Bombay High Court

Tenants Welfare Association & Anr vs Municipal Corporation Of Gr. ... on 21 December, 2013

Bench: Anoop V. Mohta

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                   IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                        APPELLATE SIDE CIVIL JURISDICTION




                                                                                                           
                             APPEAL FROM ORDER NO. 1377 OF 2013




                                                                                   
                                                                 WITH

                              CIVIL APPLICATION NO. 1640 OF 2013 
                                              IN




                                                                                  
                             APPEAL FROM ORDER NO. 1377 OF 2013


    Manjul Darshan Building




                                                                      
    Tenants Welfare Association & Anr.                                                      ....Appellants.

                          Vs.
                                             
    Municipal Corporation of Gr. Mumbai & Ors.                                              ....Respondents. 
                                            
    Mr. Anil C. Singh, Senior Advocate a/w Mr. Shailesh Kumar Rai for the 
    Appellants.
         


    Mr. A.Y. Sakhare, Senior Advocate a/w Joel, & Mr. A.J. Bhor and Ms. 
    Yamuna Parekh for Respondent Nos. 1 to 3-Corporation.
      



    Mr.Hitesh Solanki i/by M/s. Manoj & Ashok Associates for Respondent 
    No.4.





                                     CORAM  :  ANOOP V. MOHTA, J.

DATE : 21 DECEMBER 2013.

ORAL ORDER.:-

Whether the Respondent-Corporation and/or such local

authorities, who are even otherwise, as per the provisions of statute

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required to provide drinking water and/or water to the residents or

occupants of the respective premises, which are subject to the

requisite payments and/or charges can disconnect such amenities,

merely because notice under Sections 354 of the Municipal

Corporation Act, 1888 (for short, the MMC Act) was issued, as

according to them the building is in dilapidated condition and

therefore, they have no choice but to disconnect necessary amenities

like water and electricity to hasten up evacuation process.

2 The power of Respondent-Corporation based upon above

provisions and as elaborated recently in Tadeshwar Wadi Co-

operative Housing Society Ltd. Vs. State of Maharashtra & Ors. 1,

just cannot be disputed. The learned counsel appearing for the

Corporation has also relied on Sections 61 and 489 (3) of the MMC

Act.

3 To implement and take necessary measures for eviction

and/or all those prior actions before taking steps to forcibly dispose

and/or evict the occupants/occupiers/tenants, who inspite of due

1 2013 (3) Bom. C.R. 79

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notice failed to evict and/or vacate the premises, the power is there

but the question still remains that, at what stage they should invoke

such drastic powers which deprived such occupants even to use and

enjoy the essential amenities like the water and electricity. The

provisions so read and referred and so also the judgment empowered

them to take all necessary measures and steps, but in my view, those

steps need to be taken simultaneously and/or on the date of eviction

itself and/or specific action day which they have given notice for the

same.

4 The situation here in the present case is that, though

notice under Section 354 issued in the month of May 2013, because of

pendency of litigations, no further steps taken by the Corporation to

get the premises vacated/demolished. On 22 November 2013, as

stated, the Corporation disconnected the water supply. The threat is

that they will see to disconnect the electricity supply also.

5 The adequate provisions or measures, which are read and

referred, in no way and rightly contended by the learned senior

counsel appearing for the Appellant empowered them (Respondent

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Nos. 1 to 3) to take away the essential amenities like water/

electricity. The occupants/tenants unless evicted in accordance with

law, are entitled for these amenities uninterruptedly. This in no way

obstruct and/or can be stated to be a hurdle in way of the

Corporation's power and/or local authorities' power to take action of

evacuation after due notice.

6 The advance disconnection in such fashion, in my view, is

totally unjust, unacceptable and shows inhuman approach of the local

bodies, one who instead of providing the amenities to the citizens,

merely because eviction notices are issued, and they have a power to

take such necessary steps, by this method compelling/forcing the

occupants/tenants to vacate the premises, this is nothing but taking

away the rights of the citizen/occupants to use the necessary

amenities like water and electricity, which is otherwise available and

provided under Article 21 of the Constitution of India. The water and

electricity if are essential part of life, such disconnection "to hasten up

the evacuation process" in my view, is impermissible.



    7                     The   submission   is   made   referring   to   the   circular   issued 







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under the MMC Act, whereby the instructions are provided in

situation like this where the dangerous buildings are involved. The

relevant clauses 2 and 5 read as under:-

"7. Dangerous buildings-

2] Sincere efforts should be made to vacate the

occupants of dangerous bldgs. of C-1 category. As a part of the efforts, the electricity and water supply should be disconnected, to hasten up evacuation process.

5]

Wherever necessary, tenements should be made available in M/E & M/W Wards for transit purposes for municipal buildings evacuation. In

respect of private buildings, the owners are to make their own transit arrangements."

8 This itself shows that the instructions are to take sincere

efforts to get the premises vacated. As a part of the efforts, the

electricity and water supply should be disconnected to hasten up the

evacuation process. This in my view, itself means when everything is

ready and/or the team is near the premises for eviction and/or to

demolish the dilapidated structure. Immediately before taking such

forcible steps and/or before commencing the process of evacuation

and/or demolition, such water supply and electricity may be

disconnected. The Sections so read and referred in the earlier

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Judgment Tadeshwar Wadi (Supra) and even this circular, in my

view, nowhere indicate to disconnect the water and electricity in

advance. The notice so given, also in my view, cannot be used and

utilized to disconnect the water and electricity supply. There is no

specific provisions and/or procedure prescribed and/or any power is

provided to disconnect the electricity and the water supply in such

fashion where there is no issue with regard to the necessary payments

and/or charges as contemplated under the MMC Act, for the same.

9 The builder-owner, who is under obligation to provide

transit arrangements, as being the owner of the dangerous building

and as required even by the Corporation to take steps either to repair

the building and/or to demolish the same, also nowhere empower/

permit to disconnect the necessary amenities. The dispute even with

regard to the transit and/or permanent accommodation, which on a

private land/plot, the Corporation has no role to play, still there is

nothing which empowered the Corporation to take such drastic action

of disconnection of amenities in advance prior reaching to the stage of

measures to evict and/or demolition the dangerous structure.

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    10                    Therefore, for the above reasons, I am inclined to direct

the Respondent-Corporation to connect the water supply forthwith.

The Corporation is also restrained from disconnecting the electricity

without due and proper notice, until the decision of this Appeal from

Order.

11 It is made clear that the continuation of the stay of the

occupants/tenants in such building instead of the notices by the

Corporation, will be at their risk and the consequences. The

Corporation Officers will not be responsible, in case of any mishap

and/or accident happens.

12 Landlord-Respondent No.4, who is subsequent purchaser

of the property, though expressed willingness to settle the matter and

in fact suggested the consent terms have already forwarded, which the