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IN THE COURT OF THE III ADDL.SENIOR CIVIL JUDGE: VIJAYAWADA
PRESENT: SMT.C.RAMA DEVI,
III ADDL.SENIOR CIVIL JUDGE
TUESDAY, THIS THE 16th DAY OF FEBRUARY, 2016.
C.M.A.No.27 OF 2015
BETWEEN:-
Sree Show Off Rep. By its proprietor Kanyalal Peswani … APPELLANT
A N D
1. Vijayawada Municipal Corporation Rep. By its Commissioner, Vijayawada
2. K.Lalith Manohar (Amended and 2nd respondent is added as per orders in
I.A.No.857/2015 dated 9-12-2015) .. RESPONDENTS
This appeal is coming on 5.2.2016 for final hearing before me in the presence of Sri K.Rajasekhar, Advocate for the Appellant and of Sri A.Gopala Sastry, Advocate for 1st respondent and of Sri Y.Sorya Mohan, V.Laxmi Narayana, Advocates for 2nd respondent and after hearing the counsels and upon perusing the material papers on record and having stood over for consideration till this day, this Court made the following:
O R D E R
This appeal is filed against the order of the Commissioner,
Municipal Corporation/1st respondent, Vijayawada dated 12-9-2015 vide
Rc.G2-14090/2012 to set aside the order and to award costs.
2. The grounds of appeal in brief are as follows:
Appellant is carrying on the business in the name and style of “Sree
Show Off” in the schedule property as a tenant for more than 30 years.
The land lord of the said property with an aim to evict the appellant is one way or the other making hectic efforts.
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The 1st respondent Corporation passed orders on 12-9-2015 for demolition of schedule premises. The said orders are contrary to law and probabilities to the case. The Corporation has not followed provisions of section 459 of GHMC Act, while passing final order as it failed to give reasonable opportunity to the Appellant in submitting their objections and adducing evidence. After due considering the objections and evidence on record, the Corporation is empowered to pass orders for demolition. The 1st respondent Corporation did not follow the said procedure. The landlord K.Lalith Manohar has been making hectic efforts for demolition of the building from September 2013 onwards. The fact that building was upright and stable for the last two years clearly indicates the structural stability of the building. The landlord to circumwent the provisions of A.P.
Buildings (Lease, Rent and Eviction) Control Act, 1960 is instigating the 1st respondent Corporation to demolish the structures. As per provisions of the above said Act, the appellant is entitled to be accommodated in the new construction which may be taken up by the landlord after demolition of the existing structure.
3.The 1st respondent Corporation has failed to appreciate the observations made in the report of National Institute of Technology,
Warangal and Rise Krishna Sai Prakasam Group of Institutions, Ongole. In both the reports, they observed that the structure of the building is stable and the building is not liable to be demolished and they have conducted the required test. In the report of Jawaharlal Nehru Technological
University, Kakinada they have not mentioned about conducting of any tests and they arrived conclusion unilaterally, as such, report given by
Jawaharlal Nehru Technological University, Kakinada cannot be taken into consideration. The Corporation while following the certificate given by 3
Jawaharlal Nehru Technological University did not give any opportunity to the appellant to adduce evidence and to cross-examine them and they simply carried away by the certificate issued by the parties and passed final orders. The Corporation has not taken into consideration the report of Warangal that the building can be repaired so that structural stability does not become doubtful. It makes it clear that the Corporation has passed orders at the behest of the landlord to give benefit to him. The
Appellant and other co-tenants are doing business no neighbour or public has given any complaint to the Corporation about the stability of the structures. The orders passed by the 1st respondent is not a reasoned orders enabling the appellant court to scrutinize the same to know whether in correct presceptive the orders are passed or not as such, the present appeal is filed against the impugned orders of the 1st respondent corporation ordering for demolition of the structures.
4.The appellant, 1st respondent/Corporation submitted arguments, so also, 2nd respondent landlord of the building.
5.The points for determination are:
1. Whether the reports of Jawaharlal Nehru Technological University, Kakinada and Siddartha Engineeringcollege, Vijayawada scientifically enabled the 1strespondent to issue impugned final notice?
2. Whether the orders passed by 1st respondent/Corporation is in accordance with the provisions of section 456 of HMC Act?
