1. This Petition is thoroughly misconceived. There is an association that is said to be the Petitioner. Four individuals are joined but there is a serious dispute about Petitioners Nos 3 and 4 and whether they are in fact tenants of the building in question owned by the 7th Respondent. The building is called ‘Agra Building’. It is at Mahatma Gandhi Road at Fort, Mumbai. It is over 100 years old. At least that much is not and cannot be disputed. The report of the Technical Advisory Committee (“TAC”) and the notice of the TAC indicates structural damage. We will come to that in a moment. Exhibit ‘A’ to the Petition is a notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 (“MCGM Act”) addressed to as many as 39 persons including the owner/landlord.
2. The matter was mentioned before us yesterday, 22nd January 2023, complaining of municipal action in disconnecting water supply at short notice but, strangely, it was not pointed out to us that no notice had been given to the 7th Respondent-landlord. Even more surprisingly, the 7th Respondent-landlord was not even informed about the listing of this matter today. It is only because the 7th Respondent and their Advocates found out about the listing that the 7th Respondent is even represented before us today. This is of consequence because we granted ad-interim relief yesterday against disconnection of water and electricity supply till the end of the day today.
3. Exhibit ‘B’ from page 42 is a report of the TAC. The chairman was the Deputy Chief Engineer (Building Proposals). There were two structural consultants/engineers present and other technical members as well. The report considers various previous structural reports including two by the owners and two by the tenants. The structural reports obtained by the owners include one by Veermata Jijabai Technological Institute (“VJTI”). Both those reports say that the building is of the C-1 category, i e, dilapidated, ruinous and in imminent danger of collapse. One of the reports obtained by the tenants says that the building was in C-2B requiring no eviction but only structural repairs including immediate propping. The other report obtained by the tenants was at variance with the tenants’ previous consultant’s own report and said that the building was in the C-2A category, meaning that it required major repairs that involved vacating deteriorated portions of the building. At page 44 is a summary of these rival reports.
4. The TAC inspected the building on 26th August 2021. It is a ground and two-floor structure. There is rank vegetation on the outer facade of this load-bearing structure. Additional support has been provided by installing steel columns and beams in the building. Additions and alterations were found in the building on all floors with mezzanines and other alterations. Reinforced Cement Concrete (“RCC”) columns at the ground floor were found to be cracked vertically and in distressed condition. The original wooden columns and beams were found to be supported by steel columns. On the second floor, the TAC found wall separation. The roof of the building was changed because this had been damaged in a fire some years earlier. An additional toilet block was created in the passage between the building and an adjacent building and this was supported with steel sections. This toilet block was in a distressed condition. The second floor showed sagging.
5. There followed a meeting in the chamber of the chairman of the TAC on 5th January 2022. The structural consultants on behalf of the tenants was present. These two seem to have agreed between themselves that the building should be categorized as C-2B, requiring no eviction. However, the other additional observations were, that the toilet blocks on the second floor was in distressed condition and needed urgent demolition. The second-floor balconies also needed reconstruction. They opined that the rest of the building was repairable. The consultants for the owners were not present at this meeting on 5th January 2022 but they had attended an earlier meeting on 6th October 2021, when their views were recorded. One of them said that the structure was load-bearing structure with a roof damaged by fire. Additional load had been imposed on the structure by the creation of mezzanine floors. Wooden beams were shown to be sagging. The passage on the first floor was not supported on the ground floor. That consultant also noted the distressed state of the toilet blocks but opined that overall the building was in distressed condition and should be categorized as C-1. On behalf of VJTI, the submission was that this was a British Era building. Additions and alterations had been carried out, but the last fate of repairs was three or three and half decades ago. Non-destructive tests on the RCC columns on the ground floor showed poor results. The entire roof truss was damaged because of the fire. The VJTI expert agreed that the toilet blocks were distressed and said that the building was dangerous and dilapidated. The first consultant attended the meeting on the phone call to confirm his stand.
