Bombay High Court
Subodh M Joshi vs Municipal Corporation Of Greater ... on 14 October, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
Subodh M Joshi v MCGM & Ors
VARSHA Digitally signed
by VARSHA 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
VIJAY VIJAY RAJGURU
Date: 2022.10.17
RAJGURU 18:18:57 +0530
Varsha
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION(L) NO. 21683 of 2022
WITH
COURT RECEIVER'S REPORT NO. 274 OF 2022
IN
WRIT PETITION(L) NO. 21683 of 2022
Subodh M Joshi ...Petitioner
Versus
Municipal Corporation of Greater Mumbai & Ors ...Respondents
Mr AM Saraogi, with Sahil Ansari, for the Petitioner.
Dr Birendra Saraf, Senior Advocate, with Rajeev Carvalho, with
Bhavesh Joshi, with Sakshi Agarwal, with Pooja Shah, i/b Bipin
Joshi, for Respondent No.3.
Mr Sukanta Karmakar, AGP, for State.
Mr Anil Sakhare, Senior Advocate, with Sagar Patil for MCGM.
Ms Rekha Rane, IInd Assistant to Court Receiver, with
Vengurkar, Assistant present.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 14th October 2022
PC:-
Page 1 of 31
14th October 2022
Subodh M Joshi v MCGM & Ors
904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
1. The Writ Petitioner initially raised several grievances. Principal among these was that there was no drinking water supply to the building in question and yet occupancy certificates had been issued by the Municipal Corporation of Greater Mumbai ("MCGM"). The Petitioner also said that the flat allotted to him, Flat No C-501, as permanent alternate accommodation was in no sense fit for human occupation. Other works in the building/project itself were also incomplete. We considered this in our order of 17th August 2022. For context and to reiterate the issues that were to the mind of the court we reproduce the order of 17th August 2022 below:
1. It is entirely possible that the state of affairs reflected in this Writ Petition is symptomatic of all development and redevelopment in this city.
2. The project in question is something called Integrated 'Arya' at village Kirol, Narayan Nagar, Ghatkopar West, Mumbai 400 086. The Petitioner is concerned with one flat. We are told that this is flat C-501, i.e., flat No. 501 on the fifth floor of Wing 'C'. This is not a free sale building but is a rehab building to which the Petitioner is entitled. That is undisputed. It is also undisputed that the Petitioner is presently in transit accommodation being paid for and provided by the 3rd Respondent, Integrated Spaces Limited.
3. The building owner/developer claims that five of the six buildings in this project, including Wing 'C', with which we are concerned, are 'complete' and 'ready for occupation'. We are told that 30 persons are already in occupation and have taken up their respective tenements.
4. The reality is entirely different. Annexed to the Petition from page 317 at Exhibit "L" are photographs said Page 2 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC to be of 31st May 2022. We see unfinished flooring, exposed wiring, lifts that are in no sense ready, raw concrete slabs, staircases without hand rails, water-logging and more. Particularly astonishing are the photographs at pages 317, 319, 320, 321, 322, 325, 327, 328 and 329. This building is in no sense ready for occupation -- at least not by human beings.
5. There is another set of photographs tendered by Mr Joshi for the 3rd Respondent. It shows a completed façade.
But these photographs have no date. It is impossible to identify which of the six buildings we are being shown. We say this because from this very compilation when we pointed out that the photographs at pages 9, 10, 14, 15 and 16 did not show any sign of readiness, we were told that these are photographs of some other building. When a flat occupant comes to court and says that despite promises his flat has not been made available on time, there is little point in showing us photographs of stack parking in the basement, a matter presently of monumental irrelevance.
6. On 12th August 2022 we passed the following order:
"1. Mr Joshi on behalf of Respondent No. 3 states that the redeveloped building called 'Integrated Arya' is ready in all respects. There is a residential accommodation to which the Petitioner is entitled and of which he is at liberty to take possession. Mr Joshi contends that the building is ready in all respects and has an Occupation Certificate.
2. The Petitioner is at present in transit accommodation. This has been provided by Mr Joshi's client.
3. We permit Mr Saraogi's client, the Petitioner, to take possession of his allotted Unit No. C-501 in the redeveloped building Page 3 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC on a without prejudice and no-equities basis. We are not expecting him on the eve of a four- day weekend to vacate his present transit accommodation. Mr Saraogi states that the redeveloped unit does not have municipal water supply. Mr Joshi maintains that all facilities including a lift etc have been provided.
4. We require Mr Sagar Patil for the MCGM to confirm whether there is a functioning water supply and whether a full or part Occupation Certificate has been issued. An Occupation Certificate is annexed to the Petition at page 330. The reason we are asking Mr Saraogi to check is that it is prima facie difficult to conceive of a situation where an Occupation Certificate has been issued without municipal water supply.
5. Mr Patil's instructions are to say that on 19th May 2022 certain requisitions have been issued by the MCGM to the 3rd Respondent developer. So far there is non- compliance. We will require particulars on the next date. At this stage, we do not require MCGM to formally file an Affidavit. We will consider that on the next date if required.
6. It goes without saying that once we are satisfied that the redeveloped premises are ready in all respects, Mr Saraogi's client will have to vacate the transit accommodation currently occupied by him. In no circumstances will Mr Saraogi's client be entitled to occupy both the transit accommodation and the final permanent Page 4 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC accommodation. We do not require an undertaking from the Petitioner for this purpose. We are confident that we will be able to ensure it.
7. List the matter high on board on Wednesday, 17th August 2022."
7. We were told then, as we were told earlier today, that 'there is water supply'. On further questioning, we were then informed, almost reluctantly, that there is no municipal potable water supply. What the 3rd Respondent is doing is providing tanker water and, apparently as some gesture of goodwill or generosity, 20-litre Bisleri drinking water jars. That is not our understanding of 'water supply' to a residential building. This is not what we understand when we are told that 'everything is in readiness'. The only water connection that seems to have been made available is for construction work. We do not think that it is possible to accept the argument that residents must use construction water supply even for their domestic needs, leave alone drinking water.
