1 Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE JURISDICTION APPEAL NO. 212 OF 2009 IN COURT RECEIVER S REPORT NO. 434 OF 2008 IN SUIT NO. 1570 OF 1983 Chimanlal Nathalal Shah & 45 Ors. .. Appellants. V/s. Virgina Anthony Misquitta & Ors. .. Respondents. --- Mr.Manish Desai with J.Chandnani for the Appellants. Mr. A.Y.Bookwala,Sr.Advocate with M.S.Doctor, Satyen Vora & Prashan Ghelani i/by Markand Gandhi & Co. for the Respondents 1 to 4 and 6A to 7. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 31st MARCH, 2010 P.C.: 1. By this appeal the appellants challenge the order passed by the learned single Judge of this court on court receiver s report. The receiver is in possession of the building standing on a plot of land which is a subject matter of the suit. The building 2 was originally of eight floors. Admittedly, two floors have been demolished because the Corporation had issued notice for demolition of those two floors because they were in extremely dilapidated condition. It appears that the second notice was received from the Corporation for demolition of the rest of the floors. The court receiver, therefore, approached the court. The court directed the court receiver to obtain stability report from an expert. The court receiver accordingly obtained a report from the structural engineer and architect. That report is dated 8.1.2008. The relevant portion of that report reads as under : 5.0 Observation of Structural Engineer. 5.1. At the very first glance the ground + 6 storied building looks like a ghost house; totally neglected, abandoned and dilapidated. As the building was never plastered from outside and windows were not fixed (only window frames are visible) the monsoon water had over the years reached to the core of all the structural elements. As a result of this all the reinforced is corroded and cover to the reinforcement has come out. This is clearly visible in all the photographs marked 1 to 17. 5.2 Due to the danger of loose concrete 3 and cover to the reinforcement work falling off at random the structural engineer, architect and the representative of Court Receiver refrained from entering the building. They made all their observations from a safe distance, from outside the building. 5.3 Due to concrete from chajjs falling every now and then, a few months back the BMC thought it fit to declare it as Dilapidated Building, Unsafe for Habitation. Not only this but BMC has also demolished all the cantilevered chajjas to avoid any harm to the people who are living very near to the building. The notice of the same is still there and is visible in photographs no.13. 5.4 At present only children from the village are using this building as toilet and passerby also use the ground floor for urinating. In the process, however, they are putting their life in extreme danger as well. 6.0 Conclusions arrived at by the Structural Engineer and basis: 6.1 The average buildings which are constructed today, unless maintained periodically, normally start developing cracks within a period of 10 to 15 years of construction. Terrace and toilet water proofing also fails and leakage start in every flat. This building is lying unoccupied and without any maintenance for last 33 years. Not only this but external plaster has not been applied to any of the facade of the building, flooring was not laid and water proofing not done. This has resulted in the rusting of about 100% of reinforcement and development of cracks in each of the RCC members. 4 Concrete has disintegrated and fallen down in chunks from every slab, beam and column. 6.2 Since the total of reinforcement is rusted only removing and replacing the cover and broken pats of concrete will not help. Replacing of reinforcement is not possible and strengthening of old reinforcement, application of chemicals to remove rust and replacing disintegrated concrete with micro-concrete is not economically viable- demolition of the entire building and reconstructing the same is a more feasible alternative. 6.3 The building appears to be in a dangerous state so much so that anyone going inside for the purpose of carrying out the repair will be risking his life. 6.4 It is recommended that building needs to be demolished as soon as possible to avoid any untoward accident taking place more sooner than later. This report shows that the building needs to be demolished immediately. It appears that the appellant also produced a report of M/s. Joshi Consultants dated 7.1.2009. The relevant part of the opinion given in that report reads as under : The original construction has inconsistent quality. The structural members that were with honeycombs or with poor quality concrete have deteriorated due to corrosion of reinforcement whereas the structural members that were with well compacted good quality 5 concrete are not affected. The concrete cover along with the plaster of the ceilings of the slabs above the ground floor (slabs at first floor level) has fallen due to corrosion of the reinforcement. However, the upper floor ceilings as could be seen from outside appear to be in better condition. Looking to the general conditions prevailing and the condition of the frame as could be visualized. I am of the opinion that his frame can be repaired. The repairs has to be mainly structural repairs, which include repairs of certain structural members by making judicious use of epoxy resins and polymers, recasting of some of the slabs and beams and jacketing of columns depending upon the extent of damage. Luckily the R.C.C. Walls can contribute to the lateral force resistance of the frame to some extent. This may become possible only if the flat purchasers who are craving for their new homes for so many years agree to accept the repaired structure. Since, the building is not handed over to the flat purchasers, and is under construction stage, it is the prime responsibility of the developer to repair and make good this structure under the advice of the original structural consultant responsible for preparing the structural designs and details for the construction of this frame to his total satisfaction so that he can certify the building to be safe and stable for residential purposes and handover the possession of the completed flats to the flat purchasers after making the structure fit, safe, stable and durable for occupying the same. 6 2. Perusal of the above, shows that even according to this report the original structure has deteriorated due to corrosion. It is also noted that it requires drastic repairs if the structure is to be saved. Ultimately, in this report it is stated : This is not a structural stability certificate but is only a condition survey report based on my visual inspection and testing by strokes of light hammer on the accessible structural members. . 3. Considering all this material, the learned single Judge granted the Receiver s report and directed the Receiver to demolish the building and erect a compound wall around the said plot to protect it. This order is challenged in this appeal. Submission of the learned counsel appearing for the appellant is that the building is safe and the learned single Judge should not have directed its demolition. He also submitted that the report of the structural engineer which is submitted by the appellant has not been considered by the learned single Judge. 7 4. We have heard the learned counsel appearing for the original plaintiff. According to him the fact that two upper floors of the building were required to be demolished shows that the building is unstable. He further submits that the report which was obtained by the court receiver pursuant to the court s order also establishes this fact. The report produced by the appellant itself states that it is not a stability certificate. The learned counsel, therefore, submitted that in the circumstances, the learned single Judge was perfectly justified in ordering demolition of the structure, considering its danger to the people. We have perused the record in the light of the above rival submissions of the parties. We find that in the face of the report submitted by the structural engineer appointed by the Receiver pursuant to the order of the court and also the report submitted by the appellant, no exceptions can be taken to the order passed by the learned single Judge. Perusal of the report shows that the construction is not stable and the entire 8 structure is corroded and admittedly, nobody is occupying that structure. In our opinion therefore, no exception can be taken to the order passed by the learned single Judge. In our opinion, making of such an order, was not only in the interest of the parties but it was also necessary in public interest. In this view of the matter, therefore, the Appeal is rejected. 5. At this stage on behalf of the appellants, a request is made for stay of this order. In our opinion, grant of stay will not be in public interest. Once, the court having found that the structure is unstable, it cannot be permitted to stand. In our opinion, considering the likelihood of danger to the public, it will not be proper to grant the request. The request is rejected. 6. Notice of motion no. 1685 of 2009 is also disposed of. (D.K.DESHMUKH,J.) (V.R.KINGAONKAR,J.)