3. Whether the impugned orders passed by the 1st respondent is sustainable or liable to be set aside?
4. To what relief?
6.Point No.1:
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The admitted facts in the present case are one K.Lalith Manohar is the owner of the buildings door Nos.28-5-10, 28-1-1. The first building consists of ground and first floor. First floor was previously used by the landlord for residential purpose. The ground floor consists of some shops.
The second building is also consists of ground and first floors and the first floor was being used by the landlord for residential purpose and the ground floor consists of shop rooms. The appellant is one of the tenants in the said shop rooms. Some other tenants of the said buildings also filed appeals against the orders of 1st respondent Corporation. Initially the 1st respondent Corporation issued a notice U/s.456 of HMC Act wherein the 1st respondent Corporation stated that the building is in dilapidated and ruinous condition posing potential danger not only to the lives and properties of the neighbouring residents but also to the general public who pass through the street and directed them to take necessary remedial measures either for removal of the structure or for strengthening of the structures under the supervision of empanelled
Structural Engineer. On that Appellant gave reply stating that structural stability of the premises is sound and is not in a dilapidated condition and stated his willingness to take immediate repairs for strengthening of the structure of the building if necessary.
7.Later they have preferred Writ Petition 15012/15 before the
Hon'ble High Court challenging the notice issued U/s.456 of HMC Act.
While disposing of the said Writ petition, the Hon'ble High Court directed the petitioners to obtain structural report of the said building from
Jawaharal Nehru Technological University, Kakinada and if the said
University expresses inability to conduct test saying for any valid reasons from Siddhartha Engineering College, Vijayawada and submit the same 5 along with their explanation to the 1st respondent Corporation within four weeks from the date of receipt of copy of order. Later they filed petition for extension of time.
8.The record shows that the appellant approached Rise Krishna Sai
Prakasam Group of Institutions, Ongole and obtained compressive strength test report and also obtained structural assessment report from
National Institute of Technology, Warangal. The owner of the building obtained report form Siddhartha Engineering College. Appellant and other tenant approached and Jawaharlal Nehru Technological University,
Kakinada. After receiving of these reports, the 1st respondent Corporation passed final orders and issued final notice U/s.456 of HMC Act on 12-9-2015. In the said order the 1st respondent has observed that in view of the orders of Hon'ble High Court in Writ Petition and the structures stability certificate issued by Siddhartha Engineering College, Vijayawada,
Jawaharlal Nehru Technological University, Kakinada, Executive Engineer- 3, Vijayawada Municipal Corporation is in opinion that door No.28-5-10, 28-1-1, Besant Road, Eluru Road, Governorpet, are in dilapidated condition, it is not possible to strengthen the above structure as it is too old and to be dismantled immediately and directed the Appellant to vacate the premises immediately and to dismantle the building within 24 hours from the date of receipt of the notice. The appellant and others filed Writ Petition No.30652/2015, Honourable High Court granted time to appellant and other till 23-9-2015 to work out their remedy observing short time was given to them to comply orders. Later the present appeal and other appeals are filed.
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9.The counsel appearing for appellant vehemently argued that
Jawaharlal Nehru Technological University, Kakinada did not visit the tenanted premises and the report submitted by it did not contain any scientific data or analysis to ascertain the strength of the building or the percentage of the gumming nature of mortar in between the bricks of the wall. As per the directions of the Hon'ble High Court, they have to conduct the tests in the presence of engineers of 1st respondent. The photographs annexed to the report are of the premises in occupation of the 2nd respondent. The appellant has approached the department of
National Institute of Technology, Warangal and obtained reports wherein they have stated they conducted soil test and also carried out non- destructive test . In the said report they have clearly given the average compressive strength of the building bearing D.No. 28-2-6, 28-2-11, and 28-2-15. They also mentioned that there are no noticeable damages in the form of cracks / spalling of concrete / settlement of ground etc and opined that the building is structurally stable and its stability will not endanger by their normal use. The same opinion was given by Rise
Krishna Prema Sai Group of Institutions, Ongole. Further argued, in the said reports, it is further mentioned that a few parts of the building are in critical stage. If it is so required, it can be easily repaired. Second respondent at no point stated he made efforts to strengthen the building.
