AJN 05-OS-WP33.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.33 OF 2011 Brig. A.C. Chopra ... Petitioner Vs. The State of Maharashtra & Ors. ... Respondents Mr. Janak Dwarkadas, senior counsel with Mr. Manish Desai and Mr. Saket Mane i/b Mr. Pavan Mali for the petitioner. Mr. K.K. Singhvi, senior counsel for B.M.C. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 5TH MAY, 2011. P.C.:- 1. The petitioner has retired from Indian Army. Respondent 1 is the State of Maharashtra. Respondent 2 is the Mumbai Municipal Corporation (for short, “the MMC”). Respondent 3 is the Hydraulic Engineer of the Mumbai Municipal Corporation. Respondent 4 is the Assistant Engineer (Water Works), Mumbai Municipal AJN 05-OS-WP33.11 2 Corporation. Respondent 5 is the Mumbai Metropolitan Regional Development Authority (for short, “the MMRDA”) and respondent 6 is the Adarsh Co-operative Housing Society Limited (for short, “the Adarsh Society”). 2. The petitioner, who has retired from Indian Army owns a flat, which is situated in the Adarsh Society. According to the petitioner, he was made aware that if he becomes member of the Adarsh Society, there is a likelihood of his becoming eligible for allotment of flat on a land to be leased out by the Government to the Adarsh Society by virtue of a Government Resolution dated 9/7/1999. He applied for the membership of the Adarsh Society. His eligibility was confirmed by the Collector and his file was sent for approval of the State of Maharashtra i.e. respondent 1. Respondent 1 approved his eligibility on 2/9/2004. The petitioner paid the necessary purchase price. AJN 05-OS-WP33.11 3 3. According to the petitioner, he was informed by the Adarsh Society that the Occupation Certificate was issued by MMRDA to the Adarsh Society on 16/9/2010. The petitioner thereupon obtained a copy of the same from MMRDA and made arrangement for shifting to the said flat. While he was planning to shift to the said flat, the MMRDA revoked the Occupation Certificate by letter dated 30/10/2010. Respondents 3 and 4 issued notice dated 2/11/2010 threatening to disconnect the water supply to the Adarsh Society for its building upon expiry of 24 hours from the date of the notice. Pursuant to the said notice, the water supply has been cut off. The petitioner is aggrieved by the disconnection of water supply and, hence, he has filed this petition. The petitioner has prayed for quashing and setting aside of notice dated 2/11/2010. He has also prayed for a writ of mandamus directing respondents 2 to 4 to forthwith supply water to the Adarsh Society. 4. We have heard Mr. Dwarkadas, learned senior AJN 05-OS-WP33.11 4 counsel appearing for the petitioner. He submitted that the petitioner has retired from Indian Army. He has sold his property in Noida and also his flat situated at Pune. He has put all his life savings in the flat situated in Adarsh Society. Counsel submitted that bonafide believing that the allotment of Government land is permissible to the Adarsh Society by virtue of Government Resolution dated 9/7/1999, the petitioner invested his money in the said flat. Disconnection of the electric supply is causing great hardship to the petitioner. Counsel submitted that right to life enshrined in Article 21 of the Constitution of India includes the right to live with dignity and in reasonable comfort. Counsel submitted that this right would include right to have supply of water provided of course the petitioner is prepared to pay the necessary charges. Counsel submitted that being owner of the said flat, he is entitled to have supply of water. In this connection, counsel drew our attention to the judgment of the Supreme Court in Chameli Singh v. State of U.P. AIR 1996 SC 1051 wherein it is observed that right to life AJN 05-OS-WP33.11 5 includes the right to live with human dignity and right to live guaranteed in any civilised society implies the right to shelter and the same includes adequate living space, sufficient light, pure air, electricity, water, etc. so that a person can have easy access to his daily avocation. Counsel submitted that disconnection of water is in clear violation of the petitioner's right to life guaranteed under Article 21 of the Constitution of India. Counsel submitted that, therefore, the impugned notice be set aside and the water supply be directed to be restored forthwith. 5. Mr. Singhvi, learned senior counsel for the MMC, on the other hand, submitted that since the Occupation Certificate of the Adarsh Society has been revoked by the MMRDA, Adarsh Society as well as the petitioner is not entitled to supply of water. He submitted that on account of absence or revocation of the Occupation Certificate, the flat purchasers cannot occupy their flats in Adarsh Society building. The water supply is liable to be disconnected and has rightly been disconnected. AJN 05-OS-WP33.11 6 6. By a series of judgments, the Supreme Court has widened the scope of Article 21 of the Constitution so as to ensure that the right to life, which is a basic right of human beings, is made meaningful. In Chameli Singh, the State of U.P. had acquired the property for public purpose viz. to provide houses for weaker sections by applying urgency clause. The Supreme Court was considering whether the Government would be justified in dispensing with the inquiry under Section 5A of the Land Acquisition Act. The challenge to the acquisition was raised by the owner of the land, which was to be acquired. The Supreme Court dismissed the appeal and upheld the invocation of urgency clause, inter alia, because the land was to be acquired for giving shelter to weaker sections and, it was the constitutional duty of the State to provide houses to the poor. It is in this context that the Supreme Court considered the scope of Article 21 of the Constitution of India and observed that right to live implies right to shelter and right to shelter includes AJN 05-OS-WP33.11 7 adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to a person's daily avocation. 