IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23/09/2003 Coram The Hon'ble Mr. Justice P. SATHASIVAM Writ Petition No. 15952 of 2003 and W.P.Nos. 17159 and 17186 of 2003 and W.P.M.P.Nos.20023, 21497, 21451, 21496, 21450 of 2003 and W.V.M. P.No. 1129 of 2003 W.P.No. 15952/2003. Mrs. A. Sreedevi, represented by her Power of Attorney Agent, Dileep Bhandari. .. Petitioner. -Vs- 1. The Commissioner, Corporation of Chennai, Chennai-600 003. 2. Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Chennai-8. 3. R. Ramachandran, 4. M/s. Shanthi Builders, represented by its partner Gowtham Chand. (Respondents 3 and 4 were impleaded as per order of Court dated 1-7-2003). .. Respondents. W.P.No. 17159/2003 Dileep Bhandari .. Petitioner. Vs. 1. The Commissioner, Corporation of Chennai, Chennai-600 003. 2. Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Chennai-8. .. Respondents. W.P.No. 17186/2003 M/s. Shanthi Builders, represented by its Partner Gowtham Chand. .. Petitioner. Vs. 1. The Commissioner, Corporation of Chennai, Chennai-600 003. 2. Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Chennai-8. 3. Mrs. A. Sreedevi, represented by her Power of Attorney Agent, Dileep Bhandari. .. Respondents. Petitions filed under Article 226 of the Constitution of India, for issuance of Writs of Certiorari, and Certiorarified Mandamus, as stated therein. !For Petitioners in W.P.Nos.15952 and 17159/2003 and for 3rd respondent in W.P.17186/2003. : Mr.R.Krishnamoorthy, Senior Counsel for M/s. P.Subba Reddy Mr. A.L. Somayaji, Senior counsel for Mr. K. Ramanath Reddy:- For petitioner in W.P.17186/2003 and for 4th Respondent in W.P.15952/2003. For 1st Respondent in all W.Ps. : Mr. N.R. Chandran, Advocate General for Mr. C. Ravichandran Mr. K.A. Ravindran for C.M.D.A. in all W.Ps. Mr. Srinath Sridevan for R-3 in W.P.15952/2003. :COMMON ORDER By consent of all the parties and in view of urgency in deciding the issue one way or other writ petitions themselves are taken up for final disposal. Since all the three writ petitions relate to property bearing Nos. 11 and 12, Bishop Wallers Avenue (South), Mylapore, Chennai-4, they are being disposed of by the following common order. Aggrieved by the order No. 1704 dated 30-5-2003 issued by the Commissioner, Corporation of Chennai under Section 258 of the Madras City Municipal Corporation Act IV of 1919, c alling upon the petitioner to fence off, take down, except stilt plus 4 floors, secure or repair such building so as to prevent any danger therefrom, the owner of the property, namely, A. Sridevi through her Power of Atttorney Dileep Bhandari has filed Writ Petition No. 15952/2003 to quash the same on various grounds. 2. The Power of Attorney Dileep Bhandari, aggrieved by the order No. ESI/10791/2002 dated 30-5-2003, passed by the Member Secretary, Chennai Metropolitan Development Authority, Chennai-8, 2nd respondent herein, forfeiting security deposit of Rs.70,000/- for the building and Rs.10,000/-for the Display Board, has filed Writ Petition No. 17159/2003 to quash the same. 3. Questioning the order dated 30-5-2003 passed by the Commissioner, Corporation of Chennai for the property bearing door Nos.11 and 12, Bishop Wallers Avenue (South) Mylapore, Chennai-4 issued under Section 378 of the Madras City Municipal Corporation Act intimating that the officers of the Corporation will enter the premises referred to above for the purpose of demolishing the building in dangerous condition after expiry of 12 hours from the service of the said notice, M/s Shanthi Builders-Developers has filed Writ Petition No. 171 86/2003 to quash the same on various grounds. 4. The case of the owner of the property is briefly stated hereunder: According to Power of Attorney, he is the owner of the property bearing door Nos.11 and 12, Bishop Wallers Avenue(South), Mylapore, Chennai-4 and entrusted the property for joint development construction. Construction has been completed at the site over and above the sanctioned plan. The builder has put up additional floors and for putting up the same, applications had been made to Chennai Metropolitan Development Authority and Rs.13,18,920-50 has been paid and completion certificate has been issued by the C.M.D.A., by letter dated 11-2-2003. At the instance of the Metro Water and Sewerage Board, while digging up work was going on in the front road portion, one of the columns of the building given crack and the neighbouring owners given complaint to the Commissioner of Police, Member Secretary, Chennai Metropolitan Development Authority and Commissioner, Chennai Corporation.