1 RPW.33.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.33 OF 2010 IN NOTICE OF MOTION NO.94 OF 2010 IN PUBLIC INTEREST LITIGATION NO.70 OF 2010 Varshna Co-operative Housing Soc.Ltd., No.132(1), CTS No.1312 (Part), Gautam Niwas, J.P.Road, Seven Bungalows, Andheri (West), ...Review Petitioner Mumbai – 400 053. (Ori.Respondent No.9) Versus 1.Dr.Monica Matani, Adult, Indian Inhabitant, a doctor by profession, 11, Gautam Niwas, J.P.Road, 7 Bungalows, Versova, Andheri – West, Mumbai – 400 053. 2.State of Maharashtra, Through the Government Pleader, PWD building, High Court Compound, Mumbai – 400 001. 3.Mumbai Metropolitan Regional Development Authority [MMRDA], MMRDA building, Bandra Kurla Complex, Mumbai – 400 051. 4.Mumbai Metro One Pvt.Ltd.[MMOPL] Silver Satellite Bldg., Andheri-Kurla Road, Marol, Andheri – East, Mumbai – 400 059. 2 RPW.33.10.sxw 5.K.P. Maheshwari- Executive Director Mumbai Metro One Pvt.Ltd., Silver Satellite Bldg., Andheri-Kurla Road, Marol, Andheri – East, Mumbai – 400 059. 6.Chairman & Managing Director- Shri B.D.Mundhra Simplex Infrastructure, 502-A, Poonam Chambers, Shiv Sagar Estate, A-Wing, Dr.A.B.Road, Worli, Mumbai – 400 018. 7.Commissioner, Mumbai Police- D.Shivanandan Mumbai Police Headquarters, Crawford Market, Mumbai – 400 001. 8.Commissioner-Bombay Municipal Corporation – Jairaj Pathak, Bombay Municipal Corporation, Mahapalika Marg, Mumbai – 400 001. 9.Louis Berger Group INC. MSEDCL, Infra Plant Sec., 4th floor, Prakashgadh, Bandra – East, Near Armacourt, Mumbai – 400 039. ...Respondents ...... Ms.Simran Puri i/b De Jure for Review Petitioner. Dr.Monica Matani, Respondent No.1 present in-person. 3 RPW.33.10.sxw Ms.Kiran Bagalia for Respondent No.3 (MMRDA). Mr.J.J.Bhatt, Sr.Counsel with Mr.D.J.Kapadia, Ms.Bhavna Singh & Mr.Onkar Chandurkar i/b Mulla & Mulla & Craigie Blunt & Caroe for Respondents 4 & 5. Mr.Rajiv Patil with Mr.Dushyant Purekar for Respondent No.6. Mrs.Geeta Joglekar with Mrs.V.S.Gharapure & Mr.Niranjan Pandit for Respondent No.8 (BMC). ...... CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ. DATED:- AUGUST 23, 2010. PER COURT : 1. By this Review Petition, the Review Petitioner Co-operative Society prays for review of order passed by this Court dated 9th April 2010 in Notice of Motion No.94 of 2010. By the said order, the Motion filed by the Review Petitioner Cooperative Society came to be disposed of with observation. 2. The Writ Petitioner who incidentally is member of the Review Petitioner Cooperative Society is occupying one of the tenement in the building of the Cooperative Society. The Writ Petitioner filed Public Interest Litigation making various grievances in regard to the Versova Ghatkopar Section Metro. The substance of her grievance was that while 4 RPW.33.10.sxw executing the said project, sufficient care was not taken, amongst others, the standards specified in terms of the Manual published by the Bureau of Indian Standards were not followed. The grievance was regarding the usage of vibratory hammer technique while executing the said Project which was very close to the residential complex in which the Writ Petitioner was residing. According to the Writ Petitioner, the use of vibratory hammer technique caused extensive damage to her flat and the entire building of the Society. In the backdrop of this grievance, certain directions were issued by this Court on August 6, 2009. Assurance given by MMRDA as well as Respondent No.4 was also recorded in the said order. On that basis, the Petition came to be disposed of. 3. Later on, the Writ Petitioner moved praecipe for clarification/modification of the order dated 6th August 2009. After considering the arguments, the Court issued further directions on 5th November 2009. The Court directed the Respondents 4 and 5 to carry out repairs where the damage has been caused, if at all, as a result of the work carried out by them in and around the damaged property. At the same time, it was observed that to ascertain the correctness of the allegation made by the Writ Petitioner, the Officer not below the rank of Chief Engineer should 5 RPW.33.10.sxw be appointed by the MMRDA, who in association of Respondents No.4 and 5 and the Complainant would visit the building of the Society and find out by himself whether the alleged damage caused to the property was on account of the work carried out by the Respondents No.4 and 5 or is attributable to the natural damage caused to the building, as the building was stated to be old one. 4. In compliance with the said direction, MMRDA appointed its Officer who inspected the building of the Society. He was of the opinion that it was desirable to seek assistance of reputed Structural Consultant to carry out the "detailed inspection" of the said building so as to find out the cost of damage thereto. Accordingly, M/s.S.N.Bhobe & Associates