10.The counsel appearing for 1st respondent Corporation vehemently argued that the Hon'ble High Court has directed the appellants to obtain reports from Jawaharlal Nehru Technological University, Kakinada, if not possible from Siddhartha Engineering College. Both the colleges have given report stating that structure is not stable as such it has to be 7 demolished. As the Hon'ble High Court has directed to obtain report from these colleges, the reports given by these colleges were considered by the 1st respondent and the reports given by other colleges cannot be considered and this court also cannot take into consideration of the reports given by those colleges, as it is against the observations of
Hon'ble High Court. The 1st respondent Corporation has nothing to do
with the internal disputes between the landlord and tenants. As the building is more than 90 years old, it may cause loss to the general public who are attending to the shops and passersby or neighbouring owners and it endanger the lives of the public. In view of the reports of these two colleges, the 1st respondent Corporation has rightly passed the orders.
11.The counsel for 2nd respondent submitted that the Jawaharlal Nehru
Technological University, Kakinada has given a report and basing on the said report, the Hon'ble High Court has passed orders. Now the court cannot go beyond the orders passed by the Hon'ble High Court which has considered the report given by Jawaharlal Nehru Technological University as well as Siddhartha Engineering College, Vijayawada and the court cannot order for conducting of non-destructive test as requested by the appellants. Coming to the contention of 2nd respondent, after receiving of first notice U/s.456, the appellant approached along with other tenants the Hon'ble High Court, in the writ petition the Hon'ble High Court directed the appellants to obtain a report from Jawaharlal Nehru
Technological University, Kakinada or from Siddhartha Engineering
College and basing on the report and explanation by the petitioners, the
Corporation has to pass appropriate final orders. After receiving of the report, the Corporation has passed final orders. Appellants filed writ 8 petition before Honourable High court. While disposing the matter time was given to appellants to approach proper forum.
12.There is no mention of reports given by the Engineering colleges.
Challenging the final notice, the present appeal and other appeals are filed. So, the contention of the counsel for 2nd respondent that the
Hon'ble High Court has considered the reports given by the two
engineering colleges is absolutely not correct. Coming to the contentions of petitioner and respondents, admittedly Jawaharlal Nehru Technological
University, Kakinada and Siddartha Engineering college, Vijayawada have given reports, after making personal inspection and recommended for demolition of three buildings which are demarcated in the plan annexed to the report and National Institute of Technology, Warnagal and Rise
Krishna Prema Sai College of Engineering, Ongole have given reports after inspecting the building and conducting some sample tests and observed that the structures inspected do not endanger the structural stability of the buildings.
13.Before further adverting to the point, it is necessary to see the guidelines of assessment of existing structure as stated by professor Dr.
W.Rucker, Berlin, Germany, wherein it is mentioned the details of structure assessment is of two types, qualitative assessment, quantitative assessment. In qualitative assessment, which is '0' level be made by experience based subjective assessment of deterioration effect and other damage after visual inspection. In quantitative assessment there are two methods, measurement based assessment, model based assessment. In measurement based assessment level-1, Direct assessment of serviceability values can be made from measured load effects. In model 9 based assessment there are four levels. Level-2 assessment of safety and serviceability using simple model based methods i.e., basing on data from documents. Level-3 assessment of safety and serviceability using refined model based methods i.e., data from tests, monitoring etc. Level-4 adaptation of target reliability measures and assessment of safety and serviceability with modified structure specific values. Level-5 probabilistic assessment of safety and serviceability values can be made by collecting data from tests, monitoring, etc.
14.In this, it is observed that the five methods of assessment of the structural stability can be made and it is also observed that the assessment procedures vary in sophistication. As per IS 13311 Part-II standard, rebound hammer test is recommended for knowing the designed strength and expert structures and it is observed rebound hammer test measures the surface hardness of concrete with approximate correlations to estimate the compressive strength of the structure. As per IS 456 core test can be conducted. As per ASTMC 900 capo test i.e., cut and pull out test can be conducted to determine in-situ compressive strength of RCC structures. As per IS 13311 Part-I
Ultrasonic Pulse Velocity test can be conducted to know the quality of concrete and structure flaws like honeycombing, delaminations, voids and that this integrity assessment of RCC structures refers to homogeneity of the structures and to examine the structure for any internal defects.
ASTM C1740-10 also recommended impulse response test to know the possible dearth of the block. They also recommended GPR method to know the flaws like delaminations, voids, deterioration in the structure and for rebound quality assessment. Bond test, anchor / rebar pull out 10 strength and chemical test will be conducted to know the assessment of structural life of the member.
