Bombay High Court
Shri Balkrishna Dwivedi vs Mumbai And Others on 24 December, 2013
Bench: Anoop V. Mohta
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dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 1233 OF 2013
Shri Balkrishna Dwivedi .... Appellant
vs
The Municipal Corporation of Greater
Mumbai and others .... Respondents
Mr. Pawan k. Pandey i/by M/s. Clayderman & Co. for the Appellant /
Applicants.
Mr. S. K. Sonawane for the respondent/Corporation.
CORAM: ANOOP V. MOHTA, J.
DATE : December 24, 2013
ORAL JUDGEMENT :
The Appellant/plaintiff has challenged the order whereby
the learned Judge, City Civil Court, Mumbai on 28.10.2013 refused to
grant ad-interim relief. The main prayer in the Notice of motion is to
reconnect the water supply and not to disconnect the electricity
supply.
2 No reply filed by the Respondent/Defendants. The issue
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with regard to their right of alternate accommodation is not yet
settled. The Developer, though made party and served privately, not
appearing and coming forward to execute the agreement. The
dispute is between the executive member of the society and the
Plaintiff and other such members whose litigation are also pending
one in City Civil Court and the other in Cooperative Court for the
same building and for the same action. Other tenants vacated,
therefore, their portion was demolished. The basis for action is the
report which says that even if the building is repaired, the life won't be
more than 10 years,therefore, it is not feasible. This itself means the
right of Appellant/plaintiff just cannot be overlooked before
demolishing the whole building in such fashion at the instance of the
developer and/or even society one who is not coming forward to
provide alternate accommodation. Notice under Section 354 of
Mumbai Municipal Corporation Act, 1888 (MMC Act), which
admittedly not issued to the individual occupant/flat owner of the
property. The individual notice basically when it is for demolition of
flat/structure is required to be given as in case of such dispute
between the members, the concerned member like the Appellant
would not be in a position to contest and/or insist for execution of
agreement for alternate accommodation if majority of the members
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want to develop the society.
3 All these issues require consideration. The disconnection
of water supply of the building, in such fashion, in my view, is not
contemplated action under Section 354 of MMC Act and/or any
circular even if issued by the Corporation.
The person/occupant/owner of the flt are entitled for
electricity and/or water supply subject to the other provisions of the
Act. If necessary charges are paid and/or the Applicants are paying
regularly, there is no question of disconnection of water supply and/or
electricity in such fashion. Section 354, in my view, in no way provide
and/or permit the Corporation to disconnect such essential amenities
in such fashion in advance. To hasten up of evacuation process, in no
way, read to mean that the Corporation can disconnect the electricity
and/or water supply without even proceeding further to take action of
eviction and/or demolition of whole building. The Corporation is
required to consider the pendency of litigation as well as the rights of
the flat owners who are entitled for alternate accommodation at least
so that they can vacate the flat in question. The developer is not in a
position and/or not providing them alternate accommodation and the
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building, according to the Plaintiff, is repairable and even as per the
report, the life of building would be extended for 10 years, merely
because other tenants/flat owners have vacated, without deciding
and/or crystallizing the right of Appellant/plaintiff in no way
sufficient reason at least for Corporation to disconnect water supply in
such fashion. Even the private landlord and/or owner would not be in
a position to disconnect the essential amenities. The
Respondent/Corporation being a local body, who are under obligation
to provide essential amenities, subject to provisions of law, and their
payment, in no way, is empowered to disconnect water supply in such
fashion. It is impermissible.
5 This, in no way, means they cannot disconnect water
supply, but that should be on a day and/or on the date before evicting
the occupant and/or before demolition the building. The
occupants/flat owners are entitled to use and utilise the premises until
they are evicted in due course of law.
6 In view of above, at this stage, I am inclined to hold that
the Appellant/plaintiff has made out a case. The
Respondent/Corporation and/or concerned Authority/person to
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connect the water supply forthwith. It is also made clear that there is
no question of disconnection of electricity, unless the parties settle and
decide the action of eviction after exhausting all the remedies
available under the law.
7 The parties are at liberty to settle the matter.
The Respondent/corporation to file reply within four
weeks. The learned judge to pass/dispose of the Notice of Motion
preferably within four weeks after filing of reply.
9 The Appeal from Order is disposed of in the above terms.
There shall be no order as to costs.
10 It is made clear that the Appellants who are occupying the
premises inspite of above dilapidated condition of building, they; are
doing so at their own risk and consequences.
Parties to act on an authenticated copy of this order.
(ANOOP V. MOHTA, J.)
