1 9410
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 94 OF 2010
IN
PUBLIC INTEREST LITIGATION NO. 70 OF 2009
Dr. Monica Matani, ]
Adult, Indian Inhabitant, a doctor by profession, ]
11, Gautam Niwas, J.P. Road, 7 Bungalows, ]
Versova, Andheri - West, ]
Mumbai - 400 053. ] ...Petitioner
V/s.
1. State of Maharashtra, ]
Through the Government Pleader, PWD Building, ]
High Court Compound, Mumbai - 400 001. ]
2. Mumbai Metropolitan Regional Development ]
Authority [MMRDA], MMRDA building, ]
Bandra Kurla Complex, Mumbai - 400 051. ]
3. Mumbai Metro One Pvt.Ltd.[MMOPL] ]
Silver Satellite Bldg., Andheri-Kurla Road, Marol, ]
Andheri - East, Mumbai - 400 059. ]
4. K.P. Maheshwari- Executive Director ]
Mumbai Metro One Pvt.Ltd., Silver Satellite Bldg., ]
Andheri-Kurla Road, Marol, Andheri - East, ]
Mumbai - 400 059. ]
5. Chairman & Managing Director- ]
Shri B.D.Mundhra ]
Simplex Infrastructure, 502-A, Poonam Chambers, ]
Shiv Sagar Estate, A-Wing, Dr. A.B. Road, Worli, ]
Mumbai - 400 018. ]
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2 9410
6. Commissioner, Mumbai Police-D. Shivanandan ]
Mumbai Police Headquarters, Crawford Market, ]
Mumbai - 400 001. ]
7. Commissioner-Bombay Municipal Corporation- ]
Jairaj Pathak, ]
Bombay Municipal Corporation, Mahapalika Marg ]
Mumbai - 400 001. ]
8. Louis Berger Group INC. ]
th
MSEDCL, Infra Plant Sec., 4 floor, Prakashgadh, ]
Bandra (East), Near Armacourt, Mumbai ]
9. Varshna Co-operative Housing Soc.Ltd.,
ig ]
S. No.132(1), CTS No.1312 (Part), ]
Gautam Niwas, J.P. Road, ]
Seven Bungalows, Andheri (West), ]
Mumbai 400 053 ]...Respondents
Ms. Simran Puri i/by M/s. De Jure for Respondent No. 9 - in support
The Petitioner, in person
Ms. Kiran Bagalia for Respondent No. 2, MMRDA
Mr. J.J. Bhatt, Senior Advocate, with Ms. Anjali Chandurkar and
Mr. D.J. Kakalia, Ms. Janki Thakkar and Mr. Onkar Sawarkar i/by
M/s. Mulla & Mulla and Craigie Blunt & Caroe for Respondents No. 3
and 4
Mr. Dushyant Purekar for Respondent No. 5
CORAM: A.M. KHANWILKAR AND
MRS. MRIDULA BHATKAR, JJ.
DATE: 6TH MAY, 2011
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3 9410
JUDGMENT (Per A.M. Khanwilkar, J.):-
The Public Interest Litigation was filed, complaining about
the construction method adopted by respondent No. 3 in respect of
Versova – Ghatkopar Section of the Metro. The reliefs claimed in the
petition are as under:-
“a. That this Hon’ble Court be pleased to call for the record
of the case and be pleased to issue a Writ of Mandamusdirecting the appropriate authorities to take strict
disciplinary action against respondents-2 – 5 & 8 and their
officials, as well as the management for the omissions and
negligence shown by them.b. That the Hon’ble Court be pleased to issue a Writ of
Mandamus directing the State of Maharashtra along with the
Bombay Municipal Corporation and Police, to enforce these
vital protocols and safety measures in Public Interest andinterest of Environment as given in different standards.
