skt/- 1 8.wp.1343.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1343 OF 2008 Aparna Chawalla ... Petitioner Vs. Municipal Corporation of Gr.Mumbai ... Respondents ...... Ms.Sonal i/by Filji Frederick for the Petitioner. MR.A.Y.Sakhare, Senior Counsel with Ms.Trupti Puranik for Respondent no.1. Mr.S.D.Mogre for Respondent nos. 2 & 3. Mr.R.R.Bhosale, AGP for Respondent no.4. ...... CORAM : SMT.ROSHAN DALVI, J. DATE : 28th JULY, 2010. P.C. 1 The petitioner has impugned the order of Municipal Corporation of Greater Mumbai (MMC) dated 23-8-2007 granting approval for regularization of additional area of the toilet, internal staircase and internal partition walls in the residential flat of respondent nos. 2 & 3. The petitioner's flat is exactly below the duplex flat of respondent nos. 2 & 3. By the additions and the alterations in the residential flat of respondent nos. 2 & 3, the petitioners flat is stated to have suffered considerable damage. skt/- 2 8.wp.1343.08.sxw 2 The petitioner has challenged essentially the construction of a staircase within the flats of respondent nos. 2 & 3 and the extension of the bathroom such that exceeds and extends over the bedroom of the petitioner. The internal partition walls which are said to be regularized are consequent upon the extension of the area of the bathroom and water closet of respondent nos. 2 & 3. 3 For the purpose of regularization of construction of the bathroom and toilet of respondent nos. 2 & 3, respondent no.1 would be guided by Rule 38(1)(4)(b) of the Development Control Regulations for Greater Mumbai, 1991 (‘the DC Rules’) which reads as under : “(b) No bathroom or water closet shall be situated directly over any room other than another water closet, washing place, bathroom or terrace unless the said floor is made impervious with adequate water-proofing treatment. However, in no case shall a water closet or bathroom be provided over a kitchen.” Under the aforesaid rules, bathroom or water closet is not required to be directly over any room other than such bathroom or water closet or washing place or terrace, unless it is made of impervious layer with adequate water proofing treatment. There is complete bar to a bathroom or a water closet over a kitchen. skt/- 3 8.wp.1343.08.sxw 4 The reading of the rule shows that there is no complete bar for a bathroom or a water closet over the bedroom or another occupation provided however that it is made of impervious floor with adequate water proofing treatment. The bathroom which extends over the bedroom of the petitioner is, therefore, irregular and can be regularized only if the first respondent makes the floor impervious by adequate water proofing treatment. 5 The construction of the internal staircase is covered under Rule 44(4) of the DC Rules which reads as under : “.......... (e) They shall be constructed of non-combustible material” The rule shows that an internal staircase is otherwise allowed to be constructed subject to its compliance with the DC rules with regard to the material used. 6 It is the petitioner’s case that the construction put up by respondent no. 2 & 3 was initially not allowed and was much later reviewed, after which the impugned order came to be passed. skt/- 4 8.wp.1343.08.sxw 7 The petitioner contends that the construction of the bathroom and the water closet were shown extending over the petitioners bathroom and staircase in the two flats above petitioner’s flat suffer from complete illegality and cannot be allowed. Respondent no.1 has proceeded on a footing that the construction would be irregular if it is not in terms of the aforesaid rules. 8 The difference between two terms “illegality” and “irregularity” must, therefore, be first understood. Edition of Advanced Law Lexicon by P. Ramnatha Aiyar at pages 2459 and 2196 shows the two concepts thus : “Irregularity : A neglect of order or method; not according to the regulations; the doing of some act at an unreasonable time, or in an improper manner;......” “Illegality and Irregularity : An ‘irregularity’ is a want of adherence to some prescribed rule or mode of proceeding, and consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. An “illegality,” on the other hand, is properly predicable of radical defects only, and skt/- 5 8.wp.1343.08.sxw signifies that which is contrary to the principles of law as distinguished from mere rules of procedure. It denotes a compete defect in jurisdiction or proceedings.” 9 The reading of the rules shows that the construction to be put up by respondent nos. 2 & 3 could be otherwise regularized. 