15.Coming to the reports, Jawaharlal Nehru Technological University,
Kakinada after making inspection given a report, the same is filed by the counsel for 1st respondent. In this, they have mentioned that they are giving a report on the structural stability of the building 28-5-10 Besant
Road and 28-1-1 Eluru Road house in shops 28-3-90 to 28-3-93 Annadana
Samajam Road, 28-2-1 to 28-2-17 Besant Road, 28-1-2 to 28-1-8 Eluru
Road and they have conducted the inspection in the presence of
N.Bhaskara Rao and other tenants, K.Lalith Manohar, owner and given a report stating that they have divided the buildings into four buildings and for each building they have given the details of physical inspection of the buildings. It is observed that first building is made of Madras terrace roof structure consisting of ground floor, housing shops Besant Road and also consists of a residential portion in up stairs. The external walls of the building bearing damages both at a ceiling level as well as at plinthbeam level.
16.The wooden reapers supporting the roof of the Madras terrace slab is damaged at several places and temporarily supported using props not clear in which floor. The mass at first floor level is damaged considerably.
The building is having severe damping on all external walls locally repaired. The wooden reapers of Madras terrace roof slab of part of the building was completely damaged at several places in which floor not mentioned and also observed the rain water drain provided at roof first floor got chocked due to improper maintenance with material leading to leakages along the external wall. With regard to building No.2 RCC 11 roofed structure, it is observed that roof of RCC slab is damaged at few places, cracks are observed on the roof slab not clear whether it is in first floor or ground floor. The walls at the first floor level is damaged considerably. The settlement cracks are observed at the basement of the building at several places. The building is having severe damping on all external wall, deterioration was observed at lintel level. The plastering of the external wall of the building is deteriorated with no proper periodical maintenance. Third building spalling of cover was observed and the roof slab exposing the steel reinforcement of the slab. The building is having severe damping on all external walls locally repaired and shear cracks are observed on load bearing walls at several places. The plastering of the external walls of the building is deteriorated with no proper periodical maintenance. With regard to building No.4, this building was constructed with asbestos roofing and structurally not connected to the other part of the building and given recommendations that the buildings 1 to 3 are not safe to utilize and they may collapse leading to loss of life and building
No.4 is safe structurally.
17.The counsel appearing for appellant contended that the engineers of Jawaharlal Nehru Technological University, Kakinada have not conducted any test nor visited the shops of appellant and other tenants, basing on the observations made in the first floor of the building, said report is given and that too without conducting NDT test. The photographs annexed to the report are pertaining to 1st floor only.
Further argued that the owner of the building prior to visit of the engineers has damaged the structure of the building i.e., damaged the supporting walls of the tenanted premises and roof flooring and the appellant and other tenants have filed a suit before Prl.Senior Civil 12
Judge's Court, Vijayawada against the landlord. Taking into consideration
of the damages made by the landlord, the said report was given. The plain reading of the report shows that the engineers have mentioned about the two buildings with door numbers. In the report, it is mentioned about the damages of walls at first floor level. It is not clear whether the engineer has verified the strength of the walls in the ground floor especially in the petition schedule ground floors.
18.No specific observation of the damage of walls in the ground floor in all the buildings, especially the shops which are constituted in the ground floor of the buildings. Though they have mentioned the shop numbers in the first page of the report, but in the main report, they have not referred the shop numbers or the house number, wherein they have conducted the physical verification of the building and the photographs which are filed along with the report are not so clear and these photographs are not showing whether the said inspection was made in the first floor alone or in the ground floor also when appellant counsel contended that they are referring to first floor only. There is no specific denial by the respondents.
19.In the report, they have mentioned that the detailed description of the engineering features of the building are presented in structural stability / condition assessment / visual inspection report. They have given a chart stating about the condition of the buildings which were demarcated as three buildings. Faults in the slab column they have mentioned spalling of material and damping of water seepage is observed. In building No.1 they have observed damage of beams at several places. The conditions of walls they have mentioned that first building vertical cracks at several places observed and in second building 13 cracks in external walls observed bulging of walls at ground floor level wall observed, so also in building No.3. All these observations mentioned in this chart as well as in the main report, are made basing on visual inspection of the building made by the engineers. As it is mentioned in the German Professor's report though it is not made applicable to India but these levels are appearing to be appearing. It appears visual inspection is '0' level based subject to assessment of structural stability of the building.