8. At this point matters get worse and considerably uglier. Mr Patil tell us that there is something called a Part Occupancy Certificate. By 'part' he means that it is given for five of the six buildings in the project and for up to the sixth floor in the sixth building, Wing F. There is an officer of the building proposals department to instruct Mr Patil. We have been shown a copy of the Part Occupancy Certificate dated 19th May 2022. A copy is at Exhibit 'M' to the Petition at page 330. It is surprising that this Part Occupancy Certificate is apparently issued upon a completion certificate submitted by 3rd Respondent's architect and, as we have found out, on very little else. The reason for this will become evident shortly. The Part Occupancy Certificate then says that 'all temporary Page 5 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC provisions in regard to building services are to be maintained till full Occupancy Certificate'. From this, we are supposed to understand that the builder must make arrangements for even essential services such as water supply. The officer from the building proposal department says that he has inspected the premises and satisfied himself before the Part Occupancy Certificate was issued. We have every reason to doubt the correctness of this instruction conveyed through Mr Patil.
9. The reason is as follows. On 18th June 2022, the MCGM issued what is called a P form to the 3rd Respondent. It asked for several water charges including an amount of Rs. 23,11,121/- for extra charges for construction and Rs. 16,41,694/- for extra sewerage charges. The total amount with other charges Rs. 41,78,266/-. The 3rd Respondent has paid no part of this so far. We are told that the P form has a one year validity. So far there is no response at all to the MCGM from the 3rd Respondent. We are asked to believe that this is perfectly all right -- even if it means that the occupants must go a year without a connected municipal drinking water supply.
10. Now the MCGM has what is called a trenching policy where it disallows the digging of any roads during the monsoon period after 30th April of each year. This is reasonable. But it also can come as no surprise to anyone, any more than the annual monsoon is a surprise.
11. Before us, the 3rd Respondent tries to make capital of this trenching policy and says that he cannot provide a drinking water connection, because, to do that, the MCGM would have to dig up some portion of the intervening road and the builder would have to do some RCC work, which needs dry weather.
12. We find this absolutely astonishing. On the one hand this developer claims to be an accomplished and renowned Page 6 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC builder and at the same time is unaware -- and expects us to believe that he is unaware -- that arrangements would have had to be made for laying an underground water connection to connect to the municipal mains for drinking water supply. He expects us to believe that it is acceptable that residents should manage without a proper water supply and must wait until the MCGM finishes work across the road. The builder knew the location of the site, the alignment of the road and where the municipal main ran. None of this was a surprise either. We do not know why arrangements have not been made in all this time to have a connection to the Municipal main in readiness. All that needed to be done was to apply in good time to have the line to the site readied, leaving only the final connection to be made.
13. In the meantime, those who have taken up occupation are supposed to be beholden to the 3rd Respondent for receiving tanker water supply, always a doubtful proposition since tanker water supply, unless it is of the highest quality, can be extremely unhealthy, and grateful for these handouts of 20 litre Bisleri bottles.
14. This is no way to run the public administration of civic affairs. We have no choice but to take notice of these matters and issue appropriate directions. The BMC will bear in mind that we will now do this in every single matter until the MCGM evolves a policy that is designed to protect the interests of the residents and not to merely subserve the profit motives of builders.
15. What has impelled this petition is that the 3rd Respondent is trying to get the Petitioner to take up his allotted flat C-501 on the pretext that 'it is ready', and to force the Petitioner to give up his temporary transit accommodation.
Page 7 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
16. Chapter X of The Mumbai Municipal Corporation Act 1888 deals with water supply. Leaving aside the definitions, the provisions regarding providing water supply in Sections 270A to 279 are important. Some of these are immediately relevant. Sections 270A, 271 and 272 read thus:
270A. Premises not to be occupied without Commissioner's certificate in respect of adequate water supply No person shall occupy or permit to be occupied, or use or permit to be used, any premises or part thereof constructed or reconstructed after the date of the coming into force of the Bombay Municipal Corporation (Amendment) Act. 1953, until he has obtained a 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 or, where the premises are situated within any portion of Brihan Mumbai in which a public notice has been given by the Commissioner under section 141, until he has obtained a certificate from the Commissioner to the effect that a supply of pure water has been provided for the premises from a municipal water work.
271. Application for private water supply from whom to be received (1) Supply pipes for conveying to any premises a private supply of water from a municipal water work shall not be connected with such water work except on the written Page 8 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC application or with the written assent of the owner of the premises, of the person primarily liable for the payment of property-taxes on the said premises;
Provided that, in respect of any premises, where the owner or person primarily liable for the payment of property- taxes fails or refuses or make such application or to give his assent within a reasonable period, the supply pipes for conveying to such premises such water-supply may be connected with such water work on the written application of the occupier or such premises made to the Commissioner, after holding necessary inquiry and payment of the cost of connecting the supply pipes and subject to such other conditions (including those for payment of water taxes and water charges) as the Commissioner may deem fit to impose.
Commissioner may in certain cases require owners to obtain private water supply (2) But it shall appear to the Commissioner that any premises situated within any portion of Brihan Mumbai in which a public notice has been given by the Commissioner under clause (b) of section 141, are without a supply of pure water, adequate to the requirements of the persons usually occupying or employed upon the said premises, the Commissioner shall, by written notice, require the owner of the said premises or the person primarily liable for the payment of property taxes thereon, to obtain a supply adequate as Page 9 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC aforesaid from a municipal water work and to provide supply and distributing pipes, cisterns and fittings and do all such works as may in the opinion of the Commissioner be necessary for that purpose.
