Bombay High Court
Prarthana Heights Co-Operative ... vs Municipal Corporation Of Greater ... on 8 October, 2020
Bench: S.J.Kathawalla, Riyaz I. Chagla
N. D.
Jagtap Nitin 1 / 9 WPL-4360-2020-UR final.doc
Digitally signed
by N. D. Jagtap
Date: IN THE HIGH COURT OF JUDICATURE AT BOMBAY
2020.10.10
14:47:08 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (ST.) NO. 4360 OF 2020
Prarthana Heights CHSL. ... Petitioner
Versus
MCGM & Ors. ... Respondents
Mr.Rohan Rajadhakshya a/w. Mr.Mohit Sahani i/b. Mr. Kaustubh Gupte for the
Petitioner.
Ms.Pallavi Thakar for Respondent Nos. 1 to 3.
CORAM : S.J.KATHAWALLA, &
RIYAZ I. CHAGLA, JJ.
DATE : 8TH OCTOBER, 2020
(THROUGH VIDEO CONFERENCING)
P.C. :
1. The Petitioner is a Co-operative Housing Society formed under the Maharashtra Co-Operative Societies Act, 1960 ('MCS Act'), of Members owning flats in a Buuilding called "PPrarthana Heights,, at Parel, in Mumbai, the detailed address being mentioned in the cause title of this Writ Petition. Prarthana Heights is a free sale component building, constructed by Respondent No. 4 - Prarthana Enterprises, pursuant to a redevelopment project under DCR 33 (7).
2. Respondent No. 1 is the Municipal Corporation of Greater Mumbai ('MCGM') constituted under the Mumbai Municipal Corporation Act, 1888 ('MMC Act'). Respondent No. 2 is the Assistant Engineer (Water Works), F/South Ward. Respondent No. 3 is the Administrative Ofcer (Estate), F / South Ward. Respondent Nitin 2 / 9 WPL-4360-2020-UR final.doc No. 4 is Prathana Enterprises, Developer of Prarthana Heights.
3. The present Writ Petition is directed against: (i) the communication dated 23rd July, 2020 and 20th April, 2019 from Respondent No. 3 to Respondent No. 2, calling upon Respondent No. 2 not to grant the Petitioner's application for water connection on humanitarian grounds in view of Respondent No. 4 not having paid the entire 'capitalized value' dues payable by Respondent No. 4 to Respondent No.1 - MCGM; and (ii) the communication dated 24 th May, 2019 from Respondent No. 2 to the Petitioner, rejecting the Petitioner's Application on the basis of the communication received from Respondent No. 3. The Petitioner also seek a direction to Respondent Nos. 1 to 3 to grant a water connection on humanitarian grounds to the Petitioner.
4. The relevant facts in the matter are briefly set out hereunder :
4.1. That MGM is the owner of the land on which Prarthana Heights is constructed. The said land originally had chawls occupied by the tenants. Buy way of a Letter of Intent dated 18th June, 2020 'LOI' issued to Respondent No. 4, MCGM sanctioned a redevelopment project on the said land under DCR 33 (7), which inter alia required construction of a rehab building and school building by Respondent No. 4 and entitled Respondent No. 4 to construct the present free-sale Buuilding. 4.2. That MCGM issued an IOD dated 18 th January, 2003, approved plan dated 18th January, 2003 and CC dated 13th May, 2004 in respect of Prathana Heights in favour of Respondent No. 4, pursuant to which Respondent No. 4 commenced the Nitin 3 / 9 WPL-4360-2020-UR final.doc redevelopment work.
