Whether the Small cause court can grant reconnection of electric

supply or water supply to the occupant of premises if he is

gratuitous licensee as per landlord?
Mr. Vora further submitted that section 29 of the
Maharashtra Rent Control Act, 1999 cannot be invoked
by the Petitioners since they are not tenants or
subtenants but they are mere gratuitous licensee and
hence, no relief could have been granted in their favour
even by the Trial Court. Mr. Vora, therefore, submitted
that the Appeal was rightly allowed by the Appellate
Court and prays for dismissal of this Writ Petition.
13. I have carefully considered the rival contentions and I
am inclined to partly set aside the impugned orders for the
following reasons :
i The fact that the Petitioners are in physical possession
of the suit premises is not in dispute. In fact the Trial
Court and the Appellate Court have both recorded a
finding of fact in that respect. The very fact that the
Respondent Defendant has now filed L.E. & C. Suit No.
91/120 of 2011 for possession clearly shows that the
Petitioners herein are in physical possession. In this
situation the law is well established that a person in
possession of immovable property even when his
possession is wrongful, cannot be dispossessed
without following due procedure prescribed by law and
there is series of Judgments of the Supreme Court and
other High Courts who have taken this view. The
learned Judge of the Trial Court had rightly granted an
injunction that Plaintiffs could not be dispossessed by
the Defendant without following due process of law and
virtually no reason is given by the learned Judges of the
Appellate Court as to why even this injunction has been
set aside.

ii In so far as electricity supply is concerned, the Trial Court

had rightly observed that the Plaintiffs can obtain any
independent electricity supply from BEST or other service
provider but after having observed this, the Trial Court ought
to have moulded the relief in such a manner that it's
observations in paragraph 13 of the impugned Judgment
are capable of being implemented. This is not done by the
Trial Court.

iii In so far as the Judgment of the Appellate Court is

concerned, once having found that the Plaintiffs are in
physical possession even when the Appellate Court
was justified in observing that the nature of possession
and the status of the Plaintiffs was in doubt, even
without having regard to the provisions of section 29 of
the Maharashtra Rent Control Act, 1999, the Appellate
Bench has overlooked the provisions of section 151 of
the Code of Civil Procedure, 1908 which reserves
inherent power with the Court and provides that nothing
in the Code shall be deemed to limit or otherwise affect
the inherent power of the Court to make such orders as
may be necessary for the ends of justice, or to prevent
abuse of the process of the Court.
(Emphasis supplied)
iv If the Petitioners are in physical possession of the
suit premises, which fact is accepted even before me by
the learned Advocate for the Respondent during the
course of the argument, then one fails to understand as
to why they should be deprived of electricity and water
supply which is absolutely bare necessity and essential
for even the basic day-to-day life in the modern world.
This aspect is completely overlooked by the learned
Judges of the Appellate Court. Merely because the
documents which were relied upon by the Plaintiffs at
the time of hearing of the interim application were not
sufficient to establish a plea of tenancy, the Appellate
Court could not have overlooked the fact that the suit is
yet to be tried and the evidence is yet to be led. At the
prima facie stage, the material available on the record
was sufficient to infer at least one thing that the
Plaintiffs were in exclusive physical possession of the
suit premises and also that the said possession of the
Petitioners is not a forcible possession and even the
Defendant has not raised a plea that just prior to the
filing of the suit, the Plaintiffs have forcibly entered the
suit premises. This being the state of affairs, in my
opinion, learned Judges of the Appellate Court have
committed a manifest error in interfering with the
Judgment of the Trial Court.
 IN THE HIGH COURT OF BOMBAY
Writ Petition No. 7315 of 2011
Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:
G.S. Godbole, J.

Citation: MANU/MH/1339/2011,2012(1) Mh.LJ630

1. This Writ Petition was placed at Serial No. 925 i.e. on the
supplementary Board of today's Board. Since the Court was
busy in hearing matters from the regular Board and earlier
matters from the supplementary Board, this Petition could
not be taken up till 5 p.m. today. Considering the urgency,
the Petition was mentioned at 5 p.m. and the learned
Advocates for the Petitioners and Respondent have agreed
to advance their arguments /submissions beyond normal
working hours of the Court after 5 p.m.. I have accordingly
heard the Petition.

2. Rule. By consent, Rule is made returnable forthwith and

heard finally with the consent of the parties.

