Page 1

1

                     NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 3798 OF 2017 (Arising out of SLP (c) No.1999 of 2017)

Rufina D’ souza & Ors. …….Appellants

Versus

Municipal Corporation of Greater ..…..Respondents Mumbai and Ors.

JUDGMENT

A.M.KHANWILKAR, J.

1. This appeal arises from the judgment and order dated 13th

January 2017 passed by the Division Bench of the High Court of

Judicature at Bombay in Writ Petition (L) No. 2644 of 2016. By

the  said  order,  the  High  Court  summarily  dismissed  the  writ

petition preferred by the appellants.

Page 2

2

2. There  is  a  chequered  history  of  proceedings  between  the

appellants and the private respondents. For the nature of order

that we propose to pass, it may not be necessary to advert to all

those facts and proceedings.

3. The aforementioned writ petition was filed for the following

reliefs:

“a) That this Hon’ble Court be pleased to issue a writ of Certiorari of a writ in the nature of Certiorari or any other writ or order under Article 226 of the Constitution  of  India  quashing  the  Impugned Notices  dated  18th November  2014  bearing No.ACN/1014/2/B&F/Gen  issued  by  the  2nd

Respondent  declaring  J.D.  House  under  C-1 Category;

b) That  this  Hon’ble  Court  be  pleased to  issue  a  writ  of Certiorari or a writ in the nature of Certiorari or any other writ or order under Article 226 of the Constitution of India quashing the Impugned Notice  dated 9th August,  2016 bearing  No.ACN/347/Gen/B&F  issued  by  the  2nd

Respondent  for  disconnecting  the  electricity  and water connection of J.D. House situated at C.T.S. No.244 to 247 of  Village  Ghatkopar-Kirol,  Near  Jamma Mazid,  Chirag Nagar  Road,  Off  L.B.S.  Road,  Ghatkopar  (W),  Mumbai 400086;

c) That  this  Hon’ble  Court  be  pleased  to  restrain  the Respondents,  either  by  themselves  or  through  their agents or servants, by a permanent order of injunction from taking any steps pursuant to or in execution of the Impugned  Notice  dated  9th August  2016  bearing ACN/347/Gen/B&F  issued  by  the  2nd Respondent  in respect of J.D. House situated at C.T.S. No.244 to 247 of

Page 3

3

Village  Ghatkopar-Kirol,  Near  Jamma  Mazid,  Chirag Nagar  Road,  Off  L.B.S.  Road,  Ghatkopar  (W),  Mumbai 400086;

d) That  pending  the  hearing  and  final  disposal  of  the present  Writ  Petition,  this  Hon’ble  Court  be pleased to direct the 2nd Respondent to restore the water connection and electricity for all the premises of J.D. House situated at C.T.S. No.244 to 247 of Village Ghatkopar – Kirol, Near Jamma  Mazid,  Chirag  Nagar  Road,  Off  L.B.S.  Road, Ghatkopar (W), Mumbai 400086;

e) That  pending  the  hearing  and  final  disposal  of  the present Suit, this Hon’ble Court by pleased to stay the effect  and  operation  of  the  Impugned  Notice  dated  9th

August, 2016 bearing No.ACN/347/Gen/B&F issued by the 2nd Respondent;

f) That  pending  the  hearing  and  final  disposal  of  the present Suit, this Hon’ble Court be pleased to refrain the Respondents,  either  by  themselves  or  through  their agents or servants,  by a temporary order of  injunction from taking any further steps pursuant to or in execution of the Impugned Notice dated 9th August, 2016 bearing No. CAN/347/Gen/B&F issued by the 2nd Respondent;

g) For  ad-interim  and  interim  reliefs  in  terms  of  prayer clause (d) (e) and (f) above;

h) For costs;

i) For  such  further  and  other  reliefs  as  the  nature  and circumstances of the present case may require.”  

4. On a plain reading of  these reliefs,  it  is  evident that  the

appellants were essentially challenging the action initiated by the

Corporation  under  Section  354  of  the  Mumbai  Municipal

Page 4

4

Corporation  Act,  1888;  and  the  notice  for  disconnecting  the

electricity  and  water  connection  in  respect  of  the  building  in

which  the  appellants  were  occupying  tenements  therein.  The

Division Bench of the High Court, however, summarily dismissed

the petition in the following terms:

“It is informed that in connection with the subject property,  Civil  Suits  for  specific  performance challenging  the  action  of  the  Corporation  for demolition  of  the  building  are  being  contested. During the course of hearing, we have noticed that parties are not at present agreeing for agreement to  be  entered  into  by  them.  Certain  issues  are raised  which  required  some  inquiry  to  be conducted. The disputed questions cannot be gone into in the present proceedings. The parties may get the same settled in the Civil proceedings which are pending, in the alternate forums.  

2. In this view of the matter, no interference is warranted. Keeping all issues on merits open, Writ Petition is disposed of. Status-quo be continued for a period of one week from today.  

3. The  other  issues  concerning  water  and electric supply can also be raised in the pending civil proceedings.”  

5. On a fair reading of the impugned order passed by the High

Court, it is obvious that the High Court has not even touched

upon the  core  issues  raised  by  the  appellants  concerning  the

challenge to the impugned notices dated 18th November 2014 and

9th August 2016. The High Court may be right in observing that

Page 5

5

disputed questions need not be gone into in writ proceedings, but

that does not preclude the writ petitioners from challenging the

show  cause  notices  issued  by  the  statutory  authority  on

permissible  grounds.  It  is  open  to  the  Court  to  consider  the

challenge  on  the  touchstone  and  parameters  delineated  for

judicial  review of  such action.  The fact that a suit  for specific

performance was pending between the private parties and they

were unable to strike any settlement, cannot be a tangible reason

to decline to examine the grounds of challenge put forth by the

writ petitioners in relation to the impugned notices.

6. Suffice  it  to  observe  that  the  High  Court  ought  to  have

examined the grounds of challenge and the reliefs claimed by the

appellants in the writ petition concerning the action initiated by

the statutory authority. That challenge will have to be examined,

uninfluenced by the pendency of the suit for specific performance

between the private parties.  

7. Accordingly,  we  allow  this  appeal  and  set  aside  the

impugned  decision  of  the  High  Court  with  a  further  order  to

remand the writ petition to be heard and decided by the Division

Bench of the High Court afresh. All questions are left open. We

Page 6

6

make it clear that we have not expressed any opinion on any of

the grounds and contentions available to the respective parties.

8. The  appeal  is  allowed  and  the  impugned  judgment  and

order passed by the Division Bench of the High Court is set aside.

Instead, the writ petition is remanded and restored to the file of

the High Court to its original number, to be heard by the Division

Bench de novo.

9. The interim relief granted by this court during the pendency

of this appeal to continue till an appropriate order is passed by

the High Court either in the main proceedings or on prayer for

grant of interim relief, after hearing the parties. We request the

High Court to take up the writ petition expeditiously, considering

the  subject  matter  of  the  impugned  notices  issued  by  the

corporation for  demolition of  the  building  being  in  dilapidated

condition.   

10. The parties to appear before the appropriate bench of the

High Court on 23rd March 2017.

Page 7

7

11. The appeal is disposed of in the above terms with no order

as to costs.

………………………………….J. (Dipak Misra)

………………………………….J.      (A.M. Khanwilkar)

.………………………………...J.       (Mohan M. Shantanagoudar)

New Delhi, Dated: March 9, 2017