272. Making and renewing connection with municipal water works (1) No connection with any municipal water work shall be made or renewed--
(a) except by a municipal officer or servant empowered in that behalf by the Commissioner; and
(b) until the certificate specified in sub- section (4) has been given.
(2) In every case where a new connection with a municipal water work is made or an existing connection requires renewal, all necessary communication pipes and fittings thereon, shall be supplied by the Commissioner, and the work of laying and applying such communication-pipes and fittings shall be executed by municipal agency under the Commissioner's order; and the cost of all such materials and work shall be charged to the-municipal fund.
(3) Every such communication-pipe and fittings thereon shall vest in the Corporation and be maintained at the charge of the municipal fund as a municipal water work. (4) All supply and distributing pipes and cisterns and fittings not being the property of the Corporation shall be laid and applied under the supervision and to the satisfaction Page 10 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC of a Municipal Officer appointed by the Commissioner in that behalf, who shall give and sign a certificate, free of charge, when such supply and distributing pipes, cisterns and all necessary fittings have been laid, applied and executed in a satisfactory manner and when proper and sufficient arrangements have been made for draining off waste water. (5) Where any supply or distributing pipe, cistern or such fitting is laid, applied, added to or altered, or any connection is made in contravention of this section the Commissioner may, with the previous approval of the Standing Committee remove such supply or distributing pipe, cistern, fitting or connection, or additions or alterations thereto, and make good such pipe, cistern, fitting or connection ; and the owner and occupier of the premises in which or for supply to which such supply or distributing pipe, cistern or fitting has been laid, applied, added to or altered or such connection has been made, shall be jointly and severally liable to pay the expenses incurred by the Commissioner in so doing.
(Emphasis added)
17. These provisions must be read with Section 353A regarding certificates. This section reads as follows:
353A. Completion certificates: permission to occupy or use (1) Every person who employs a licensed surveyor or person approved by the Commissioner to erect a building or execute any such work as is described in Page 11 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC section 342, shall, within one month after the completion of the erection of such building or the execution of such work, deliver or send or cause to be delivered or sent to the Commissioner at his office, notice in writing of such completion, accompanied by a certificate in the form of Schedule T signed by the person employed under section 344A, who is hereby required immediately upon completion of the work and upon demand by the person employing him to sign and give such certificate to such person, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work;
Provided that--
(a) such inspection shall be commenced within seven days from the date of receipt of the notice of completion, and
(b) the Commissioner may, within seven days from the date of commencement of such inspection, by written intimation addressed to the person from whom the notice of completion was received, and delivered at his address as stated in such notice, or, in the absence of such address, affixed to a conspicuous part of the building to which such notice relates--
(i) give permission for the occupation of such building or for the use of the building or part thereof affected by such work, or
(ii) refuse such permission in case such building has been erected or such work Page 12 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC executed so as to contravene any provision of this Act or of the bye-laws. (1A) Notwithstanding anything contained in sub-section (1), a co-operative housing society or a federation of co-operative housing societies registered under the Maharashtra Co-operative Societies Act, 1960 or any condominium or a company incorporated under the Companies Act, 1956 with limited liability or an association of persons any ad hoc body formed by the occupants of the building constructed before the 25th March, 1991 and occupied without obtaining the permission to occupy the building from the Commissioner under section 353A, shall employ a licensed surveyor or person approved by the Commissioner to erect a building or to execute any such work as is described in section 342, who shall after inspecting the said premises deliver or send or cause to be delivered or send to the Commissioner at his office, notice in writing of such completion accompanied by certificate in Form "T". The certificate given by the licensed surveyor or person approved by the Commissioner to erect a building or execute any such work as is described in section 342, under this sub-section shall, for all purposes, be deemed to be the certificate given under sub-section (1).
(2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any such work, until--Page 13 of 31
14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
(a) the permission referred to in proviso (b) to sub-section (1) has been received, or
(b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate as aforesaid his refusal of the said permission.
(Emphasis added)
18. We fail to understand how an "occupancy" certificate can ever be issued to a structure that is totally unfit for human habitation. "Occupancy" posits habitability; and an essential requirement of any habitable premises is the provision of basic amenities. Water and power are the most basic. It is indeed alarming that the MCGM seems to take it for granted that a building without a regular water supply can be considered habitable and eligible for an 'occupancy' certificate. We refuse to accept any such interpretation. To do so would be to deliver manifest injustice to residents across the city.
19. We intend to pass a direction in future that no Occupation Certificate is to be issued unless the developer can demonstrate that he has already made preparations by laying the appropriate pipelines for connecting to the municipal mains. In high rise buildings all lifts (not construction elevators or construction lifts) must be in full working order. It must not be forgotten that when we are talking about people moving in, this includes the old and the infirm and young children as well. Saying that a building is ready but providing a staircase without a guard or a handrail is to put at risk the lives of future residents of this building.
Page 14 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
20. Therefore, until there is provision made by this builder for laying the pipelines in preparedness for a water connection, the so-called Part Occupancy Certificate stands suspended. None of the Part Occupancy Certificates issued to the builders for any of the buildings are to be acted upon for any purpose until connections to Municipal water mains are demonstrated to us to be ready. This restraint will operate only until the next date.
21. The 3rd Respondent must deposit with the MCGM the full amount demanded by the MCGM under the P- Form within two weeks from today. For, without P-form compliance, no water supply connection can be obtained.
22. The Court Receiver, High Court Bombay is appointed Receiver and will take actual physical possession of flat C-501.
23. Mr Joshi for the 3rd Respondent insist that the flat is ready. Mr Saraogi for the Petitioner insists that it is not. The Receiver will visit the flat and will submit a report including as to whether or not wiring has been completed with the necessary switches and outlets and whether there is power supply. The Receiver should note whether there is basic finishing such as flooring, painting of walls, doors and windows etc. A set of photographs should also be provided. It is acceptable if those photographs are shown to us on a digital device rather than have them printed.
