Allowed

M/S. Ravi Shakun Apartments Pvt. Ltd. v. the Municipal Corpn. of Gr. Mumbai and Ors.

Bombay HC29 Mar 2006WP/2671/2005

Case brief

AI extract

What is this about?

The High Court directed the Corporation to decide the petitioners' application for drainage restoration on merits within four weeks, ignoring the execution decree and non-party consent requirements, provided strict regulatory compliance.

What did the court decide?

Execution of writ order directing Corporation to decide application on merits within 4 weeks without insisting on Respondent No.4's consent, subject to regulatory compliance and indemnity conditions.

M/S. Ravi Shakun Apartments Pvt. Ltd. Vs the Municipal… — Landlord and Tenant | Bombay HC (2006)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

WRIT PETITION NO. 2671 OF 2005

¶5

M/s.Ravi Shakun Apartments
Private Limited. ... Petitioners.

¶6

V/s.

¶7

1. The Municipal Corporation of Greater Mumbai.

¶8

2. The Executive Engineer (Building Proposal).

¶9

3. The Assistant Commissioner.

¶10

4. Jennifer Fernandes. ... Respondents.

¶11

Shailesh Shah i/b. Nachiket G. Bhatt
for the petitioners.

¶12

N.V.Walawalkar with Mrs.A.R.Joshi
for respondent Nos.1 to 3.

¶13

S.A.Bhagwat for respondent No.4.
for the respondents.

¶14

CORAM: V.C.DAGA, J.

¶15

 DATED: 29th March 2006.

¶16

¶17

JUDGMENT :

¶18

Heard.

¶19

Rule, returnable forthwith by consent of

¶20

parties.

¶21

All the respondents waive service.

¶22

Perused petition and the annexures annexed
thereto.

¶23

2.The petitioners in this petition are seeking
direction against respondent Nos.1 and 2. to
issue sanction and/or approval to their
application dated 20th May, 2004 whereunder they
are seeking restoration and/or reconnection of
the drainage line, pipes and ducts connecting
2nd to 5th floor of the petitioner's building
"Ravi Shakun Apartments" situate on plot No.7,
Mira Baug Road, Santacruz (West), Mumbai- 400
054.

¶24

3. The petitioners claimed to have submitted
proposal for construction of four additional
floors on the existing building and two floors on
the open land located on the rear side of the
structure referred to hereinabove. The
proposal of the petitioners was duly approved by
respondent No.3, the Assistant Commissioner of
respondent No.1- Corporation, H/West Ward, on
30th May, 1984. Sometime in July, 1986, an
Occupation and Drainage Completion Certificate
was granted by respondent No.3 to the newly

¶25

¶26

constructed part of the building.

¶27

4. It appears that from 1985 to 1995-96 i.e.
for about 10 years, there was no complaint of any
leakage or seepage or defect in the additionally
constructed floors of the existing building.
However, somewhere in the year 1996,
respondent No.4 appears to have made several
complaints to the respondent No.1- Corporation
and its officers with regard to the leakages
and seepage in the hall of her flat located on the
first floor of the subject building.

¶28

5.When respondent No.4 found that her
complaints were not attended by the respondent
No.1- Corporation, she chose to file L.C.Suit
No.6648 of 1986 against respondent No.1 in the
City Civil Court of Bombay to seek mandatory order
of injunction directing respondent No.1 to alter,
modify and/or remove the entire drainage line
and drainage duct of water closets and bathrooms
of the flats located on 2nd to 5th floor of the
subject building. The suit was filed against the
Corporation alone without joining the petitioners
and other occupants as parties to the suit.

¶29

6. The suit was tried by the City Civil
Court, Mumbai. The respondent No.1- Corporation
did not produce any approved plan on record to
contend and establish that drainage lines and/or
pipes and/or ducts were as per the approved

¶30

¶31

plans. With the result, suit came to be partly
decreed by judgment and order dated 19th
November, 1998. By decree of mandatory
injunction, respondent No.1- Corporation
(defendant therein) was directed to modify, alter,
remove the drainage line and drainage duct of
water closets and bathrooms of the flats located
on 2nd to 5th floor i.e. the flats located just
above the first floor flat owned, possessed
and occupied by respondent No.4.

¶32

7. The petitioners unsuccessfully claimed to
have preferred third party appeal against the
aforesaid judgment and decree dated 19th
November, 1998.

¶33

8.The respondent No.4 sought execution of
the aforesaid decree dated 19th November, 1998. In
execution of decree, Mayor's chair and table were
attached. Ultimately, decree came to be executed.
Drainage pipes and ducts located from 2nd to 5th
floors of the subject building were removed.