c. That this Honourable Court be pleased to issue a Writ in
the nature of Mandamus to the State of Maharashtra to set
some strict guidelines at par with those countries abroad for
this kind of construction activity as they pose a hazard to the
environment and the life and property around.d. That this Hon’ble Court be pleased to issue a Writ in the
nature of Mandamus or any other appropriate writ to the
State of Maharashtra and Respondents 2, 3 and 8 in order to
survey all structures in the vicinity where pile driving
technique has been used without monitoring with therequired equipments as per the Indian standards and the
protocol with the machine. The Hon’ble Court be also
pleased to suggest some corrective action in the interest of
justice as deemed fit by this Hon’ble Court.e. That the Hon’ble Court be pleased to issue a Writ of
Mandamus or any like Writ to the State of Maharashtra to
make some provision as thought fit by the Hon’ble Court for
security and safety of buildings and structures along line of
construction activities of such large infrastructure projects::: Downloaded on – 09/06/2013 17:16:05 :::
4 9410by providing for some means such as compulsory insurance
coverage by the contractor for structures falling within range
of damage of such future projects.f. That this Honourable Court issue a Writ in the nature of
Mandamus to the appropriate authorities to set reasonable
restrictions, or in the way of injunction or a restraining order
or any other means as found suitable, for a reasonable time
frame [as is permitted by Article 19(6) of the Constitutionof India] in the interest of Public safety and security, on
Developers or contractors of Metro project from acquiring
and commercially developing real estate around the line of
construction in order to avoid any INTENTINAL
OMISSIONS during construction.g. Pending the hearing and final disposal of the present
petition this Hon’ble Court be pleased to issue an Injunction
prohibiting complete use of Vibrohammer as means of
construction.h. Pending the hearing and final disposal of the present
petition this Hon’ble Court be pleased to issue an Injunction
prohibiting Respondents 1 and 2 from awarding any more
contracts for further Metro or other like projects till
technological and strict safety specifications are in place andinquiry into the defaults of their officials is completed.
i. That the Hon’ble Court be pleased to grant any other
measures as found suitable by the Hon’ble Court in this
matter in the interest of justice.j. That this P.I.L. be allowed with costs.”
2. The petitioner alleged that the contractors did not take care
of various aspects of standards of international level, including the
standards specified in the Manual published by Bureau of Indian
Standards, in that Vibratory Hammer was used, which has caused
extensive damage to the buildings in the neighbourhood. That petition
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5 9410was heard on 6th August, 2009. At the hearing, the respondents refuted
the allegation made by the petitioner.
3. At the same time, without prejudice to their contentions on
merits, respondent No.3, in particular, volunteered that, as a mark of
good gesture, the damage caused to the premises of the petitioner will be
repaired. MMRDA as well as respondent No.3 gave assurance to the
Court that the project will be executed strictly in terms of the contract
and specified standards, and all measures and precaution will be taken to
ensure that the property belonging to the petitioner or public is not
damaged. Further, the said respondents also assured the Court that they
will not use the Vibratory Hammer Technique to execute the work in
future and the use of the said technique has already been discontinued.
On the basis of this assurance given by MMRDA and respondent No.3,
the petition came to be disposed of.
4. After the disposal of the petition, the petitioner moved the
Court for clarification and modification of the order dated 6th August,
2009 by way of praecipe. However, that praecipe was withdrawn on
28th August, 2009.
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6 9410
5. The petition was again moved on 1st October, 2009 by the
respondents for extension of time to complete the repair work in respect
of the premises of the petitioner. In the meantime, the Society, of which
the petitioner happens to be member, wanted to intervene. The Court
noted that the applications filed by the petitioner and intervener were not
on record. Thus, it was ordered that the same will be heard on the next
date.
6. The matter, accordingly, appeared before the Court on 5th
November, 2009. However, it was noticed that the Chamber Summons
filed by the Society was not circulated to the Court. The Court directed
respondents No. 2 and 3 to carry out repairs where the damage has been
caused “if at all” as a result of the work carried out by them in and
around the damaged property.