20.Though the engineers having sufficient experience in the field by physical verification of the building can give structural stability of the building, but when there are more sophisticated methods for verifying the structural stability of the building and also repair methods of the building basing on only physical verification of the building giving report appears to be not technical. That too when the appellants have challenged the order of the Corporation for demolition of the structures claiming that the structures are stable and withstand the load and they also approached the Hon'ble High Court challenging the orders of Commissioner and it is subjected to judicial scrutiny, mere making of physical verification appears to be not sufficient.
21. In view of the report filed by National Institute of Technology,
Warangal also simply physical verification of the structural stability given by Jawaharlal Nehru Technological University considered opinion of this court is not sufficient. The National Institute of Technology, Warangal has given structural inspection report. In this report, they have clearly mentioned about investigation as to inspection of the building by inspecting of soil samples collected from the site, carrying non- 14 destructive test using rebound hammer on the RCC columns in the ground floor to verify the available NDT results. They also made visual observations as load bearing walls in both RCC, Madras terrace roof did not have any cracks either inclined or horizontal. This indicates that the foundation for the walls is in good condition and also materials used and workmanship employed was good. Only one wall on the east side of the building is having vertical crack of about 2 mm but the crack does not continue into the brickwall, however, this crack does not pose any problem for the stability and it can be easily repaired using simple and established methods. The entire slopping roof of the buildings of category-I i.e., door No.28-3-90 to 28-3-93, 28-2-1 to 28-2-6 is intact, no damages are observed. As far as RCC and Madras terrace roofs of the buildings are concerned they are intact and there are no signs of leakage.
The rafter beams of Madras terrace roof of building i.e., category-III are in good condition without developing any cracks / breakage. It is observed that category-II and III ground floor structures are inspected.
22.There is no delamination of the plaster in any part of the building inspected. It is also observed that heavy columns supports for the roof in building category-III are very stable and sturdy. There is no spalling of cover concrete in the slabs of the ground floor of RCC building of category-II. There is no differential settlement observed at the ground level and it is also mentioned that non destructive test was carried using rebound hammer on the RCC columns in the ground floor and observed that concrete strength of the said structure is more than the standard compressive strength of concrete required as per IS 456-2000 of 20 MBPS and gave a conclusion that there are no noticeable damages in the form of cracks / spalling of concrete / settlement of ground etc and the 15 existing state of structures inspected does not endanger the structural stability of the building. Also mentioned there is no requirement of any intervention measures in the existing buildings inspected, as the buildings are stable and well maintained. Finally observed that building structure inspected does not have any noticeable damage which can make the structure to be classified as dilapidated. They have given a sketch of the building showing the shops and residential home. In between shops and owners of building, a vacant site is shown in this diagram, whereas in the plan given by Jawaharlal Nehru Technological
University, Kakinada they have shown the building as continuing one.
23.The counsel for 2nd respondent contended that Siddhartha
Engineering College, Vijayawada has given a report observing that the entire two buildings are in a possibility of dilapidated condition, there cannot be any possibility strengthening of the structures as they are situated in seismic zonal regulations, as such, the buildings have to be demolished. Siddhartha Engineering College gave a report on 5-1-2015 stating that K.Lalith Manohar owner of the building requested the department to inspect the building and submit soundness certificate.
The department has visited the building and they gave observations / suggestions mentioned therein. The said report shows that they have given the description of the building and observations of the engineers who visited the said buildings and they have mentioned that cracks are observed in the walls of the structure, trees are growing in the walls of the structure. The roots of the trees run through the walls causing discontinuity and voids in the walls. The lime mortar used as binder in the walls of the structure is parched, making the walls weak. The wooden rafters provided to support the Madras terrace roof of the main residence 16 building are damaged. Flooring cracks were observed on the roof of the building which may cause voids and weakness in the roof of the structure.
Water stagnation is observed on the terrace of the structure which may lead to seepage through roof and walls.