6. On considering this material and on the basis of its independent assessment, the TAC concluded that the building was indeed reparable but by demolishing and vacating some more distressed portions of it. Consequently, the TAC categorized the building as C-2A. But the TAC noted that these repairs had to be done urgently. It said that if these repairs were not done in six months, the building would fall in to the C-1 category.
7. There then followed on 29th December 2023 the impugned notice at Exhibit ‘P’ at page 88. This required the building to be pulled down entirely. It was an order under Section 354 of the MCGM Act.
8. The reliefs in the Petition are firstly to quash this notice of 29th December 2023 and secondly, to stay its operation. The third prayer clause (c) is for an extension of time to these tenant Petitioners to carry out repairs.
9. The entire structure of the TAC now requires, in our view, a re-examination. It is being widely misused and it is being used particularly to obliterate the rights of owners of the property. The entire submission seems to be that an owner cannot re-develop his or her own property and enjoy the benefits of fruits of re-development and development potential without the consent of tenants. This is being done despite the fact that tenancies are in no way adversely aGected by either reconstruction or redevelopment. That is settled law by a judgment of the Supreme Court apart from the fact that provisions of The Maharashtra Rent Control Act, 1999 and the MCGM Act itself protect these very rights. (Shaha Ratansi Khimji & Sons v Kumbhar Sons Hotel Pvt Ltd, (2014) 14 SCC 1. V) In other words, these low rent tenancies are eGectively usurping the rights of property owners. No tenant ever oGers to purchase the property itself.
10. The TAC began with a set of guidelines issued as an interim order by this Court in 2014 in a Writ Petition filed by the Municipal Corporation of Greater Mumbai (“MCGM”) against the State of Maharashtra. (Interim Order.........Maharashtra) The MCGM thought it fit to adopt these guidelines and to incorporate them as part of its policy. This is why when that Petition came up for final disposal before a Bench of AS Oka J, (as he then was) and RI Chagla J on 28th February 2018, the Court commented that nothing could now be done in regard to the guidelines because these were now part of the MCGM policy, but it did say that no Court could have entered the realm of policy and frame these guidelines in 2014 to begin with. That crossed the line between judicial functions and executive functions and was in violation of established principles and the doctrine of separation of powers.
11. What has happened after that is even more peculiar. Now the entire TAC set of guidelines has led to people believing that these are matters of right and that Writ Courts can somehow sit as if in first appeal from recommendations of the TAC. In other words, the expectation now is that a Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India will decide which of several competing reports to choose and will pronounce on the structural stability of a building. To put it bluntly, that is wholly untenable. It borders on the absurd. The purpose of creating the TAC was to ensure that rapacious landlords did not in alleged connivance with MCGM oHcers pull down perfectly sound structures. But we have every reason now to question the premise of this to begin with especially in tenanted structures because we do not see why the owner of a property needs to wait for a building to become dilapidated to propound a proposal for redevelopment, if that is his right and is part of his right to the enjoyment and the full benefit of ownership of the property in question. In a fit case, we may need to revisit this entire issue.
12. We leave this question open specifically today but it necessarily informs our assessment of what is to be done in this particular matter. As we have noted, it is nobody’s case that the building is in itself, as it stands, structurally sound. There is disagreement about whether it can be repaired or whether it needs to be pull down entirely. The TAC has, in our view, taken a correctly balanced view of the matter. On the one hand, the owners’ consultants reports indicated that the building had to be pulled down. Between them, the two consultants of the tenants diGered slightly (whether the building had to be evacuated or not) but they agreed that repairs were necessary. No one said that the building could continue as it stood. What did the TAC do It did not accept the landlord’s consultants’ view of dilapidation and immediate demolition. But it also did not accept the view propounded by the tenants’ consultants namely that evacuation was not required. We do not think it is possible to say that the TAC report is arbitrary, unreasonable, violates the principle of Wednesbury unreasonableness or the doctrine of proportionality. It strikes the correct balance. What it does is to give an opportunity to repair the building and then balance this by saying that if repairs are not done within six months the building will then default to being in the C-1 category. This correctly balances the two competing equities, at least in this case.
