Bombay High Court: Demolition of building won’t affect tenancy rights.

MUMBAI: A vacation bench of the Bombay High Court upheld the BMC’s November 10 notice to tenants of a Malad building to vacate in anticipation of its immediate demolition, ruling that the mere demolition of a building will not affect the petitioners’ alleged tenancy rights and that they will be entitled to be reconstructed as tenants when and when the building is reconstructed.

The building is deemed dangerous and unsuitable for habitation, which is why the BMC issued the notice.

At the petitioners’ attorney’s request, the HC vacation bench of Justices Sharmila Deshmukh and S V Marne granted them until December 31 to vacate their commercial premises.

But HC ordered that they agree to be “solely responsible for any mishap… causing any danger or loss to life or property of owners, occupiers, or passersby” in exchange for the extended time to leave.

In November, owners and occupants of the Ismail Baug building across from Malad railway station received a notice under Section 354 of the Mumbai Municipal Corporation Act 1888. Panbai Gagri and others filed a petition with the HC contesting this notice.

The more than half-century-old structure consists of two ground-plus-one-story chawls. The BMC requested a structural audit with non-destructive testing (ND testing) on January 25 of this year.

The owner had denied the audit’s request for permission, according to a complaint made to the civic body by the Ismail Baug Shop Keepers’ Welfare Association.

The audit was carried out by the owner using an Avon Consulting Engineer. According to the report, the building is dangerous and should be demolished right away. It was given the C-1 classification.

Shop owners in one segment filed a report in March via S I Consultants, but the report omitted the tests listed in the notification. As a result, the BMC requested in October that the owner and the occupants use an impaneled structural auditor to carry out the audit.

Then, contradictory reports started to surface. They did not perform ND testing because the occupiers’ consultant said it was unnecessary for load-bearing structures.

Citing the contradictory audit reports, the tenants’ attorney suggested that the BMC notice be revoked and that the case be sent to the technical advisory committee (TAC) in accordance with municipal regulations, or that the tenants be given the opportunity to perform a new audit. The petition was rejected by the attorneys for the owner and the BMC. Both declared that the ND test was required.

Additionally, HC noted that the occupants’ attorney was unable to provide evidence supporting the claim that a structure having a load-bearing component is exempt from ND testing for a structural audit. According to HC, there is no exemption for load-bearing structures in the BMC guidelines.

The HC stated, “Petitioners cannot be permitted to benefit out of their own wrong” and that “having already granted opportunity twice, the petitioners cannot be granted any further opportunity” to conduct a new structural audit.

It concluded that the BMC “cannot be faulted for issuing notice dated 10 November 2023,” but it also ordered that the BMC measure each occupant’s area in order to preserve any tenancy rights they may have and prepare them for induction once the building is rebuilt.