Jitendra Agarwal And Another vs. The Secretary Ideal Regency Apartment Owners Association

Facts

The petitioners, plaintiffs in Title Suit No.627 of 2020, are aggrieved by an order dated October 14, 2020, passed by the learned District Judge at Alipore, refusing an ad interim order of injunction. The petitioners' water connection had been disconnected by the opposite party, the Ideal Regency Apartment Owner’s Association. The petitioners contended that water supply, being an essential service, could not be disconnected arbitrarily by the housing society, and that the disconnection was illegal. The lower appellate court had refused injunction on grounds of delay, stating that "delay had defeated equity" as the disconnection occurred nine months prior. The opposite party stated that water supply was stopped due to non-payment of maintenance charges by the petitioners, amounting to Rs.1,86,200/- from November 2017 to January 2021.

Held

The Court found that supply of water is an essential service and its absence would make it difficult for the petitioners to continue their business. However, the balance of convenience and inconvenience required the petitioners to pay maintenance charges and liquidate arrears. The Court acknowledged the petitioners' prima facie case challenging the sudden enhancement of maintenance charges from Rs.4,600/- to over Rs.14,000/- per month without notice. These issues are to be decided in the suit. Until the injunction application is decided by the Civil Judge, the petitioners are liable to pay maintenance charges at a reasonable rate. The Court directed the petitioners to pay Rs.1,00,000/- by January 29, 2021, upon which water supply should be restored within 48 hours. From February 2021, the petitioners are to pay Rs.7,000/- per month (exclusive of GST) as maintenance. Default in payment would entitle the society to stop common facilities. All payments are to be made without prejudice to the final decision. The Misc. Appeal was disposed of as nothing remained to be decided. The Civil Judge is to proceed with the injunction application and the suit expeditiously. The revisional application was also disposed of.

Key Issues

1. Whether the learned lower appellate court erred in refusing an ad interim order of injunction to restore water supply to the petitioners' shop room, considering water as an essential service and the alleged illegality of its disconnection by the housing society (under general principles of injunction and essential services)? 2. Whether the petitioners are liable to pay the maintenance charges demanded by the housing society, particularly in light of their challenge to the sudden enhancement of these charges without notice (under principles of contract and reasonableness of charges)? Petitioner's Contentions: Water supply is an essential service and could not be disconnected at the whim of the housing society. The opposite party acted illegally by disconnecting the water supply. The refusal of injunction by both lower courts was solely based on the delay in seeking relief, which the petitioners argue is not a valid ground to deny an essential service. Opposite Party's Contentions: The society had no alternative but to stop water supply as the petitioners failed to pay maintenance charges. The total dues amounted to Rs.1,86,200/- from November 2017 up to January 2021. The petitioners have also failed to pay admitted maintenance charges from November 2017 to November 2018.