Appeal From Order No.1377 of 2013,Civil Application No.1640 of 2013

21st December, 2013

Petitioner Counsel: Mr. ANIL C. SINGH, Mr. SHAILESH KUMAR RAI
Respondent Counsel: Mr. A.Y. SAKHARE, MR. A.J. BHOR and Ms. YAMUNA PAREKH, Mr.HITESH SOLANKI, M/s. MANOJ & ASHOK

Cases Cited:
Tadeshwar Wadi Co-operative Housing Society Ltd. Vs. State of Maharashtra & Ors., 2013(3) ALL MR 294=2013 (3) Bom. C.R. 79 [Para 2,8]

JUDGMENT

JUDGMENT :- Whether the Respondent-Corporation and/or such local authorities, who are even otherwise, as per the provisions of statute 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. 2013 (3) Bom. C.R. 79 : [2013(3) ALL MR 294], 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 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 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 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 Judgment Tadeshwar Wadi, [2013(3) ALL MR 294] (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.

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 occupants not in position to finalize, but this in no way sufficient to disown the landlord's obligation to take effective steps, pursuance to the notices issued by the Corporation from time to time. The submission, is therefore, also made that Respondent No.4 is also not responsible in case the building collapses and/or some mishap happens, effecting the occupants in question.

13. The landlord and occupants are still at liberty to settle the matter.

14. The matter be listed on board on 20 January 2014 (H.O.B.) for disposal.

15. The earlier interim order so granted, to continue till then.

16. The parties to act on an authenticated copy of this order.

Ordered accordingly.