Kawajit Singh Chambyal And 2 ORS v. Municipal Corporation Of Greater Mumbai And 2 ORS
1/4 8-wpl-3327-17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 3327 OF 2017 Kawajit Singh Chambyal and ors.
...
Petitioners.
V/s.
Municipal Corporation of Greater Mumbai and ors.
...
Respondents.
Mr. A.G. Damle, Sr. Advocate a/w. Mr. Sandeep D. and Mr. Prakash Mahadik for the Petitioners.
Mr. A.Y. Sakhare, Sr. Advocate a/w. Ms Vandana Mahadik for Respondent Nos.1 and 2.
Mr. Sameer Walimbe a/w. Mr. Sachin S. Tigde for Respondent No.3. CORAM :
A.S. OKA AND M.S. SONAK, JJ.
DATE :
20TH DECEMBER 2017.
P.C.:
1] Heard learned senior counsel appearing for the petitioners, the learned senior counsel appearing for the 1st and 2nd respondents and learned counsel appearing for the 3rd respondent. 2] Perused the order dated 30th November 2017, which records that the impugned report of Technical Advisory Committee (TAC) is not in compliance with the decision of this Court in the case of Municipal Corporation of Greater Mumbai vs. State of Maharashtra1. After having perused the report, we find that the TAC has not carried out tests which are contemplated by clause (d) (ii) of paragraph 9 of the said decision. 2014 SCC Online Bom. 666
2/4 8-wpl-3327-17 3] In view of the opinion expressed by the Court, the learned senior counsel appearing for the 1st and 2nd respondents states that the TAC can be directed to consider the entire issue afresh in the light of the decision of this Court referred above. Learned counsel appearing for the 3rd respondent states on instruction that this Court may adopt the said course. 4] Hence, we dispose of this petition by passing following order: a] We hold that the report of the TAC, a copy of which is annexed as Exhibit-N to the petition, is not in compliance of the directions issued by this Court in case of Municipal Corporation of Greater Mumbai vs. State of Maharashtra (supra) and therefore, on the basis of the said report, notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 dated 10th August 2017 cannot be implemented as of today;
b] We direct the 1st respondent to again refer the case to the TAC. The TAC shall abide by the directions contained in clause (d) (ii) of para 9 of the aforesaid decision. We make it clear that the TAC is bound to ensure that all the tests which are set out in subclause (ii) of clause (d) of paragraph 9 are conducted, unless for the reasons which may be recorded in the report, the TAC comes to the conclusion that some of the tests are not necessary; c] We direct the TAC to submit a fresh report to the 1st respondent within a period of six weeks from the date on which this
3/4 8-wpl-3327-17 judgment and order is uploaded;
d] After the report is submitted, the 1st respondent shall take appropriate decision on the said report and decide whether notice dated 10th August 2017 deserves to be implemented; e] The decision taken by the Municipal Corporation shall be communicated to the petitioners as well as to the 3rd respondent. Till date of communication of the said decision to the petitioners, action of demolition on basis of notice dated 10th August 2017 (Exhibit-F to the petition) shall not be taken subject to the condition of the petitioners filing in this Court within a period of four weeks from today undertakings stating that they will continue to occupy the premises in their respective possession at their own risk.
The undertakings to further state that in the event of collapse of the building or any part of the building, they will be solely responsible for the loss or damage which may be caused to any third party.
4/4 8-wpl-3327-17 g] We make it clear that we have made no adjudication on the structural status of the building. All issues are kept open to be decided by the TAC and the Municipal Corporation; h] Rule is partly made absolute to the aforesaid extent; i] All concerned to act on an authenticated copy of this order. (M. S. SONAK, J.) (A.S.OKA, J.)