13. But what is the Petitioner’s complaint They say that they have carried out some repairs. At least one correspondence at 96 from the Petitioners alleges that the building is perfectly sound and has become strong and stable. The photographs annexed to the Petition including those at pages 60, 62 and 63 plainly indicate to the contrary. What are the repairs that have been carried out The Petition itself does not elucidate.
14. Mr Waghmare learned Advocate for the Respondent MCGM has instructions from Mr Subodh Bamborde, Jr Engineer (Bldg & Factory Dept) ‘A’ Ward, to say that the only so-called repairs that have been carried out are the installation of electric meters (and photographs are helpfully provided at pages 64 and 65) and some propping. Faced with this what the Petitioners really say is that it was not possible to carry out repairs within six months and therefore their request for a further extension of time should be granted.
15. We ask: At what cost At whose cost The rights of the property owner are one thing. But there is also to be considered the fact that six months have passed without any significant work other than electrical meters and some propping. If this building on the busy Mahatma Gandhi Road collapses, the consequences could be catastrophic not just for the Petitioners but for others in the city and most particularly for MCGM oHcers. It is well known that whenever a building collapses the first thing that happens is that FIRs are filed against the property owner and MCGM oHcers. Nobody ever takes actions against the tenant although that tenant has claimed to have carried out “repairs”.
16. There is no right to demand an extension. There is nothing at all to suggest that repairs could not have been carried out within six months. The TAC itself is abundantly clear that those repairs had to be carried out within that six-month period. Those repairs had to be done between the 15th February 2022 and roughly the end of August 2022. The impugned notice says that no repairs were carried out until August 2022.
17. A few props and new electric meters do not constitute repairs. They especially do not constitute repairs in view of the observations of the TAC which we have no hesitation in accepting and which are not and cannot be challenged in a Writ Petition in this fashion. The entire Petition is therefore misconceived.
18. The last argument is perhaps the worst which is that some time should be given to these Petitioners to vacate the premises and electricity and power supply should be continued because there are advocates in the building. We are as concerned about the safety of advocates as everybody else and we see no reason why any advocate should continue to have chambers or to work in a building that is in imminent danger of collapse. This order is not against any advocate. Quite the contrary, if any of those advocates are members/tenants/occupants, they are fully protected by requiring them to immediately make alternate provisions. It can hardly be suggested that this requires a great deal of time. After all, even these advocates have known since February 2022 that the repairs had to be carried out. We are almost in February 2024 and we cannot now be told that these advocates are only just beginning to make alternate arrangements.
19. The Petition is rejected. The interim order stands vacated. Power and water will be disconnected by 5 pm today. The TAC order will be given eGect to without interference from any person.
20. One of requirements of redevelopment is that the MCGM must, working oG a list provided by the owners, physically inspect the premises for the purposes of area notification. This is required in any redevelopment proposal so that the owner or the developer knows how much area is to be allocated in the redeveloped building and to whom. Obviously, landlord-tenant disputes will go the ordinary course. The obligation in law is for re-accommodation of the tenants. Every one of these tenanted premises must therefore be inspected for the purposes of area measurement. Mr Waghmare complains that in the guise of either pendency of this Writ Petition or otherwise, the MCGM is being obstructed from completing this exercise.
21. We make two things now abundantly clear: no tenant or occupant in Agra Building is permitted to resist the MCGM oHcers entering the premises for the purposes of area measurement. If any tenant or occupant does so, no dispute about the accuracy of the resultant figures that the MCGM then returns will be entertained hereafter in any proceeding whatsoever. If there is obstruction by any particular tenant or occupant, the MCGM will in its certification list note that a particular tenant or occupant has obstructed and will then certify the area on the basis of available assessment records or other material.
22. The Petition stands disposed of in these terms. No costs.