` All the above Agencies inspected the building and the Commissioner of Police issued order to take appropriate steps to strengthen the columns. The Member Secretary, C.M.D.A. issued notice dated 28-5-2003 and sought for explanation and given time upto 2-6-2003. He has taken Expert opinion and taking appropriate steps to strengthen the columns. At this juncture, the first respondent on 30-5-2003 around 11.30 P.M. affixed notice and stated that they want to demolish the buildign within 12 hours. No opportunity was given by the first respondent to the petitioner before passing the demolition notice. Hence the notice issued by the Commissioner, Corporation of Chennai is improper and against principles of natural justice. The petitioner had taken all steps to strengthen the columns. He also sought opinion from Experts and construction Engineers to strengthen the columns. He has also applied regularisation scheme with the C.M.D.A. and paid money also. The notice dated 30-5-2003 issued by the Commissioner, Corporation of Chennai is null and void. Hence the same is liable to be quashed. 5. The power of attorney in W.P.No. 17159/2003 in addition to the statement made in W.P.No. 15952/2003 has stated that petitioner had taken and now being followed to provide adequate steps to strengthen the columns of the building by utilising the services of a multi-national company. Reinforcing of all the columns instead of restricting themselves to affected column has already been commenced by Epoxy Injection grouting and once this work is completed more rebars above the foundation to increase the size of the columns will be placed. All these works have been carried out in the presence of Structural Engineer. Corporation Officials including the Chief Engineer are inspecting periodically to see that the work has been carried out at the building properly or not. While so, particularly when this Court has seized of the entire matter, the action of the Member Secretary, C.M.D.A. by issuing an anti-date order is arbitrary, illegal and it is against the principles of natural justice. 6. It is the case of the Shanthi Builders-Developer, petitioner in W.P.No. 17186/2003 that on receipt of notice from the Commissioner, Corporation, Chennai, they requested suggestion from both the Civic authorities in order to take appropriate steps. Already they have taken from highly technical persons the measures to improve the structures and they are doing the same to the building. 7. The Commissioner, Corporation of Chennai has filed a counter affidavit in W.P.No. 15952/2003 wherein it is stated that he received a complaint dated 27-5-2003 from Paxina Owners Association at No.10, Bishop Wallers Avenue, Mylapore, Chennai complaining that the concrete pillars in the adjacent multi-storeyed building ( petitioner's building) started cracking and the steel rods were found to be exposed and bent which posed threat to cause damage to life and property of their building and also the general public. Immediately, the said complaint was forwarded to the concerned Zonal Office for taking necessary action besides deputing officials of the Corporation of Chennai to inspect the petitioner's building immediately. Accordingly the officials of Corporation of Chennai including the City Engineer made an inspection on 27-5-2003 in the presence of the representatives of the Builders and submitted an inspection report to the Commissioner, Corporation of Chennai on 27-5-2003 stating that the construction was completed for stilt plus 8 floors as against the sanction of stilt plus four floors, and a column in the west corner had developed cracks due to the reinforcement in the column has been buckled and subsequent cracks were also seen in the adjacent walls. Hence it is considered as dangerous building for occupation. Immediately, on 27-5-2003 itself the Corporation of Chennai issued a notice under Section 258 of the Madras City Municipal Corporation Act, in and by which the builder was asked, within 7 days of service of the notice, to fence off, take down, secure and repair such building so as to prevent any danger therefrom. While so, on 30-5-2003, he received a copy of the report of Superintending Engineer, Public Works Department. In that report, it was mentioned that the building in question was in dangerous conditions posing threat to the public. It was further mentioned that the design structure was unsafe and that actual reinforcement in the column is only 6.78 cm2 (6 Nos.) as against the requirement of 23.85 cm2. The steel used is just about 1/4th of t he actual requirement. The structure was not stable for the existing condition of stilt plus 8 floors and that the reinforcement provided was just sufficient only for stilt plus 4 floors. Based on the report of the Superintending Engineer, Public Works Department, and the City Engineer of Corporation of Chennai and after due deliberation, it was felt that the building was in dangerous conditions posing threat to the life and it was decided to pull down the unauthorised and unsafe structure immediately. In exercise of power conferred under Section 258(2) of M.C.M.C. Act, notice dated 30-5-2003 was issued by giving 12 hours time to pull down the unauthorised structure and simultaneously notice under Section 378 of Madras City Municipal