Tuesday 23 August 2022

Bombay HC: Municipal Corporation should not issue occupancy certificate unless water supply is available in the the building

 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. {Para 18}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 21683 OF 2022

Subodh M Joshi  Vs  Municipal Corporation of Greater Mumbai & Ors 

CORAM:  G.S. Patel & Gauri Godse, JJ.

DATED: 17th August 2022


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 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, waterlogging

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 fa├žade. 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 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 noncompliance.

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

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 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 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.

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 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 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 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

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

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 cooperative

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

(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.

20. Therefore, until there is provision made by this builder for

laying the pipelines in preparedness for a water connection, the socalled

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

Page 13 of 15

17th August 2022

8-OSWPL-21683-2022.DOC

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 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.

Page 14 of 15

17th August 2022

8-OSWPL-21683-2022.DOC

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.

(Gauri Godse, J) (G. S. Patel, J)

Page 15 of 15

17th August 2022

Print Page

No comments:

Post a Comment