10 The officer of respondent no. 1 was required to see the content of the construction which was put up to satisfy himself about its regularization. To that end, the Deputy Chief Engineer (Building Proposals)(City) by his letter dated 13-04-2007, called upon the registered Structural Engineer, M/s. Structwell enrolled on the panel of MMC to inspect the premises and to carry out the Non Destruction Test or any other suitable test to ascertain the strength of portion of the existing slab affected by the work of internal staircase. He was allowed to inspect the affected portion of the slab from the flats of petitioner as well as respondent nos. 2 & 3. He was ordered to submit a detailed technical report of the structural stability and the strength of the slab. 11 The Structural Engineer, M/s. Structwell Designers and Consultant Pvt. Ltd. submitted his report on 6-7-2007. The report shows that skt/- 6 8.wp.1343.08.sxw damages assessed to the ceiling of the kitchen of the petitioner’s flat. The report shows that the “area” was carefully inspected and ‘drawings’ submitted to him was carefully scrutinized. It also shows that the Structural drawings were not available for scrutiny. The report observed as follows : 1. The staircase and the surrounding area were cladded and hence could not be visually observed. The discussion with the Structural Engineer shows that the staircase was supported from beam to beam and the load of the staircase is not directly transferred on the slab. 2. The distress due to overloading was not noted. 3. The kitchen of the petitioner’s flat was poorly maintained, it has severe corrosion or reinforcement. Major structural damage was not seen. 12 The report concludes that the problem in the petitioner’s kitchen was due to corrosion of the slab reinforcement inside the concrete. The report recommended immediate repairs to the kitchen area to insure safety and stability of the flat. 13 The petitioner’s advocate argued, rather justifiably, that no non- destruction test was performed by M/s.Structwell Designers and Consultant Pvt. Ltd. Instead of non-destruction test, the said firm carried skt/- 7 8.wp.1343.08.sxw out a visual test. It did not submit a detailed technical report about the strength or structural stability. The authenticity as well as the bonafides of this report are, therefore, challenged. 14 It is based upon this report that ultimately the impugned order came to be passed on 23-08-2007. Approval of the construction came to be granted upon three conditions : 1. Care was to be taken (obviously by the petitioners 2 & 3) to avoid any leakage making the floor impervious by applying water proofing treatment in respect work of the toilets. This is in consonance with Rule 38(1)(4)(b) of the D.C. Rules. 2. An Indemnity Bond must be executed indemnifying in respect of any leakage in future 3. The approval which was granted was subject to the final order in the suit filed by the petitioner for various reliefs including the relief of demolition of the unauthorized construction and declarations in that behalf. 15 The leakage from bathroom of respondent nos. 2 & 3 into the bedroom of the petitioner, which is directly underneath the extended bathroom, is stated to have continued unabated. It is the petitioner’s case that blocks of plaster are also peeling off in that portion of her flat. Respondent nos. 2 & 3 have not shown any work done after the order dated 23-08-2007 to avoid or abate any leakage or damage, by putting up any impervious floor or carried out any water proofing treatment in skt/- 8 8.wp.1343.08.sxw respect of their work in the toilets. The Court called upon counsel on behalf of respondent nos. 2 & 3 to show any work done in that behalf for the past three years that the petitioner claims to have suffered damage upon the construction work done by respondent nos. 2 & 3. Respondent nos. 2 & 3 have produced a copy of a printout of the Classic Construction, dated 7-03-2001 showing inter alia plumbing work done in the master bed room of respondent nos. 2 & 3, which is described as follows : 1 Doing plumbing for Master bathroom in 1/2” dia TATA “C” class G.I. Pipes from staircase side including wrapping the cold water lines with dumery cloth and hot water lines with asbestos tape. It is shown to have cost to respondent nos. 2 & 3, a petty amount of Rs.6,750/-. This work is seen not to be any water proofing treatment work or any work showing impervious floor being put up. 16 When the most essential condition of the regularization order is not complied the regularization itself, cannot be allowed to remain as approved construction by the MMC. It is only for the MMC, which is a public body, to see that the condition has been complied if grievance is made by the affected and aggrieved party pursuant to its own conditional approval. skt/- 9 8.wp.1343.08.sxw 17 The petitioner has prayed for setting aside the impugned order on the premise that it