24.Basing on these observations, they recommended for dismantling of the building but nowhere in this report, they have mentioned what are the tests they have conducted and which building or part of the building they have verified/inspected. As per the report of Jawaharlal Nehru
Technological University, Kakinada there are three types of structures in the property. They are RCC roofed building, Madras terrace building and
Asbestos sheets sheds and some of the walls are made with brick and roofing was made with lime surki. In the report, they have not mentioned whether they have verified the structural stability of asbestos sheet roofed shops and RCC roofed slabs, they have mentioned only Madras terrace roof. So, the report given by Siddhartha Engineering College,
Vijayawada is quite contrary to the report given by Jawaharlal Nehru
Technological University, Kakinada. Finally in Siddhartha Engineering
College, Vijayawada, it is mentioned that as per rules of seismic zonal regulations of IS Code 1893 Part-I structure is located in Zone-3, which is susectable to earthquakes.
25.According to these codal provisions, it is not possible to strengthen the above structure as it is too old, whereas in Jawaharlal Nehru
Technological University report, they have mentioned with regard to building No.4, being constructed with asbestos sheet roofing and not connected with old building is safe structurally. In the report also, they have not given the details of physical inspection of the building. Except 17 stating that these shops are not connected to the other part of the building and they have not mentioned whether they have verified the strength of the walls in those shops also. So, leaving the report given by
Engineering College, Ongole there are three reports on the file given by three reputed colleges which are quite divergent with each other.
26.The counsel appearing for appellant contended that in between shops and residential house of the owner, there is vacant site and above shops also, there is first floor and that is connected to the building of owner by a small passage. But that is not appearing as mentioned by the counsel in the typical plan of the building given by Jawaharlal Nehru
Technological University, Kakinada. In the typical plan given by Warangal only shows the existence of shops, vacant site and owner's building and there is no such internal connection between the properties. The observations as extracted above of the colleges, it is clear that National
Institute of Technology Warangal gave a finding that there is no damage of walls structure is stable and it cannot be termed as in a dilapidated condition. Whereas Jawaharlal Nehru Technological University, Kakinada where Siddartha college have given report stating that there are so many damages in the property and they are not stable. From Jawaharlal Nehru
Technological University, Kakinada report it is not clear whether they have also conducted the physical verification in the ground floor shops individually.
27.The report does not show the same if the reports are compared, it makes it clear that the Jawaharlal Nehru Technological University,
Kakinada basing on physical verification of the building and given a report. Whereas National Institute of Technology, Warangal has 18 conducted sophisticated methods of enquiry, like NDT Test have given a report, but as the Hon'ble High Court is observed that the appellants have to approach Jawaharlal Nehru Technological University, Kakinada and obtain report, the report given by National Institute of Technology,
Warangal cannot be taken into consideration to pass orders by 1st respondent. As it is stated above, as per Indian Standards for knowing the correct structural stability of the buildings, there are so many tests that can be conducted by the engineers. When there are sophisticated methods to know the exact structural stability of the structures, basing on physical verification, the matter cannot be concluded.
28.As it is contended by the counsel for appellant in AIR 1999 SC 3318, it is the duty of the expert to furnish the judge with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the
judge to form his independent judgment. So, it is the duty of Jawaharlal
Nehru Technological University, Kakinada to make all necessary tests to come to a reasonable conclusion about the stability of the building. As it is subjected to judicial scrutiny, the court must know what are the scientific methods of tests that were conducted by the engineer to come to a just conclusion of the matter. So, the report given by Jawaharlal
Nehru Technological University, Kakinada shows that they have not conducted the scientific methods of verification of structural stability of the building, though the counsel for 1st respondent contended that they have conducted NDT Test, report does not disclose the same. It is also not out of place to mention that the Executive Engineer of Municipal
Corporation i.e., 1st respondent gave a report on 20-10-2014 with regard to the same buildings, that on physical observation the building seems to 19 be intact, however NDT tests to be conducted to ascertain structural stability scientifically.
29.After that the Corporation has issued notice U/s.456 of HMC Act on 15-5-2015 but it is not clear whether any such tests were conducted or not. So, as per his observation, NDT test has to be conducted to know the structural stability. As it is discussed above, there is a test to verify whether any repairs can be conducted if there are found to be any damages, to strengthen the building, instead of demolition of the same.
As per section 456 the commissioner has to ask for conducting repairs for stability of building if not ask for demolition. The order of 1st respondent shows he did not ask the Jawaharlal Nehru Technological
University, Kakianda or Siddartha Engineering College, Vijayawada to re- consider the issue and do tests proper for decision of the matter. He simply mentioned the reports of other engineering colleges cannot be considered. He did not notice the divergent opinions given by different colleges and so also damages mentioned by the said colleges.