4.3. Under the LOI issued by MCGM, Respondent No. 4 was also liable to make payment of 'capitalized value' as more particularly set out therein. 4.4. Since Respondent No. 4 failed to make the entire payment of 'capitalized value', proceedings were initiated by MCGM against Respondent No. 4. Respondent No. 4 therefore fled Writ Petition No. 2147 of 2018 (originally numbered as Writ Petition (L) No. 1939 of 2018) before this Court against MCGM, challenging the recovery of the balance 'capitalized value' as computed by MCGM. The Petitioner is not a party to the said Writ Petition. Buy an ad-interim Order dated 22 nd June, 2018 passed in Writ Petition No. 2147 of 2018, this Court restrained MCGM from taking any coercive action against Respondent No. 4 for recovery of the amount demanded till 6th July, 2018. Buy an Order dated 6th July, 2018, this Court continued the aforesaid ad-interim relief till further orders. Thereafter, by an Order dated 14 th August, 2018, this Court directed that the aforesaid ad-interim relief shall operate as interim relief with liberty to MCGM to apply for vacating the same. It would not be out of place to note here that MCGM has not applied for vacating the interim relief granted by this Court to Respondent No. 4 in Writ Petition No. 2147 of 2018 till date and therefore the Order restraining MCGM from taking coercive action against Respondent No. 4 for non-payment of 'capitalized value' payable by Respondent No. 4 to MCGM continues till date.
4.5. The Buuilding Prarthana Heights houses more than 500 residents, with Nitin 4 / 9 WPL-4360-2020-UR final.doc more than 50 persons being under the age of 12 years. In view of Respondent No. 4's failure to complete the development, obtain OC and a water connection, the residents have been compelled since several years to use unhealthy tanker water and exorbitantly priced bottled drinking water for their daily needs. Using tanker water has caused several health complications including skin rashes and water borne diseases to the residents.
4.6. The Petitioner fled several Applications with the MCGM to grant water connection on humanitarian grounds. The said Applications have been repeatedly rejected on the ground that Respondent No. 4 has not paid the balance dues of the 'capitalized value'.
4.7. In the above circumstances, the Petitioner has fled the present Writ Petitioner seeking reliefs as set out in paragraph 3 above.
5. We have heard the Learned Advocates appearing for the Petitioner as well as the MCGM.
6. The power of Respondent Nos. 1 to 3 to grant a water connection on humanitarian grounds is traced to the general power of disposal of property given to the Municipal Commissioner under Section 92 of the MMC Act and Rule 6.2.4 of the Water Charges Rules framed under Section 169 of the MMC Act. Section 92 of the MMC Act is a provision which gives a general power (subject to the terms of the said Section) to the Municipal Commissioner to dispose of property belonging to MCGM.
Section 169 of the MMC Act empowers the Standing Committee to make rules "Pfor Nitin 5 / 9 WPL-4360-2020-UR final.doc supply of water and for charging for the supply of water and for fttings, fitures or services rendered by the Corporation under Chapter X...,. In exercise of the powers conferred by Section 169 of the Act, the Standing Committee of MCGM has framed the Water Charges Rules (efective from 1st April, 2015) . Rule 6.2.4 of the Water Charges Rules deals with water connection on humanitarian grounds and reads as follows :
"P6.2.4 In case premises are occupied without obtaining Occupation Certifcate of the Buuilding Proposal Section of the Municipal Corporation of Burihanmumbai / concerned Development Regularity (sic.) Authority / Special Development Planning Authority / Slum Rehabilitation Authority, but where building plans have been approved by concerned Development Authority, water supply at the normative requirement to the extent of approved plans shall be made available to the occupiers on humanitarian grounds as per the terms and conditions the Commissioner may prescribe. The water supply so made available shall not prejudice any action by the Corporation on the premises. The supply so granted shall be charged as follows :
Sr.No. Uses, Purposes or Activities as Rate per 100 litre (Rs.)
1. Covered under Rule 1.01(A), 6.48 hereinbefore
2. Covered under Rule 1.1, hereinbefore 8.64
3. Covered under Rule 1.2, hereinbefore 34.56
4. Covered under Rule 1.4, hereinbefore 64.80
5. Covered under Rule 1.5, hereinbefore 86.40
6. Covered under Rule 1.6, hereinbefore 129.60 Nitin 6 / 9 WPL-4360-2020-UR final.doc The rate given in (1) of 6.2.4 is from the date of connection given and the date of actual concession given under this rule, whichever is earlier and will be applicable for period of 5 years.
Then, thereafter they will be charged as per the rate prescribed under Rule No.6.2.4 (2).
As per this rule, use of water will be charged as follows for the categories mentioned under F (all residential) and (residential bunglow and row houses) of Rule No 1.1 (Sr. No.2).
