Madras High Court
Smt.Kamatchi vs State Rep. By on 14 July, 2022
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
W.P.No.4384 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P.No.4384 of 2015
and W.M.P. No.1 of 2015
Smt.Kamatchi ... Petitioner
Vs.
1.State Rep. by
Superintending Engineer,
Chennai Metropolitan Water Supply & Sewerage Board,
No.1, Pumping Station Road,
Chintadripet, Chennai – 600 002.
2.The Assistant Engineer,
Chennai Metropolitan Water Supply
& Sewerage Board, Area-VIII
No.9, Muthukrishnan Street,
T.Nagar, Chennai – 600 017.
3.The Chief Accounts Officer,
Chennai Metropolitan Water Supply
& Sewerage Board, Area-VIII
No.9, Muthukrishnan Street,
T.Nagar, Chennai – 600 017. ... Respondents
Prayer : Writ Petition is filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for records in
respect of the impugned distraint notice No.1403 dated 02.02.2015 issued
by the 2nd respondent herein with regard to the Chennai Corporation Tax
Assessment No.10/137/02512/060, to quash the said impugned distraint
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W.P.No.4384 of 2015
notice and to direct the respondents herein to provide an opportunity of
hearing to the petitioner in this regard.
For Petitioner : Mr.C.S.Dhanasekaran
For Respondents : Mr.M.Vijayakumar
Standing Counsel
ORDER
This writ petition was filed challenging the distraint notice dated 02.02.2015 issued by the 2nd respondent on the ground of non-payment of water and sewerage charges and also service charges by the petitioner.
2.The case of the petitioner is that she purchased the subject property in an auction and was running a shop. According to the petitioner, there is no water or sewerage connection for her shop. In spite of the same, CMWSSB was regularly collecting the water and sewerage service charges under coercion.
3.It is stated that the petitioner made several representations to the respondents explaining that there is no water and sewerage connection for her shop. The grievance of the petitioner is that the respondents even without considering the representations issued the distraint notice and demanded a sum of Rs.49,237/- and threatened that if this amount is not 2/10 https://www.mhc.tn.gov.in/judis W.P.No.4384 of 2015 paid, the shop will be sealed. Left with no other option, the present writ petition was filed before this Court.
4.The 3rd respondent has filed a counter affidavit and has taken a stand that the shop belonging to the petitioner forms part of Golden Jubilee Flats and there is a single water and sewerage connection given to these flats. Therefore, according to the 3rd respondent, the petitioner cannot claim any exemption from the payment of the tax and charges, since common water and sewerage connection is provided for the multi-storeyed building consisting of various flats. In view of the same, the 3rd respondent has sought for the dismissal of this writ petition.
5.Heard Mr.C.S.Dhanasekaran, learned counsel appearing on behalf of the petitioner and Mr.M.Vijayakumar, learned Standing Counsel appearing on behalf of the respondents.
6.It is brought to the notice of this Court that during the pendency of this writ petition, the petitioner had paid the entire amount towards water and sewerage service charges amounting to a sum of Rs.80,508/-. The learned Standing Counsel for the respondents submitted that in view of the payment of the amount, nothing survives in this writ petition. 3/10 https://www.mhc.tn.gov.in/judis W.P.No.4384 of 2015
7.The learned counsel for the petitioner submitted that this payment was made since there was a threat of the shop getting sealed which would have affected the livelihood of the petitioner. The learned counsel therefore submitted that the payment was made without prejudice to the right of the petitioner to contest this writ petition on merits.
8.In the present case, it can be seen that the shop that is owned by the petitioner forms part of a multi-storeyed building which has been given common water and sewerage connection by CMWSSB. A case of this nature is covered under Section 44 of the CMWSS Act, 1978 and Regulation 12(i) of CMWSSB's Regulations and the right to levy and collection of water supply and sewerage service charges are traceable to these provisions.
9.This Court had an occasion to consider the rights of flat owners in a case of this nature. It was held that the rights and liabilities of the flat owners in an apartment is governed by the Tamil Nadu Apartment Ownership Act, 1994 which came into force from 07.04.1997. The common areas and facilities are entitled to be used by all the apartment owners and by-laws are normally framed by the association formed by the owners of the apartments. 4/10 https://www.mhc.tn.gov.in/judis W.P.No.4384 of 2015
10.Section 49(1)(i) of the CMWSS Act states that if the owner or occupier fails to pay the charges to the Board, the Board is entitled to disconnect the water and sewerage connection. This is a statutory right that has been given to the Board.