24. As to the water supply, since there is presently no possibility of linking to the municipal water mains at least for several weeks from now, the 3rd Respondent developer will ensure that there is a separate hygienically treated water tank for storage of drinking water and that it is filled with water provided by the MCGM in its own special drinking water supply tankers. If there is a shortfall or any inadequacy, the 3rd Respondent builder will at its cost Page 15 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC obtain drinking quality water supply from any private water supplier and will not be entitled to recover these costs from any resident whatsoever. The provision of free 20 litre Bisleri bottles is to continue until further orders.
25. As to the MCGM, we will require an explanation on Affidavit as to how it issued this Part Occupancy Certificate. We specifically require an explanation from the gentleman instructing Mr Patil today as to whether he personally inspected the site, and, if so, whether he checked if the 3rd Respondent has made arrangements for connecting to the municipal drinking water mains or not. The MCGM affidavit is to be filed by 23rd August 2022.
26. The Petitioner will be entitled to continue in transit accommodation at the 3rd Respondent's cost until further orders of this Court. Mr Joshi agrees on instructions that this will be done. No services that have been made available to the Petitioner are to be discontinued.
27. We permit the 3rd Respondent and Mr Joshi to chalk out a viable action plan for resolving these issues. That proposal must have full particulars and details, including time-lines. We will consider the proposal on the next date. We make it clear that any proposal we accept will be treated as a solemn undertaking to the Court.
28. We are not going to dispose of this matter but will list it periodically for compliance.
29. List the matter on 24th August 2022.
(Emphasis added)
2. Then there is a further order of 22 August 2022. The Court Receiver's Report was taken on file. A status update was noted in our order of 7th September 2022 which reads as follows:
Page 16 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC "1. Mr Patil on behalf of MCGM seeks an extension of time since officers at the highest level at the MCGM are considering a policy-level decision regarding the issue of occupancy certificate. What we said in our orders dated 17th and 24th August 2022 was that by its very nature an 'occupancy certificate' requires that the premises or structures in respect of which such a certificate is issued are in fact fit for occupation, i.e., that they are humanly habitable. We had deprecated the practice of issuing occupancy certificates without water and power connections. We will grant Mr Patil the necessary time for the affidavit.
2. In the meantime, we are informed by Mr Carvalho for the developer that a proper and final water connection has been made to the municipal main water supply.
Trenching permission was obtained. The pipeline was laid across the road, and the road has been restored as well. This is noted.
3. Mr Carvalho further states that there is now proper water supply to all the flats in respect of which an occupancy certificate has been issued. These statements are noted.
4. Mr Saraogi's client, the petitioner, continues to be in transit accommodation. He is not wanting for complaints. His latest grievance is that there is no approach road or access pathway. We are shown photographs at page 48 of the paper book in one of the Interim Applications. Prima facie, it appears that the petitioner is correct. This is purely temporary/ad hoc arrangement, of the kind that is used by workmen during the construction. It is in no sense a final or completed access pathway or approach road. Mr Carvalho on instructions states that this work will also be completed according to the schedule previously submitted, i.e., by 7th October 2022. The statement is noted and Page 17 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC accepted as an undertaking to the court. The Petitioner is thus at liberty to continue in his temporary transit accommodation until further orders.
5. Mr Patil states that the affidavit of the MCGM will be filed by 28th September 2022.
6. List the matter on 30th September 2022."
3. Dr Saraf and Mr Carvalho tell us that the water connection has now been provided. The walkway/approach/access question has also been resolved. There are still a few works to be completed, including a high-speed elevator. We are assured that these works will be completed according to the timelines previously given to us. We accept that statement as an undertaking to the court.
4. The result is that the Petitioner's permanent alternate accommodation Flat No. C-501 can now be delivered to him. But he must also vacate the transit accommodation, or at least do so within a reasonable time. He will also have to pay any balance amounts due against the permanent alternative accommodation C-501.
5. Before we proceed to those directions, we note what has been stated in an Affidavit dated 30th September 2022 filed on behalf of the MCGM by one Pankaj Bhoir, Executive Engineer, Building Proposal Department N & S Ward Eastern Suburb, MCGM, in relation to our directions regarding water connections and occupancy certificates. Paragraph 12 and its sub-paragraphs 1 to 12 from pages 412 to 415 are reproduced below:
"12. I further say and submit, that with reference to Para 18-20 of Hon'ble High Court dt. 17.08.2022 & further Page 18 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC orders dt. 24.08.2022 & 07.09.2022, a joint meeting was conveyed under the Chairmanship of Chief Engineer (D.P.) and other relevant department of BMC such as H.E., Law Officer, A.E(WW), Bldg, proposal. Hereto enclosed and marked as Exhibit D is the copy of the minutes of meeting in the chamber of chief engineer (DP) dated 01/09/2022 and 13/09/2022. Thereafter, a detailed report has been submitted to Hon. Municipal Commissioner and Municipal Commissioner on 26.9.2022 has granted sanction to the points mentioned below in the report of the Chief Engineer(DP). The same are reproduced as under:-
In view of above facts brought in, Hon High Court orders dated 17.08.2022, 24.08.2022 and further to joint meeting with various departments of BMC, Hon MC's approval is requested for conclusion of minutes of meeting reproduced as below
1) In this context, Architect/Owner shall submit Common Completion Request Form (CCRF) along with Permission form (P form) for water connection, after issue of further/full CC. i.e. well in advance before asking for part/full occupation certificate in online AutoDCR System.