7. In order to ascertain the correctness of the allegations made
by the Society and the petitioner, the Court directed MMRDA to appoint
an officer not below the rank of Chief Engineer to inspect the building
and ascertain whether the alleged damage to the building has been caused
as a result of work carried out by respondents No. 3 and 4 or is
attributable to natural damage caused to the building, which is stated to
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7 9410be an old one. The Court, further, observed that, if the finding in the said
enquiry was to be against respondents No. 3 and 4, in that event, the said
respondents would be responsible to carry out repairs to the property of
the private individuals in the Society. On the other hand, if the finding
was to be in favour of respondents No. 3 and 4 to the effect that the
damage caused to the building is not attributable to the work carried out
by them by usage of Vibratory Hammer Technique, but was on account
of natural damage caused to the building, the respondents would not be
liable to carry out any further repairs. In that case, however, the private
individuals or Society would be free to take recourse to appropriate
remedy to establish their claim, and ask for relief as may be permissible
by law against the said respondents. Those proceedings would be
decided on their own merits, in accordance with law.
8. Pursuant to the above said order, M/s. S.N. Dube and
Associates Pvt. Ltd. was appointed by respondent No.2 to visit the
building, assess the nature of damage to the property and the cause for
the said damage. The said Structural Engineers submitted their report to
respondent No. 2, which was considered as tentative findings. That
aspect was placed before the Court on 23rd February, 2010.
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8 9410
9. In the meantime, the Chamber Summons filed by
respondent No. 9-Society was allowed, and the Society was ordered to be
impleaded as a respondent No. 9 in petition.
10. On 23rd February, 2010, respondent No.9-Society took out
Notice of Motion No. 94 of 2010 under consideration, praying for the
following reliefs:-
“a) That this Hon’ble Court be pleased to pass an Order
directing the Respondent No. 2 alongwith their structural
consultants who submitted their report dated 11 Jan 2010,and the representatives of Respondent No. 3 and 4 to visit
the building premises of the Respondent No. 9 urgently and
investigate the recent aggravated deterioration of the
building and report thereon;b) This Hon’ble Court be pleased to direct the Respondent
No. 7 to immediately conduct a structural audit of the
building of the Respondent No. 9 forthwith, with RespondentNo. 2, and tender the report of the said structural audit
before this Hon’ble Court at the earliest;c) This Hon’ble Court be pleased to direct the Respondents
No. 2 and 7 to take immediate steps to assist all residents of
the Respondent No. 9 in the event evacuation becomes
necessary and provide them with necessary transit
accommodation nearest to the site of the building of
Respondent No.9;d) This Hon’ble Court be pleased to direct the Respondent
No. 3 and 4 to immediately carry out urgent repairs to the
building of the respondent No. 9 to arrest further
deterioration and avert possible collapse thereof, and to carry
out such repairs forthwith under intimation by way of
periodical reports to this Hon’ble Court.e) That pending the hearing and final disposal of the Notice
of Motion, this Hon’ble Court be pleased to pass interim
orders directing the Respondents No. 2, 3 and 4 to visit::: Downloaded on – 09/06/2013 17:16:06 :::
9 9410forthwith the building of the Respondent No. 9 and conduct
investigation, and further to report the further deterioration
of the structure of the building to this Ho’ble Court, and take
all steps necessary to arrest further damage.f) That pending the hearing and final disposal of the Notice
of Motion, this Hon’ble Court be pleased to pass interim
orders directing the Respondent No. 7 to forthwith conduct a
structural audit of the building of the Respondent No. 9 withthe respondent No. 2, and submit the report to this Hon’ble
Court.g) That pending the hearing and final disposal of the Notice
of Motion, this Hon’ble Court be pleased to pass interimorders directing the Respondents No. 2 and 7 to take all steps
to protect life and property of the residents of theRespondent No. 9 by assisting them in evacuation if deemed
necessary and provide them transit accommodation at the
nearest site to their building.h) For interim and ad-interim reliefs in terms of prayers (e),
(f)and (g) above;
i) Any other and further reliefs deemed fit and proper in the
nature and circumstance of the case.”11. To assuage the grievance of respondent No. 9 and the
petitioner, the Division Bench of this Court, on 23rd February, 2010,
while taking note of the fact that the findings recorded in the report of
M/s. S.N. Dube and Associates Pvt. Ltd. were tentative findings, directed
respondent No. 2 to forthwith appoint a Structural Engineer to carry out
the structural audit of the building, and passed consequential directions.