3. The Petitioners are original Plaintiffs in R.A.D. Suit No.

1094 of 2011 filed in the Court of the Small Causes Court,
Mumbai for declaration of tenancy in respect of the suit
premises. Written statement has been filed by the
Respondent Defendant and the written statement has been
subsequently amended by allowing the Applications of the
Respondent Defendant.

4. It is the case of the Plaintiffs that one Icchashankar H.

Dave was inducted as tenant in the suit premises, who died
in the year 2002 and that the Plaintiffs are daughter-in-law
and grandson respectively of said Icchashankar Dave,
whose son Bhaskar had predeceased him in the year, 2001.
In the written statement, it is the case of the Respondent
that in the year 1980 or thereabout the said Icchashankar H.
Dave was given possession of the suit premises as gratis
and he was occupying the suit premises as gratuitous
licensee.

5. In the Suit, the Petitioners filed an Application below Exh.

9, seeking interim reliefs, which read thus :

[a] Pending the hearing and final disposal of the present

suit, the defendant, his servants and agents be restrained
by an order and injunction of this Hon'ble Court from
dispossessing the plaintiffs without due process of law
and/or interfering with the plaintiff's peaceful use, occupation
and possession of the suit premises.

[b] Pending the hearing and final disposal of the present

suit, the defendant, his servants and agents be directed by a
mandatory order of the court to restore the electricity to the
suit premises and/or in the alternative to give consent for
obtaining separate electric connection in the suit premises.
[c] Pending the hearing and final disposal of the present
suit, the defendant, his servants and agents be directed by a
mandatory order of the court to restore the water supply to
the suit premises from the overhead water tank on the
terrace on the 6th floor and/or in the alternative to give
consent for obtaining separate water connection in the suit
premises.

6. The Application Exh. 9 was opposed by filing Reply by

adopting averments in the written statement and the
Plaintiffs filed Rejoinder. Various documents, letters,
photocopies, entries in the rent diary, electricity bills etc.
were produced.

7. It is not in dispute that the Respondent has filed L.E. & C.

Suit No. 91/120 of 2011 against the present Petitioners in
the court of Small Causes at Mumbai. The Petitioners who
are Defendants in that suit have already filed written
statement in the suit and Mr. Vora, Advocate for the
Respondent, states that in all probabilities the issues have
also been framed very recently.

8. The Trial Court recorded a finding of fact to the effect that

the Petitioners are in physical possession of the suit
premises. This finding of fact is recorded in paragraph 8 of
the Judgment of the Trial Court delivered on 22.7.2011.
Ultimately, the Trial Court concluded in paragraphs 13 and
14 which read thus :

13] As per said provision the defendant is having every right

to obtain independent electric meter for the suit premises,
without no objection of the landlord. Hence, so far as electric
supply is concerned this not necessary to give the separate
directions to the landlord.

14] It is admitted fact that defendant has put h is locks to the

water tank from which the plaintiffs was used to obtain the
water. Therefore, it is necessary to give directions to
defendant to restore water supply to the plaintiffs. So also
defendant is claiming plaintiffs as it is gratuitous licensee.
Therefore,, in the interest of justice it will be proper to
protect the possession of plaintiff till decision of the suit. For
the reasons stated above, I pass the following order.

ORDER

1] Application Exh. 9 are partly allowed.

2] Prayer in respect of restoration of electricity is rejected.

3] Defendant is hereby directed to restore water supply to

suit premises, within 15 days from the date of this order.

4] Defendant is further directed not to dispossess the

plaintiffs from the suit premises, or not to disturb the
plaintiffs possession over the suit premises through his
servants, agents or any persons is appointed on his behalf
till final decision of suit. 22.7.2011

Sd/-

(N.L.Kale)

Judge, C.R. No. 23.

9. Aggrieved by this order, the Respondent herein filed Misc.

Appeal No. 115 of 2011 which has been allowed by the
Appellate Bench of the Court of Small Causes at Mumbai by
impugned Judgment and Order dated 20th August, 2011.
While delivering Judgment, the Appellate Court has
observed thus in paragraphs 13 and 14 :

13.... But, again the possession in the suit premises by the

plaintiff is not denied by the defendant. What is denied by
the defendant is character of possession. The defendant
has come with the specific case that plaintiff is in possession
of the suit premises not as a tenant but as a gratuitous
licensee.....