¶34

9.It appears that in order to avoid the
legal battle, the petitioners were advised to
make fresh application to seek permission for
reconnection and restoration of drainage
connection as the female members and children
of the occupants of other flats were suffering
undue hardship. The petitioners, thus, applied

¶35

¶36

to the Corporation for restoration of drainage
line after making suitable alterations in their
plan. Petitioners had urged, in the application,
that they were the owners of the building;
they were never made a party the suit; no
notices were ever issued to them; they were
never heard and, that no chance was given to them
to make necessary alteration and/or modifications
in the pipe lines referred to in the decree and
that behind their back decree came to be passed as
such it is not binding on them.

¶37

10.In the application, the petitioners had also
stated that in the proposed plan a provision was
made to put double slab and install pipes raised
by one foot which were formerly embedded in the
flooring slab. It was further pointed out that
latest material was to be used for water proofing
and the drainage line was to be diverted in such
a way so as to make it visible and convenient
for maintenance. The petitioners had also
agreed to furnish written undertaking so that in
future, if any leakage or seepage occurs, it
would be the responsibility of the
petitioners to repair it.

¶38

11.With the above nature of application for
permission for reconnection and restoration of
drainage lines, the petitioners
approached respondent No.1- Corporation. It
appears that the Corporation did not concede to

¶39

¶40

the request or prayer made by the petitioners
and, ultimately, their request was turned down.

¶41

12.In the aforesaid backdrop, the present
petition is filed under Article 226 of the
Constitution of India to seek directions against
the respondent No.1- Corporation.

¶42

13. During the course of hearing, learned
counsel for respondent No.4 brought on record the
decree passed by the City Civil Court in L.C.Suit
No.6648 of 1996. Respondent No.4 further raised
objection to the fresh proposal submitted by the
petitioners to the Corporation on the ground that
there was a decree for permanent injunction against
the Corporation. That acceptance of any such
proposal of the petitioners would be in violation
of the terms of the decree.

¶43

14.The respondent No.1- Corporation has filed
its counter affidavit duly affirmed by Shri A.R.
Pawar, Sub-Engineer, H & K/E Ward, Bandra to oppose
this petition. Apart from the decree sought to be
pressed into service by the learned counsel for the
respondent referred to in para-9 (supra), the
rspondent No.1- Corporation has admitted in its
affidavit that the they have received proposal of
the petitioners to seek permission for re-
construction and restoration of drainage connection
through their Architect on 20th May, 2004. However,

¶44

¶45

as pr regulation 38-iv(b) of the D.C.R., 1991, no
bathroom or WC is permitted directly over any room
other than WC, washing place, bathroom or terrace
unless the floor is made impervious with adequate
water proofing treatment. However, in no case WC
or bathroom can be provided over the kitchen. The
Corporation has also stated that in the present
case, the petitioners have failed to maintain
waterproofing and imperviousness of the floor below
toilet and, thus, the proposal of the petitioners
was rejected. The Corporation has stated that the
proposal of the petitioners is not in conformity
with D.C.R., 1991 and also contravenes the
provision of section 251A of the Bombay Municipal
Corporation Act, 1988 (“BMC Act” for short). The
Corporation has further stated that there is no
consent of respondent No.4 and, hence, the proposal
submitted by the petitioners cannot be accepted.
In this backdrop, the learned counsel for
respondent No.1- Corporation submits that the
petition is liable to be dismissed with costs.

¶46

15.This petition was heard on more than two or
three occasions. Each time parties to the petition
sought time to work out this matter. As a matter
of fact, minutes of orders were also prepared by
the parties, which were more or less acceptable to
all of them. However, the same could not acted
upon in view of the objection taken by respondent
No.4 contending that the provisions of section 251-
A of the BMC Act are required to be complied with.

¶47

¶48

Learned counsel for respondent No.4 also pressed in
to service the decree of the City Civil Court in
Suit No.6689/1996 obtained by her against the
respondent No.1- Corporation to which the present
petitioners are not a party.

¶49

16.Having heard rival parties and considering
broader consensus reached between the parties,
clearing stumbling block sought to be created by
respondent No.4, who is armed with decree in Suit
No.6684/1996, I propose to dispose of this petition
on the broader consensus reached between the
parties.

¶50

17.At the outset, it is necessary to mention
that respondent No.4 had filed suit against the
Corporation without joining the present petitioners
as party to the suit. It is a settled proposition
of law that decree of the Court cannot bind a
person who is not party the decree. Since the
petitioners are not party to the decree obtained by
respondent No.4, the said decree is not binding on
the petitioners. However, the decree will very
well bind the respondent No.1- Corporation. If
that is so, let me examine the nature of the decree
passed by the City Civil Court in Suit
No.6689/1996. Decree was granted in terms of
prayer clause (a) of the plaint. Prayer clause (a)
reads as under:

¶51

¶52

agents, be ordered by mandatory order and
injunction to modify, alter, remove the
drainage line and drainage ductof water
closet and bathrooms from second to fifth
floor, led above the first floor of the flat
situated in building known as Ravi Shakuyan
Apartments, situated at plot No.83, C/7,
T.P.S.II, Mira Baug, Santacruz (West),
Mumbai 400 054 in order to prevent leakage
of water from the aid pipes and the duct in
the said flat within time, as this Hon'ble
Court, deem fit and report the compliance
thereof,”

