... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.285 OF 2006 NOTICE OF MOTION NO.285 OF 2006 NOTICE OF MOTION NO.285 OF 2006 IN IN IN WRIT PETITION NO.329 OF 2004 WRIT PETITION NO.329 OF 2004 WRIT PETITION NO.329 OF 2004 National Defence Civilian ) Employees Union, ) TC 2, G-233 Bandukhwalla Chawl, ) Sayani Road, Prabhadevi, ) Mumbai 400 025. ) ...Petitioner Versus 1. The Director of Industrial ) Safety and Health, ) 5th Floor, Commerce Centre, ) Tardeo, Mumbai 400 034. ) 2. The Admiral Superintendent ) Naval Dockyard, ) Mumbai 400 023. ) ...Respondents Shri Lancelot Lewis i/by Shri Godfrey D’silva for the original Petitioners (Respondents). Shri Rajiv Chavan with Shri Y.S. Bhate i/by Shri J.C. Kaushik for the Applicants (original Respondents). CORAM : B.H. MARLAPALLE & A.S. OKA, JJ. CORAM : B.H. MARLAPALLE & A.S. OKA, JJ. CORAM : B.H. MARLAPALLE & A.S. OKA, JJ. DATE : NOVEMBER 21, 2006. DATE : NOVEMBER 21, 2006. DATE : NOVEMBER 21, 2006. P.C.: P.C.: P.C.: 1. This Notice of Motion has been taken out by the second Respondent in the disposed of Writ Petition No.329 of 2004. The prayer in this Notice of Motion is for modification of orders dated 27th February, 2004 and 15th April, 2004 passed by this court in the Writ Petition. ... 2 ... 2. We have heard the submissions of Shri Rajiv Chavan, the learned counsel appearing in support of the Notice of Motion and Shri Lancelot Lewis, the learned counsel appearing for the original Petitioners. 3. With a view to appreciate the submissions made before us, it will be necessary to refer to the facts of the case in brief. The Petitioner-Union filed the aforesaid Petition under Article 226 of the Constitution of India seeking a writ of mandamus against the first Respondent the Director of Industrial Safety and Health enjoining him to give necessary directions to the second Respondent- The Naval Dockyard to carry out necessary changes, alterations and modifications to the premises in question in order to ensure that the premises as well as the service conditions of the members of the Petitioner-Union are in accordance with the provisions of the Factories Act, 1948. Further prayer in the Petition was for seeking a direction against the second Respondent to comply with all the directions issued by the first Respondent. 4. When the Writ Petition came up before this court (Coram: A.P.Shah and S.C.Dharmadhikari, JJ) on 27th February, 2004, a detailed order was passed in which grievances of the Petitioner were recorded. This ... 3 ... court directed the first Respondent to depute a senior Factory Inspector to inspect the premises of the second Respondent and to ascertain whether deficiencies referred to in the said order have been removed or not. After the Factory Inspector submitted a report, this Writ Petition was placed on board on 15th April, 2004 before a Division Bench (Coram: A.P.Shah and A.S. Oka, JJ) of this court. The Writ Petition was disposed off by passing the following order: "2. The Deputy Director has come to the conclusion that there were certain breaches of the Act and the Rules and he has enumerated those deficiencies in paras 5,7,8 and 9 of the report. The respondents are directed to remove the deficiencies pointed out by the Deputy Director in paras 7, 8 and 9 within a period of 8 weeks. In so far as para 5 of the report is concerned, the respondents are given a months time to increase the height of the structure. 3. Petition stands disposed of. 4. Parties to act on an ordinary copy of this order duly authenticated as true copy by ... 4 ... the Associate of this Court". 5. In the present Notice of Motion the prayer is for allowing the second Respondent to construct additional five floors on terrace of the existing MPRS building comprising of ground and mazanine floor within a period of 18 months from the date of the order which may be passed in the Notice of Motion. It is prayed that instead of increasing the height of the workers’ lunch room in the existing MPRS building from 3 metres to 3.75 metres, the second Respondent may be allowed to relocate the workers’ lunch room in the newly constructed first floor above the existing MPRS building. It is stated that height of the first floor will be 3.75 metres in conformity with the recommendations of the Directorate of Industrial Safety. 6. When this Notice of Motion came up before us on 02nd August, 2006, we directed the Deputy Director, Industrial Safety and Health, Mumbai to examine the contentions raised by the second Respondent in the Writ Petition, and to reconsider his earlier report which is referred to in the order dated 15th April, 2004 after hearing the parties to the Writ Petition. Accordingly, a report was submitted by the Deputy Director in which ... 5 ... he approved the variations suggested by the second Respondent and placed the same before us. When the Notice of Motion was placed before us on 07th September, 2006 we noted the contention raised by the Petitioner-Union that the structure of the MPRS building is illegal from its very inception and in any event it is not capable of bearing the load of additional floor as is proposed. Therefore, we directed the second Respondent in the Writ Petition to get a fresh structural survey made of the subject building through military engineering surveyor. Accordingly survey was made by one Mr Dharma Sheel, SE, CWE (NW), Mumbai after his visit to the structure on 18th September, 2006. On 07th October, 2006 a contention was raised by the Petitioner-Union that there was nothing on record to show that said Mr Dharma Sheel is a qualified structural engineer and the certificate issued by him is silent on the main issue as to whether existing building is capable of taking the additional load of the proposed construction. On the basis of the order passed by us, a fresh inspection was carried out by one Mr Alok Shukla, IDSE, M.Tech, Officiating Director (Design). The opinion and certificate of the said Mr Alok Shukla was objected to by the Petitioner-Union by pointing out that relevant factors are not considered and no opinion is given as ... 