14. Plaintiff has also come with the case that he is in

possession of the suit premises since long and that itself
shows that the water supply was enjoyed uninterruptedly,
and therefore, restoration is warranted. Plaintiff has also
come with the case that how a family can reside without
being water supply for long period.
10. Mr. Dani, Advocate for the Petitioners submitted that
since even the Appellate Court has recorded a finding of fact
regarding possession and since the Respondent has now
filed a suit for eviction, and the supply of water and
electricity being essential service which are required for the
purpose of human habitation, the learned Judges of the
Appellate Court could not have allowed the Appeal. He
submitted that the Trial Court in fact has observed that the
Petitioners Plaintiffs can obtain electricity connection for the
BEST without no objection certificate from the Respondent
Defendant but in the operative order, the prayer for
electricity supply was rejected and hence that should be
clarified. Mr. Dani submitted that even an injunction not to
dispossess without following due process of law has also
been reversed by the Appellate Court and there is no
justification for such reversal. In so far as water connection
is concerned, Mr. Dani submitted that other occupants of the
building who are either tenants of subtenants are having
their independent water connection from the MCGM which
is connected to their respective flats and even the
Petitioners should be permitted to have such independent
water connection from the MCGM to connect water supply
to the suit premises and the Respondent Defendant shall
not obstruct such water connection. In so far as electricity
connection is concerned, Mr. Dani has made a similar
request.

11. On the other hand Mr. Vora, Advocate for the

Respondent, opposed the petition by pointing out that the
Petitioner No. 2 had been arrested by the Anti Terrorism
Squad (ATS) and that the Petitioner No. 2 is involved in
many anti social activities; as a result of which Respondent
has also suffered a lot of annoyance and nuisance. Mr. Vora
further submitted that section 29 of the Maharashtra
Rent Control Act, 1999 cannot be invoked by the
Petitioners since they are not tenants or subtenants but
they are mere gratuitous licensee and hence, no relief
could have been granted in their favour even by the
Trial Court. Mr. Vora, therefore, submitted that the
Appeal was rightly allowed by the Appellate Court and
prays for dismissal of this Writ Petition.

12. Without prejudice to these contentions, Mr. Vora has

further submitted that in so far as water connection is
concerned, the Petitioners were stealing water from the
overhead tank at the terrace level and hence, the
Respondent Defendant had put locks.
13. I have carefully considered the rival contentions and I
am inclined to partly set aside the impugned orders for the
following reasons :

i The fact that the Petitioners are in physical possession

of the suit premises is not in dispute. In fact the Trial
Court and the Appellate Court have both recorded a
finding of fact in that respect. The very fact that the
Respondent Defendant has now filed L.E. & C. Suit No.
91/120 of 2011 for possession clearly shows that the
Petitioners herein are in physical possession. In this
situation the law is well established that a person in
possession of immovable property even when his
possession is wrongful, cannot be dispossessed
without following due procedure prescribed by law and
there is series of Judgments of the Supreme Court and
other High Courts who have taken this view. The
learned Judge of the Trial Court had rightly granted an
injunction that Plaintiffs could not be dispossessed by
the Defendant without following due process of law and
virtually no reason is given by the learned Judges of the
Appellate Court as to why even this injunction has been
set aside.
ii In so far as electricity supply is concerned, the Trial Court
had rightly observed that the Plaintiffs can obtain any
independent electricity supply from BEST or other service
provider but after having observed this, the Trial Court ought
to have moulded the relief in such a manner that it's
observations in paragraph 13 of the impugned Judgment
are capable of being implemented. This is not done by the
Trial Court.