Corporation Act was also issued. Since the petitioner refused to receive the said notices, the same were affixed on the petitioner's premises with witnesses. Simultaneously, a press publication in respect of Notice under Section 258 of the said Act was published on 31-5-2003 in "Indian Express" and "Dina Boomi". Since the petitioner failed to take steps for demolition of the unauthorised dangerous structure till 12 noon on 31-05-2003, the Corporation officials had entered upon the premises and commenced the demolition work. At this state, the petitioners have approached this Court. Though this Court has not stayed the demolition work, however, permitted the petitioner to convince the inspecting officials of the Corporation as to the safety measures that can be provided to the present structure before ever the threatened demolition is resorted to and the order made it clear that it is for the inspecting authority to either accept or reject any such proposal that may be submitted by the petitioner. Since the Superintending Engineer, P.W.D., on inspection has certified that the column reinforcement are inadequate to take additional load, the building may collapse at any time, it was considered as imminently dangerous. Therefore, the Commissioner, Corporation of Chennai has issued notice under section 258 followed by notice under Section 378 of Madras City Municipal Corporation Act. Though the builder has assured to strengthen the column, the builders have not suggested as to how they would strengthen the beam running between the column. The load will be transferred from beam to column. Therefore, the building is not safe to exist in the present condition. Every minute the building stands pose a danger to public safety. The Commissioner, Corporation of Chennai is justified in issuing notice and taking action. 8. Senior Planner, Chennai Metropolitan Development Authority (CMDA in short) has filed a counter affidavit in W.P.No. 15952 /2003 wherein it is stated that on receipt of the complaint from one Proxima Owners Associaton at No.10, Bishop Wallers Avenue, Mylapore, Chennai-4 stating that next to their building have started caving in and the steel rods found to be exposed and bent which may likely to cause damage to life and property of their building and also to the general public, a notice was issued by the Chennai Corporation to the developer Thiru Dhileep Bhandari under Section 258 of the M.C.M.C.Act, 1919, by which an opportunity was given to the developer to secure or repair such building so as to prevent any danger therefrom. The petitioner through their Power of Attorney has submitted an application for regularisation of the building at No.11 and 12, Bishop Wallers Avenue (South), C.I.T. Colony, Mylapore, Chennai-4 and paid the regularisation charges also. Therefore, N.O.C. for power supply and C.M.W. S.S.B. connection of sewere and water was issued by their office in letter No. 11-02-2003. Subsequently on 27-5-2003 the construction was inspected and noticed that some cracks are developed in one of the columns and due to this, the front main wall also developed with cracks. Therefore, a show cause notice was issued for cancellation of the NOC. The issue of NOC for the building does not amount to grant of planning permission under the Act. As on date, the building constructed more and above the planning permission issued by the respondent stands unauthorised. 9. In the light of the above pleadings, I have heard Mr. R. Krishnamoorthi, learned senior counsel for the owner of the property and Power of Attorney; Mr. A.L. Somayaji, learned senior counsel for the Developer-Shanthi Builders; Mr. N.R. Chandran, learned Advocate General, for Corporation of Chennai; Mr. K.A. Raveendran, learned counsel for C.M.D.A.; and Mr. Sreenath Sridevan, learned counsel for the third respondent in W.P.No.15952/2003, who is residing in the adjacent Flat at No.10, Bishop Wallers Avenue, Mylapore. 10. In these writ petitions we are concerned with the building constructed at Nos.11 and 12, Bishop Wallers Avenue (South), Mylapore, Chennai-4 and notice of rectification/demolition of part of the building dated 30-5-2003 issued by the Commissioner, Corporation of Chennai and order dated 30-5-2003 passed by Member Secretary, C. M.D.A. forfeiting security deposit etc. There is no dispute that planning permission was issued in respect of the building in question only for construction of stilt plus 4 floors (G plus 4 floors). Even according to the owner of the building and the Builder, construction has been completed at the site over and above the sanctioned plan. This is clear from para 2 of the affidavit of Dileep Bhandari, Power of Attorney of S. Sridevi, owner of the building in question. No doubt, it is the claim of the petitioners that after putting up additional floors, an application has been made to C.M.D.A. and necessary amount of Rs.13,18,920-50 paid and consequently C.M.D.A. issued