Full Judgment Text
$~A-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 23.08.2019
+ W.P.(C) 8513/2011
PROMILA NAGPAL ..... Petitioner
Through Mr.R.M.Bagai & Ms.Preeti Sharma,
Advs. alongwith son of the petitioner
in person
versus
MCD AND ANR ..... Respondent
Through Ms.Mansi Gupta, Adv. for R1/MCD
Mr.Puneet Saini, Adv. for R-3.
Mr.Amit Mahajan & Mr.Sachin
Khapra, Advs. for respondent Nos. 5a
to 5c, 6 to 8, 9a to 9e, 11a to 11c, 12,
13, 15,16,17, 18 & 20.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This writ petition is filed by the petitioner under Article 226 of the
Constitution of India seeking a writ of mandamus directing the respondents
to comply with the order dated 12.10.1999 passed under section 344 of the
MCD Act; and also a writ of mandamus, or writ order, or direction to the
respondents to demolish the said premises/building Nos.3203 to 3209, Ram
Bazar (earlier known as Mohd. Ali Bazar), Mori Gate, Delhi- 110 006.
2. A perusal of the notice dated 12.09.1999 shows that the
premises/building in question consists of ground floor, first floor and second
W.P.(C) 8513/2011 Page 1 of 8
floor and is fully occupied by approx. 30 family members. It is more than
100 years old and on careful examination of the structure at ground floor,
first floor and second floor, it appears that the walls of the ground floor are
in dilapidated conditions and some cracks have also developed. Notice
further directs the occupants to vacate the said premises/building.
3. For completion of narration of the facts, it is noted that on 07.10.2010,
this court had dismissed a writ petition filed by the petitioner noting that the
petitioner had not impleaded the parties who are occupants of the
premises/building. It was also noted that occupants had already taken their
remedy. The court also held that a long period of more than 11 years had
lapsed and it has lost its efficacy and had become stale. The matter was
hence dismissed.
4. In appeal being LPA No.828/2010 on 04.07.2011 with the consent of
the parties the order dated 07.10.2010 was set aside and the liberty was
granted to the petitioner to file a fresh writ petition impleading all the
occupants who are occupying the premises/building which are sought to be
declared as un-habitable and deserve to be demolished. Hence, the present
writ petition was filed.
5. I may note that this court on 09.05.2014 directed the Director IIT,
Hauz Khas, New Delhi to appoint a properly qualified Structural Engineer to
inspect the premises/building bearing No.3203 to 3209, Ram Bazar (earlier
known as Mohd. Ali Bazar), Mori Gate, Delhi, and submit a report to this
court regarding the state of the building including structural stability of the
same.
6. On 28.10.2014 this court noted that the Structural Engineer appointed
by the Director, IIT has filed his report. In the report, the court noted that the
W.P.(C) 8513/2011 Page 2 of 8
expert Mr.Shashank Bishnoi, Assistant Professor, Department of Civil
Engineering, IIT Delhi, has observed as under:-
“3. Conclusions
The property number 3203-09, Mori Gate, Ram Bazar,
Delhi-110006 is in a poor state, as demonstrated by the recent
collapses and the condition of the remaining structure. Still, the
building is being occupied by 18 families, each of the families
including people of all ages: children, adult and elderly. This
fact, poses a difficult social and humanitarian challenge since an
evacuation from the building may create severe hardship for the
current occupants, and a continued occupation and use of the
building may lead to a loss of life and injuries to the same
occupants. The undersigned trusts that the judgment of the
Honourable High court in the matter will take both aspects into
account.
However, from a purely engineering and technical point
of view, the building cannot be considered to be safe for
habitation and requires immediate action to avoid loss of life.
This is perhaps even more important, given the large number of
people living in this building. Given the old age of the building
and the likelihood of damage to the foundation, this expert also
feels that it will not be practically possible and more expensive
than the cost of the existing building itself, to repair the existing
structure to bring it to the standards required to meet existing
standards and the loads it is expected to safely bear. It is the
opinion of this expert, the most practically feasible solution
here, is to build a new building that follows all the requirements
of the current standards in place of the existing one."