11.Therefore, even if one flat owner does not pay the water and sewerage service charges and action is taken by the Board to disconnect the water and sewerage connection, the flat Association cannot prevent such an action being initiated.
12.This Court in Cosmo Towers Owner's Association vs. Chennai Metropolitan Water Supply and Sewerage Board and others reported in 2009 4 LW 348 has categorically held as follows:
Issue No. 2 : Whether the petitioner Association is vested with a right to disconnect the water supply to the fourth respondent's apartment?
29. The fourth respondent being the owner of her flat is entitled to get the water supply which is supplied through the common water supply connection to the apartment by the metro water. The petitioner Association can only demand maintenance charges for supplying the water within the premises after it is 5/10 https://www.mhc.tn.gov.in/judis W.P.No.4384 of 2015 drawn and collected in a common tank. The action of the petitioner Association in disconnecting the water supply to the fourth respondent's flat is also illegal as it is an interference in enjoying the common facility. The fourth respondent is willing to pay the maintenance charges as a member of the petitioner Association. The fourth respondent also paid the metro water and sewerage tax and charges and therefore, there is no justification to deny water supply to the fourth respondent by the petitioner Association.
30. In so far as the third respondent is concerned, he is also bound to pay the water supply and drainage fee and water supply charges to the metro water. If the third respondent is not paying the same, common water supply connection being given as per the Chennai Metropolitan Water Supply and Sewerage Act, 1978, it is open to the petitioner to pay the same and demand from the third respondent. If the third respondent is not paying the same, it is open to the petitioner Association to act in accordance with law, which is also provided under Section 20 of the Act. Section 20 of the Act reads as follows:
20. Common expenses to be charged on property.- All sums assessed by the society or the Association of Apartment owners as the share of the common expenses chargeable to any apartment shall, subject to the prior claim, if any, -6/10
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(i) of the Government in respect of land revenue or any money recoverable as land revenue,
(ii) of any municipality or other local authority in respect of tax or other assessment, and
(iii) of the mortgage, in respect of all sums unpaid, constitute a charge on such apartment.
31. On an analysis of the Act and Rules, I am of the firm view that the petitioner is not entitled to disconnect the water supply given to the fourth respondent or to the third respondent and it can only take steps to recover the amount payable to the metro water from the third and fourth respondents, if the same is not paid by them.
13.It is clear from the above that even if one flat owner does not make the payment, it will be open to the Association to pay the same and demand the money from the concerned flat owner. If the amount is not paid by the concerned flat owner, it will always be open to the Association to take action as per the by-laws governing them.
14.This Court on various occasions had dealt with similar issues and it has been consistently held by this Court that where common water and drainage connection has been given to a multi-storeyed apartment, a single owner cannot take a stand that he/she does not have a water or sewerage 7/10 https://www.mhc.tn.gov.in/judis W.P.No.4384 of 2015 connection and therefore, will not pay the charges. Useful reference can be made to the orders passed by this Court in W.P.No.8223 of 1992, dated 30.08.1999, W.P.No.6331 of 2003, dated 12.09.2003 and W.P.No.24168 of 2005, dated 12.09.2006.
15.In view of the above, the stand taken by the petitioner becomes unsustainable and the above orders will squarely cover the facts of the present case. It has now been brought to the notice of this Court that the petitioner had already paid the entire amount to the Board. In view of the same, no further order can be passed in this writ petition.
16.In the result, this writ petition is closed. No Costs. Consequently, connected miscellaneous petition is closed.
14.07.2022
Internet : Yes
Index : Yes
Speaking Order / Non Speaking Order
ssr
To
1.The Superintending Engineer,
Chennai Metropolitan Water Supply & Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai – 600 002.
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2.The Assistant Engineer, Chennai Metropolitan Water Supply & Sewerage Board, Area-VIII No.9, Muthukrishnan Street, T.Nagar, Chennai – 600 017.
3.The Chief Accounts Officer, Chennai Metropolitan Water Supply & Sewerage Board, Area-VIII No.9, Muthukrishnan Street, T.Nagar, Chennai – 600 017.
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