6 ... to whether construction of five additional floors will be possible considering the structural status of the building as of today. 7. On the last date the learned counsel for the Petitioner submitted that the work of carrying out structural survey has to be conducted by an independent competent authority like the Indian Institute of Technology (for short IIT), Powai or the Victoria Jubilee Technical Institute (for short VJTI), Matunga. He submitted that there is no CRZ clearance to the building from the Ministry of Environment and there is no approval by the Bombay Municipal Corporation. He submitted that if additional five floors are allowed to be constructed on the existing building, there is every possibility that the building will crash which will result in loss of lives and destruction of very costly machinery. The learned counsel appearing for the second Respondent sought time to take instructions and we accordingly granted time till today. 8. Today on instructions, the learned counsel appearing for the second Respondent states that the second Respondents are willing to get the structural survey of the building carried out by the expert/experts nominated by the VJTI, Matunga, Mumbai. ... 7 ... He submitted that if the expert or experts appointed by the VJTI certify that the structure of the existing building is stable enough to take load of five additional floors, the second Respondent will undertake construction and will complete the same within a period of twenty months. 9. The learned counsel for the Petitioner submitted that even if expert or experts appointed by the VJTI certify the structural stability, the second Respondent will have to obtain all necessary permissions/clearances from the concerned authorities before they proceed with the construction of the building. He submitted that a limited time be granted to the second Respondent for completing the construction of the additional floors. 10. In view of the submissions we deem it proper that a structural survey should be carried out by expert or experts appointed by an independent authority like VJTI and only if the expert or experts appointed by the VJTI certify that the structure is stable enough to take load of five additional floors, the second Respondent can be permitted to construct five additional floors as prayed for in prayer clause (a) of the Notice of Motion. It is obvious that if statutory ... 8 ... permissions/ clearances are required for commencement and completion of the construction, the second Respondent will obtain said clearances/ permissions. If structural stability is certified by the expert or experts, the entire exercise of constructing additional floor providing a proper lunch room for the workers will be completed by the second Respondent within a period of fifteen months from the date of receiving certificate from the expert or experts. In case the opinion expressed by the experts is that construction of additional floors is not feasible, the second Respondent will have to comply with the original order dated 15th April, 2004 within a period of three months from the date of receipt of the opinion. 11. Hence, we dispose of Notice of Motion by passing following order: (i) The second Respondent will approach the Director or the appropriate authority of VJTI, Matunga, Mumbai. The VJTI will appoint structural engineer and/ or appropriate expert or experts to carry out structural survey of the existing structure of MPRS building. The VJTI will submit an opinion/certificate in writing as regards structural stability of the ... 9 ... existing building to take load of five additional floors proposed to be constructed by the second Respondent. The charges payable to VJTI will be naturally borne by the second Respondent. The expert or experts appointed by the VJTI, Mumbai will give notice of the date and time fixed for inspection to the Secretary of the Petitioner-Union and it will be open for the Secretary or any other office bearer of the Union to remain present at the time of inspection of building. This exercise shall be completed within a period of seven weeks from today. (ii) As and when certificate/opinion is received by the second Respondent from VJTI, a copy thereof will be immediately supplied to the Petitioner-Union. (iii) If the opinion of VJTI, Mumbai is that the existing structure can take load of five additional floors, the second Respondent will proceed to carryout and complete the construction as prayed in prayer clause (a) of Notice of Motion. The construction of additional floor shall be completed within a ... 10 ... period of fifteen months from the date of receipt of the opinion/certificate from the VJTI, Mumbai. It is obvious that the second Respondent will apply for and obtain all necessary statutory clearances/permissions, if any, before proceeding with the construction. (iv) In case the opinion of the VJTI, Mumbai records that construction of additional floors is not advisable considering the structural stability of the existing structure, the second Respondent will forthwith comply with the order dated 15th April, 2004. The compliance shall be made within period of three months from the date of receipt of certificate/opinion. (v) The second Respondent will supply necessary documents to VJTI, Mumbai alongwith an authenticated copy of this order. (vi) There will be no order as to costs. (A.S. Oka, J.) (B.H. Marlapalle, J.) (A.S. Oka, J.) (B.H. Marlapalle, J.) (A.S. Oka, J.) (B.H. Marlapalle, J.)