Accordingly, this court passed the following orders:
“In view of the aforesaid conclusion and keeping in view
the precautionary principle to be adopted in cases pertaining to
hazardous, dangerous and unsafe building, this court directs the
respondent- corporation to give a fresh vacation notice to the
occupiers of the building in question directing them to vacate
the premises within a period of eight weeks.
W.P.(C) 8513/2011 Page 3 of 8
Thereafter, within four weeks, the respondent-corporation
is directed to demolish the unsafe structure. After demolishing
the property, the possession of the premises shall be handed
back to the occupiers as they are admittedly in possession of the
property today.
With the aforesaid observations and directions, present
writ petition stands disposed of.”
7. Subsequently, on 05.05.2015 this court on the applications filed under
Order 9 Rule 13 CPC, recalled the above order dated 28.10.2014.
8. Subsequently, this court on 17.05.2018 with the consent of the parties
directed that a joint inspection be carried out by the officers of NDMC and
Dr.Shashank Bishnoi, Assistant Professor, Department of Civil Engineering,
IIT, Delhi who had earlier carried out the inspection, making it clear that the
parties shall be bound by the report submitted by the joint inspection team of
NDMC/IIT.
9. The joint inspection team of NDMC/IIT has now submitted its report
dated 05.07.2018. In the report, the conclusions are follows:
“On the basis of the above observation, it was found that the
repairs carried out did not address any of the structural issues in
the building. The building was not found to be safe for
habitation as it does not meet the requirements of the standards
and most of the construction is un-engineered. Additional
damage to that reported in the earlier report by Prof. Bishnoi,
such as diagonal cracks due to ongoing process of foundation
failure and cracks due to sagging of beams were found. The
building, therefore, requires immediate action to avoid loss of
life. It is the joint recommendation of Prof. Shashank Bishnoi,
Associate Professor, IIT Delhi and Mr.S.C.Meena, Executive
Engineer, NDMC that the building be demolished.
Shashank Bishnoi S.C.Meena
Associate Professor Executive Engineer
W.P.(C) 8513/2011 Page 4 of 8
Department of Civil Engineering North Delhi Municipal
IIT, Delhi Corporation.”
10. On 06.02.2019, this court had interacted with Professor Shashank
Bishnoi and had passed the following orders:
“In 2014 Prof. Bishnoi had submitted an inspection report dated
03.09.2014 after conducting an inspection of the structural
condition of the subject property, in which report he had given
details of structural faults and defects in the building. In report
dated 03.09.2014, Professor Bishnoi had concluded that from an
engineering and technical point of view the subject property
was unsafe for habitation. He had also suggested that repairing
the existing structure would be impractical and more expensive
than building a new structure by razing the existing building to
the ground.
In 2018 Prof Bishnoi conducted a second inspection and has
given report dated 05.07.2018, in which he has reiterated his
views as contained in his earlier report dated 03.09.2014; has
pointed-out that no structural strengthening or repairs have been
found to have been carried-out in the building; and that the
building continues to be unsafe, as he had observed earlier.
The court has put various questions to Prof. Bishnoi to
understand: (a) whether there has been further serious
degradation in the structure of the subject property; (b) whether
it is possible to implement any immediate, interim rectification
or reinforcement measures to reduce the level of danger in
which the building is found, to make the building relatively safe
to live in, for the time being; and (c) whether it is possible to
repair/re-construct the building in phases, that is by only
vacating certain portions of the building at-a-time, repairing
such portions and then moving-on to other portions of the
building.
In the expert opinion of Prof Bishnoi as given in court: in
response to (a) above, he says there has been discernible further
W.P.(C) 8513/2011 Page 5 of 8
degradation in the building, which is now even less structurally
safe than it was in 2014; in response to (b) above, he is of the
view that no interim measures would be effective in making the
building safe for habitation; and in response to (c) above, he
says it will also not be possible to repair/re-construct the
building in phases, since the foundational structure of the
building itself is very weak and in an extremely precarious state.
