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Supreme Court of India
Shubhas Jain vs Rajeshwari Shivam on 20 July, 2021Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, V. Ramasubramanian
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2848 OF 2021
(Arising out of SLP (C) No.1837 of 2021)
SHUBHAS JAIN Appellant(s)
VERSUS
RAJESHWARI SHIVAM & ORS. Respondent(s)
J U D G M E N T
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 is the owner of the structure admeasuring 1069
Signature Not Verified
sqm. at Vishram (Mahavir) Baug Compound, Plot bearing CTS No.792,
Digitally signed by
SUNIL KUMAR
Date: 2021.08.09
16:57:22 IST
Reason:
P.L. Lokhande Marg, Chembur, Mumbai, hereinafter referred to as
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the “premises in question”.
4. The Appellant states that the premises in question is
comprised of 3 three-storied interlinked structures, constructed
by the predecessors-in-interest of the Appellant in 1930. The
first structure has 6 rooms, the second structure has 10 rooms and
the third structure has 9 rooms. There were about 24 tenants at
the premises in question, including the Respondent No.1.
5. It is the case of the Appellant that the impugned order has
been passed, overlooking the submission of the Respondent-
Municipal Corporation with regard to the precarious condition of
the premises in question, the report dated 15.05.2015 of the
Technical Advisory Committee to whom the Respondent-Municipal
Corporation had made a reference, and the Structural Audit Report
prepared by M/s Manohar Ashatavadhani & Associate opining that
the building is in a critical and dangerous situation in C-1
category.
6. Buildings in Mumbai in need of repair are classified into C1,
C2-A, C2-B and C3 categories having regard to their condition.
Category C1 buildings are those which require immediate evacuation
and demolition, Category C2-A buildings are also required to be
evacuated. Category C-2A buildings require major structural
repairs and/or partial demolition. C-2B buildings are repairable
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without eviction, but need structural repairs. C-3 buildings do
not require eviction. They need only minor repairs.
7. The Appellant says that the Petitioner has entered into
arrangements with all the tenants except 6 including the
Respondent No.1/writ petitioner who have not agreed to vacate the
premises in question. All the other tenants have duly vacated.
8. It is alleged that the structures at the premises in
question, which are in a dilapidated and dangerous condition, have
been declared as of the C-1 category. One of the structures is of
the C-2A category. The Appellant submits that, the structures
being interlinked, structural repair of any one structure would
affect the stability of the adjacent structure.
9. M/s. Manohar Ashthavadhani and Associates had prepared a
Structural Audit Report dated 25.5.2014 of the premises in
question, concluding:
“In view of the facts and conditions explained
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
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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 Corporation Act was challenged by the
Respondent No.1 in the City Civil Court, Bombay by filing LC Suit
No. 702 of 2015. However, by an order dated 13.3.2015, the City
Civil Court refused to grant stay of demolition.
13. On or about 08.04.2015, the Respondent No.1 challenged the
order of the City Civil Court in the High Court by filing an
appeal. The appeal was rejected.
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14. Thereafter, on or about 15.05.2015, the Respondent-Municipal
Corporation referred the matter before the Technical Advisory
Committee as there were contrary reports. The Technical Advisory
Committee went through the different Structural Audit Reports and
thereafter opined that the building was temporarily repairable.
15. The Respondent No.1 and other tenants thereafter gave a
certificate of stability dated 13.11.2015 by M/s Crown
Consultants, stating that the structure was safe for the next five
years, subject to annual civil and structural maintenance work.
Over five years have already elapsed since the date of issuance of
the Certificate.
16. On 25.01.2019, the Respondent-Municipal Corporation issued a
notice to the Appellant under Section 353(B) of the Municipal
Corporation Act calling upon the Appellant to get the building
examined by a Licensed Structural Engineer.
17. On 19.02.2019, M/s Manohar Ashtavadhani & Associates
submitted a report stating that Structure No.1 and Structure No.2
were in critical and dangerous condition and fell under C-1
category and Structure No. 3 urgently required major repairs and
was classifiable in C2-A category.
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18. On 22.04.2019, the Appellant forwarded the said report to the
Respondent-Municipal Corporation. On 16.10.2019, the Respondent
No.1 and other tenants submitted the Structural Audit Report dated
16.10.2019 issued by M/s Crown Consultant Architect to the
Respondent-Municipal Corporation. Thereafter, on 10.01.2020, the
Respondent-Municipal Corporation referred the matter to the
Technical Advisory Committee in view of contradictory reports.