Pvt.Ltd., Structural Consultant came to be appointed for the said purpose vide letter dated 4th January 2010. The representative of M/s.S.N.Bhobe & Associates Pvt.Ltd. made two visits to the site before submitting its findings and inferences to the Chief Engineer MMRDA dated 11th January 2010. The said communication reads thus: 6 RPW.33.10.sxw “SNBAPL/MMRDA/High Court/2808 Date: 11th January, 2010 To, Shri S.R.Nandargikar, Chief Engineer, Mumbai Metropolitan Region Development Authority, Bandra-Kurla Complex, Bandra(E), Mumbai – 400 051. Sub.:- i) Direction of the Hon. High Court in the PIL No.70 of 2009 in the Mumbai High Court. ii) Your instructions to us. Dear Sir, i) As per your instructions, we visited the Gautam Niwas Building of the Varshna Co. Op. Hsg. Society at Saat Bungalow, Versova, Andheri (West) firstly on 26/12/2009 and then on 09/01/2010. ii) The first visit was by Shri R.V. Sakhadeo our C.G.M. and the second visit was by Shri R.V.Sakhadeo accompanied by a team of Engineers (Annexure II). The purpose was to inspect the building in the light of the directions of the Hon. High Court to find out whether the Building has been damaged by the work of the respondent no.3 and No.4 of the above PIL or whether it was distressed due to its age. The photographic report of inspection is enclosed herewith as Annexure- I. iii) In the first visit, the petitioner of the PIL, the secretary of Varshana Society being the intervener, Shri Athavale, S.E.MMMRDA were present. In the second visit, the petitioner, the secretary of the intervener, three officials of the respondent no.3 (from time to time) were present alongwith a no. of tenants. Our findings are as below. iv) Findings & Inferences a) All the flats visited by us exhibit severe distresses in the form of cracks in R.C.C. Beams, R.C.C. Columns, brick panel walls, flooring tiles. The pump room as well as compound wall, the sewerage pipes also are exhibiting distress. b) i) The most significant signs of the distress were the slanted cracks in the panel walls of brick masonry enclosed by the RCC columns. These are not age related cracks but appear to have resulted because of the severe vibrations to and fro that the RCC frame work of columns and beams must have undergone during the piling operations. 7 RPW.33.10.sxw ii) The pillars of compound wall show clear horizontal cracks at about road level, exhibiting the shearing action of the external vibratory motion of the ground. iii) The RC columns and beams exhibit severe cracking showing that the structural frames appear to have been subjected to large vibratory motions. These cracks are not caused by corrosion of the reinforcement as they are not following the pattern of reinforcement. iv) The flooring tiles have heaved up at places and at places they have cracked. This distress is also not age related but show that the RCC slabs of the floors could have been subjected to shaking. v) Sewerage pipes at many places have broken off from their holdfasts exhibiting effects of the vibrations. vi) The pavement has sunk at places, showing separation cracks from external plaster on the walls. The pump room slab has moved for part of its perimeter from supporting walls. vii) The distresses suffered by the building are, in brief, not age related or gradually developed but appear to be a result of a violent vibratory motion. The distress is therefore, attributable to the work of respondents no.3 and no.4 in the subject PIL. viii)It is strongly recommended that a through structural audit be got carried out urgently from a structural Engineer, as per MCGM rules and results of the audit are submitted to the competent authority for further necessary action, in view of the distresses that the structure is exhibiting. Thanking you and assuring you of our best services at all times, Yours faithfully, For S.N.Bhobe & Associates Pvt.Ltd. sd/- Shri R.V.Sakhadeo C.G.M. Encl: Annexure – I (Photographs) Annexure _ II (List of Persons).” 5. The Review Petitioner Cooperative Society filed Chamber Summons No.309 of 2009 and prayed for liberty to intervene in the proceedings. That 8 RPW.33.10.sxw relief was granted under the Order dated January 28, 2010. On that date, the Counsel appearing for MMRDA informed the Court that the inspection report was ready and will be filed in the course of one week. The findings and inferences made by M/s.S.N.Bhobe & Associates Pvt.Ltd. were duly considered by the Chief Engineer who in his report/findings dated 3rd February 2010 has noted that he agrees with the view expressed by the said Structural Consultant that damage has been caused to the building and that damage is not age related or gradually developed but appear to be a result of violent vibratory motion. The report of the Chief Engineer along with findings and inferences of M/s.S.N.Bhobe & Associates