Mumbai: Guidelines per se can’t create enforceable rights in favour of private individuals, the Bombay High Court has said while saying that it will examine whether guidelines adopted by the BMC to declare private and municipal buildings as C1 (dangerous and unsafe) have remained “just guidelines”.
The HC was hearing rival petitions filed by one of the owners and tenants of a 13- storeyed Mehta Mahal along Mathew Road, a narrow lane from Charni Road to the rear of Opera House, in south Mumbai.
The case prompted a division bench of Justices Gautam Patel and Kamal Khata, on September 25, to consider the structure of the Technical Advisory Committee (TAC) that was established under these guidelines to adjudicate rival reports with regard to stability of several such structures.
The BMC adopted the guidelines for declaring structures “unsafe” in June 2014; they were finalised on May 25, 2018. The court noted that the jurisprudence impact of these guidelines (irrespective of the source) is being persistently misunderstood and misconstrued.
What Does The Court Order Say?
“These (guidelines) were meant to provide some sort of checks and balances against unilateral declarations of buildings as dilapidated or unsafe by property owners in connivance with municipal officers. The guidelines were not meant to, and could not, legislate. They were not intended to create new statutory or vested rights,” the bench underlined in its detailed order.
“It is a very different thing from saying that the guidelines in themselves create a new bundle of enforceable rights to demand constantly that individuals or groups of individuals must reassess the buildings independently of the requirements of the MCGM Act,” the judges added.
The TAC is a technical expert body which is constituted under these guidelines. “What this has unfortunately generated is a whole new species of litigation where the TAC’s expert opinion on technical structural engineering matters are now seen or said to be some sort of administrative or quasi-judicial action rather than what it is, i.e., a factual report on technical aspects of structural stability,” the court said adding that its reports are now being “perennially sought to be subjected to judicial review”.
In the case at hand, one of the property owners, Drishti Hospitality Company Pvt Ltd, contended that a structural audit report had declared Mehta Mahal near Charni Road “dilapidated” and advised it to be demolished. It claimed that the building is now named Drishti House. It said that in 2021, TAC had given a structural audit report categorising the building as C2B (requiring urgent repairs). However, a subsequent report by IIT-Bombay said that the structure is dangerous, dilapidated and in need of being pulled down.
Drishti’s counsel Sharan Jagtiani said that the tenants be asked to produce a rival report if they wish and then the matter be referred to the TAC. However, a petition filed by the residents’ society, Mehta Mahal Commercial Cooperative Premises Society Ltd, contends that as per the 2021 TAC report it obtained permission for repairs, which is valid till July 2024. It claimed that 70% of the repair work is done.
The High Court bench then questioned, “… it is difficult to see how a repair permission granted by the MCGM on the basis of a TAC report can now be scuttled or short-circuited by producing yet another report and demanding a fresh reference to the TAC. The time for the repairs has not yet passed.”
The bench said it will need a detailed affidavit from the BMC before it decides on the dispute. It has kept the matter for hearing on November 2.