Bombay High Court Directs Demolition Over 100-Year-Old Dilapidated Widows Hostel Building In Mumbai

The court ruled that the seven tests to check the building's strength under BMC's 2018 guidelines were not mandatory for load bearing structures like the present one and the guidelines would apply only to cement concrete (RCC) structures.

"..the TAC (Technical Advisory Committee) thus rightly formed an opinion that the non-destructive test and other tests were not required to be carried out in view of the structure being a load bearing structure. We do not find any infirmity in this view taken by the TAC", the court held.

Petitioner shop-owners had contended that BMC's TAC wrongly categorised the building as 'C- 1' after a physical inspection and rejected the petitioner's structural report, which held the building was repairable based on two strength tests.

The court further reiterated that, "The powers of writ Court to interfere with such order passed by the TAC comprising of experts on the subject cannot be lightly interfered with. The Court cannot sit as an appellate authority over the recommendations made by the TAC."

Justices R. D. Dhanuka and Kamal Khata dismissed two writ petitions challenging BMC's order to demolish the building. It directed the shop owners to vacate the premises within three weeks and hand over the vacant premises to BMC for demolition.

The building was built by The Nesserwanjee Manockjee Petit Charity Fund, a Parsi Trust for women. The ground floor had been rented out to various businesses and shops while the first to fifth floors were used as a widows' hostel. In 2013, the Trust had repaired the backside of the building.

In 2019, the widows were moved to another hostel due to dilapidated condition of the building. The Trust submitted a Structural Audit Report (SAR) to the Designated Officer of the BMC B&F Department (Designated Officer) which stated that the building was in the C-1 category. The tenants of the ground floor obtained SAR by an independent structural consultant stating that the building was in C-3 category merely requiring minor repairs.

The TAC visited the building and compared both the reports. It concluded that the building was in a dilapidated condition and may collapse.

In April 2022, The Designated Officer issued notice under section 354 of the Mumbai Municipal Corporation Act for the building to be vacated and taken down within 30 days. The petitioners challenged this notice and the order of the TAC before the High Court.

The petitioners submitted that the TAC had not carried out mandatory Non-Destructive Testing (NDT) and completely ignored the SAR submitted by the petitioners without recording reasons. Finally, the petitioners submitted that the ground floor was in sound condition and they had no objection in the rest of the floors being demolished.

Advocate Ashish Kamath instructed by Rashmikant & Partners for the Trust submitted that the TAC report had no perversity and hence the court had no power under Article 226 to interfere with the TAC order as the court is not an expert. There was no need for NDT as it was a load bearing structure. The SAR submitted by the petitioners is based on the premise that the building it 60 years old when it is actually more than 100 years old. Hence the entire report is inauthentic.

The court noted that the building was undisputedly a load bearing structure. The court relied on its judgment in Bharat Choksey v. LIC which held that the tests are required for RCC structures and not for load bearing structures. The court stated, "what is material is whether members of the TAC have applied their mind and whether the process adopted by the TAC is legal and proper".

"In our view the TAC rightly formed an opinion. We are not inclined to form a different opinion than the opinion formed by the TAC which opinion is after considering the structural audit report submitted by both the parties, after visual inspection of the building and after considering the various other material produced on record and considered in the impugned order", the court stated.

On the question of power of court under Article 226 to interfere with the TAC's order, the Court relied on Vivek Shantaram Kokate v. MCGM which held that the court is cannot decide whether a particular structure is or is actually in a ruinous or dilapidated condition. A writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. The court can intervene only is TAC has "Wednesbury unreasonableness".

The court further stated that the rights of the petitioners would remain unaffected as they are protected by Section 354 (5) of the Mumbai Municipal Corporation Act and the provisions of the Maharashtra Rent Control Act, 1999.

Case no. – Writ Petition (L) No. 13705 of 2022 and Writ Petition (L) No. 12803 of 2022

Case title – Farzin Ardeshir Adel & Ors. v. MCGM & Ors. and Jatin Bhankharia v. MCGM & Ors.

Coram – Justice R. D. Dhanuka and Justice Kamal Khata

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