Pvt.Ltd. was duly considered by the Court on 23rd February 2010. The order passed on 23rd February 2010 is of some relevance to decide the controversy on hand. We therefore reproduce the same in its entirety which reads thus : “P.C. This is a Motion taken out by the Society praying for various reliefs including appointment of a structural Engineer to carry out structural audit. This Court by order dated 5th November, 2009 had directed the respondent No.2 to appoint an Officer to visit the building to assess whether the damage caused to the property is as a result of the work carried out by the respondent Nos. 3 and 4 or is attributable to natural damage caused to the building as the building is stated to be old one. The matter thereafter has come up on various dates and last on January 28, 2010 where statement of Respondent No.2 was recorded that inspection report will be filed in the course of one week. The inspection report has since been filed prepared by S.N. Bhobe & Associates Pvt. Ltd. That report strongly recommends that thorough structural audit be carried out urgently from a structural Engineer as per M.C.G.M. Rules and results of the audit to be 9 RPW.33.10.sxw submitted to the Competent Authority for further necessary action, in view of the distresses that the structure is exhibiting. 2. Considering the tentative findings in the report of S.N. Bhobe & Associates Pvt. Ltd., we direct Respondent No.2 to forthwith appoint a Structural Engineer to carry out the audit of the building. If the Structural Engineer is of the opinion that immediate repairs are to be carried out before the final report is submitted then the respondent No.2 to ensure that those repairs are carried out forthwith. The respondent Nos. 3 and 4 in such an event will carry out the repairs. On behalf of Respondent Nos. 3 and 4 learned Counsel also makes a statement that they will deposit with Respondent No.2 initially a sum of Rs.10.00 lakhs by 24th Feb., towards the cost of the structural engineer and repairs if any. The Structural Engineer to submit his interim report to this Court within 7 days from today. Stand over for one week. ” (emphasis supplied) 6. As a result of the above order, M/s.Structwel Designers & Consultants Pvt.Ltd., Structural Engineer came to be appointed for carrying out structural audit to the building in question. The said Structural Engineer carried out necessary investigation and submitted a detailed report in that behalf, opining that the distresses seen in Gautam Niwas building are due to original poor quality construction, inaccurate/incorrect maintenance/non approved alterations, repairs carried out by the structure intermediately, age related. Usage of vibratory hammer has not contributed to the distresses. This report was placed before the Court on 9th April 2010. The correctness of the audit was disputed. Besides, it was stated that the appointment of M/s.Structwel Designers & Consultants Pvt.Ltd. was not appropriate, as he was not appointed by the Chief Engineer but by the 10 RPW.33.10.sxw Executive Engineer. However, these objections were duly considered by the Court and rejected. Eventually, the Court disposed of Notice of Motion No. 94 of 2010 preferred by the Review Petitioner/Respondent No.9. It is this decision which is subject matter of present Review Petition. 7. The principal argument is that the report of M/s.Structwel Designers & Consultants Pvt.Ltd. ought not to have been relied by the Court, considering the fact that the said Consultant has been black listed by the Corporation on 5th February 2010. This fact was within the knowledge of MMRDA. In that situation, the MMRDA and BMC were obliged to bring that fact to the notice of the Court on 9th April 2010. Further, the report submitted by the said Agency would come under cloud and the controversy on hand could not and ought not to have been answered by relying on such report. It was further argued that insofar as the issue that the damage caused to the building is on account of usage of vibratory hammer technique has been concurrently found by M/s.S.N.Bhobe & Associates Pvt.Ltd. as also the Chief Engineer in his report submitted to the Court dated 3rd December 2010. The only question that was to be examined by the Structural Engineer to conduct structural audit was to ascertain the extent of damage so caused. No other inquiry was permissible. 