It stated that appellant had contravened Section 238 of the Act by using water supplied for domestic purpose, for purposes other than domestic; that there was no permission under Section 271 of the Act for using water supplied for domestic purposes for any other purpose; that such unauthorised use is a punishable offence under Section 610 of the Act making the appellant liable for prosecution; and that if the said contravention is not stopped immediately, the water connection would be cut off under Section 275(1)(c) of the Act. (Para 3.1)
The learned Single Judge did not agree with submissions of the appellant and accordingly held the notice to be valid. It however granted liberty to the appellant to seek necessary permission for use of water in their premises for non-domestic purposes from the Municipal Commissioner under Section 239 of the Act. (Para 3.5)
Aggrieved by the judgment of the learned Single Judge the appellant preferred an appeal before the Division Bench which came to be dismissed vide impugned order dated 19.11.2019. (Para 3.6)
We have perused the notice impugned in the writ petition before the learned Single Judge. The said notice is under Section 238/271 of the Act. Section 271 of the Act prohibits use of water supply for domestic purpose for any other purpose. Section 238(2) of the Act provides for the purposes for which supply of water for domestic purposes cannot be used. Section 238(2) of the Act enlists nine categories for which supply of water for domestic purpose should not be used. It was, therefore, incumbent for the authorities to mention the specific violation in the notice under Section 238(2) of the Act and specify that supply of domestic water was being used for which purpose other than domestic. The impugned notice does not mention any reason or specific violation committed by the appellant. It is a general and a vague notice to which apparently no answer/explanation could be given. (Para 16)
The Scheme of the Act further provided two categories of water being supplied by the KMC. First is the filtered water or wholesome water which was potable also and could be used for domestic purposes and the other is unfiltered water which could be used for purposes other than domestic which are enlisted under Section 238 of the Act. The Scheme further provided under Section 271 of the Act that water supply for domestic purposes could not be used for any other purpose except domestic without written permission of the Commissioner. (Para 19)
Section 272 of the Act describes the purposes for which unfiltered water can be used, for example, extinguishing of fire, street watering, flushing of drains of the Corporations for flushing privies and urinals in private premises, for flushing of drains in private premises. Under sub-Section 3, it is provided that unfiltered water would not be used for domestic purpose without written permission of the Commissioner or for any purpose other than those specified in sub-Sections 1 & 2. Sub-Section 4 starts with a non-obstante clause and it states that wholesome water may be used in lieu of unfiltered water for non-domestic purposes where supply of unfiltered water is not available. (Para 20)
In the present case, it is admitted position that there is no supply of unfiltered water in the locality/area where building in question is situated. As such, the filtered water or the wholesome water could be used for purposes other than domestic by the owner/occupier of the building in question. Thus, it cannot be said that there was any violation of Section 238 or 271 of the Act. (Para 21)
The non-obstante clause in Section 272(4) of the Act clearly mentions that notwithstanding anything contained in hereinbefore in this chapter which covers Section 271 as also Section 238 of the Act as the entire scheme of water supply is covered under Chapter XVII of Part-V beginning from Section 233 right up to Section 276 of the Act. Section 272(4) of the Act would thus have overriding effect with respect to all the provisions of that chapter namely Chapter XVII of Part V of the Act. (Para 22)
KMC was fully conscious and aware of the occupiers of all the seven floors of the building in question i.e. the ground floor plus six floors. They were also aware that the appellant, who is the owner of the building was occupying the ground floor and the 6th Floor. KMC had issued trade licenses to all the occupiers of the 1st to 5th Floor. The statute primarily lays down the liability on the occupier of the building to pay water charges. It was therefore mandatory for the Corporation to first give notice to the occupiers and make an attempt to recover the charges from them. It is only upon failure to recover dues, if any, from the occupiers that the demand could be raised against the owner. In the present case, KMC having failed to initiate any proceedings against the occupiers committed serious error in initiating the proceedings only against the owner. (Para 25)
The High Court committed error by not relying upon the non-obstante clause in sub-Section 4 of Section 272 of the Act as it would have overriding effect over anything contained in that chapter i.e. Chapter XVII. Section 272(4) of the Act, therefore, would have overriding effect over and above Sections 238 and 271 of the Act, once, it is admitted position that there was no supply of unfiltered water. The use of wholesome water for purposes other than domestic cannot be held to be violative of any of the provisions and all the more when the trade license permitted use of the same. (Para 28)
Section 271 of the Act prohibits any person from using water supply for domestic purposes for any other purpose without the written permission of the Commissioner. Here, we find that the trade license which is issued by the KMC actually permitted use of water supply whether filtered or unfiltered. Further in the absence of any supply of unfiltered water, the wholesome water could be used for non-domestic purposes. (Para 29)
The writ petition succeeds and is allowed. The impugned notices therein are hereby quashed. (Para 31)
SUPREME COURT JUDGMENT
Citation: 2023 STPL(Web) 78 SC
Trust Estate Khimji Keshawji & anr. Vs. Kolkata Municipal Corporation & ors.
Civil Appeal No. 4230 of 2023 Arising Out of Slp (C) No. 4150 of 2021-Decided on 5-7-2023
Click to See Full Text of Judgment: 2023 STPL(Web) 78 SC
