Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1243 OF 2018
CNR MHCC010039562018
IN
STAMP NO.4267 OF 2018
Shri Tansukhlal Laxmilal Kachara & Ors. )...Plaintiffs.
V/s.
1. Municipal Corporation of Greater
Mumbai & Others. )...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.08)
DATE : 26/03/2018.
Ld. Advocate Mr. Holmagi for plaintiffs
Ld. Advocate Mr. Giri for the BMC/ defendants
ORDER
This notice of motion is taken out by the plaintiffs for
restoration of the water and electricity supply in the building known as
"Dilip Kunj" having ground plus first floor situated at Jivdaya Lane,
Ghatkopar (W), Mumbai,( for the purpose of brevity herein after
referred to as "notice structure" ). This notice of motion is supported by
an affidavit executed by plaintiff no.1 Shri Tansukhlal Laxmilal Kachara
on behalf of all the plaintiffs. All the plaintiffs alongwith their family
members are present in the Court.
2. The defendants/ Municipal Corporation of Greater Mumbai
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( in short "MCGM") has not filed reply to this notice of motion. The
MCGM has only filed the documents on affidavit being executed by
Swanand Bhave who is SubEngineer and has strongly opposed the ad
interim reliefs claimed in the notice of motion.
3. As per the MCGM, water and electricity supply to the said
building was disconnected as per the guide lines issued in Writ petition
(L) No. 1135 of 2014. On behalf of the plaintiffs, it is argued that due to
disconnection of electricity and water supply, the life of the plaintiffs
and their family members have become miserable and they have been
deprived of essential amenities.
4. On perusal of the record and the documents, in my
opinion, the guide lines of Writ petition (L) No. 1135 of 2014 has not
been properly followed , as in the case in hand till the date the landlord
has not made any alternative arrangement / accommodation for the
plaintiffs. As such, the issue with regard to the right of alternate
accommodation is not yet settled. There is nothing to indicate that the
present plaintiffs were intimated either through notice or otherwise
about disconnection of water and electricity supply. The rights of the
plaintiffs being tenant and occupants cannot be over looked and it
shows that the MCGM without considering the aspects of any alternate
accommodation has turned off the water and electricity supply. The
notice under section 354 of the Mumbai Municipal Corporation Act ( in
short 'MMC' Act) admittedly is not issued individually to the tenants /
occupants of the notice structure. There is no dispute about the fact
that , the dispute is subjudice between the landlord and tenants before
the Small Causes Court, Mumbai. In my opinion, when the dispute
between landlord and tenants is subjudice, it is landlord who would be
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in position to contest or insists for the alternative accommodation for
the tenants. Certainly, all these issues requires consideration. It is
significant to recall the case of Balkrishna Vs. Municipal Corporation
of Gr. Mumbai reported in 2014(4) Mh.L.J. page 189 wherein it was
held by Their Lordship of Hon'ble Bombay High Court that:
“Demolition of building Vacation of
Disconnection of water supply of building Occupants/flat
owners entitled to use and utilize premises until they are evicted
in due course of law Section 354 in no way provides for
disconnection of essential amenities Respondent / Corporation
directed to connect water supply forthwith. (Paras 4 to 6)”
The aforesaid ruling is squarely applicable to the present
case as the electricity and water supply is disconnected without
considering the aspect of alternate accommodation /arrangement. It is
not the case of the MCGM that the plaintiffs are not paying water and
electricity charges. If the plaintiffs are regularly paying the electricity
and water charges, there is no question to disconnection of such
essential amenities in such a fashion which the MCGM has initiated in
the present case. The tenants /plaintiffs are entitled for the essential
amenities i.e. water and electricity supply with subject to the other
provision of the Act. From the documents placed on record, specifically
the copy of electricity bill, it shows that plaintiffs were regularly paying
those charges. Section 354 of the MMC Act in my opinion, no way
provide the MCGM to disconnect such essential amenities in such a
fashion in advance. To hasten of evacuation process, in no way, read to
mean that the MCGM can disconnect the electricity and water supply
without even giving prior notice to each of the tenants or a chance of
hearing. If the landlord is not taking steps for alternate arrangements
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then the MCGM ought to have consider the pendency of litigation
before the Small Causes Court as well as the rights of the tenants, so
that, they can vacate the premises in question.
5. The MCGM being the local body, who are under obligation
to provide essential amenities, subject to the provisions of law, and their
payment, in no way is empowered to disconnect the water and
electricity supply in such a fashion which has taken place in the present
case. It is impermissible for the MCGM to do so. This , in no way
means they cannot disconnect the water and electricity. However , they
can do so on the date or on the date before vacating the occupants or
before the demolition action. In the present case , the plaintiffs are still
residing in the said premises of which some of the plaintiffs are senior
citizens. It is strenuously urged before me that one of the family
member is suffering from Cancer. Some of the children residing are
appearing the examination. Considering the over all circumstances, in
my opinion the MCGM, at this stage needs to be directed to
immediately restore the previous position i.e. for connection of water
and electricity supply in the notice structure. By passing this order no
prejudice would be caused either to the MCGM or to the landlord. Per
contra, if the aforesaid order is not passed then it will definitely cause
grave hardships to the plaintiffs and their family members as they will
be deprive of essential amenities i.e. water and electricity which in my
opinion are the basic needs for livelihood. Hence, in the interest of
justice I pass the following order.
ORDER
1. The adinterim reliefs in terms of prayer clause (a)
is allowed with a direction that MCGM to take steps
for restoration of electricity and water supply
immediately on the notice structure.
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2. Plaintiffs to communicate said order to the
concerned authority of the MCGM.
3. The MCGM is directed to file the detail reply to the
notice of motion within two weeks.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
City Civil & Sessions Court,
Gr.Mumbai.
Date:26/03/2018.
Dictated on : 26/03/2018.
Transcribed on : 26/03/2018.
Signed on : 26/03/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: NAME OF STENOGRAPHER
26.03.2018 Mrs. V.V.Mhatre
TIME: 5.45 p.m.
Name of the Judge ( With Court
room no.) Shri Kishore M. Jaiswal
(Court Room No.08)
Date of Pronouncement of
JUDGEMENT/ORDER
26.03.2018
JUDGMENT/ORDER signed by
P.O. on
26.03.2018
JUDGEMENT/ORDER uploaded on 26.03.2018
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