19. The Technical Advisory Committee conducted hearing on
19.06.2020 and found the condition of the said buildings very
dangerous as the same were over 90 years old. The Technical
Advisory Committee found that no civil and structural maintenance
had been carried out in the last four years as advised by the
consultant in his Stability Certificate dated 13.11.2015.
Therefore, the structures 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
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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
year.
23. On 24.11.2020, a Division Bench of the Bombay High Court
passed the impugned order granting liberty to the Respondent No.1
to commence the work of removal of adjoining wall with the
assistance of M/s Shetgiri and Associates, Architects, at his own
risk and costs. The said work was however to be carried out in
the presence of the officials of Corporation.
24. In our considered view, the High Court has committed a
serious error in directing removal of a wall with the assistance
of M/s. Shetgiri and Associates, when there were conflicting
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reports including an earlier report of the Technical Advisory
Committee on the basis of the opinions of other Architects,
declaring the building to be of the C-1 category.
25. Even the Report of Shetgiri and Associates, relied upon by
the Respondent No. 1, provided: –
“13. Brief Description of Repairs
to be done: (c) External Plaster External Plaster &
Structural repairs:
External Plaster to be
replaced with new
plaster.
(d) Structural Repairs Structural Repairs:
Damaged Structural
members like load
bearing walls and its
plaster, brick pillars,
beams and slabs, where
ever exists, should be
strengthened and its
repairs should be
carried out immediately.
The said structural
repairs should be
carried out as per the
direction and under the
supervision of
registered structural
engineer.
14. Conclusions of Consultants- The structure has
suffered damages to the
external walls & RCC
elements at various
locations.
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Leakages/capillary action
on external wall is due
to sub soil water
pressure. The said
external walls should be
repaired immediately with
PCC bedding and damp-
proof course under it so
as to protect it from sub
soil action. During the
course of repairs,
propping and barricading
is to be provided.
Damaged Structural
members like load bearing
walls and its plaster,
brick pillars, beams and
slabs, where ever exists,
should be strengthened
and its repairs should be
carried out immediately.
The said structural
repairs should be carried
out as per the direction
and under the supervision
of registered structural
engineer.
Many of the observations
mentioned above needs
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
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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 condition of structure below plinth cannot be
commented on.
4) The observations made in Structural Audit Report are
made during the time of Audit. We shall not be held
responsible for any changes in Structural condition and/or
damages to the structure and/or overloading, at any point
of time in case observed.
5) It is requested that the concerned authority must
carry out regular maintenance of the structures, sewer
lines & premises to avoid any further severe damage to the
structure at a later stage.
6) ……..
7) It is extremely important to add here that the
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structure is almost more than 45 years old and has majorly
outlived its economic life. In olden days, especially in
1900’s, the Indian Standard codes were basic in nature as
compared with what is adopted in the present time. Even
if the decision of restoration is adopted, uplifting the
structure to an extent that it would be at part with
modern structure’s in terms of the strength, design &
safety standards and also the I.S codal provisions
especially seismic and wind analysis would be practically
ruled-out and possible only if entire structural
upliftment is carried out within each and every corner of
the structure, which is extremely difficult in case of
repair works considering the massive repairs cost
involved. Moreover, the foundations of the structure
cannot be restored.
8) ……..
9) The report is only limited to the captioned suit
building and no other Flat/s, building, structure or Plot
of land, premises, room, unit, site, area, division, sub-
division or any other surrounding area of the plot or
structure has been given any weightage or has been covered
in the report.
10) The documents presented before us, if any, are
considered while furnishing the said report as mentioned.
However, the supporting underlying documents, which are
not mentioned in our report and unknown to us, could not
be examined or analyzed. As such, our report is based
only on the documents if any perused by us and not on any
underlying supporting documents if any, not produced
before us.”
28. The High Court grossly erred in law as well as facts in
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passing the impugned judgment and order overlooking the fact that
the report of Shetgiri and Associates was not a certificate of
stability as stated in the report itself in Note 1, extracted
above.
29. It is not understood how the High Court could 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.
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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 is to be noted that out of 24 tenants,
15 tenants have executed letter of consent
with the petitioner owner and have already
vacated their subject premises. Out of 24
tenants, 15 tenants have entered in to MOU
with the petitioner for accepting the
alternate accommodation and undertaking to
vacate the subject premises.
E) In view of the aforesaid, Respondent No.1
should immediately hand over the possession
of its subject house to the Petitioner so
that the MCGM can demolish the subject
property and petitioner can start the
process of redevelopment of the subject
property.
F) I as the owner of the subject property
assure and undertake as under:-
1. that I am accepting Respondent No 1
as a legal tenant.