2) Applicant may submit physical application to concern AEWW of ward for providing water connection with copy of CCRF submitted online to concerned BP section for the proposed part/Full occupation certificate till Auto DCR & AQUA software are being synchronized and full-fledged operational. All the requisite documents along with charges as per concern AEWW remarks shall be complied with by Owner/Developer to avail permanent water connection and said certificate under Section 270A of MMC Act will be issued by concern AEWW mentioning the no. of units/floors etc, after physically providing permanent water connection on site.
3) After compliance of CCRF, Architect shall submit Page 19 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC online application for part or full OC as per the practice in force including 270A certificate issued by AEWW of concern ward.
4) It is decided that the occupants/tenements/floors as mentioned in 270A certificate, shall be only considered for granting Occupation.
5) If there is any discrepancy seen in requested part of OC and 270 A certificate, Occupation certificate may be rejected by Building proposal with remarks to obtain revised 270 A certificate in consonance with requested online occupation certificate of the building.
6) The water bill charges from the date of providing permanent water connection shall be as per water Rule no.1 and to be borne by Owner/Developer. The receipt of payments, with 270A certificate shall be submitted by Applicant before issue of OC at Ex. Eng. (BP) level.
7) In case if owner/developer fails to submit OC in 30 days, from issue of permanent water connection then water connection will be charged as per water charges rule 6.2.4.
from date of connection till submission of O.C. Moreover on site inspection by HE department, if it is observed that the water connection is being used for the purpose other than granted then it will be cut off under section 279 of MMC Act, 1888 which is briefly described as the Commissioner may cut-off the water supply of any premises in certain specified cases as enumerated in the section.
8) There are other planning authority in BMC limits, such as SRA, MHADA, MMRDA etc. For proposals in those authorities, Permission Form (P form) of water department will be issued on receipt of application from owner/developer alongwith full CC with the condition that the concerned Planning Authority will inform HE department of MCGM that Architect/Owner had applied Page 20 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC for O.C. and building is ready for occupation. The permanent water connection can be granted on receipt of such letter/intimation from these planning authorities. Since these all are independent planning authorities, 'P' form will be issued as per the procedure stated above with the modified condition stating, " The Developer/owner shall obtain/submit the O.C issued by competent authority within 30 days from issuance of certificate U/S 270A with usual terms & conditions". This will be intimated by DP department to all above mentioned planning Authorities after receipt of approval by Hon. MC.
9) Hon. MC's sanction may be sought to allow permanent water connection to the building for which Owner/Developer has applied for issuing occupation/completion certificate from the building proposal department, as it is deviating from present water department practice.
10) The same will be implemented immediately from the date of Hon. MC's approval. Similarly, a suitable condition in IOD/amended approval letter may be incorporated as,"That the Owner/Developer shall submit certificate under section 270A of MMC Act before asking BCC/Occupation Certificate of any part of the building".
11) Online system may be implemented after development of the system for obtaining 270A certificate linkages with online Aqua software with AutoDCR application, in consultation with EE(EODB) and M/s. Softtech Co.
12) I say that said report u/no Ch. Eng/DP/013344/ES dated 22.9.2022 has been accorded sanction by the Municipal Commissioner on 26.9.2022 and circular with respect to the same has also been uploaded on the website of MCGM and is being now implemented.
Page 21 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
6. We also append to this order a scan of the annexure at pages 457 to 462, this being minutes of the meeting held on 13th September 2022.
7. We are entirely satisfied with the statements made on Affidavit by the MCGM. They fully address our concerns. We record our appreciation of the pro-active approach and the cooperative stand taken by the MCGM and its officials, including the Municipal Commissioner. Now that this is part of the MCGM policy we take it for granted that this policy will be reflected in an appropriate notification, circular, release or other information process by the MCGM and will also be available on the MCGM website. Mr Patil tells us that this is already uploaded to the MCGM website. This is entirely satisfactory.
8. Regarding the remaining directions we first discharge the Court Receiver. The Court Receiver has taken physical possession of Flat No C-501. The Court Receiver's office will deliver physical possession to a representative of the 3rd Respondent by Monday 17th October 2022. The Court Receiver will thereupon stand discharged without passing accounts but on payment of his costs, charges, and expenses by the 3rd Respondent.
9. On 24th October 2022, the Petitioner will be delivered possession of Flat C-501 by the developer. The Petitioner proposes to perform a pooja on that date. This is noted. From that date the Petitioner will be in possession of Flat C-501. This is however expressly made subject to and conditional upon:
Page 22 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
(a) The petitioner delivering possession of the transit accommodation to the 3rd Respondent developer by 28th October 2022. That is to be done by the end of the day by 5 pm on that date. We insist upon compliance. If the Petitioner does not deliver possession of the transit accommodation to the 3rd Respondent developer by 28th October 2022, the Receiver will stand reappointed of the permanent alternative accommodation Flat No. C-501 and will proceed, if necessary with the assistance of the police, to take physical possession of it from the Petitioner. Thereafter, the Petitioner will not be given possession of Flat No. C-501 unless he first surrenders the transit accommodation.
(b) The Petitioner paying by 28th October 2022 to the 3rd Respondent (and not merely depositing in this court or some other forum) all amounts that are yet due under the contract between 3rd Respondent and the Petitioner.
(i) We note and accept Mr Saraogi's statement on instructions from his client who is present in Court that the Petitioner undertakes to deliver possession of the temporary alternate accommodation and to make payment as directed above.
(ii) The Petitioner may do so on a without prejudice basis and subject to any rights and contentions that the petitioner may have in Page 23 of 31 14th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC regard to amounts yet due, whether as transit rent or otherwise from the 3rd Respondent.
(iii) The Petitioner will be at liberty to adopt appropriate proceedings in a forum of competent jurisdiction for those reliefs and remedies.
