Right Of Citizens To Live In Safe Buildings A Facet Of Right Guaranteed By Article 21: Bombay HC

While taking suo motu cognizance of the building collapse that took place in Thane’s Bhiwandi area where the death toll has shot up to 41, the Bombay High Court very recently, righteously and remarkably on 24 September 2020 expressed its deep pain and sadness at the loss of precious lives. The Bombay High Court very rightly issued notice to the State and the Municipal Corporation of Greater Mumbai. It minced no words to put across in simple, suave and straight language that right of citizens to live in safe buildings is a facet of right guaranteed by Article 21 of the Constitution.

To start with, a Division Bench of Bombay High Court comprising of Chief Justice Dipankar Datta and Justice GS Kulkarni first and foremost set the ball rolling by observing in para 1 that, “Deeply pained and saddened by some of the recent incidents of collapse of residential buildings resulting in loss of lives, we desire to initiate this Suo-motu Public Interest Litigation.”

While elaborating and explaining the most unfortunate incident, it is then envisaged in para 2 that, “We refer to the news report in The Times of India dated 23rd September, 2020 which reported that the building known as “Jilani Building” at Bhiwandi collapsed at about 03.00 a.m. on 21st September, 2020. The reporting is of 16 persons being killed which included 8 minors. It is reported that this building was not included in the list of dangerous structures so notified by the Bhiwandi Nizampur Municipal Corporation. It is further reported that in the past three years, several notices were issued in respect of this building by the Municipal Corporation and the land owner/developer of the building, Shri Sayyed Ahmed Jilani was called upon to get the building vacated due to its dilapidated condition. Last such notice is reported to have been issued in February 2020. If this is true, it is unfortunate that no action was taken by the Municipal Authorities to get the building vacated. It is also reported that this building was constructed sometime in the year 1984 before the Municipal Corporation was formed and later on, two illegal floors came to be constructed. However, no action was taken by any of the Municipal Authorities and its officers. There is a further news report in The Times of India dated 24th September, 2020, that now about 38 people have succumbed in this building collapse.”

As it turned out, what the Bombay High Court found quite disconcerting is then brought to the fore in para 3 that, “This incident is not a solitary incident. Earlier to this, in the month of August, a three storey building known as “Tariq Garden” in the Mahad Town (Raigad District) had collapsed in which 16 persons were reported to have died including two senior citizens.”

As if this was not enough, it is then further brought out in para 4 that, “Such incidents of building collapse are happening frequently, almost every year and more particularly during the monsoon months. As per the report dated 24 September 2020 of the Economic Times, there were 1472 incidents of building collapse in Mumbai city and suburbs during 2015-2019 in which 106 people lost their lives while another 344 were injured. One of the major incidents of the building collapse was of the Siddhi Sai building in suburban Ghatkopar in July 2017 in which it is reported that 17 residents were killed. We are immensely concerned at this sad state of affairs.”

More pertinently, it is then very rightly observed in para 5 that, “Some of the immediate issues passing in our mind are:-

(I)                         As to whether the municipal bodies are completely helpless to prevent such collapses and prevent loss of lives?

(II)                     Is there not any machinery available with such municipal bodies to prevent such occurrences?

(III)                  Apart from old buildings, are newly constructed buildings (say, thirty/forty years old) too collapsing?

(IV)                 Is there any procedure to identify such buildings which are likely to collapse?

(V)                     Is there a mechanism in place for structural audit of the buildings?

(VI)                 Isn’t there a need for a uniform mechanism in this regard applicable to these Municipal Corporations?

(VII)              Is there a mechanism to fix accountability on the concerned persons, for not taking any action against illegal construction?

(VIII)          Has any survey been conducted regarding unauthorized structures/buildings in each of the Municipal Corporation areas and what steps are contemplated to raze the same?

(IX)                  Whether or not, there is need for setting up a public grievance cell where citizens can take their complaints?

Most significantly, the Bench then very rightly goes on to make amply clear in para 6 that, “These are some of the issues with which we would be concerned, our intention being that the civic bodies and the State Government take concrete and effective steps to prevent loss of innocent lives of the residents of such dilapidated or dangerous buildings. We are of the prima facie opinion that the right of the citizens to live in safe buildings and environment would be a facet of the right guaranteed by Article 21 of the Constitution of India and it would be the duty of the civic bodies to bring about a situation that all buildings within their respective municipal jurisdictions are legal, sustainable and safe. Also, in our prima facie opinion, it would be an absolute obligation of the Municipal Corporation and its officers and more particularly the Ward officers within whose jurisdiction such buildings are located and who are presumed to have complete knowledge of the conditions of the building, to take timely steps. If at the grass-root level such officers were to take effective and timely actions, such fateful incidents which have presumably occurred due to inaction and gross negligence, could have been prevented.”

As a corollary, what we then see is the Bench then goes on to hold in para 7 that, “We, accordingly, issue notice to the respondents/Municipal Corporations through their respective Municipal Commissioners and to the State of Maharashtra through the Secretary, Urban Development Department and Secretary, Home Department returnable on 15 October, 2020. Reply affidavits may be filed in the meanwhile.”

Going forward, the Bench then further adds in para 8 that, “Officer to forward the notices through e-mail to the respective Municipal Commissioners.”

Furthermore, the Bench then also adds further in para 9 that, “We would also request the learned Advocate General to appear for the State Government.”

What’s more, the Bench then also makes it known in para 10 that, “We appoint Mr Sharan Jagtiani, Senior Advocate alongwith Mr Rohan Surve, learned Advocate as amicus curiae to assist the Court in the adjudication of this suo-motu PIL petition.”

Needless to say, it is then aptly held in para 11 that, “Copies of the reply affidavits shall be forwarded to Mr. Jagtiani and Mr Surve, a day prior to the next day of hearing.” The next day of hearing in the matter is October 15.

What finally happens remains yet to be seen. It would be premature to jump to any conclusion. But one thing is clear: The Division Bench of Bombay High Court comprising of Chief Justice Dipankar Datta and Justice GS Kulkarni have taken this most pressing issue most seriously and this is most ostensible from the volley of questions that it has asked in this landmark case as pointed out in para 5 itself. Very rightly so!

Sanjeev Sirohi