iii In so far as the Judgment of the Appellate Court is

concerned, once having found that the Plaintiffs are in
physical possession even when the Appellate Court
was justified in observing that the nature of possession
and the status of the Plaintiffs was in doubt, even
without having regard to the provisions of section 29 of
the Maharashtra Rent Control Act, 1999, the Appellate
Bench has overlooked the provisions of section 15 of
the Code of Civil Procedure, 1908 which reserves
inherent power with the Court and provides that nothing
in the Code shall be deemed to limit or otherwise affect
the inherent power of the Court to make such orders as
may be necessary for the ends of justice, or to prevent
abuse of the process of the Court.
(Emphasis supplied)
iv If the Petitioners are in physical possession of the
suit premises, which fact is accepted even before me by
the learned Advocate for the Respondent during the
course of the argument, then one fails to understand as
to why they should be deprived of electricity and water
supply which is absolutely bare necessity and essential
for even the basic day-to-day life in the modern world.
This aspect is completely overlooked by the learned
Judges of the Appellate Court. Merely because the
documents which were relied upon by the Plaintiffs at
the time of hearing of the interim application were not
sufficient to establish a plea of tenancy, the Appellate
Court could not have overlooked the fact that the suit is
yet to be tried and the evidence is yet to be led. At the
prima facie stage, the material available on the record
was sufficient to infer at least one thing that the
Plaintiffs were in exclusive physical possession of the
suit premises and also that the said possession of the
Petitioners is not a forcible possession and even the
Defendant has not raised a plea that just prior to the
filing of the suit, the Plaintiffs have forcibly entered the
suit premises. This being the state of affairs, in my
opinion, learned Judges of the Appellate Court have
committed a manifest error in interfering with the
Judgment of the Trial Court. Hence, a case for grant of
relief by exercising the extra ordinary jurisdiction of this
Court under Article 227 of the Constitution of India is made
out, particularly when the learned Judges of the Appellate
Court have not applied their mind to the facts of the case in
proper perspective and the impugned Judgment and Orders
exhibits that the learned Judges of the Appellate Court were
completely oblivious of the existence of section 151 of the
Code on the Statute Book. It is also necessary to direct that
both the suits should be clubbed together for hearing and
should be heard together so that a chance of delivery of
contrary Judgments are avoided. In the peculiar facts of this
case, the hearing of the suit is expedited.

14. Hence, I pass the following Order.

i The impugned Judgment and Order dated 20th August,

2011 passed by the Appellate Bench of the Court of Small
Causes at Mumbai in Mis. Appeal No. 115 of 2011 being
Exh. "F" to this Writ Petition is quashed and set aside.

ii The Judgment and Order dated 22nd July, 2011 passed by

the learned Judge of the Court of Small Causes Presiding in
C.R. No. 23, below Exh. 9 in R.A.D. Suit No. 1094 of 2011
being Exh. "E" is restored with clarifications which follow
hereinafter :

(a) The Petitioners will be entitled to obtain an independent

electricity supply from the BEST or any other service
provider and the Respondent Defendant is restrained from
raising any objection for such independent electricity supply
and even if such objection is raised by the Respondent the
same shall be ignored by the service provider or BEST, as
the case may be. For the purpose of obtaining such an
independent electricity supply any incidental work like fixing
of meter or meter box, putting wiring from the meter /electric
mains to the meter box or from the meter box to the suit
premises is allowed to be done at the cost of the Petitioners
and the Respondent shall not obstruct any such incidental
work also.
(b) The Petitioners are also permitted to take an
independent water connection from the MCGM without
requirement of having NOC from the Respondent
Defendant. The said water connection shall be obtained by
the Petitioners entirely at their own costs. If any objection is
raised for this or for incidental work like, laying down
pipeline, plumbing etc. that should be ignored and such
work is also allowed to be done.

(c) The Respondent is restrained by order of injunction from

dispossessing the Petitioners without following due process
of law, which is already followed by the Respondent by filing
L.E.& C. Suit No. 91/120 of 2011.

(d) Hearing of both the suits is directed to be clubbed

together if not already clubbed and both the suits should be
heard simultaneously.

(e) Hearing of both the suits is expedited and the suits

should be disposed off as early as possible.

(f) It is clarified that this order is strictly without prejudice to

the rights and contentions of both the parties on merits of
the controversy involved in the suits. It is also clarified that
this order shall not be relied upon by the Petitioners to
contend that their status as alleged tenants as claimed by
them is accepted by this Court or by the Trial Court and the
suits shall be tried entirely on their own merits without being
influenced by either this Order or the Order of the Appellate
Bench, which is quashed and set aside by this order or the
order of the Trial Court which is partly revived subject to the
clarification given above.

(g) Mr. Vora on instructions states that the Petitioners are

indulging in the activity of locking the terrace entry. Mr. Dani
on instructions states that no such locks will be put to the
iron grills leading to the terrace. This statement is accepted.

(h) All the concerned parties, the Trial Court and the service
providers like MCGM, BEST or any other service provider
for electricity and water supply will act on an ordinary copy
of this order duly authenticated and issued by the Registry.

(i) Rule is made absolute in the aforesaid terms with no

order as to costs.