11 RPW.33.10.sxw 8. The Respondents have raised objection regarding the maintainability of this Petition. However, in deference to the observations of the Court, the Respondents No.4 and 5 as well as Respondent No.3 MMRDA through Counsel submit that if the only objection of the Review Petitioner is regarding non-consideration of the report submitted by M/s.Structwel Designers & Consultants Pvt.Ltd. on account of fortuitous circumstance of black listing at the relevant time; in that case, without going into the correctness of the allegations made by the Review Petitioner and without prejudice to the rights and contentions of the parties, the said Respondents are willing to abide by investigation to be made by an independent agency to be appointed by the Court, to assuage the grievance of the Review Petitioner or for that matter the original Writ Petitioner. The Counsel appearing for the Review Petitioner and the original Writ Petitioner appearing in-person, initially resisted this stand of the above named Respondents, but agreed for appointment of the Court appointed Structural Engineer to undertake the structural audit of the building in question. In our opinion, considering the nature of controversy involved, the Structural Engineer to be appointed should possess sufficient experience and expertise on the subject. We, therefore, accede to the request of the parties and 12 RPW.33.10.sxw appoint Indian Institute of Technology (IIT), Mumbai to carry out structural audit of Gautam Niwas building and to submit its report. This arrangement, however, will be without prejudice to the rights and contentions of the parties and without going into the merits of the Review Petition or accepting the allegations made therein. 9. The next question is: what should be the scope of investigation to be done by the newly appointed Structural Engineer. According to the Review Petitioner and the original Writ Petitioner, the audit should be limited to ascertaining the extent of damage to the building only and not reopen the concluded issue in terms of the report of the Chief Engineer dated 3rd February 2010 and of M/s.S.N.Bhobe & Associates Pvt.Ltd. dated 11th January 2010, about the distresses suffered by the building are not age related or gradually developed but appear to be a result of a violent vibratory motion; and the same is attributable to the work of the Respondents 4 and 5. 10. The first question that we need to address is: whether the issue as to distresses caused to Gautam Niwas building is the result of violent vibratory motion, is already concluded? For that, we have to revert back to 13 RPW.33.10.sxw the report of the Chief Engineer. He has stated that he visited the site on 15th December 2009 (only one visit) and after inspection of the building of the Society, thought it appropriate to appoint reputed Structural Consultant to carry out detailed inspection of the building and find out the cause of damage to the building. M/s.S.N.Bhobe & Associates Pvt.Ltd. came to be appointed as Structural Consultant to undertake the desired detailed inspection. From the report of the said Consultant, it is noticed that its team made only two visits to the site before submitting its findings and inferences. Indeed, the report does record that distresses suffered by the building are not age related or gradually developed, but appear to be a result of violent vibratory motion. The same is attributable to the work of Respondents No.4 and 5. At the same time, in Clause (viii) of the same report, it is noted that structural audit of the building should be carried out urgently from an structural engineer as per the Corporation Rules and results of the audit submitted to the Competent Authority for necessary action. Both the reports of M/s.S.N.Bhobe & Associates Pvt.Ltd. and of Executive Engineer were considered by the Court on 23rd February 2010. Considering the report of M/s.S.N.Bhobe & Associates Pvt.Ltd., the Court opined that the report of the said Consultant contained only tentative findings. Therefore, the Court directed Respondent No.3 to appoint an 14 RPW.33.10.sxw Structural Engineer to carry out the structural audit of the building. Notably, this opinion recorded in order dated 23rd February 2010 has been allowed to become final. That would bind the Petitioners. It is further noticed that even the order dated 9th April 2010, which alone is the order under Review, also proceeds on the same basis, as can be discerned from facts narrated in Paragraphs 2 and 3 of the said order. Suffice it to observe that it is too late in the day for the Petitioners to contend that the opinion recorded in the communication dated 11th January 2010 sent by M/s.S.N.Bhobe & Associates Pvt.Ltd. to the Chief Engineer or for that matter, the report/findings of the Chief Engineer dated 3rd February 2010 concludes the issue as to whether the damage caused to the building was result of violent vibratory motion or otherwise. 