Demolition of dilapidated buildings - Better Sorry than Safe?
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📜The Fable: Demolition of dilapidated buildings - Better Sorry than Safe ?
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Dear Readers,
News reports about buildings collapsing in Mumbai have become a common phenomenon. Several of these old buildings are occupied by tenants who pay paltry rent. However, when these buildings turned inhabitable thereby endangering the lives of its occupants, the municipal authorities swung into action and issued notices to demolish/pull down these buildings. To their surprise, the occupants/tenants, in defiance of logic, often resisted these notices by giving greater weightage to their possession than life and limb. This resistance led to a legal tussle between the tenants, landlord and municipal authorities.
📜The Fable
In Mumbai, the Brihanmumbai Municipal Corporation (‘BMC’) is the governing civic body regulated by the Mumbai Municipal Corporation Act, 1888 (‘Act’). The BMC categorises buildings as per their structural condition and accordingly considers them fit for demolition if they fall under the C-1 category, as described below -
To keep a track of the structural integrity of buildings, S.353B of the Act provides that once a building completes thirty years from the date of its commencement certificate (CC) or occupation certificate (OC) etc, its owners or occupants have to submit a structural stability certificate to BMC and thereafter have to provide a report every ten years. Regardless of the above, the BMC authorities are also empowered to call upon the owner or occupants of a building to submit such a certificate. Needless to state, the owner or occupants are legally obligated to undertake all the repairs as suggested by the said structural engineer.
In most cases, occupants fail to provide such a stability certificate to the BMC, and in some cases they ignore correspondence issued by BMC calling upon such a certificate.
However, the owners of dilapidated buildings, having failed to timely repair their buildings, rise on such occasions and submit structural audit reports of their buildings to BMC which generally classify the building as C-1 category thereby being fit for demolition.
The BMC authorities can either on their own or on receipt of a report categorising a building as C-1 issue a notice under S.354 of the Act to the owner and occupants, inter-alia, stating that the building is in a ruinous condition, or likely to fall or dangerous to any person occupying or passing by and hence needs to be pulled down / demolished.
To protect the interests of the tenants, S.354 (5) particularly states the following “The action taken under this section shall not affect the inter se rights of the owners or tenants or occupiers, including right of re-occupation in any manner”.
For the purpose of transparency, accountability and allaying fears of tenants/occupants, BMC issued guidelines regarding S.354 notice, as per which if tenants/occupants disputed the report basis which BMC had classified the building as C-1, they can appoint their own structural auditor and submit a report within 30 days from the S.354 notice.
The tenants/occupants valuing their possession more than their life submit reports stating that the building can be repaired. The said BMC guidelines then demand these conflicting reports to be analysed by a Technical Advisory Committee (‘TAC’) constituted under the chairmanship of the BMC Director, who has to independently assess the building categorisation upon hearing both sides of the rival reports.
Inevitably Writ Petitions were filed by various tenants/occupants before the Hon’ble Bombay High Court challenging S.354 notices and TAC reports that sought demolition of their building. The general grounds to challenge such notices and reports were – (a) building can be repaired and does not require demolition / evacuation (b) building is structurally sound (c) in case of a mishap, the tenants/occupants will give an undertaking to assume all liability including to third parties (d) landlord and BMC have acted in collusion and connivance to oust the tenants/occupants (e) Non Application of mind by BMC/TAC
In a batch of recent rulings passed by the Hon’ble Bombay High Court viz. Tushar Ranglidas Notaria v. Municipal Corporation of Greater Mumbai and Ors. [2019 SCC Online Bom 1798] and Farzin Adel v. Municipal Corporation of Greater Mumbai [2022 (6) ABR 519], after due analysis of the entire law on this subject, the Court rightly dismissed the Writ Petitions filed by tenants and inter-alia, held that – (a) Court cannot substitute its own view regarding a particular building being ruinous or not, over an experts opinion (structural auditors) (b) Tenants rights are not harmed by demolition and are protected under S.354(5) (c) Tenants need to show perversity or arbitrary exercise of power by BMC/TAC and also if they allege malafides by landlord/ BMC they must establish the same (d) Undertaking by tenants of being responsible if the building collapses is without any legal basis, and in this context observed that ‘when an undertaker meet his maker, he is beyond the reach of law’.
The tenants/occupants of dilapidated buildings have acted in a short sighted manner. In pre-demolition notice scenarios, when their building condition is detoriating, they mostly fail to assert their rights of repair against the landlord, as envisaged under S.14 of the Maharashtra Rent Control Act, 1999 [Landlords duty to keep premises in good repair]
However, in post demolition notice scenarios they rush to Court by filing Writ Petition and Suits against the action taken by BMC. They fail to take notice that under the Act read with the guidelines their rights of alternate accommodation and as tenants are protected. The said guidelines under Cl.1.15 particularly records that – “The [BMC] corporation shall, while granting the sanction for redevelopment, the zonal building proposal department shall include a condition in Intimation of Disapproval (IOD) that unless and until an agreement either providing a permanent alternate accommodation in newly constructed building or a settlement is arrived at by and between the tenants and or/ occupier and the landlord, no Commencement Certificate (C.C) will be issued under section 45 of M.R&T.P Act 1966”.
There is no denying that in some cases viz. Vrajesh Mulshankar Dave v. MCGM & Ors [2018 SCC Online Bom 7507], Goldie Sud v. MCGM & Ors [2018 SCC Online Bom 1736] and Prema Ramnath Shetty v. MCGM & Ors [2018 SCC Online Bom 7638], the authorities and TAC may have acted mechanically and/or arbitrarily. Accordingly, in such cases, Courts have intervened and sought independent application of mind and compliance of the said guidelines by BMC and TAC. However, in genuine dilapidated buildings, tenants/occupants must impose a self restraint and avoid jumping the gun. A prudent tenant/occupant should endeavour to enter into an alternate accommodation agreement with the proposed redeveloper or a settlement qua his/her premises.
Larger public interests outweigh the interests of private individuals such as tenants/ occupants whose rights have been safeguarded under the Act and guidelines. Our Courts have rightly taken the approach of better safe than sorry. Its about time tenants/occupants of genuinely dilapidated buildings change their converse approach.
Until we meet again, stay hungry – stay foolish, and do check out my fortnightly picks below.
Regards,
Harsh
P.S - If you reside in Mumbai, click here to check whether your building or any building known to you is featured in the C1 category list published by BMC for the year 2022 - 2023.
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