts of the case, it is important to
                                                                                 E
notice that the buildings in Mumbai that need repair are classified into
the following categories:



                                                                                 F




                                                                                 G
        14. In the case at hands, the building in question had been
constructed in the year 1967 and is about 55 years old. It is settled law
under the MMC Act that once a building completes the prescribed period
of life under the statute i.e., 30 years, a structural audit is required to be
carried out for certifying its stability and safety for human dwelling
                                                                                 H
206             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     mandatorily under the provisions of Section 353B of the 1888 Act. The
      audit has to be carried out in terms of the legal provisions and within the
      time specified and if not, then it is the Municipal Commissioner who can
      ensure that such an audit is carried out, or if there is no co-operation, he
      can come to an independent conclusion. Section 353B of the MMC Act
      talks about Structural Stability Certificate which reads as under:
B
            “353B. (1) Every owner or occupier of a building in respect
            of 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 section
                353A; or
                (iii) its physical occupation of at least 50 per cent., of its
                built-up area,

D           whichever is earlier, has expired, shall cause such building
            to be examined by a Structural Engineer registered with the
            Corporation for the purposes of certifying that the building
            is fit for human habitation (such certificate hereinafter
            referred to as “the Structural Stability Certificate”). The
            Structural Stability Certificate issued by such Structural
E           Engineer shall be submitted to the Commissioner.
            (2) The Structural Stability Certificate shall be submitted within
            one year from the expiry of a period of thirty years referred
            to in sub-section (1), and every ten years thereafter or such
            earlier period as the Commissioner may determine having
F           regard to the condition of the building and the corrective
            repairs carried out by the owner or occupier.
            (3) Notwithstanding anything contained in sub-section (1),
            the Commissioner may, at any time, after having recorded the
            reasons, in writing, direct the owner or occupier of a building,
G           to cause such building to be examined by such Structural
            Engineer and to submit to the Commissioner, the Structural
            Stability Certificate, as required under sub-section (1), within
            the period not exceeding thirty days as specified by the
            Commissioner, in such direction.
H
 RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                207
MUNICIPAL COMMISSIONER, MCGM [KRISHNA MURARI, J.]

  (4) If the Structural Engineer recommends any corrective          A
  repairs for securing the structural stability of the building,
  such corrective repairs shall be carried out by the owner or
  occupier of a building to the satisfaction of the Commissioner.
  (5) Any owner or occupier, as the case may be, who fails to
  carry out corrective repairs for securing structural stability,   B
  within a period of six months from the date of report of the
  Structural Engineer, shall be punished with the fine as
  provided in section 471.
  (6) Notwithstanding anything contained in sub-section (5),
  the Commissioner may, after giving the owner or occupier, a       C
  notice in writing, require him to carry out, within the period
  specified in the notice, corrective repairs for securing
  structural stability of a building. If the owner or occupier
  fails to carry out such corrective repairs within the period
  specified in the notice, the Commissioner may carry out the
  same and the expenses incurred by the Commissioner on such        D
  repairs shall, on demand if not paid within thirty days, be
  recovered from the owner or occupier as arrears of property
  tax.
  (7) If there is any dispute about the amount of expenses for
  which demand is made under sub-section (6), an appeal may         E
  be preferred to the Chief Judge of the Small Causes Court,
  but no such appeal shall be entertained by the said Chief
  Judge, unless— (i) it is preferred within twenty-one days from
  the date of receipt of notice of such demand ; (ii) the amount
  for which demand is made is deposited with the Corporation        F
  and a true copy of the receipt showing that the amount has
  been so deposited accompanies the appeal.
  (8) In case the appeal is decided in favour of the appellants
  and the amount of expenses deposited with the Corporation
  is more than the amount payable by the appellants, the            G
  Commissioner shall adjust the excess amount with interest at
  6.25 per cent, per annum from the date on which the amount
  is so deposited by the appellants, towards the property tax
  payable by the owner in respect of such building thereafter.”

                                                                    H
208             SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A             15. In the case at hand, the structure audit report dated 29.07.2014
      of the building in question has found it to be dangerous for human dwelling
      and also for the passers-by. Relevant concluding part of the structural
      audit report dated 29.07.2014 is reproduced here under:
            “In view of the above conclusions, we feel that most of the
B           structural elements have lost their strength and hence design
            load carrying as per the provisions and requirements of I.S
            codes. Deterioration in these structural elements are wide
            spread and severe at several locations. Partial collapse of
            the brick work has at the side of building occurred at many
            places and common passage has sagged at few locations and
C           heavy cracks seen in the common rear passage slab panels
            at many places is imminent, which are likely to cause severe
            injury to occupants and maybe loss of their life. Because of
            partial collapse of structural audit such as walls and wooden
            beams (wooden as well as additional steel elements) of the
D           building, there is possibility of loss of lateral stiffness and
            stability of the entire building and subsequent collapse of the
            entire building in case of earthquake and any natural
            calamities. The said structure is beyond logical repairs and
            also unsafe for habitation. In our opinion, the said building is
            in C1 category and has to be evacuated immediately to avoid
E           the mishaps.”
             16. A notice under Section 354 of the MMC Act was issued and
      it is pertinent to mention that the notice was issued in respect of the
      whole building which has been identified as dilapidated and dangerous.
      The said notice was issued only after the satisfaction of the Municipal
F     Commissioner in accordance with the provisions of Section 354 of the
      MMC Act which reads as under:-
            “354. (1) If it shall at any time appear to the Commissioner
            that any structure (including under this expression any
            building, wall or other structure and anything affixed to or
G           projecting from any building, wall or other structure) is in a
            ruinous condition, or likely to fall, or in any way dangerous
            to any person occupying, resorting to or passing by such
            structure or any other structure or place in the neighborhood
            thereof, the Commissioner may, by written notice, require the
H           owner or occupier of such structure to pull down, secure or
   RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                          209
  MUNICIPAL COMMISSIONER, MCGM [KRISHNA MURARI, J.]