¶53

(Emphasis supplied)

¶54

18.The perusal of prayer clause (a) would go to
show that the respondent No.1- Corporation
(defendant therein) was permitted to modify; alter;
remove drainage line and drainage duct of water
closet and bathrooms of the flats from 2nd to 5th
floors located above the first floor of the
building known as “Ravi Shakun Apartments”, Mumbai.
In the execution of the decree, the drainage line
and drainage duct of the water closet and bathrooms
of the above-referred flats were removed. However,
this decree of injunction also permits
modification; alteration of the drainage line.
Decree has also been executed. There is no decree
of permanent injunction.

¶55

19.At this stage, learned counsel for
respondent No.4 submits that in view of section 251
of the BMC Act, proposal of the petitioners cannot
be considered. Perusal of the findings recorded

¶56

¶57

by the City Civil Court in the light of the prayer
clause (a) granted, would show that though the
bathroom was constructed over the living room of
the respondent No.4 (plaintiff therein), still
removal thereof was not directed in the decree of
the City Civil Court.

¶58

20.With the aforesaid understanding of the
decree and material on record; as also keeping in
view the suggestions given by the parties to the
petition; I propose to dispose of this petition
with the following directions:

¶59

(i)The Executive Engineer, H/West Ward
shall decide the application made by the
petitioners strictly on merits and on the
basis of D.C.Regulation No.38(iv)(b) and
Building Regulation No.17.4.3(b), maximum
within four weeks from the date of this
order.

¶60

(ii)The Executive Engineer, H/West Ward
shall not insist upon consent of respondent
No.4forconsideringandgranting
petitioner's application dated 20th May,
2004 being Exh.”H” to the petition; in view
of inter se dispute and shall consider the
same on its own merits as per D.C.
Regulations and Building Regulations.

¶61

(iii)The Executive Engineer, H/West Ward

¶62

¶63

shall be free to put any legal requisite
condition for grant of petitioners'
application and the petitioners shall comply
with all such conditions.

¶64

(iv)The petitioners shall undertake that
on grant of permission, they will carry out
the work of drainage connection strictly in
accordance with D.C. Regulation No.38(iv)
(b), by making the floor impervious; with
adequate water proofing treatment, and by
ensuring that no leakage whatsoever is
caused to the premises of respondent No.4 in
future, and construction of pipe line shall
be in accordance with the plan so
sanctioned.

¶65

(v)In the event of there being any
leakage or seepage in the premises of any of
the occupants including the premises of
respondent No.4 (located on first floor) due
to any defect in the drainage pipes laid by
the petitioners, it shall be the duty of the
petitioners to carry out necessary repairs
at their own costs within seven days from
the date of receipt of any complaint/
intimation in that behalf either from
respondent No.4 or any other occupant.

¶66

(vi)The petitioners shall carry out the
work under supervision of licensed plumbers

¶67

¶68

and Architect to be appointed by them, and
shall commence user thereof only on the work
being approved by respondentNo.1-
Corporation.

¶69

(vii)In the event of any further
litigation against respondent Nos.1 to 3 by
and from respondent No.4, the petitioners
shall undertake to indemnify respondent
Nos.1 to 3 against all actions, damages,
consequences and/or costs arising out of any
such litigation provided such litigation is
confined to any fresh complaint of leakage
arising out of the work done pursuant to the
permission granted by the Corporation.

¶70

(viii)While considering application made by
the petitioners, it shall be open for the
respondent No.4 to lodge any legal
objection, and the Executive Engineer,
H/West Ward shall be free to decide the same
on its own merits strictly in accordance
with law after granting opportunity of
personal hearing to the parties.

¶71

21.Petition stands disposed of accordingly.
Rule is made absolute in terms of this order with
no order as to costs.

M/S. Ravi Shakun Apartments Pvt. Ltd. v. the Municipal Corpn. of Gr. Mumbai and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Ravi Shakun Apartments Pvt. Ltd. v. the Municipal Corpn. of Gr. Mumbai and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The General Manager-Satara District Central Co-Operative Bank Ltd., Satara and Anr. Vs Mahendra Shivaji Bhapkar

Satish S. Deshpande Vs Sangli Urban Co-Operative Bank Ltd. and Ors.

The General Manager-Satara District Central Co-Operative Bank Ltd., Satara and Anr. Vs Mahendra Shivaji Bhapkar

Yellayya Mallaya Zindam Vs Harischandra Shantaram Patil and Ors.

Gadhinglaj Taluka Sahakari Sakhar Karkhana Ltd. Vs Rahul Bacharam Mohite and Ors.

Gtl Limited Vs Maharashtra Rajya Rashtriya Kamgar Sangh and Anr.