1) For consumption upto National Standard of 150 lpcd (litres per capita per day) the rate proposed above will be charged.
2) For consumption more than 150 lpcd (litres per capita per day), the rate will be applicable at double the rate prescribed above."
7. As stated earlier, the MCGM is the owner of the land on which Prarthana Heights is constructed. MCGM had sanctioned redevelopment project on the said land under DCR 33 (7), which inter alia required the construction of a rehab building and school building by Respondent No. 4, and in turn entitled Respondent No. 4 to construct the present free sale Buuilding. Admittedly, Respondent No. 4 is liable to make payment of 'capitalized value'. Respondent No. 4 has paid an amount of Rs.6 Crores towards 'capitalized value', leaving a balance principal amount of Rs.3,11,34,442/-. According to MCGM, the balance amount payable towards 'capitalized value' by Respondent No. 4 with interest on the principal amount, Nitin 7 / 9 WPL-4360-2020-UR final.doc aggregates to Rs.11,99,54,192 as on 30th March, 2019. Respondent No. 4 has disputed the amount claimed by MCGM and fled Writ Petition 2147 of 2018 against MCGM impugning the recovery of balance 'capitalized value' as computed by MCGM. In the said Writ Petition, this Court has by its Order dated 22 nd June, 2018 and 6th July, 2018 restrained MCGM from taking any coercive action against Respondent No. 4 for recovery of the amount demanded till 6 th July, 2018. Admittedly, this Court has by its Order dated 14th August, 2018, whilst confrming the earlier ad-interim order passed in favour of Respondent No. 4, granted liberty to MCGM to apply to the Court for vacating the interim relief. However, since the last two years MCGM has not bothered to move this Court for vacating the same. Having accepted the interim relief granted in Writ Petition No. 2147 of 2018 against recovery of the balance 'capitalized value' from Respondent No. 4, Respondent Nos. 1 to 3 are not entitled to deny a water connection on 'humanitarian grounds' to the Petitioner on account of non-payment of the balance 'capitalized value' by Respondent No. 4. Buy doing so MCGM has compelled 500 residents, which include a large number of children and senior citizens, to use unhealthy tanker water and purchase bottled drinking water to meet their daily water needs, at an exorbitant price.
8. Therefore, in our view, the basis of the rejection of the Application for supply of water on humanitarian grounds by Respondent Nos. 1 to 3 is ex-facie arbitrary, unreasonable and contrary to the objective of Rule 6.2.4 of the Water Charges Rules for grant of water on 'humanitarian grounds'. We are also prima facie Nitin 8 / 9 WPL-4360-2020-UR final.doc satisfed that the conduct of Respondent Nos. 1 to 3 efectively amounts to taking coercive steps against the Petitioner for the balance 'capitalized value' dues admittedly payable by Respondent No. 4. This is all the more arbitrary and unreasonable since MCGM has admittedly been restrained by the Orders passed in Writ Petition No. 2147 of 2018 fled by Respondent No. 4 from taking any steps for recovery against Respondent No. 4 and MCGM has failed to apply (despite leave granted to it) to vacate the interim relief so granted in favour of Respondent No. 4. Therefore, given the overwhelming prima facie case and balance of convenience in the Petitioner's favour, we pass the following Order :
i. Rule. ii. The Respondents waive service of the Rule. iii. The hearing of the above Writ Petition as well as Writ Petition No. 2147
of 2018 fled by Respondent No. 4 against MCGM is expedited and both the Writ Petitions along with other pending Writ Petition/s concerning the same subject matter be tagged and placed 'for Directions' before this Court on 27 th October, 2020. iv. Pending the hearing and fnal disposal of the above Writ Petition, Respondent Nos. 1 to 2 are directed to grant a water connection to the Petitioner for the Buuilding - Prarthana Heights on 'humanitarian grounds' as per Rule 6.2.4 of the Water Charges Rules.
Nitin 9 / 9 WPL-4360-2020-UR final.doc
9. This Order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this Order.
( RIYAZ I. CHAGLA, J. ) ( S.J.KATHAWALLA, J. )