11. Thus understood, the two issues formulated by order dated 5th November, 2009, will have to be reconsidered by the newly appointed Structural Consultant in terms of this order. Moreover, to bring quietus to the entire controversy, such exercise would be inevitable. We are inclined to say so because neither the report/findings submitted by the Chief Engineer nor the findings and inferences submitted by M/s.S.N.Bhobe & Associates Pvt.Ltd. refer to any detailed inspection undertaken before arriving at such 15 RPW.33.10.sxw conclusion. Both these documents merely record that “visual inspection” was done on the basis of which the opinion is formed. As the said opinion has already been held to be tentative in terms of order dated 23rd February 2010, which order has been allowed to attain finality, in the interest of justice, the newly appointed Structural Engineer IIT, Mumbai, who is an independent agency and one of the premier institutions, can make detailed independent investigation of all aspects including of the cause of distresses suffered by the Gautam Niwas building and also the extent of damage so caused. Ordinarily, we would have been inclined to think that if the cause of damage is not attributable to the work undertaken by the Respondents No.4 and 5 by use of vibratory hammer, it may not be necessary to ascertain the extent of damage of the building. That opinion may be relevant only if the damage caused to the building is attributable to the usage of vibratory hammer technique. Even so, we call upon the IIT, Mumbai to give its independent finding and conclusion also on the question of the extent of damage caused to the Gautam Niwas building. 12. Needless to observe that the contesting Respondents as also the original Writ Petitioner and the Review Petitioner would extend full cooperation to the representatives of IIT, Mumbai during the investigation 16 RPW.33.10.sxw to be undertaken by them and furnish all documents and information as may be called upon within the time specified by them. 13. While parting, we may also advert to the circular dated 11th June 2010 produced before us by the Counsel for the MMRDA. It reveals that M/s.S.N.Bhobe & Associates Pvt.Ltd. has also been black listed by the Chief Engineer, Vigilance, by MCGM along with other Consultants including M/s.Structwel Designers & Consultants Pvt.Ltd. In that case, even the report submitted by M/s.S.N.Bhobe & Associates Pvt.Ltd. on which great emphasis is placed by the original Writ Petitioner as well as Review Petitioner would come under scanner. We may, however, make it clear that we are not taking into account this development to decide the controversy. On the other hand, we have answered the matter in issue on merits. 14. The next question is: what is the nature of order to be passed in the fact situation of the present case? The Review Petition takes exception to the order dated 9th April 2010. Although it succeeds in terms of this order to the extent indicated above, the parties will be relegated to the situation as obtained on 23rd February 2010 when the Court directed the Respondent 17 RPW.33.10.sxw No.3 to appoint a Structural Engineer to carry out the audit of the building. Instead, in terms of this order, we are appointing an independent agency as Structural Engineer to carry out the structural audit of the building. 15. For the reasons mentioned hitherto, the Petition succeeds on the following terms: (a) The order dated 9th April 2010 passed in Notice of Motion No.94 of 2010 is recalled. Instead, the said Notice of Motion is restored to the file to its original number to be proceeded from the stage of appointment of Structural Engineer to carry out detailed investigation into the relevant questions as to whether the damage caused to the Gautam Niwas building is a result of the vibratory hammer technique used by the Respondents No.4 and 5 or whether it is natural damage caused to the building being old structure or otherwise. Secondly, as to the extent of damage caused to the said building. (b) We appoint IIT, Mumbai to undertake structural audit of Gautam Niwas building and submit its report containing findings and conclusions on the aforesaid two aspects within six weeks from today. (c) We direct the original Writ Petitioner, Review Petitioner as well as 18 RPW.33.10.sxw Respondents 2 to 5 to extend full cooperation to the representatives of IIT, Mumbai during the investigation regarding structural audit of Gautam Niwas building and to furnish all necessary information and documents as may be called upon by the representative of IIT, Mumbai within specified time, if any. (d) We further direct the Respondent No.3 MMRDA to initially pay the expenses and charges of IIT, Mumbai as may be demanded, forthwith. However, the question as to who should finally bear the said expenses and charges will be considered at the appropriate stage while disposing of the Notice of Motion. (e) We clarify that this arrangement is without prejudice to the rights and contentions of the parties and without going into the allegations contained in the Review Petition. (f) Petition disposed of accordingly with no order as to costs. (A.A.SAYED, J.) (A.M.KHANWILKAR, J.)