      repair such structure 1[subject to the provisions of section              A
      342], of danger therefrom.
      (2) The Commissioner may also if he thinks fit, require the
      said owner or occupier, by the said notice, either forthwith
      or before proceeding to pull down, secure or repair the said
      structure, to set up a proper and sufficient hoard or fence for           B
      the protection of passers-by and other persons, with a
      convenient platform and hand-rail, if there be room enough
      for the same and the Commissioner shall think the same
      desirable, to serve as a footway for passengers outside of
      such hoard or fence.”
                                                                                C
        17. It is not disputed that First Appeal No. 812 of 2012 filed by the
appellants herein before the High Court with respect to the dispute with
the society in respect of unauthorized alteration in the disputed flat is
pending and orders of status quo is in operation. The appellants further
filed a Writ petition challenging the notice under Section 354 of the MMC
Act and the eviction notice issued by the Respondent No. 4. To the utter        D
dismay of this court, the appellants did not set out anything specific in
the Writ Petition demonstrating any perversity or manifest illegality in
the satisfaction recorded by the Municipal Commissioner to invoke the
powers of the High Court to interfere with the same. The entire emphasis
was on the order dated 19.12.2013, passed in First Appeal No. 812 of            E
2012 directing the parties to maintain status quo, pending appeal. The
dispute in the First Appeal and the Writ Petition are completely different
having different dimensions and no inter se connection with each other.
Merely because the Municipal Corporation is a party to the proceedings
initiated by the appellants with regard to alterations made in the flat
existing in the dilapidated building will not mean that the Municipal           F
Corporation cannot carry out an audit of the structure as a whole, as
mandated by law, to judge the stability and safety.
       18. The relentless contention of the appellants is that their right in
the building will not be protected and get further affected after demolition
of the building but the same is not sustainable in our considered view, for     G
the simple reason that the Re-development agreement dated 19.12.2014,
contains a clause protecting the rights of the appellants in the building
which is reproduced hereunder:
      1. Eight new flats each measuring 740 sq. ft. carpet area for flat
         owners i.e., flat no. 1 to 8.                                          H
210             SUPREME COURT REPORTS                            [2022] 16 S.C.R.


A            2. Two new flats each measuring 1035 sq. ft. carpet area for 2
                flat owners i.e. flat no. 9 and 10 (including an area to be given
                in lieu of an open terrace attached to their respective flats.)
            19. The appellants herein are the occupiers of Flat No. 9 which
      has a attached open terrace, therefore they have been given a larger
B     carpet area. Further, the agreement also stated that instead of providing
      temporary alternative accommodation during the period of construction
      to the appellants and other members, Respondent No. 5 shall pay
      displacement compensation @ Rs. 30,000/- per month to each member.
      The said amount was later enhanced to Rs. 40,000/- per month to each
      member vide letter dated 18.12.2019. To add to this, one-month
C     displacement compensation was to be paid as a brokerage in addition to
      Rs. 20,000 as shifting and transport compensation to each member.
             20. As a consequence, the rights of the appellants in the flat owned
      by them in the building in question is an independent right and the demolition
      of the building nowhere would affect that independent right. In addition
D     to this, the appellants have also been provided with alternate
      accommodation and the rights of the appellants will not be affected by
      virtue of demolition or evacuation in exercise of the power under Section
      354 of the MMC Act. Not only the appellants, but other residents of the
      building will have a decent, safe and stable structure after the
E     reconstruction of the building in question.
             21. The building in question is in a ruinous condition and needs to
      be repaired at the earliest for the simple reason that it is unsafe for
      human habitation. The historic buildings in Mumbai are a reminder of
      the city’s rich and aesthetic architectural styles. Therefore, in order to
F     preserve the authenticity of the buildings, it is important that certain legal
      measures need to be taken so that the safety and stability can be certified
      under Section 353B of the MMC Act, 1888.
             22. Once we find that the satisfaction recorded by the Municipal
      Commissioner is in accordance with the due procedure prescribed by
G     law and is not vitiated by any perversity or any illegality, there exists no
      ground to interfere with the impugned notices. Merely because the
      appellants are senior citizens, does not impel us to take any lenient view
      in the matter in larger public interest particularly when the private interests
      of the appellants have been amply safeguarded.

H
    RATILAL S. PUJARA (SINCE DECEASED) THR. HIS LRS. v.                          211
   MUNICIPAL COMMISSIONER, MCGM [KRISHNA MURARI, J.]

       23. Judicial notice can be taken of various media reports reporting       A
collapse of many old structures in Mumbai causing serious loss of human
lives and limbs. By making interference of any sort in the matter at the
behest of the appellants, in the existing facts and circumstances, we
would not only be putting the life of the appellants and other residents of
the building in jeopardy, but also hazarding the life and limb of the general
                                                                                 B
public as well.
      24. In our considered view, the High Court has rightly dismissed
the challenge laid to the impugned notices of demolition and eviction.
       25. As a result, the appeal stands dismissed. All the pending
applications as well the contempt petition filed by the appellants also          C
stand disposed accordingly.

Devika Gujral                                                Appeal dismissed.
(Assisted by : Preetam Bharti, LCRA)

                                                                                 D




                                                                                 E




                                                                                 F




                                                                                 G




                                                                                 H