Jamuna Sagar Co-op. Housing Society Ltd. Vs. Municipal Corporation for Greater Bombay and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 2-the developer failed to hand over setback land to the corporation free from all encumbrances. che/dp/53/2004-05, dated 30.10.2004 issued in terms of government directives dated 23rd august, 2004, submitted that there can be no hesitation on the part of the corporation to issue occupancy certificate merely on the ground of failure on the part of the developer to return set-back land and there are ample powers with the corporation to take appropriate action in that regard without causing harassment to the flat purchasers on account of any failure on the part of the developer to comply with his obligations regarding handing over of the set-back land in unencumbered state to the corporation. she further submitted that since it was the contention on behalf of the corporation in the impugned letter that the occupancy certificate was denied to 7th to 10th floors, solely on the ground of failure on the part of the developer to hand over the setback area in unencumbered position to the corporation, the corporation could have very well taken appropriate action in terms of the said circular read with the said directions of the government in that behalf and that in any case failure in that regard on the part of developer could not be a ground to refuse the occupancy certificate to the said floors nor it can be the ground for disconnection of water supply to the said floors. 2-developer has failed to deliver to the corporation inspite of the fact that the same was a condition for grant of licence for development of the property. nonetheless on account of failure on the part of the developer to comply with his obligations under the licence for development or on account of failure of the corporation to take appropriate steps in accordance with the said circular, that cannot be allowed to cause hardship and irreparable loss to the occupants of the 7th to 10th floor of the building in question, which is admittedly in existence for number of years and at least for last 20 years. 9. as it is evident from the material on record that the threat for disconnection of water supply was solely on the ground that the 7th to 10th floor did not have occupancy certificate from the corporation and as it is not in dispute that the building is in existence since last more than 20 years and the flats are in occupation of the inmates and that the members of the petitioner-society are in possession of flats and further that absence of occupancy certificate is only on the ground of failure on the part of the respondent no. for failure in that regard on the part of corporation, the occupants of the flats cannot be harassed. only reason for non-grant of the occupancy certificate was the failure on the part of the respondent no.khandeparkar r.m.s., j.1. heard.2. by the present petition, the petitioner is seeking to quash the notice dated 31st march, 1993, issued by the respondent-corporation threatening to disconnect the water supply to 7th to 10th floors of the petitioner's building.3. the petitioner is a co-operative housing society duly registered under the maharashtra co-operative societies act and they are having the building by name jamuna sagar, situated at shahid bhagat singh road, colaba, mumbai, comprising of 11 floors. a notice came to be issued by the respondent-corporation as to why the 7th to 10th floor should not be demolished. pursuant to the representation made in response to the said notice on 18th january, 1992 to the respondent-corporation, no further action in relation to the said show cause notice was taken.4. the respondent-corporation thereafter issued notice dated 4th april, 1987 threatening discontinuation of water supply to 7th to 10th floors of the building of the petitioner-society on the ground that the respondent no. 2-the developer failed to hand over setback land to the corporation free from all encumbrances. the petitioner thereupon challenged the notice by way of writ petition no. 1324 of 1987, which came to be disposed by judgment dated 10th june, 1992, directing the respondents not to disconnect the water supply, further directing respondent no. 2- the developer to take appropriate steps for necessary compliance regarding delivery of set back area to the corporation in unencumbered state.5. it appears that thereafter no steps were taken either by the respondent no. 2 or by the respondent no. 1 in relation to the matter in question. however, subsequently under letter dated 31st march, 1993, the corporation directed the secretary of the petitioner's society to disconnect the water supply to 7th to 10th floors of the building, on the ground that no occupancy certificate was granted to the said floors. the petitioner submitted their reply to the said notice on 3rd may, 1993. as the threat to disconnect the water supply still continued, the petitioner-society approached this court by this petition. under interim order passed in this matter, the respondents were directed not to disconnect the water supply of the said floors.6. the learned counsel appearing for the petitioner drawing our attention to the circular no. che/dp/53/2004-05, dated 30.10.2004 issued in terms of government directives dated 23rd august, 2004, submitted that there can be no hesitation on the part of the corporation to issue occupancy certificate merely on the ground of failure on the part of the developer to return set-back land and there are ample powers with the corporation to take appropriate action in that