Having recorded the expert opinion of Prof. Bishnoi as
aforesaid, in the presence of a representative of the petitioner
and in the presence of counsel for all respondents, the personal
presence of Prof Bishnoi is dispensed with.”
11. I have heard the learned counsel for the parties.
12. Learned counsel appearing for North DMC has stated that the
inspection was jointly carried out by NDMC and IIT, Delhi. She also points
out that in the report which is forwarded on 05.07.2018 a joint view has
been taken as contained in earlier report dated 03.09.2014 that the building
be demolished.
13. Learned counsel for the other respondent however submits that
sections 348 and 349 of the MCD Act require that commissioner has to take
a decision as to whether the building is dangerous and thereafter he has to
make an order to prevent the danger. He submits that at best in terms of the
said statutory provisions this report may be placed before the Commissioner
of the concerned municipal corporation who has to pass appropriate order
under section 348 of the Act after applying his mind.
14. There are two reports placed on record by Mr.Shashank Bishnoi,
Assistant Professor, Department of Civil Engineering, IIT Delhi. The second
report is a joint report of Mr.S.C.Meena, Executive Engineer, NDMC and
Mr.Shashank Bishnoi, Assistant Professor, Department of Civil Engineering,
IIT Delhi where they had categorically stated that the building is not safe for
W.P.(C) 8513/2011 Page 6 of 8
habitation and that the same require immediate action to avoid loss of life. In
the earlier report of 2014, the Assistant Professor, Mr.Shashank Bishnoi, had
clearly stated that from an engineering and technical point of view the
subject property was unsafe for habitation and cannot be considered to be
safe to avoid loss of life .
15. In my opinion, the Commissioner, MCD has already applied his mind
to the facts of the case as is apparent from the notice dated 12.10.1999 that
was served on the occupants to vacate the premises. A report had
accompanied this order which stated that the building is not safe.
16. That apart, the subsequent two reports including of Mr.S.C.Meena,
Executive Engineer, NDMC/ Mr.Shashank Bishnoi, Assistant Professor,
Department of Civil Engineering, IIT Delhi confirmed that the conditions
remain the same. In fact, the first report dated 03.09.2014 of Mr.Shashank
Bishnoi is accompanied by the detailed photographs that the
premises/building is in dilapidated condition.
17. Keeping in view the above, it would be appropriate that a writ of
mandamus be issued to the respondents to take effective steps under section
348 of the MCD Act directing appropriate demolition of the
premises/building as per law expeditiously.
18. The learned counsel for the petitioner, on instructions, states that
necessary costs for demolition of the said premises/building would be paid
by the petitioner as per law.
19. Prior to demolition of the building appropriate opportunity would be
given to the occupants of the premises/building to vacate the same. After
demolition is carried out the possession of the premises/building would be
W.P.(C) 8513/2011 Page 7 of 8
handed over back to the occupants, namely, respondents No.2 to 23. The
said occupants will deal with the said land as per law.
20. This direction to hand over the possession of the premises/building is
without prejudice to the rights and contention of the parties.
21. Notices seeking to vacate the premises/building to the
occupants/respondents No.2 to 23 be given by NDMC by registered post and
also by affixing notices on the premises/building itself. NDMC may
complete this exercise within six months from today.
22. I am also informed that the occupants of the property had challenged
the original order of NDMC dated 12.10.1999 by filing appropriate suit
before the civil court. The said suit was dismissed in default on 07.10.2010.
Thereafter no further steps have been taken to revive the said suit.
23. At this stage, learned counsel for the petitioner submits that the
petitioner is also occupying some of the portion of the said
premises/building.
24. The present petition and all pending applications, if any, stand
disposed of as above.
JAYANT NATH, J.
AUGUST 23, 2019/v
Corrected and released
on 04.10.2019
W.P.(C) 8513/2011 Page 8 of 8