7. Thus, the Supreme Court laid stress on the fundamental right of weaker sections to shelter with reasonable comforts such as availability of air, water, electricity, etc. The Supreme Court reminded the State of its duty to provide shelter to weaker sections and observed that the shelter should have amenities like electricity, water, etc. to make their right to life meaningful. These amenities would obviously be made available to people who are put in occupation of the premises. By no stretch of imagination, can the observations of the Supreme Court in this case, be made applicable to the present case. The petitioner herein cannot be equated with the weaker sections for whose benefit land was being acquired by the U.P. Government. AJN 05-OS-WP33.11 8 He is not in possession of the said flat and as of today, he cannot legally take possession of the said flat because there is no Occupation Certificate. 8. We also need to mention two judgments of the Calcutta High Court namely, Amarendra Singh v. Calcutta Electric Supply Corporation Limited & Ors. AIR 2008 Calcutta 66 and Santosh Jaiswal v. CESC Limited & Ors. 2008 (4) Calcutta High Court Notes (CHN) 630, which considered the question of electricity supply which is also an essential service like water. The Calcutta High Court while following the Supreme Court's judgment in Chameli Singh held that the right to life guaranteed under Article 21 of the Constitution includes right to live with dignity and supply of electricity is included in the said right. We have distinguished the facts of these judgments from the facts of the petitioner's case in our order dated 5/5/2011 in the petitioner's writ petition making similar grievance about disconnection of electricity (Brig. A.C. Chopra v. The State of AJN 05-OS-WP33.11 9 Maharashtra & Ors. - Writ Petition No.32 of 2011) and held that these judgments are not applicable to the petitioner's case because the Occupation Certificate of Adarsh Society has been cancelled and the petitioner is not in possession of his flat, whereas in Amarendra Singh and Santosh Jaiswal, the Clacutta High Court was considering cases of persons, who were in possession of the premises and there was dispute as regards their title. We reiterate the same view here. 9. In the petition, reference is made to Section 270A of the Mumbai Municipal Corporation Act, 1888 (for short, “the said Act”) which provides that no person shall occupy or permit to occupy or use or permit to use any premises or part thereof until he has obtained certificate from the Commissioner to the effect that there is provided within or within a reasonable distance of the premises a supply of pure water to the persons intending to occupy or use such premises. Reference is also made to Section 271 of the said Act which provides for persons from whom AJN 05-OS-WP33.11 10 an application for supply of water can be entertained. Section 279 of the said Act is relied upon which confers upon the Commissioner power to disconnect water supply on happening of certain events described therein. Thus, respondent 2 has power to cut off water supply and connection on the happening of events or fulfillment of condition provided under Sections 279 and 280 of the said Act. Reference is made to Section 284 of the said Act which provides for further conditions to be complied with in respect of supply of water and which provides for a penalty upon contravention of conditions. Reliance is also placed on certain provisions of Water Charges Rules (for short, “the said Rules”) which have been framed by the Standing Committee of the MMC in exercise of its powers under Sections 161-A and B of the said Act. Rule 6.2.3 of the said Rules provides for disconnection of water supply to be done in accordance with the said Act. Rule 6.2.4 of the said Rules provides for making water supply available on humanitarian grounds even to buildings in which premises are occupied without obtaining occupation AJN 05-OS-WP33.11 11 permission but where building plans have been approved by the Building Proposal Section. Thus, it is contended that respondents 2 to 4 can disconnect water supply only if the requirements and the conditions laid down in Section 279 of the said Act and Rule 6.2.3 of the said Rules are satisfied. It is further contended that respondents 2 to 4 are duty bound to disconnect supply only in accordance with the provisions of the said Act. Since the petitioner has not violated any of the provisions of the said Act, respondents 2 to 4 could not have disconnected water supply of the petitioner's premises. 10. In our opinion, none of the provisions quoted hereinabove help the petitioner because of the peculiar facts and circumstances of his case. Rule 6.2.3 of the said Rules has been deleted. There can be no dispute about the proposition that the petitioner cannot legally occupy the premises without Occupation Certificate. Rule 6.2.4 contemplates a situation where a person is in occupation and is awaiting Occupation Certificate and where building AJN 05-OS-WP33.11 12 plans have been approved. In such a case, on humanitarian grounds, water supply can be made available to such a person. But, in this case, the petitioner is not in occupation of his flat and Occupation Certificate which was granted has been revoked. Therefore, there is no question of supplying water to the petitioner on humanitarian grounds. The petitioner was not using water because he was not in possession. Hence, there is no question of violation of his fundamental right under Article 21 of the Constitution of India. Since the Occupation Certificate which was granted was revoked, disconnection of water supply must follow. 11. It cannot be gainsaid that Occupation Certificate is necessary before a person occupies the premises. The MMC cannot in law supply water to a building or to a flat which does not have Occupation Certificate. This is not a case where a person is in occupation of premises and there is a dispute as regards his title to the same. This is a case where there is no Occupation Certificate and, the flat AJN 05-OS-WP33.11 13 is not occupied by the petitioner. In fact, the petitioner has admitted in the petition that he was planning to shift to his flat in the Adarsh Society. We may mention that while rejecting ad-interim relief, Division Bench of this court in its order dated 23/12/2010 has observed that when Court officer visited the building no persons were found in occupation. No parallel can be drawn from the cases where a person is in possession and his title to the premises is disputed. 12. In view of the above, in our opinion, no mandatory direction can be given to the MMC to supply water to the petitioner's flat or to the Adarsh Society. The petition is dismissed. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.] AJN 05-OS-WP33.11 14