[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 1572 OF 1993 PETITION NO. 1572 OF 1993 PETITION NO. 1572 OF 1993 Jamuna Sagar Co-op.Housing Society Ltd., a Co-operative Housing Society, registered under the Co-operative Societies Act, 1960, and having its office at 56-60 Shahid Bhagatsingh Road, Colaba, Bombay 400 005. ... Petitioner. Vs. 1. Municipal Corporation for Greater Bombay, a body Corporate, incorporated by the Bombay Municipal Corpn. Act, 1988, having office at Mahapalika Marg, Bombay 400001. 2. M/s.J.M.C. Constructions Co. a registered Partnership firm having its office at J.M.C., House, Sheikh Memon Street, Bombay 400 002. 3. Anti Corruption Bureau, having its office at Ballard Estate, Bombay. ... Respondents. Shri.Sukeshi Bhandari Advocate for the petitioner. Smt. S.M.Modale Advocate for the respondents. CORAM CORAM CORAM : : : Sri R.M.S.Khandeparkar Sri R.M.S.Khandeparkar Sri R.M.S.Khandeparkar and and and Sri Sri Sri A.A.Sayed, JJ. A.A.Sayed, JJ. A.A.Sayed, JJ. DATE DATE DATE : July 7, 2008. : July 7, 2008. : July 7, 2008. ORAL JUDGMENT (PER R.M.S. KHANDEPARKAR, J.) 1. Heard. 2. By the present petition, the petitioner is seeking to quash the notice dated 31st March, 1993, issued by the respondent- Corporation threatening to [ 2 ] disconnect the water supply to 7th to 10th floors of the petitioner’s building. 3. The petitioner is a Co-operative Housing Society duly registered under the Maharashtra Co-operative Societies Act and they are having the building by name Jamuna Sagar, situated at Shahid Bhagat Singh Road, Colaba, Mumbai, comprising of 11 floors. A notice came to be issued by the respondent- corporation as to why the 7th to 10th floor should not be demolished. Pursuant to the representation made in response to the said notice on 18th January, 1992 to the respondent- corporation, no further action in relation to the said show cause notice was taken. 4. The respondent- corporation thereafter issued notice dated 4th April, 1987 threatening discontinuation of water supply to 7th to 10th floors of the building of the petitioner- society on the ground that the respondent No.2- the developer failed to hand over set-back land to the corporation free from all encumbrances. The petitioner thereupon challenged the notice by way of writ petition No. 1324 of 1987, which came to be disposed by Judgment dated 10th June, 1992, directing the respondents not to disconnect the water supply, further directing respondent No.2- the developer to take appropriate steps for necessary compliance regarding delivery of set back area to the corporation in unencumbered state. [ 3 ] 5. It appears that thereafter no steps were taken either by the respondent No.2 or by the respondent No.1 in relation to the matter in question. However, subsequently under letter dated 31st March, 1993, the Corporation directed the Secretary of the Petitioner’s Society to disconnect the water supply to 7th to 10th floors of the building, on the ground that no occupancy certificate was granted to the said floors. The petitioner submitted their reply to the said notice on 3rd May, 1993. As the threat to disconnect the water supply still continued, the petitioner- society approached this Court by this petition. Under interim order passed in this matter, the respondents were directed not to disconnect the water supply of the said floors. 6. The learned Counsel appearing for the petitioner drawing our attention to the Circular No. CHE/ DP / 53/ 2004-05, dated 30.10.2004 issued in terms of Government directives dated 23rd August, 2004, submitted that there can be no hesitation on the part of the corporation to issue occupancy certificate merely on the ground of failure on the part of the developer to return set-back land and there are ample powers with the corporation to take appropriate action in that regard without causing harassment to the flat purchasers on account of any failure on the part of the developer to comply with his obligations regarding [ 4 ] handing over of the set-back land in unencumbered state to the corporation. She further submitted that since it was the contention on behalf of the corporation in the impugned letter that the occupancy certificate was denied to 7th to 10th floors, solely on the ground of failure on the part of the developer to hand over the set-back area in unencumbered position to the corporation, the corporation could have very well taken appropriate action in terms of the said circular read with the said directions of the Government in that behalf and that in any case failure in that regard on the part of developer could not be a ground to refuse the occupancy certificate to the said floors nor it can be the ground for disconnection of water supply to the said floors. 7. It is pertinent to note that the facts stated in the petition are neither controverted nor there is any challenge thereto on behalf of the corporation. The corporation has not filed any affidavit-in-reply to the petition. Being so, the facts stated in the petition have remained unchallenged. 8. Undoubtedly, the circular dated 30th October, 2004 was issued after issuance of the impugned letter. Nevertheless as the matter stands today, the said circular is in force and certainly the corporation, in terms of the said circular can take appropriate action to get the possession of the set-back land which the [ 5 ] respondent No.2- developer has failed to deliver to the corporation inspite of the fact that the same was a condition for grant of licence for development of the property. Nonetheless on account of failure on the part of the developer to comply with his obligations under the licence for development or on account of failure of the corporation to take appropriate steps in accordance with the said circular, that cannot be allowed to cause hardship and irreparable loss to the occupants of the 7th to 10th floor of the building in question, which is admittedly in existence for number of years and at least for last 20 years. 