30.In view of these reports, 1st respondent ought to have asked for conducting more sophisticated test instead of passing orders basing on the said reports. So, the reports of Jawaharlal Nehru Technological
University, Kakinadaand SiddharthaEngineering College, Vijayawada are not scientifically sufficient to enable the 1st respondent to pass appropriate orders. Hence, this point is decided accordingly.
31.Point No.2:
The counsel for appellant vehemently argued that as per rule 4 of
Municipal Corporation, building bye laws before ordering for demolition of the building, the authority must examine the building and make a written 20 record if such examination. In the present case there is no such written record, and though he has issued notice under Or.12 Rule 8 to 1st respondent to furnish such report, he did not do so. As a statutory authority he must follow the rules. The 1st respondent counsel submitted that he has filed all relevant record before the court and submission of appellant counsel is untenable. The record shows 1st respondent filed only notices and reports of two colleges. There is no written record of such examination. But the documents filed by the appellant shows one document named proformae for remarks on dilapidated building given by
Executive Engineer is filed. Neither appellant stated it is not, the written record nor 1st respondent stated it is the written record. The columns in the document shows after verifying building it was prepared. So, it can be treated as written record only. The case law relied upon by the appellant is 2007 (4) ALT 215 is not applicable to the present case. The counsel also further contended that no opportunity given to appellant to examine the witness and opportunity to cross-examine the witness to elicit the fact. Nowhere in section 456 of H.M.Act, it is mentioned that appellant can adduce oral evidence to prove his contention. So, the contention of the counsel is unsustainable. Hence, the point is decided accordingly.
32.Point No.3:
The counsel for appellant vehemently argued that in Jawaharlal
Nehru Technological University report, it is observed that building is constructed with asbestos sheet roofing is safe structurally. So, it does not comes under Section 456 of H.M.C.Act. He further argued that door number mentioned in the structural report of Jawaharlal Nehru
Technological University is different from the door number given by 1st respondent in the correspondence made by them. Without considering 21 the same, final notice was issued. First respondent passed a blanket order for all the premises without even taking into consideration of the report of the Jawaharlal NehruTechnological University about asbestos sheet sheds which clearly shows the influence of the respondent No2. As far as this CMA is concerned, the property does not come under the building No.4 of Jawaharlal Nehru Technological University Reports. The final notice given by the corporation shows that they have simply given the building numbers and order for vacating of the premises for demolition of structures. It is not clear whether the corporation has taken into consideration of the report of Jawaharlal Nehru Technological
University, Kakinada and ordered only for demolition of the remaining portions. So, it is not clear in which building door number building No.4 as mentioned in the rough plan of Jawaharlal Nehru Technological
University is situated. As per the report, the building is safe structurally.
So, there is no question of demolition of those shop rooms. In view of the above discussion, it is clear that four colleges have given different opinions about nature of building i.e., existence, or non-existence of damages, stability or dilapidated condition of the building.
33.In these circumstances, this court is of the considered opinion that the court cannot rely upon any one of the reports. The National Institute of Technology, Warangal report cannot be relied upon as Hon'ble High
Court has given direction to the appellant to approach Jawaharlal Nehru
Technological University, Kakinada or Siddhartha Engineering College,
Vijayawada to ascertain the stability of the structures. The court cannot rely upon the report of Jawaharlal Nehru Technological University,
Kakinada as the report shows that they have made only physical verification of the building and they have not conducted the tests which 22 were done by National Institute of Technology, Warangal and as there is difference of opinion between physical verification and on conducting sample tests. The report of Jawaharlal Nehru Technological University,
Kakinada cannot be relied upon and order for demolition for entire building and the report of Siddhartha Engineering College also cannot be relied upon as it is not clearly mentioned the damages and cracks which are existing as per its report on which part of the building and it also does not disclose what type of tests they have conducted. It shows only on physical verification they have given the said report. In view of National
Institute of Technology, Warangal report and report of Siddhartha
Engineering College, Vijayawada also cannot be taken into consideration.