Pursuant to the said order, respondent No. 2 appointed M/s.Structwel
Designers and Consultants Pvt. Ltd. to carryout structural audit of the
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10 9410building in question. The said Structural Engineers submitted its Report
dated 9th April, 2010 about the structural audit of the building in question.
The said report was considered by this Court on 9th April, 2010. The
Court took notice of the fact that the said expert had opined that the
distress seen in the building was due to original poor quality construction,
inaccurate / incorrect maintenance / non-approved alterations / repairs
carried out to the structure intermediately, age related. Further, the use
of Vibratory Hammer by respondent No. 3 has not contributed to
distress. The Court accepted the said report, and, while disposing of the
subject Notice of Motion No. 94 of 2010, observed that it would be open
to respondent No.9-Society or the petitioner to take recourse to such
other remedy as may be permissible in law.
12. Respondent No. 9, thereafter, filed a review petition against
the above-said order dated 9th April, 2010 passed in Notice of Motion No.
94 of 2010. The principal grievance in the Notice of Motion was about
the genuineness of the report of M/s. Structwel Designers and
Consultants Pvt. Ltd. We do not think it necessary to burden this order
by referring to the issues raised in the said review petition. Suffice it to
observe that the respondents had raised the issue of maintainability of the
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11 9410Review Petition as well as the Notice of Motion as filed by respondent
No. 9-Society in the disposed of petition.
13. However, respondents No. 2 to 5, through their respective
counsel, in deference to the observations made by the Court, submitted
that, if the only objection of the review petitioner was regarding
exclusion of the report of M/s. Structwel Designers and Consultants Pvt.
Ltd. from consideration, without prejudice to their rights and contentions,
the said respondents would agree for appointing an independent agency
to be appointed by the Court to undertake the task of structural audit of
the building in question. On that basis, the review petition was disposed
of by recalling the order dated 9th April, 2010 passed in the present
Motion. The operative part of the said order dated 23rd August, 2010
reads thus:-
“(a) The order dated 9th April 2010 passed in Notice of
Motion No.94 of 2010 is recalled. Instead, the said Notice of
Motion is restored to the file to its original number to be
proceeded from the stage of appointment of Structural
Engineer to carry out detailed investigation into the relevantquestions as to whether the damage caused to the Gautam
Niwas building is a result of the vibratory hammer technique
used by the Respondents No.4 and 5 or whether it is natural
damage caused to the building being old structure or
otherwise. Secondly, as to the extent of damage caused to
the said building.(b) We appoint IIT, Mumbai to undertake structural
audit of Gautam Niwas building and submit its report::: Downloaded on – 09/06/2013 17:16:06 :::
12 9410containing findings and conclusions on the aforesaid two
aspects within six weeks from today.
(c) We direct the original Writ Petitioner, Review Petitioner
as well as Respondents 2 to 5 to extend full cooperation to
the representatives of IIT, Mumbai during the investigation
regarding structural audit of Gautam Niwas building and to
furnish all necessary information and documents as may be
called upon by the representative of IIT, Mumbai withinspecified time, if any.
(d) We further direct the Respondent No.3 MMRDA to
initially pay the expenses and charges of IIT, Mumbai as
may be demanded, forthwith. However, the question as towho should finally bear the said expenses and charges will
be considered at the appropriate stage while disposing of theNotice of Motion.
(e) We clarify that this arrangement is without prejudice
to the rights and contentions of the parties and without goinginto the allegations contained in the Review Petition.
