(R.M.S. KHANDEPARKAR, 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 set-back 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 set-back 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 circu