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Monday, January 18, 2021

Building permission papers & digital evidence ‘missing’ from municipal office, Bombay HC rejects pre-arrest bail to architects

The court also directed the office of the Chief State Examiner of Documents to produce a report on the missing documents within three weeks to the investigating officers concerned.

Written by Omkar Gokhale | Mumbai | Updated: January 10, 2021 12:11:59 am
Mahad building collapse, Bombay HC, Mumbai news, Maharashtra news, Indian express newsAt least 16 people died after the ground-plus four structure, in which 40 families lived, collapsed in a residential area of Mahad in Maharashtra’s Raigad district on August 24, 2020.

Observing that physical and digital records relating to building permissions for Tarique Garden — the building that collapsed in Mahad in August 2020, killing 16 people — were missing from the municipal office, the Bombay High Court recently rejected the pre-arrest bail pleas of Vivek Dongre, civil engineer and proprietor of Vertical Architect and Planners, and architect Gaurav Shah.

The court also directed the office of the Chief State Examiner of Documents to produce a report on the missing documents within three weeks to the investigating officers concerned.

At least 16 people died after the ground-plus four structure, in which 40 families lived, collapsed in a residential area of Mahad in Maharashtra’s Raigad district on August 24, 2020. Some residents managed to escape before the building crumbled.

A single-judge bench of Justice S K Shinde on January 7 passed a judgment, rejecting anticipatory bail pleas filed by Shah and Dongre. They have been booked for offences punishable under sections 304 (culpable homicide not amounting to murder), 304A (causing death by negligence) and 33 (causing grievous hurt by act endangering life or personal safety of others) of the Indian Penal Code (IPC), among others.

The court noted that a proposal seeking permission to construct a building consisting 40 flats, office and a pump-house was submitted on April 5, 2011, to the Mahad Municipal Council on the letterhead of M/s Vertical Architect and Planner, of which Dongre was the proprietor, through Shah, who signed as ‘architect’. The construction permission was sought through Kohinoor Developers, which commenced work on October 8, 2011, after availing approvals.

On January 3, 2012, the architecture firm certified that the building was constructed as per sanctioned plan, based on which, the municipal council issued completion certificate on October 19, 2013.

Advocate Chaitanya Pendse, who represented Dongre, submitted that Shah had assured his client that he would complete the project as per Development Control Rules and would keep him indemnified from and against all losses or claims, which may arise upon execution of the project. Dongre, who was Shah’s friend, had allowed him to use the name of his firm in ‘good faith’ and believed in the representation made by him, Pendse said.

However, senior counsel Raja Thakare, who represented Shah, refuted Dongre’s contentions and submitted that his client had not signed any proposal or sought permission to construct the building, and that someone had forged his signature. Thakare submitted that Shah was not appointed as an architect and had no involvement in the project, therefore he should be protected from arrest.

Advocate Amin Solkar, for the state government, opposed the applications and submitted that the file containing building permissions and approved plans for the collapsed building is missing from the Municipal Council office. “The original approved plan of the building is neither found, nor is it available in the office record, or a digital record maintained by the Municipal Council. Circumstances suggest attempts were made to cause a disappearance of primary evidence,” he said.

After hearing submissions, Justice Shinde observed, “A fact cannot be overlooked, that the original building sanction plan is not forthcoming, in as much as, neither witnesses nor arrested accused produced it, on the pretext that it was lost or torn out. The plan assumes importance because, prosecution alleges, as per sanction plan, 14 tenements were to be constructed; however, investigation has revealed 43 tax assessment documents. It means the approved plan was departed.”

The court raised concerns over ‘missing files’ and noted, “The circumstances suggest, collective efforts were made by the accused to cause disappearance of the evidence. If such evidence is not collected and brought on record, it will lead to serious consequences. Thus, to unearth the truth and to collect dependable evidence, custodial interrogation of the applicant is necessary.”

Rejecting the anticipatory bail application, the bench said, “Circumstances on record clearly suggests someone is attempting to tamper with the evidence. In these circumstances, possibility of further tampering and influencing the prosecution evidence cannot be ruled out. In consideration of the facts and circumstances of the case, in my view, applicants are not entitled to pre-arrest bail.”

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