9. As it is evident from the material on record that the threat for disconnection of water supply was solely on the ground that the 7th to 10th floor did not have occupancy certificate from the corporation and as it is not in dispute that the building is in existence since last more than 20 years and the flats are in occupation of the inmates and that the members of the petitioner-society are in possession of flats and further that absence of occupancy certificate is only on the ground of failure on the part of the respondent No.2 to handover the set-back area in unencumbered condition and not on account of any irregularity or illegality in the construction of the said floors. In our considered opinion, the petitioners are justified in contending that it was also the duty of the corporation to take appropriate steps in accordance [ 6 ] with the said circular without threatening the petitioner for disconnection of water supply to 7th to 10th floors of the petitioners building. For failure in that regard on the part of corporation, the occupants of the flats cannot be harassed. 10. It is true that the owner of the structure is not entitled to occupy newly constructed structure unless the corporation issues the occupancy certificate for occupation thereof. However, in the case in hand it is not in dispute that the members of the petitioner society are in occupation of the structures situated at 7th to 10th floors of the building for last number of years without any action being taken by the corporation against them. It is not the case of the respondent that the construction of 7th to 10th floor is in violation of any of the rules of construction or rules of development or rules regarding the construction framed by the corporation. Only reason for non-grant of the occupancy certificate was the failure on the part of the respondent No.2 - developer to hand over the set back area in unencumbered condition to the corporation. One fails to understand what prevented the corporation from taking necessary action against respondent No.2 to get the above set-back area by following due process of law. In the absence of any explanation forthcoming from the corporation in that regard, the corporation would not be entitled to insist for disconnection of water supply to 7th to 10th floors [ 7 ] merely on the ground of absence of occupancy certificate to the said floors. 11. In the facts and circumstance of the case, therefore, we find that the petitioners are justified in seeking the relief asked for in the petition. 12. The petition therefore succeeds. The impugned communication by letter dated 31st March, 1993 issued by the corporation to the petitioner-society is hereby quashed. This will however, not preclude the corporation from taking necessary action against the respondent No.2 to get vacant possession of the set-back area in accordance with the provisions of law. 13. The interim order appointing the Court Receiver shall continue to remain in force for a period of six months, within which period the respondent NO.2 should take necessary steps to get the vacant possession of the said area and file compliance report in this Court or before 28th February, 2009 which should be placed before this Court in the first week of March, 2009. The petition accordingly stands disposed of. 14. Rule is made absolute in above terms with no order as to costs. [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [A.A.Spayed, [A.A.Spayed, [A.A.Spayed, J.] J.] J.] [ 8 ] FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTIONNO. 563 OF 2004 IN WRIT PETITION NO. 1572 OF 1993 ------------------------------------------------------- Office Notes : Court’s / Judges Office Memoranda : Order. of Coram, apperances : Court’s and Judges : Orders or directions : and Registrars’Orders : -------------------------------------------------------- Shri.Sukeshi Bhandari for the petitioner. Smt. S.M.Modale for the respondents. CORAM CORAM CORAM : Sri R.M.S.Khandeparkar : Sri R.M.S.Khandeparkar : Sri R.M.S.Khandeparkar and and and Sri A.A.Sayed, JJ. Sri A.A.Sayed, JJ. Sri A.A.Sayed, JJ. DATE DATE DATE : July 7, 2008. : July 7, 2008. : July 7, 2008. P.C. 1. In view of the disposal of the petition itself, notice of motion stands disposed of. [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [R.M.S.Khandeparkar,J.] [A.A.Sayed,J.] [A.A.Sayed,J.] [A.A.Sayed,J.] [ 9 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1572 OF 1993 Date of Decision : July 7, 2008. For Approval and Signature : The Honourable Mr. Justice R.M.S.Khandeparkar: The Honourable Mr. Justice A.A.Sayed : 1. Whether Reporters of Local Papers may be allowed to see the Judgment? 2. To be referred to the Reporters or not? 3. Whether Their Lordships wish to see the fair copy of the Judgment? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order made thereunder? 5. Whether it is to be circulated to the Civil Judges ? 6. Whether the case involves an important question of law and whether a copy of the Judgment should be sent to Nagpur, Goa and Aurangabad office? *****