(iv) We however make it clear that there is no question of the Petitioner refusing or failing to make payment of this amount by 28th November 2022.
(v) If the Petitioner fails to do so, the Court Receiver will even on this default resume possession of permanent alternative accommodation Flat No. C-501.
10. There is a grievance by Mr Saraogi that the area statement for Flat C-501 as certified by the 3rd Respondent's Architect has not yet been delivered to the Petitioner. Dr Saraf on instructions states that the certified area statement of Flat C-501 will be delivered to the Petitioner on 24th October 2022 at the time when possession is given to him of that flat. This statement is noted and accepted as an undertaking to the court.
11. Any other proceedings that the Petitioner or 3rd Respondent may adopt or defend shall be decided on the merits uninfluenced by this or any previous orders. All rights and contentions on both sides are expressly kept open.
Page 24 of 3114th October 2022 Subodh M Joshi v MCGM & Ors 904-OSWPL-21683-2022-WITH-CRR-274-2022.DOC
12. The Petition is disposed in these terms with no orders as to costs.
13. Finally, and as a matter of courtesy to our colleagues on the bench, none of the parties are at liberty to move the vacation court/s under any circumstances.
(Gauri Godse, J) (G. S. Patel, J)
Page 25 of 31
14th October 2022
BRIHANMUMBAI m u n ic ipa l JZnRPnff ATTQTJ Ch. Eng. / DP/ 0/3343/^5 dated ) L Minutes of Meeting held in Chamber of Ch.E.fP.P j on VUTSRQPONMLKJIHGFEDCBA 13.09.2022 at 4.00 PM.
01.09.2022 at 3,00 PM and Sub.:To reviewpolicy / Guidelines in respect of adequacv of «»,„ .
Occupation Certificate as per Hon" Court or^er dtd. 17.08.2022. 07.09.2022 i
----------- in W.P. No. (L) No. 21683 of 2022. Ref:
High Court, 0.0.C.).
Writ Petition (L) No. 21683 Of 2022 Subodh Joshi ... Petitioner Versus State of Maharashtra &Ors.. .Respondent 17-ot2o"2TaS'ar3:Oo'Vror^ Court order 'conference haU of Ch Eng (DP) de'n^tm^t 13.09.2022 at Chief Engineer {DPi in presence nf ChairmanshiD of ExEng.(EODB). 'ti d^d M/" SoXT""' Erxg.(BP)Ts staff attached at Pg. K representatives. Attendance sheet is ttat they are intend to pass a direction in future that '*®® stated be issued unless a developer can demonstrate ^hat^ u ° ''''^nation certificate is to y laying the appropriate pipelines for connecting to"the Preparations In the instant cace Qr to the municipal mains. appointed by Legal Dept. ' . ' Anil Y Sakhare has been already' Ch.Eng.fDPrXn^'t^eJmTtte7o?pre7^ 01.09.2022 in chamber of discussed in length with respect to present boHcv i^^f and occupation was sought opinion of Sr. Couasd Shri. Lil Y S^2e" e?o7e fi r "'^ggested to . Thereafter, SE(BP)N /AE(BP)L&N dS™T..d finalising any conclusion. Counsel on 05.09.2022 ai S.O^M w" n S^cXse, L chamber of Sr. that Section 270A emphasizes water connection to he ' Sakhare was opined certificate. It certainly states that a Certificate uLe^®"'^r ^suing Occupation before occupation permission is to be issued bv th^A obtained obtain approval / policy decision from higher ups Md lu^that^^ tune extension from Hon Court on 07.09.2022, ev The matter came up on board on 07.09.2022 when i-h^a ■ accordingly order is passed stating that MCGM seeks extenc'n heard and highest level at MCGM are considering a poUcy S dec by 28.09.2022 & Ust the matter on.30.09.2022 Copy ororjeris^^^^^^^^ submitted sections of MMC Act, 1888, DCPR X;-:, Occupation Certificate -------- £ggarding granting II which is reproduced as under -
1) MMCjlct -- under section 270A-
■^^shaU occupy orpe^it to be occupied, or use orperrnit to be used any constructedI or reconstructed after the date nf ' • /for^ ofthe^nip^C'' Municipal Corporation (Amendment) Act. 1953. until 1^ hasZbta^Z ^Cornmissioner to the effect that there is prouWeS miS^^tS \ ":J'- •• x w ...- • Jf the premises, a supply of pure water to the persons intending to 1/ut^ j demises or, where the premises are situated within any portimof Page 26 of 31 '^ 4 ^ 5 SfBrihan MurnbaiJ in which a public notice has been giuen by the Commissioner under section 141, until he has, obtained a ceniricate from the commissioner to the effect m q t ..a supply o f pure water has been provided for the premises from a municipa.1 wate r ivofn- <
2) mmc A c t - u n d e r s e c t i o n 3 5 3 A - C o m p lc t lo n c c r tiH c a te s , p e r m is s io n to o c c u p y o r u s e . -■ person who employs a licensed surveyor or person approved by the Commissioner to erect a building or execute any such work as is described in section 342 shall within one month after the completion of the erection of such or sent to the ^ecuhon of such work, deliver or send or cause to be delivered building or to turiting of such completion, accompanied by a , °f Schedule T signed by the person employed under section 344A, fheo^fnf^^^ upon completion of the work and upon demand by to the Commit °y''t9 bun to sign und give such certificate to such person, arid shall giue tone; Commrsstoner all necessary facilities for the inspection of such buitdirig or of such Provided that--
notice days from the date of receipt of the'
commencement of such insne>(-t!nry taithiri seven days from the date of
whom the notice of comoletinn ' written, intimation addressed to the person from'
cuch notice, orf if tZZbsefc^^ deUuered at his address L statid in
■ fo£ fefL ~ conspicuous-part of the
t^reof affected by^uch "^k'^or^Hh^re^se of the building or part
been erected or such work exerted so f^lo co Permission in case such building has
any provision of this Act or of the
I-
(b) the Commissioner has
\ VUTSRQPONMLKJIHGFEDCBA fai^d^ sub-section fl) has been received or
^Pervised engineer/supeffsoffr ^f^cough his
uvork and. after satiffy^ng b^elfthftth°^'^''^- ^ontmissionf
-ue a certificate of acceptance
that there is inspect the w orkafflf^^^
fromthe qponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA of the said, completion completion certificate, fallina^ioh^h^th^^^ bedei ihe^ Sb^' set of plans, cet^fiefbwthfcom^ oonstructiop conformsto '^j^ball be ^etur^^ the owner alonaw^ th ^°'^"^^^^^oner as the completed f. ;^*neG<OhMk»t)^ ner along wah the occuppney certificate, L < =.Af^ Or.,Mumbfli > .