2. I undertake that “Subject Property”
will be redeveloped after all the
tenants have been evicted from their
rooms. I undertake that I will try
to complete the redevelopment work of
the new building to be constructed on
the Subject Property within 2 years
from the date of receipt of the
Commencement Certificate for
redevelopment. However, in the
event, if I could not complete the
project within 2 years because of the
natural calamities or the reasons
beyond the control of the petitioner,
in that event, I undertake to pay
rent/transit accommodation as per the
choice of the respondent No.1 till
the project the completed and
competition certificate is issued by
the appropriate authority.
3. I undertake that I will provide
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monthly rent at the rate of Rs.18 per
sq. ft. X authorised/legal area of
the subject house of the respondent
no.1 from the date of vacation of the
subject house by the Respondent No.1
till receipt of the completion
certificate from the MCGM.
4. I also undertake to provide 11
months’ rent in advance by post-dated
cheques. Also, I undertake to provide
Rs.2000/- towards freight.
In the event; the respondent no.1 is
not willing to take rent as offered
in that event I undertake to provide
alternative accommodation in the
transit camp from the date of
vacation of the subject house till
the completion certificate issued by
the appropriate authority.
5. I undertake that as soon as the
construction of the proposed building
is completed and upon receipt of
Occupation Certification from the
appropriate authority, I shall give
possession of newly constructed
Alternate Accommodation flat
equivalent to the authorised / legal
area 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
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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 amount
for water tax, property tax & sewerage tax
will be paid by me up to obtaining
Occupation Certificate.
K) I guarantee that I will pay extra rent for
the extra time taken for redevelopment due
to natural calamities, strikes, and other
reasons.”
31. In terms of the aforesaid proposal, the Appellant is to
provide area equivalent to the area now under occupation of the
Respondent No.1 after demolition and reconstruction of the
building, on ownership basis free of charges. In the
interregnum, the Appellant shall provide monthly rent @ Rs.18/-
per sq. mtr for area corresponding to the authorized legal area,
now in occupation of the Respondent No.1, from the date of
vacating till the date of completion certificate. Eleven months’
rent shall be given in advance by post-dated cheque.
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32. In addition, the appellant also undertakes to provide
Rs.2000/- towards freight charges. In the event, the Respondent
No.1 is unwilling to accept the rent, the appellant undertakes to
provide alternative accommodation in a transit camp, from the date
of vacating of the premises in question till the issuance of
completion certificate by the appropriate authority. Needless to
mention that the appellant shall abide by the conditions of the
offer, if the Respondent No.1 agrees to accept the same.
33. 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.
34. All interim orders stand vacated.
35. Pending applications, if any, stand disposed of accordingly.
………………………………………………………,J.
[INDIRA BANERJEE]
………………………………………………………,J.
[V. RAMASUBRAMANIAN]
New Delhi;
July 20, 2021. 17
ITEM NO.2 Court 10 (Video Conferencing) SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal(C) No(s). 1837/2021
(Arising out of impugned final judgment and order dated 24-11-
2020 in WP-LD-VC No. 163/2020 passed by the High Court of
Judicature at Bombay)
SHUBHAS JAIN Petitioner(s)
VERSUS
RAJESHWARI SHIVAM & ORS. Respondent(s)
(IA No. 14675/2021 – EXEMPTION FROM FILING AFFIDAVIT
IA No. 13133/2021 – EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 13134/2021 – EXEMPTION FROM FILING O.T.
IA No. 14673/2021 – PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
Date : 20-07-2021 These matters were called on for hearing today.
CORAM : HON’BLE MS. JUSTICE INDIRA BANERJEE
HON’BLE MR. JUSTICE V. RAMASUBRAMANIAN
For Petitioner(s) Mr. Dilip Annasaheb Taur, AOR
For Respondent(s) Mr. Preteesh Kapur, Sr. Adv.
Ms. Vishakha, Adv.
Mr. Karthik Rajshekhar, Adv.
Mr. Atul Kumar, AOR
Mr. Siddharth Bhatnagar, Sr. Adv.
Ms. Pallavi Pratap, Adv.
Ms. Aruna Savla, Adv.
For M/S. Pratap And Co., AOR
UPON hearing the counsel the Court made the following
O R D E R
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Leave granted.
The appeal is allowed for the reasons discussed in the signed
non-reportable judgment. The impugned final judgment and order is
set aside and the writ petition is dismissed.
All interim orders stand vacated.
Pending applications, if any, stand disposed of accordingly.
(GULSHAN KUMAR ARORA) (MATHEW ABRAHAM)
AR-CUM-PS COURT MASTER(NSH)
(SIGNED NON-REPORTABLE JUDGMENT IS PLACED ON THE FILE)
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