(f) Petition disposed of accordingly with no order as to
costs.”14. As a consequence of the above order, the present Notice of
Motion has been revived for the limited purpose of obtaining the opinion
of IIT, Mumbai, regarding the structural audit of the building in question
and, in particular, to submit its findings and conclusions on two issues
formulated in order dated 5th November, 2009, viz., (1) whether the
damage caused to the property is the result of work carried out by
respondents No. 3 and 4 or (2) the damage to the building is attributable
to the natural damage caused, which is age-related. During the
interaction with the officers of IIT, it transpired that, in the first instance,
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13 9410the Vibratory Hammer, which was used by respondent No. 3, will have
to be re-used to measure the intensity of the vibration level so as to
ascertain whether such vibration intensity could be the cause of damage
to the building. On the other hand, respondents No. 2 and 3 were
opposed to the idea of re-use of the Vibratory Hammer at the site, as,
according to them, permanent structure has already been constructed and
use of Vibratory Hammer may cause immediate or long term damage to
the said structure. According to them, howsoever minor damage to be
caused to the said structure would not be in public interest, as the
structure was to be used for Mumbai Metro Project, which is a public
infrastructure project to operate the Railway carrying lakhs of commuters
daily. In view of the objection taken by respondents No. 2 and 3, the
issue was kept open to be considered by the experts of IIT.
15. After due deliberations, the officials of IIT submitted their
report to the Prothonotary & Senior Master of this Court along with
covering letter dated 27th January, 2011. The said covering letter and the
accompanying note and the methodology for structural audit of the
building in question are reproduced herein for the sake of convenience.
The same read as under:-
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14 9410 "Date 27.1.2011 To Ms A. Rodrigues, B.A., L.L.B. Registrar, O.S./ Prothonotary and Senior Master, High Court, Bombay - 400 032Reference: 1) Order of Honourable High Court after hearing on
22nd December 2010
2) Site Visit of Prof. R.S. Jangid to Gautam Nivas on
20.01.2011.Review Petition No. 33 of 2010 in Notice of Motion No. 94 of 2010 in ig P.I.L. No.70 of 2009Subject: Structural audit of “Gautam Nivas” Building at Andheri
(W), MumbaiDear Ms Rodrigues,
This is in reference to the order of Honourable High Court
after hearing on 22nd December, 2010 by Hon’ble Justice
Shri A.M. Khanwilkar and Shri A.A. Bangale. A site visit
was made by Prof. R.S. Jangid to Gautm Nivas on20.01.2010 along with Mr. S.R. Patil, Executive Engineer,
MMRDA to get the input from the site to work out the finalmethodology / mechanism for Structural audit of “Gautam
Nivas”. Based on the input collected from the site, the
matter was discussed in the Department and the final
methodology to be adopted for the structural audit of
Gautam Niwas Building is enclosed. In our opinion, this isthe mechanism which can give the true reason for the
damage in the Gautam Nivas Building because the building
is old and “AS-Build Drawings” are not available. It is
kindly requested that the necessary arrangement be made to
proceed with the structural audit. It is also requested that theappointed nodal officer shall respond more promptly in this
matter to complete the job within the time limit specified by
the Honourable Court.With Regards,
Yours faithfully
Sd/-(R.S. Jangid)
Department of Civil Engineering,
IIT Bombay, Powai, Mumbai – 400 076::: Downloaded on – 09/06/2013 17:16:06 :::
15 9410“Methodology for Structural Audit of “Gautam Nivas” Building
at Andheri (W), Mumbai
On the basis of the site-visit made on 20.01.2011, it is
proposed to conduct structural audit of the building in the
following two parts with specific requirements / details
mentioned as below:PART- A: MEASUREMENT OF VIBRATION LEVEL
Firstly, the intensity of the vibration level produced by the
Vibratory Hammer used by the MMOPL (Respondent No. 3
herein) in the vicinity of the Gautam Nivas will be measured
to assess whether such vibration intensity can cause thedamage to the building. Followings will be required for the
measurement of the vibrations:1. The Vibratory Hammer used for the MMOPL shall be
operational with the same speed and peak load used as
during earlier operations. The location for running theVibratory Hammer has now been identified to be between
the piers P8-P9 as shown in the enclosed Photograph taken
during the site visit on 20.1.2011 (Please refer Figure 1).2. The superstructure shall not be placed on Piers P8 and P9
until the Vibration measurement work is completed as this
will obstruct in operation of Vibratory Hammer.3. The necessary spots / places in the Gautam Niwas shall be
made available to install the vibration measuring devices /
sensors to record the ground vibrations.4. Necessary space shall also be provided for placing the
instruments being used for the measurement of vibrations.5. The vibration tests will be carried out under the evacuated
condition of the building. The operation will be stopped if
the vibration levels are found to exceed the allowable limitsto prevent any further damage to building.