-lU '. '. * ■ Page 27 of 31 ^^55 ^^^jectio^sh^i!^ certificate is refused or rejected, the reasons for refusal ^ciy i s s u e a ^y holder of the deuelopmentpermission, the Commissioner ^^e entire u^^k certificate for a building orpart thereof, before completion of ^asures are ^cuelopmentperTnission, prouided; sufficientprecautionary certificate shall h holder toensure public safety and health. The occupancy Appendix XXITI theowner's indemnifying the Commissioner in the form in C o m p l e t i o n c e r t if i c a t e :
shall furnish a drainage completion qponmlkjihg licensed surveunr/^ " ''^^'°'^f'^ Annexure 17. rhe owner through his . professionar of re c o rd ^ '^ 9 'neer/superuisor or his architect, or any completion certificaZ to'it the co^truction. shall furnish a building certificates shnlf hJtl C o m m is s t o n e r tn the form given at Annexure 18. These The Commissioner completed development, deviation from th ^^^P^ct the work and, after satisfying himself that there is no the work {n °f ^<^ceptance of the completion of - ^rtiticatfoJtftirfd l" a t A n n e x u r e 19. Further on receipt of development completion
- 0 'a the form of Annexure 16. and after satisfying himself wd^21 dnOO f 9r refuse the Building Completion Certificate n d'^tepf receipt of the request for the said Building completion certificate. Delation tn outer dimension to the extent of 25 mtn shall be tolerated Object to condition that carpet area shall remain unchanged.
•M Z l R e g . 1 1 ( 7 ) o f D C P R 2 0 3 4 - O c c u p a i ic y c e r t i f i c a t e :
On receipt of the acceptance of completion certificate in the form given at Annexure 19, the owner, through his licensed surveyor 'or his architect shall submit to the Commissioner a development completion certificate in the form given at Annexure 16 with three copies of the completion plan, one of which shall be cloth mounted for record. The Commissioner may' inspect the work and after satisfying himself that there is no deviation from the sanctioned plans, issue an occupancy certificate in the form given at Annexure 20 or refuse to sanction the occupancy certificate within-21days from the date of receipt of the said completion certificate, falling which the work shall be deemedto have been approved for occupation, provided the construction conforms to the sanctioned plans. One set of plans, certified by the Commissioner as the completed plans, shall be returned to the owner along with the occupancy certificate. Where the occupancy certificate is refused, or rejected, the reason's for. refusal or rejection shall be communicated to the owner in writing.
8} R e g . 1 1 ( 8 ) o f D C P R 2 0 3 4 - P a r t o c c u p a n c y c e r t i f i c a t e / p a r t b u i l d i n g c o m p l e t io n c e r tific a te : ' When requested by the owner, the Commissioner, may issue a part, occupancy certificate /accept part building completion certificate for a building or part thereof, before completion of the entire work as per the development. permission, provided sufficient precautionary measures are taken by the holder to ensure public safety and health The part occupancy certificate/pa^i^^^^^^^^^P^^tion certificate shall be subjeff Ho" the owner 's indemnifying the given at Annexure-?!"- f P 9 ) n i f l u s e V n ( 5 | o f E O P y t j f u g u l a iL - A \ ' ■ A s p e r E O D B ( E a /A o f iS y f ft g c P /^ S in e s s i c ilf c u la r u / n o . C H E /- D H /- ^ V 5 Z a 6 n . . p t ;2 9 /1 2 /2 0 1 5 . w h ic h is r J ' ' 3::^ 1
.>-x' A -A ■ '■ ■ </ RQ
\< • - 7VUT
■ ^ 7
■M v ■
Page 28 of 31
<1^0
In cases of single building:VUTSRQPONMLKJIHGFEDCBA by Architect/L.S. OC and BCC shall be issued ^°'un?^tTconw^etinn'*''^'^i r'^ building shall not be occupied BMC. However, there Is no nrent7 of
1) Earlier Le."bJforeyelr 20'1^"^"^.?''''"^''^'°" Certificate within BMC jurisdiction-
comply with the condition of < f"'"' OC subject to was accepted. (Co d v within 3 months and thereafter BCC Developer to obtain waf-pr .pg.C/lS9). Therefore, it was mandatory to Owner/ Occupier, which is in consonanr^^T^D^ before . allowing physical occupation to the
2) The current prOces^ nf ^^C Act.
