Shubas Jain Vs Rajeshwari Shivam: The HC Under Article 226 Does Not Adjudicate Hotly Disputed Questions Of Facts

DATE OF JUDGMENT:
20 July 2021

JUDGE:
Justice Indira Banerjee

PARTIES:
Shubas Jain (Appellant)
Rajeshwari Shivam (Respondent)

SUBJECT

The Supreme Court questioned the High Court’s judgment and stated that the High Court had grossly erred in law as well as facts in passing the impugned judgment. The impugned order cannot be sustained.

OVERVIEW

• Shubas (Appellant) is the owner of a plot at Vishram Baug Compound, Mumbai. Hereinafter referred to as the “premises in question”.
• It comprises of three-storied interlinked structures. The Appellant stated that his predecessors-in-interest constructed it in 1930. There are 25 rooms and about 24 tenants including, the respondent.
• The Structural Audit Report prepared by M/s Manohar Ashatavadhani & Associate stated that the premises in question are in the C-1 category. Category C-1 buildings are those which require immediate evacuation and demolition.
• The respondent submitted a certificate of stability by M/s Crown Consultant stating that the structure was safe for the next five years.
• The Municipal Corporation referred the matter before the Technical Advisory Committee, as both the reports were contrary. The Committee found the condition of the premise very dangerous. Therefore, the structures were declared as of the C-1 category.
• The Municipal Corporation issued a notice under Section 354 of the Municipal Corporation Act for demolition of the premises in question.
• According to the Appellant, all the tenants except six, including the respondent, have refused to evacuate the premises.
• The respondent in the civil court challenged the above notice. The Civil Court refused to grant a stay of demolition. Later, he filed an appeal in the High Court. The appeal was rejected.
• The Bombay High Court granted liberty to the respondent to commence the work of removal of the adjoining wall.

LEGAL PROVISIONS

• Section 354 of the Municipal Corporation Act- Power of Commissioner to stop the erection of building or work commenced or carried on unlawfully.

JUDGMENT ANALYSIS

• The Court opined that the High Court committed a critical error. It has overlooked the following facts-

1. The report was based on visual inspection and should not be treated as a stability certificate of the building.
2. The report is only limited to the captioned suit building and, no other flats or building has been covered in the report.
3. The report was based only on the documents. The supporting documents were not mentioned.

• Under Article 226, the High Court does not adjudicate hotly disputed questions of facts.
• It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.
• The judgment was set aside. The appeal was allowed.

CONCLUSION

The High Court made grave legal and factual errors, neglecting the facts that Shetgiri and Associates' report was not a certificate of stability, as stated in the report itself. If the Respondent agrees, the Appellant has to provide an area on an ownership basis, free of charges.

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