completion certificate by letter dated 11-2-2003. It is also the case of the petitioners that when Metro Water and Sewerage Board dug up the earth in order to lay water pipe, one of the columns of the building was given crack and the neighbouring owner has given a complaint to the Commissioner of Police, C.M.D.A. and Chennai Corporation. The neighbour of the building, namely, Proxima Owners Association at No.10, Bishop Wallers Avenue, Mylapore made a complaint dated 27-5-2003 complaining that concrete pillars in the adjacent multi-storeyed building started cracking and the steel rods were found to be exposed and bent which posed threat to cause damage to the life and property of the building and also the general public. It is seen from the information furnished by the Commissioner, Chennai Corporation that the complaint was forwarded to the concerned Zonal Office for taking necessary action besides deputing the officials of the Corporation to inspect the petitioner's building immediately. It is further seen that the officials of the Corporation of Chennai including the City Engineer made an inspection 27-5-2003 in the presence of the representatives of the Builders and submitted a report to the Commissioner of Chennai Corporation on the same day stating that the construction was completed for stilt plus eight floors as against the sanctioned plan for construction of stilt plus four floors-vide C.E.B.A.No.295/01 dated 11-7-2001 and a column in the west corner had developed cracks due to the reinforcement in the column has been buckled and subsequent cracks were also seen in the adjacent walls. It was considered that it is not safe for occupation. Considering the urgency and safety of the nearby residents as well as the general public, on 27-5-2003 itself the Commissioner, Chennai Corporation issued a notice under Section 258 of the Madras City Municipal Corporation Act (in short "MCMC Act") in and by which the petitioner-Builder was asked within 7 days of service of notice, to fence off, take down, secure and repair such building so as to prevent any danger from them. It is further seen that the Commissioner has also received a report of Superintending Engineer, P.W.D. on 30 -5-2003. In that report it was mentioned that the building in question was in dangerous conditions posing threat to the public. It was further mentioned in the report that the design structure was unsafe, the structure was not stable for the existing condition of stilt plus 8 floors and that the reinforcement provided was just sufficient only for stilt plus 4 floors. It is further seen that on the report of the Superintending Engineer, Public Works Department, and the City Engineer of Corporation of Chennai and after noting that the building was in dangerous conditions posing threat to the life and property, the Commissioner of Chennai Corporation decided to pull down the unauthorised and unsafe structure immediately. Hence in exercise of power conferred on him under Section 258 (2) of M.C.M.C.Act, notice dated 3 0-5-2003 was issued by giving 12 hours time to pull down the unauthorised structute and simultaneously notice under Section 378 of M.C.M. C.Act was also issued. At this stage, the owner, Power of Attorney and Builder have filed the above writ petitions. 11. When the interim applications were taken up for hearing, this Court, after hearing the arguments of counsel for all the parties and without prejudice to their rights on 1-7-2003 constituted a committee consisting of (i) Prof.Dr. P.K. Aravindan, Professor of Structural Engineering, Indian Institute of Technology, Chennai-36; ( ii) Mr. Mohanramanathan, No.11, Cenotaph Road, Alwarpet, Chennai; and (iii) Mr. S. Ramachandran, Superintending Engineer, Public Works Department, Chennai-5. It is seen from the said order, the names were suggested by respective counsel for the parties. The Court has directed the committee to conduct necessary test in respect of the structural soundness of the building and also the possibility of strengthening it. The Court also directed the committee to offer its opinion relating to the steps taken by the petitioner and submit a report within one week. It is further seen that the committee after initial deliberations, prayed for another week's time to submit a report. The time was extended as requested. The committee has submitted its report with reference to structual position of the building in question and also suggested remedial measures. 