is an illegal construction. Since the construction has been irregular and not illegal, it could be regularized upon adequate measures being undertaken as directed in the approval order itself. If the conditions are not fulfilled that the construction itself cannot be taken to be approved. On 23-08-2007 itself the Executive Engineer (Building Proposal)(City)-I made a note about the aforesaid approval as well as the observations that in the petitioner’s flat. The note shows that the RCC slab in the kitchen area of the petitioner was peeled off and the reinforcement RCC slab has been corroded. The petitioner was to repair RCC portion to avoid further corrosion. It may at once be mentioned that renovation of the RCC portion, if any, in the petitioner’s flat is not an umbrella under which respondent nos. 2 & 3 could take shelter. It is for respondent nos. 2 & 3 to show that the floor has been made impervious by adequate water proofing treatment which they have not done. It would be for respondent nos. 2 & 3 to reinforce the RCC slab which due to corrosion also may cause damage in the petitioner’s flat. 18 Considering the conditional approval and the corrosion of RCC slab, counsel on behalf of respondent nos. 2 & 3 offered to get the entire work done at their cost in their flats as well as in the petitioner’s flat. The skt/- 10 8.wp.1343.08.sxw petitioner who is present in Court, has instructed her counsel to state that she rejects the offer of such repair and renovation. 19 The petitioner has sued the MMC as well as respondent nos. 2 & her husband and also the Society in the Bombay City Civil Court under the L.C. Suit No. 4151 of 2006. She has prayed for the declaration in respect of the works carried out by respondent nos.2 & 3 and the order passed by respondent no.1 in that behalf and also for demolition of the unauthorized construction and direction to carry out repairs to the ceiling of the petitioner’s flat as well as the other damage caused to them. Such damage being carried by the aforesaid construction would have to be proved by the petitioner in the suit. 20 Under the offer made by respondent nos.2 & 3 in Court, the petition would have been effectually granted the relief of carrying out repairs prayed for by her in aforesaid suit. 21 The petitioner’s suit is ripe for hearing. Issues have been framed since 6-02-2010. The petitioner has applied by way of a Chamber Summons, for deletion of one of the issues. It has to be mentioned that it is for the Court to frame the issues. The Court is empowered to add or to skt/- 11 8.wp.1343.08.sxw delete or amend the issues at any stage. Taking out an application by way of a Chamber Summons is, therefore, a misconceived remedy. 22 Counsel for respondent nos. 2 & 3 states that the petitioner has delayed the remedy in her own suit, which came up for hearing, by such application. She has not filed her affidavit of evidence and produced her documents for considering their admissibility. Respondent Nos. 2 and 3 also offer to proceed with the hearing of that suit immediately. 23 The petitioner’s challenge to the order of regularization, which came to be passed upon review, raises a legitimate suspicion about the integrity of the order and in view of the fact that the regularization was to be dependent upon the certification by the structural engineer by Non- destruction Test or any such other suitable test which has not been carried out. The basis of that suspicion is not unfounded. The approval, however, is a conditional approval. The approval of irregular construction can be granted if the irregularity is removed. Enforcing the removal of irregularity, is that duty of the MMC. However, the offer of removal of irregularity shows the bonafides of Respondent Nos. 2 & 3, who are the neighbours of the petitioner to live as neighbours should and as per the mandate of the DC Rules and the impugned order. skt/- 12 8.wp.1343.08.sxw 24 The impugned order, itself, is subject to the orders to be passed in the petitioner’s suit filed in the City Civil Court. In view of the rejection by the petitioner herself of the offer made, which would be in terms of one of the prayers in her suit to be granted in this petition itself, and in view of the fact that the petitioner herself has resorted to that remedy, the order of conditional approval cannot per se and without deciding the petitioner’s suit, be set aside. 25 The petitioner shall, therefore, proceed with the hearing of the suit being suit No.4151/2006 in the Bombay City Civil Court. The petitioner shall be entitled to include the impugned order therein. The impugned order shall be subject to the decision in the said suit. 26 Rule is granted and the Writ Petition is disposed of accordingly. [SMT.ROSHAN DALVI, J.]