in length. suing OC/Part OC and water connection was jointly discussed per the rcquirements™the'eX^ting^ 'aporovS'^ of Doing Business (EODB). As' hl associated Time. P''°'=®sses are modified to reduce the was not fncorporated'''srnS aTptov^roT7 water"cT'°" °- certificate pSd <Sng ''watS'"/XX°feciUty protdsion of 270A certificate XiSin 24 hours consumers. Also. HE dept circular of HE/06/ Circular dated 12 03 2018 Conv nf mtroducedivide circular u/ no C) As such, the said condition of insi^iina 2704'""^'" ' smee 2016, though the Aqua svstein J=, 's discontinued at present stage
d) AppUcant is supposed to%ll c7mon Comnl7 " ''espect as mentioned above fuU CC and before askinrfo^ompledon 7 CCRF form is directly goes S^^^1conce^e^ AutoDCR System. This Sewerage.MSsE, CFO. HE department etc fn such as S.W.D.. certificate. As regards HE department is a q u a system foUowed " H& SXment granting Occupation t-is displaying in I I d.p.ri„e„,. The ApphcJ, h„ S E 'S" ' ."' I • ' permanent water connection to the builXg to which applicant has Zpo7g OC ^-Se S^stShoSpSfiiS "• ™:
e) In HE departoent, on receipt of full CC, developer / owner. appUes for permanent water connection. On scrutiny and sanction of competent authority, HE Department issues 'P' form to the developer / owner with the condition to submit occupation certificate. On submission of O.C, water department grants the permanent water connection to the premises on usual terms.and conditions, and issues U/s 270 A certificate.
f) Therefore, online procedure is also in consonance with the Reg. 270A of MMC Act 18S8.
g) However, Ex.Eng.fEODB) has pointed out that the said system is not being used to its full capacity due to change in Reg. from DCR 1991 to DCPR 2034, Corona pandemic,
- and other uj^graded requirement of software&hardware to all departxrients etc. Various options explored /■ Tn^efore, to overcome present scenario as per direction of Hon. High Court, f . itwas to finalise the policy for providing water connection before granting part Wame OW/ ' ,<,« y*'\ Wo Q1/84 . ^11 * qponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGF ' t I I Page 29 of 31 fj 4</ ■ 'VUTSRQPO providing Mu r connection was also discussed in plug connectioTisTor curnmenccd/cSi™ HenX "
PurUier h e a 1° give certificate under seeSyoA ' ' ne same is given after ! premises or Society/occuoier*! Mnr occupiers. Prenuscs are unauthdrizedly occupUd by at ,ea ~ RQPO as under -
■ rs f ~ -issuance
•>w;con.5So"S ?S'?CCo t "SS p™»i4h.g
proposed part/ PuU occupation cer1^ate tiri"^r^ BP section fo?
wth^h^ges°arplr'ConCem AEwCCml^ks^shli'1
3)qponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA OC as per the practice ^^for^einclS?^' for part or fuU concern ward. < s ua certificate issued by AEWW of
4)
5) fe' I-' 7) In case if owner/developer fails to submit OC in 30 days, from issue nf water connection then water connection will be charged as p--
6.2.4. from date of connection till submission of O.C, Moreover
- issue of permanent oermanent per water charges rule ■ on site inspection by HE department, if it is observed that the water connisction is being used for the purpose other thf? then it will be cut ioff" under section 279 of MMC Act.
1888. which as the.Commissioner may cut -offlhe wntersUppk •
- of any prei^(Ses^prt^ahk^^fi^ed ;,i^^ed cases
cases as
as enumeratedVtoe^ec^;;^
enumerated in the section ' ' . ..
8) There are. inties in MMR 'region■®8ion such as SB^Sr S,' .MHADA -*
MMRDA djfc. FOTSiiif^osals iiT^thMe fe p.v.thcrit'ee, Permit-
authorities. - Form
Permission " (P ^rr^) of water'
departmeipIt ■\wI'teig^&S^tXar€^fct of application from fuU CC wttf e ' * § a o p , i l? ^ ' - • -
S- . ■ ■ -
-A?.
£3 b
Page 30 of 31
department of MCGM that Architect / Owner had applied for S
ready for occupation. The permanent water connection can be granxcu such letter / intimation from these planning authorities. Since thes .j,, ' independent planning authorities, 'P' form will be issued as per^e proce stated above with the modified condition stating, "The Developer/owner shai obtain/submit the O.C. issued by competent authority within 30 days issuance of certificate U/S 270A with usual terms 86 conditions ". Thi^ will be intimated by. DP department to all above mentioned planning Authorities after receipt of Approval by Hon. MG.
9)I Hon. MC's sanction may be sought to allow permanent water connection to the building for which Owner/ -Developer has applied for issuingoecupation/completion certificatefrom the building proposal department, as it is deviating from present water, department practice.
10) The same will be implemented immediately from the date Of Hon. MCs approval.Similarly, a suitable condition in lOD/ amended approval letter may be incorporated as, "That Che Owner/ Developer shall submit certificate under'section pf MMC fiict before asking BCC/ Occupation Certificate for any part of the b u d d in g " . ■ -
U) may be implemented after development of the, system for obtaining OA cer^icate linkages with online Aqua software with AutoDGR application, in consultation with EE(EODB) ^d M/s. Softtech Co. . . ., The.meeting then concluded with a vote of thanks to the chair.
tossU^^K--
Hy< •afeiitrSn^tnser i/c !nie-(DP) i/c Chief EhrC?
I cW U JO i Ads' eE.cew)B> eeBPejD ee^ia Copy for infomation and n/a to :
Gi W <3i^/f<i ft£ B P u«« N
1. DyChE(BP)ES r^-_.
2. DyHE City
. 3. EE(BP)ES-II
4. EE(EODB) ;
5. EE(WW)C/S
/RQPONMLKJIHGFEDCBA
6. AE{WW)N
7. Law Officer
8. M/s Softtech. Consultant
■/y '>
'• z ^ * \\
•; '■ wgrnfl G. H. SrtySlil |
j! ■ ^- S j a ^ 0 » , i4 u 'T V b & '
1/
f
r
": *d
I
Page 31 of 31