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 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 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
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