34.The final orders passed by 1st respondent shows that simply he has mentioned that keeping in view of the orders of the Hon'ble High Court structural stability certificate issued by Siddhartha Engineering College,
Vijayawada and Jawaharlal Nehru Technological University, Kakinada and
Executive Engineer-3, Vijayawada Municipal Corporation he is of the opinion building door No.28-5-10 Besant Road, 28-1-1 Eluru Road are in dilapidated condition and does not possible to strengthen the above structure as it is too old and thus dismantle immediately, except stating so, he has not given any reasons why he has ordered for dismantling of building No.4 as shown in Jawaharlal Nehru Technological University,
Kakinada plan. As per Jawaharlal Nehru Technological University,
Kakinada report that structure is stable and does not liable for demolition.
It is not clearly mentioned in the report of which the other considerations taken into consideration by the 1st respondent in ordering for demolition of those structures also. The certificate or report of Executive Engineer-3,
Vijayawada Municipal Corporation is not placed before the court. On the 23 other hand, the report of Executive Engineer dated 20-10-2014 as it is adverted above clearly shows that the physical observation of the building seems to be intact. However, NDT test to be conducted to ascertain structural stability scientifically.
35.It is not clear whether Executive Engineer-3 has conducted any such type of tests scientifically and gave report to the commissioner and the said report is not found part of final order of the commissioner. So, the order passed by the commissioner shows that he was carried away by the observations made by Jawaharlal Nehru Technological University,
Kakinada and Siddhartha Engineering College and he had not given proper reasons for coming to the said conclusion. It is also not stated whether the engineer of Municipal Corporation has given any report against the report of National Institute of Technology, Warangal stating about the conducting of scientific tests and coming to the conclusion of stability of the building. So, the order given by 1st respondent corporation is very vague and not disclosing the reasons coming to the said conclusion. In these circumstances, this court is of the considered view that in view of the submission made by the appellant that number of persons are also depending upon the said buildings and also taking into consideration of the submission of 2nd respondent that the structure is not stable, for coming to the just conclusion of the matter, once again the structural stability examination has to be conducted with scientific methods with sophisticated instruments and not by mere physical verification of the buildings and that too by Jawaharlal Nehru
Technological University, Kakinada, if not possible by Siddhartha
Engineering College, Vijayawada as directed by the Hon'ble High Court.
In view of the contentions raised by theappellant and other tenants, this 24 court is of the considered view while conducting the test, they have to take into consideration of the each building and also to conduct inspection not only in one place of the building at 4 or 5 places to come to just conclusion of the matter by giving door number. Appellant is directed to approach Jawaharlal Nehru Technological University,
Kakinada, if not possible Siddhartha Engineering College, Vijayawada to conduct NDT Test to know the structure stability and other tests to know the modes of strengthen of the structure as per sec. 456 of H.M.C. Act.
It is immaterial to say that the corporation cannot proceed against the building till the appellant has submit afresh report of the college and passing of orders basing on the said report after hearing the appellant.
So, the point is decided accordingly.
36.In the result, CMA is disposed of with the following observations:
The appellant is hereby directed to obtain structural stability report of the schedule building from Jawaharlal Nehru Technological Institute,
Kakinada, if there is no possibility for them, to approach Siddhartha
Engineering College, Vijayawada with a request to conduct structural stability tests like
1) NDT Test scientifically with sophisticated instruments
2) and also conduct tests to know whether there are methods for strengthening of the same, if it is weak.
The appellant has to submit the test reports to 1st respondent
Corporation within four weeks from the date of receipt of order. As observed by the Hon'ble High Court, the appellant must request the
Jawaharlal Nehru Technological Institute, Kakinada or Siddhartha
Engineering College, Vijayawada, as the case may be, to conduct the 25 tests in the presence of all the parties and Engineers of 1st respondent
Corporation.
After receipt of report, 1st respondent Corporation must reconsider the point and pass reasoned orders. If the appellant fails to obtain report, the 1st respondent Corporation by giving a notice can proceed according to law.
It is not out of place to mention that the undertaking given by the appellant that if any untoward incident happens, he will be personally responsible will be valid till filing of the report before 1st respondent
Corporation. Both parties are directed to bear their own costs.
Dictated to the Stenographer Grade-II of this Court, transcribed by
him, corrected and pronounced by me in open court, on this the 16th day of February, 2016.
III ADDL. SENIOR CIVIL JUDGE,
VIJAYAWADA
APPENDIX OF EVIDENCE
NIL ON EITHER SIDE
III ADDL. SENIOR CIVIL JUDGE,
VIJAYAWADA