12. First I shall refer the report of Prof.Dr. P.K. Aravindan. He is the Professor of Structural Engineering in I.I.T., Chennai-36. He is a nominee of the owner and the Builder of the building. The following are the relevant materials/excerpts. The work of assessing the quality of concrete and steel used in the construction was entrusted to the Structural Engineering Laboratory of IIT Madras, Chennai-36. From the I.I.T's report it is seen that the quality of concrete used in the construction was good and the damage to the column is not due to any deficiency in the quality of materials used in the construction. The committee got the services of Prof. S.R.Gandhi, Professor and Head, Geo-Technical Division, IIT Madras, Chennai-36 to study the report of two Geo-Technical investigation carried out at the site of the building. From the analysis, the following stress resultants acting on the column X16-Y1 which is failed, are obtained. Axial load = 940.00 kN The moment about the major axis x, Mx = 0.07 kN-m The moment about the minor axis y, My = 2.88 kN-m Assuming the characteristic strength of the concrete as 20 Mpa, the area of steel required to resist the above forces is 1650 mm2. The area of steel provided in the column is 6Y12 giving an area 678 mm2 which is only 41% of the required area of steel. This is the reason for the failure of that particular column. There might be other columns also in somewhat similar condition. Since the aim of this part of the investigation is only to assess the reason for the failure of the particular column X16-Y1, investigation on the condition of other columns is not carried out. From the table it can be seen that some of the columns have to be strengthened by jacketing which is indicated in the Table 1. A typical scheme of jacketing is shown in Fig 3. It is of the opinion of the undersigned that the building as exists now ( ground plus seven upper floors) can be strengthened to give satisfactory performance all through out the life of the structure. It is found that all the beams and slabs are safe to carry the load coming on them. Even the beams above the ground floor is checked for 2= times the bending moment due to earthquake being part of soft storey as per IS:1893  2002 and it is found that they are all safe. While doing the analysis and design it is presumed that the soil is capable of resisting the pressure coming on it, 110kN/m2 and also the settlement of the foundations will be within the permissible limits. However it could be seen from the analysis carried out by IIT, the safe bearing capacity of the soil is only 72 kN/M2 and the settlement will be beyond the permissible value. To improve the safe bearing capacity of the soil and also to reduce the settlement, pressure grouting of the soil with cement slurry is recommended. Further a combined raft foundation at the ground level encasing the existing plinth beams is recommended. The raft shall extend one and half meter beyond the centre line of the existing external columns alround the building. The three dimensional analysis is again repeated by modelling the raft slab also. IIT has recommended a modulus of subgrade reaction of 6000 kN/m3 (Annexure I). With this value of modulus of subgrade reaction soil is replaced by soil springs in the 3D analysis. The bending moment diagram obtained from the analysis is shown in Fig.5. The raft is designed for the bending moment obtained from the analysis and details of the raft is shown in Fig.6. The raft is integrated with the existing columns as shown in Fig.6. With these modifications, committee of the opinion that the building with ground plus seven floors will be quite safe for occupation. 13. Now I shall refer the report of Mohan Ramanathan. He is a B.Tech, M.S., (USA) and Consultant. He is a nominee of the newly impleaded third respondent (neighbour of the petitioner). The following are the materials/excerpts: c) DESIGN CHECK ON THE CORNER COLUMN: Design check on Corner Column using SP-16 for Biaxial bending reveals that the column section is grossly inadequate to the loads coming on it. e) REASONS FOR FAILURE The reasons for failure of the corner column (J-Type) is quite obvious. Over loading due to additional stories built. The excessive noise generated from the column at the time of failure and witnessed by persons nearby and the workers in the building proves release of energy stored in the column due to heavy over loading. The bent reinforcement rods have no further use to take additional loads and the column in the present state should be considered failed and unsafe. CONCLUSION From structural view point, top 4 floors are to be dismantled to make the building safe and the loads on the existing structural members to be within safe limits i.e., only car park + 4 livable floors, to be allowed. Under the present loading of G + 8 floor, the structural capacity of the columns is unsafe. B. FOUNDATION CHECK Under the present loading condition of G + 8 floor, the foundation is unsafe. EXPERT OPINION ....The corner column failure is enough evidence to prove the criticality of the situation. Most of the other columns are also in the same state and may fail any time without warning. After analysing various consequences from the view of safety of the structure in question and the neighbouring structures, I have arrived at two alternatives to be considered by the Honourable Court. Alternative -1: Remove top 4 floors