JUDGMENT
D.G. Karnik, J.
1. By consent, heard finally.
2. Respondents in this appeal are the owners of properties bearing parts of C.T.S. Nos. 1381 and 1392 Off. S.V. Road, Goregaon (West), Mumbai (hereinafter referred to as the suit properties.). The tenants/occupiers of suit properties have stables/dairy farms therein. There is some disputes between the respondents and tenants/occupiers running the diary farms and I am informed at the bar that the tenants/occupiers have filed suits/proceedings against the respondents in the Small Causes Court, Mumbai. However, no material is available before this court regarding the nature of the disputes and the proceedings.
3. The respondents had sunk some borewells in the suit properties. The exact numbers of the bore wells is not admitted. According to the respondents, there were only 12 borewells while according to the appellants, there were 19 borewells. It is admitted that the respondents had not taken permission of the Municipal Corporation of Greater Mumbai (the appellant herein) before sinking any of the borewells. A complaint was received by the appellant that the borewells were unhygenic and had become a breeding ground of the mosquitos. The appellant therefore, issued two notices both dated 24th September, 2002 to the respondents pointing out that the borewells were sunk without obtaining prior permission of the appellants under Section 381A of the Mumbai Municipal Corporation Act, 1888 (For short, the Act) and calling upon them to remove the pipe fittings of the borewells and fill up the holes with good earth completely up to the surrounding ground leave. Each of the notices was in respect of 5 borewells and thus the appellant had directed the respondents to close down in all 10 borewells. Learned counsel for the appellant pointed out that no person can dig any well without the prior permission of the Municipal corporation obtained under Section 381 A of the Act and therefore, digging of the borewells by the respondents was illegal and unauthorised. In compliance with the said two notices, the respondents closed down 10 wells and intimated compliance to the appellant by a letter dated 14th October 2002. The respondents also requested the appellant to come and inspect the suit property to verify the compliance. Taking advantage of the two notices issued by the appellant, the respondents closed the remaining bore wells also. According to the appellant, the respondents closed all the remaining borewells. Closing of all the wells resulted inconvenience to the occupiers running the dairy farms/stables. It appears that the said occupiers of dairy farms approached the appellant for issuance of suitable directions to the respondents. By a notice dated 31st October, 2002 the appellant called upon the respondents to restore the 9 borewells to the original stage failing which it would grant the permission/authority to the occupiers to do so. This notice was challenged by the respondents by filing the L.C. Suit No. 6116 of 2002 in the City Civil Court, Bombay. In the said suit, the respondents took out the Notice of Motion No. 4300 of 2002 for interim injunction restraining the appellant from taking any action in pursuance of the notice dated 31st October, 2002. The motion was granted by the order dated 21st December 2002, by the City Civil Court, Bombay. That order is challenged in this appeal.
4. Admittedly, all the borewells were sunk without prior permission of the Municipal Corporation under Section 381A of the Act. The appellant itself had issued notices directing the respondents to close the 10 borewells made without its prior permission. Learned counsel for the respondents states that on becoming aware that digging of the borewells without permission was unauthorised, the respondents decided to rectify what was done by them illegally and to close down all the borewells without waiting for any further notice from the appellant. They not only complied with the notice issued by the Municipal Corporation in respect of the 10 borewells but, closed all the borewells. The respondents cannot be faulted by the appellant for this as the respondents were not expected to wait till further notices were issued in respect of the remaining unauthorised borewells. Whether closing of the wells would cost inconvenience to the occupiers who claimed to be the tenants is not a matter before this court in these proceedings and as separate proceedings are pending in the Small Causes Court, Mumbai between the respondents and the tenants/occupiers it is not necessary to express any opinion about the right of tenants or the occupiers. Certainly, the corporation is not acting to favour the tenants in a dispute between the owners and the tenants or the occupiers but, is only concerned with the enforcement of the provisions of Section 381A of the Act. Learned counsel for the appellant however, states that under Clause (b) of Section 61, the appellant has duty and authority to construct and maintain all works of providing water for the public and private purposes. Learned counsel for the appellant state that in pursuance of this duty, the appellant is entitled to direct the respondents to construct and open up borewells in their property. The duty under Section 61 to provide for maintenance of works of providing supply of water is duty of the appellant. It cannot compel any citizen or owner of a property to construct or erect any works for the supply of water to other citizens in the locality. Instead of performing its own duty to construct and maintain water works, the appellant cannot direct a citizen to erect and maintain water works for the benefit of other members of the society. Whatever be the dispute between the landlord and tenants, that would be resolved by the Small Causes Court, Mumbai and appropriate directions would be issued by the Small Causes Court, Mumbai against the respondents and in favour of the tenants. But, that would not give a right or power to the Municipal corporation to give directions to the respondents or owners of the property to erect and construct the work for the supply of water to their tenants.
5. In the circumstances, the City Civil Court Mumbai was clearly right in granting the injunction against enforcement of the notice. Hence, Appeal is dismissed with costs.