regard without causing harassment to the flat purchasers on account of any failure on the part of the developer to comply with his obligations regarding handing over of the set-back land in unencumbered state to the corporation. she further submitted that since it was the contention on behalf of the corporation in the impugned letter that the occupancy certificate was denied to 7th to 10th floors, solely on the ground of failure on the part of the developer to hand over the setback area in unencumbered position to the corporation, the corporation could have very well taken appropriate action in terms of the said circular read with the said directions of the government in that behalf and that in any case failure in that regard on the part of developer could not be a ground to refuse the occupancy certificate to the said floors nor it can be the ground for disconnection of water supply to the said floors.7. it is pertinent to note that the facts stated in the petition are neither controverted nor there is any challenge thereto on behalf of the corporation. the corporation has not filed any affidavit-in-reply to the petition. being so, the facts stated in the petition have remained unchallenged.8. undoubtedly, the circular dated 30th october, 2004 was issued after issuance of the impugned letter. nevertheless as the matter stands today, the said circular is in force and certainly the corporation, in terms of the said circular can take appropriate action to get the possession of the set-back land which the respondent no. 2-developer has failed to deliver to the corporation inspite of the fact that the same was a condition for grant of licence for development of the property. nonetheless on account of failure on the part of the developer to comply with his obligations under the licence for development or on account of failure of the corporation to take appropriate steps in accordance with the said circular, that cannot be allowed to cause hardship and irreparable loss to the occupants of the 7th to 10th floor of the building in question, which is admittedly in existence for number of years and at least for last 20 years.9. as it is evident from the material on record that the threat for disconnection of water supply was solely on the ground that the 7th to 10th floor did not have occupancy certificate from the corporation and as it is not in dispute that the building is in existence since last more than 20 years and the flats are in occupation of the inmates and that the members of the petitioner-society are in possession of flats and further that absence of occupancy certificate is only on the ground of failure on the part of the respondent no. 2 to handover the set-back area in unencumbered condition and not on account of any irregularity or illegality in the construction of the said floors. in our considered opinion, the petitioners are justified in contending that it was also the duty of the corporation to take appropriate steps in accordance with the said circular without threatening the petitioner for disconnection of water supply to 7th to 10th floors of the petitioners building. for failure in that regard on the part of corporation, the occupants of the flats cannot be harassed.10. it is true that the owner of the structure is not entitled to occupy newly constructed structure unless the corporation issues the occupancy certificate for occupation thereof. however, in the case in hand it is not in dispute that the members of the petitioner society are in occupation of the structures situated at 7th to 10th floors of the building for last number of years without any action being taken by the corporation against them. it is not the case of the respondent that the construction of 7th to 10th floor is in violation of any of the rules of construction or rules of development or rules regarding the construction framed by the corporation. only reason for non-grant of the occupancy certificate was the failure on the part of the respondent no. 2-developer to hand over the set back area in unencumbered condition to the corporation. one fails to understand what prevented the corporation from taking necessary action against respondent no. 2 to get the above set-back area by following due process of law. in the absence of any explanation forthcoming from the corporation in that regard, the corporation would not be entitled to insist for disconnection of water supply to 7th to 10th floors merely on the ground of absence of occupancy certificate to the said floors.11. in the facts and circumstance of the case, therefore, we find that the petitioners are justified in seeking the relief asked for in the petition.12. the petition therefore succeeds. the impugned communication by letter dated 31st march, 1993 issued by the corporation to the petitioner-society is hereby quashed. this will however, not preclude the corporation from taking necessary action against the respondent no. 2 to get vacant possession of the set-back area in accordance with the provisions of law.13. the interim order appointing the court receiver shall continue to remain in force for a period of six months, within which period the respondent no. 2 should take necessary steps to get the vacant possession of the said area and file compliance report in this court or before 28th february, 2009 which should be placed before this court in the first week of march, 2009.14. the petition accordingly stands disposed of. rule is made absolute in above terms with no order as to costs.p.c.: in view of the disposal of the petition itself, notice of motion stands disposed of.