6. The vibration measurement tests will be conducted during
the months of May – June (During other time our
equipments are required for the teaching / learning of our
students).::: Downloaded on – 09/06/2013 17:16:06 :::
16 9410
PART-B: STRUCTURAL AUDIT OF THE BUILDING
Secondly, depending upon the outcome of the Part-A and if
the measured vibration levels are substantial, the structuralauditing of the Gautam Niwas will be carried out. This
activity will not be required if the outcome of the Part-A is
that the vibration levels are not substantial. The following
will be required for the structural auditing of the building1. The Gautam Nivas will be visually inspected to see and
record the distress and their nature in the structural members
of the building.2. Non-destructive tests (NDT) to assess the current strength
of the structural members of the building and correlation of
it with the observed distress (if any). The NDT test willinclude the Ultrasonic Pulse Velocity and Rebound Hammer
test.3. At the places where the NDT is to be carried out (which
will be finalized after the preliminary visit along with visual
inspection), necessary arrangements / permission shall be
made for removal of plaster of structural members.
Typically this involves the removal of plaster in the beams,
slabs and columns of the building.4. The structural auditing will require about 2-3 days of the
testing at the site.
5. The outcome of this exercise will give the relative
structural strength of the building and possibility of being
damaged by the intensity of the measured vibration levels.It is kindly requested to make the necessary arrangements
for carrying the proposed activities. The IIT consultation
charges for each part of the exercise will be Rs. 5 lacs plus
applicable service taxes.” (emphasis supplied)16. From the covering letter, it is noticed that the opinion of IIT
is that the usage of Vibratory Hammer technology was essential, as that
alone can give the true reasons for the damage to the building
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17 9410in question. The contents of this covering letter also indicate that this
was insisted by IIT also, because the building is old and “As-Build
Drawings” were not available.
17. This report was placed before the Court on 2nd February,
2011. In the light of the argument canvassed before the Court, we asked
the parties to have a joint meeting with the IIT officials in the Office of
the Executive Engineer of MMRDA so as to explore the possibility of
some other alternative mechanism than the one already indicated by the
IIT officials, as the respondents were sceptical about re-use of Vibratory
Hammer on the site at this distance of time.
18. Accordingly, after joint meetings held between the officials
of MMRDA, respondent No. 3 Company and the representatives of the
Society, the officials of IIT, by another communication dated 25th
February, 2011 addressed to the Prothonotary and Senor Master of this
Court, informed as follows:-
“This is concerning to the orders passed by the Hon’ble
High Court on 10th February, 2011, in the matter of Review
Petition No. 33 of 2010 in notice of motion No. 94 of 2010
in PIL No. 70 of 2009.After detailed analysis of various possibilities, we have
come to a conclusion that except for the method proposed
by us any other method would be speculative in nature and::: Downloaded on – 09/06/2013 17:16:06 :::
18 9410can be argued either way. We, therefore, suggest that the
Hon’ble Court may be pleased to direct all concerned parties
to facilitate us to conduct the tests as proposed by us.However, if for any reasons, it is not possible then we
request you to kindly relieve us from this assignment.Thanking you,”
(emphasis supplied)
19. This communication was placed before us on 28th March,
2011. After hearing the counsel appearing for the respective parties, we
passed the following order:-
“1. We have perused the latest opinion of the
Department of Civil Engineering, IIT Bombay, Powai,
Mumbai dated 25th February, 2011. No doubt, the opinion
recorded by the IIT is that the method of reuse of
vibrohammer is the only appropriate method and any othermethod would be speculative in nature. However, from the
earlier opinions and the correspondence which are presented
before us, we are unable to discern that the IIT has addresseditself to the concern expressed by the MMRDA and the
private respondent that reuse of vibrohammer to ascertain
the cause of damage to the building was on account of use of
vibrohammer or otherwise, may involve possibility of latentdamage to the structure already erected in the
neighbourhood of the building which will be used for public
utility service. Unless, the IIT were to opine that there was
absolutely no possibility of even latent damage being caused
to the building or the structures in the neighbourhood where
the reuse of vibrohammer will be done, the question ofexperimenting reuse of vibrohammer does not arise.
2. Realising this position, Counsel for the review
petitioner would contend that in that case the IIT may be
requested to give clear finding as to whether there would be
any possibility of latent damage to be caused due to the
reuse of vibrohammer which damage may go undetected in
the immediate future but which will affect the safety of the
structures in the neighbourhood in the long run. Only after::: Downloaded on – 09/06/2013 17:16:06 :::
19 9410that finding/opinion is made available to the Court, further
directions as may be required can be considered.
3. We are conscious of the last paragraph of letter
dated 25th February, 2011 wherein IIT has expressed that
they may be relieved from this assignment. But considering
the public interest involved, we would once again request
IIT to submit further opinion in the above terms. For the
time being, we would defer the hearing of this matter till 20thApril, 2011.
4. We make it clear that we are not expressing any
opinion on the correctness of the grievance or for that
matter, the stand of the respondents either way. ”(emphasis supplied)
20. The officials of IIT, after due deliberations, have submitted
another letter dated 15th April, 2011 addressed to the Prothonotary &
Senior Master of this Court as follows:-
“Indian Institute of Technology Bombay
Powai, Mumbai 400 078, IndiaDate: 15.4.2011
To
Ms A. Rodrigues, B.A., L.L.B.
Registrar, O.S./
Prothonotary and Senior Master,
High Court, Bombay – 400 032Subject: Structural audit of “Gautam Nivas” building at
Andheri (W), Mumbai
Dear Ms Rodrigues,
This is concerning to the orders passed by the Hon’ble High
Court on 28th March, 2011, in the matter of Review petition
No. 33 of 2010 in notice of motion No. 94 of 2010 in PIL
No. 70 of 2009.::: Downloaded on – 09/06/2013 17:16:06 :::
20 9410
We have carefully perused the order passed by Hon’ble
Bombay High Cort and we are of the opinion that even the
possibilities of latent damage being caused cannot be
assessed without the reuse of vibrohammer. We requestMMRDA and MMOPL to submit the design acceleration
levels of the erected public utility structures so that the same
can be compared during re-use of vibrohammer in a
controlled manner and opinion on the possible damage.However, if all parties do not agree on re-use of
vibrohammer in a controlled manner for any reason, we
request Hon’ble Court to kindly relieve us from this
assignment.We would also like to kindly inform the Hon’ble Court that
we have been Consultants to both MMRDA as well asMMOPL in the past.
The Hon’ble Court may kindly give us further guidance in
the matter.Thanking you,
Yours faithfully,
Sd/-(Professor R.S. Jangid)
Department of Civil Engineering,IIT Bombay, Powai, Mumbai-400 076.”
(emphasis supplied)
21. In substance, we were more than convinced that, unless IIT
was to opine that there was not even remotest possibility of immediate
or, for that matter, distant latent damage to the structure already
constructed and to be used for public utility service, the question of
permitting re-use of Vibratory Hammer at the site cannot be
countenanced. Even on fair reading of the reports submitted by IIT, we
are not convinced that the possibility of latent damage is totally ruled out,
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21 9410i.e., damage, which may go undetected to the public infrastructure
project, which has already been constructed, would go undetected in the
immediate future but which may have safety and durability implications
in the long term. The opinion of IIT, however, is more focused on the
issue that, by re-use of Vibratory Hammer alone, it would be possible to
measure and assess the position as to whether such vibration intensity
could have caused damage to the building in question i.e. Gautam Niwas.
22. In the present proceedings, we cannot allow re-use of
Vibratory Hammer, unless the experts’ opinion were to unambiguously
state that, by adopting such mechanism, the possibility of immediate
and/or even distant latent damage to the public infrastructure project,
which has already been constructed on the site, is totally ruled out.
Indeed, respondent No. 9 and the petitioners would argue that the opinion
of IIT re-assures the position that re-use of Vibratory Hammer would be
done in controlled manner under the supervision of the experts of IIT.
23. In the context of this submission, we called upon the
counsel for respondent No. 9 and the petitioner to produce material to
indicate as to when the immediate or distant latent damage to the
structure is possible by use of Vibratory Hammer. In response, the
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petitioner has produced before us an article downloaded from the Internet
purported to be a report regarding the Real Time Measurement Of
Property Vibration Values On Adjacent Property During Construction.
24. Our attention is invited to the observation in the said report
that several agencies and investigators have provided threshold vibration
values, below which no structural distress, or increase on existing
distress, should occur. Table 1 appended to the said document illustrates
the findings of several researchers with regard to “human perception” of
vibrations and the potential for damage to structures. In our considered
opinion, Table 1, which is pressed into service, is only in respect of
Vibration Levels vs. Perception / Damage Levels. It does not
specifically deal with the issue of possibility of latent damage to the
structure which may go undetected in the immediate future, but may have
safety and durability implications in the long term.
25. The petitioner would, however, argue that, if the Vibratory
Hammer is used at the intensity of 25 mm/s ppv (peak particle velocity),
there is no possibility of any damage. However, the material pressed into
service does not clearly mention that, on usage of Vibratory Hammer at
the intensity of 25 mm/s ppv, there is no possibility of any latent damage,
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23 9410
which may go undetected in the immediate future, and may have safety
and durability implications in the long term. Besides, it is also not clear
from this material that the threshold vibration values up to 25 mm/s ppv
would be sufficient to arrive at a firm conclusion that the use of
Vibratory Hammer by respondent No. 3 at the site was itself the cause of
alleged damage to the building in question i.e. Gautam Niwas. Indeed,
IIT has identified the site where the experiment would be conducted, i.e.,
between Pillars 8 and 9.
26. In this context, it was submitted by the petitioner that Pillars
8 and 9 are inaccessible to general public, and, therefore, the argument of
respondent No. 3 that there would be danger to the life of thousands of
persons was inappropriate. At the same time, the petitioner had to fairly
concede that even Pillars 8 and 9 were part of the public infrastructure
project, on which the Metro Railway was eventually to be operated to
carry commuters daily.
27. In this view of the matter, the question of acceding to the
request of respondent No.9 or, for that matter, the petitioner to direct
respondents No. 2 and 3 to agree to allow IIT to carry on “experiment”
of re-use of Vbratory Hammer at the proposed site does not arise.
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28. As has been noted earlier, the petition has already been
disposed of in terms of order dated 6th August, 2009. Indeed, even
thereafter, this Court has been passing certain directions in the said
disposed of petition. That cannot take the matter any further. The fact
remains that the petition is already disposed of. In such a disposed of
petition, the question of entertaining the reliefs as claimed in the subject
Notice of Motion, albeit, at the instance of respondent No. 9-Society,
which, in effect, is seeking substantive relief, cannot be countenanced.
29. Considering the nature of controversy and the complexity of
the disputed issues raised, we would dispose of this Motion, with liberty
to respondent No. 9 as well as the petitioner to pursue such other remedy
as may be permissible in law. In those proceedings, they will have to
establish their claim and ask for relief as may be permissible in law
against the concerned respondents, which proceedings will have to be
decided on their own merits, in accordance with law. All questions in
that behalf are left open.
30. While parting, we place on record our appreciation for the
co-operation and assistance given by IIT, Mumbai, pursuant to request
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made by the Court. As regards the costs incurred by IIT, Mumbai, till
now to undertake the task assigned by the Court or its professional
charges, if any, respondent No.3-Company shall be liable to bear the
same entirely. This, however, does not mean that we have recorded any
adverse finding against the respondents on merits of the controversy.
31. We also place on record our appreciation for the keen
interest taken by the petitioner, who is a practising doctor by profession,
to raise issues of public interest by doing extensive research on technical
matters relating to Technology, Engineering and Construction to
highlight the possibility of damage being caused to the structures in the
neighbourhood where the contractors employed by MMRDA were
operating Vibratory Hammer Technology during the construction of
public infrastructure project.
32. The Motion is disposed of in the above terms.
MRS. MRIDULA BHATKAR, J. A.M. KHANWILKAR, J.
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