Bombay High Court
Ekta Apartments Condominium vs Executive Engineer(Water Works) And 2 ... on 23 June, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
wp4994-03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION No.4994 OF 2003
Ekta Apartments Condominium,
RMS Colony, Katol Road, Nagpur.
Thru. Secretary Shir Avdhut s/o Vinayakrao
Metkar, R/o Ekta Apartments,
RMS Colony, Katol Road, Nagpur. ... ... Petitioner.
..Versus..
1. Executive Engineer ( Water Works).
Nagpur Municipal Corporation,
Nagpur.
2. Nagpur Municipal Corporation
th. Additional Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
3. State of Maharashtra,
In the Ministry of Housing and Urban Devpt.
Through the Secretary, Mantralaya,
Mumbai-32. . ... ... Respondents.
.......................................................................................................................................................
Mr. Rohan Chhabra, advocate for petitioner.
None for respondent nos.1 & 2.
Mr. K.L. Dharmadhikari, Assistant Government Pleader for respondent no.3.
.......................................................................................................................................................
CORAM : A.S. CHANDURKAR,
J.
DATED
: 23
rd
JUNE, 2016.
ORAL JUDGMENT.
The petitioner is aggrieved by the order dated 18.11.2003 passed .....2/-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::wp4994-03 2 by the respondent no.2 in revision proceedings challenging the order passed by the respondent no.1 while considering the objections raised by the petitioner to the demand for water bill.
2. The facts on record indicate that the petitioner is an Association of Apartment Owners. There are in all 49 flats in the said scheme which was constructed in the year 1990. A water meter was installed and an 80 mm diameter connection was utilized for supplying water to the said scheme.
According to the petitioner, till the year 2000 the bills were being issued on the basis of actual consumption of water. As demand came to be made of Rs.8,000/- along with meter rent and a letter in that regard was issued on 13.12.2000, the petitioner raised an objection to the aforesaid bill. The dispute was considered by the Deputy Municipal Commissioner who allowed the appeal preferred by the petitioner on 16.6.2001 and directed issuance of bill at the rate of Rs.50/- per flat. This order was challenged by the respondent no. 1 and the Additional Municipal Commissioner allowed the revision application by order dated 2.4.2002. In Writ Petition No. 1940/2002, the proceedings came to be remanded for fresh consideration.
Thereafter the Deputy Municipal Commissioner directed the water bill to be calculated on the basis of rate of Rs.50/- per flat as per Clause 9(a)(i) of the City of Nagpur Corporation Assessment and Collection of Water Rate Bye-
.....3/-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::wp4994-03 3 Laws (for short, the Bye-Laws). This order came to be challenged before the Additional Municipal Commissioner who allowed the revision application and directed assessment on the basis of minimum rate fixed as per the size of the meter connection. Being aggrieved, the petitioner has challenged the aforesaid order.
3. Shri Rohan Chhabra, the learned counsel for the petitioner, submitted that the Bye-laws in question came to be amended as per notification dated 30.8.2000 and as per amended Bye-law no. 9(a)(i), the minimum rate for a flat scheme was Rs.50/- per flat or as per actual consumption whichever was higher in addition to charges of meter rent. He submitted that the Deputy Municipal Commissioner had rightly taken into consideration the amended Bye-laws and had directed the water charges to be recovered on that basis. The Additional Municipal Commissioner without considering the amended Bye-laws proceeded to observe that the bills were to be issued by taking an amount of Rs.50/- per flat or actual consumption or minimum rate fixed as per size of the meter connection, whichever was more.
According to him, the latter portion that is 'size of the meter connection' could not be found in the amended Bye-laws. He submitted that if the interpretation as applied by the Additional Municipal Commissioner was accepted, the latter portion of the amended Bye-law no.9(a)(i) would not .....4/-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::wp4994-03 4 have any legal effect which was not permissible. He, therefore, submitted that the order passed by the Deputy Municipal Commissioner ought to be restored.
4. There was no appearance on behalf of the respondent nos. 1 & 2 on 9.6.2016 and 14.6.2016. On 16.6.2016 at the request of counsel for respondent nos. 1 & 2 the matter was adjourned and kept today. Today also there is no appearance on behalf of the respondent nos.1 & 2. In the submissions filed on behalf of respondent nos. 1 & 2 it has been stated that as the petitioner was having 80 mm diameter connection, the minimum charge of Rs.8,000/- was being levied. It has been further stated that in apartments, the billing was not on the basis of per flat as there was only one meter for the whole apartment.
5. Shri K.L. Dharmadhikari, the learned Assistant Government Pleader appeared for the respondent no.3.
6. I have perused the material on record and I have given due consideration to the submissions made by the petitioner as well as the written submissions filed by the respondent nos. 1 & 2. The amendment to Bye-law 9(a)(i) is not in dispute. As per this Bye-law, the rates at which the water consumption is to be charged have been mentioned. As per this bye-law for 800 mm diameter connection rate of Rs.8,000/- has been mentioned. It is further stated that the minimum rate for flat scheme was Rs.50/- per flat or .....5/-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::wp4994-03 5 actual consumption whichever was more and in addition to said charges, the meter rent would be charged extra. While considering this, the Deputy Municipal Commissioner observed that the petitioner was covered by the proviso to Clause 9(a)(i) and therefore the minimum rate for the flat scheme would be Rs.50/- per flat or actual consumption whichever was more. The said Authority has also observed that the billing was required to be done on the basis of actual units of consumption. It has been further observed that it was not mentioned in the said amended bye-laws that minimum charges as per the size of the connection would be billed.
6. Perusal of the order passed by the Additional Municipal Commissioner does not indicate the basis on which it was held that even the minimum rate fixed as per the size of meter connection would be taken into consideration. At least a plain reading of bye-law No. 9(a)(i) does not indicate that such an interpretation is possible. When there was a specific entry prescribing the minimum rate for flat schemes at the rate of Rs. 50/- per flat or actual consumption whichever was more along with the meter rent, there was no legal basis whatsoever for taking the diameter of the connection into consideration. On that basis the impugned order passed by the Additional Municipal Commissioner cannot be sustained. Moreover, the Additional Municipal Commissioner has merely relied upon the earlier view .....6/-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::wp4994-03 6 taken in the order dated 2nd April 2002 and has given very same reasons. The interpretation as arrived at by the Additional Commissioner is not based on a plain reading of the bye-law No. 9(a)(i) and in fact amounts to reading something additional in the Bye-Laws. On that count, the impugned order is liable to be set aside.
As per order dated 16.4.2016 this writ petition was directed to be placed before the Single Judge as there was a challenge to a quasi judicial order passed by the Additional Municipal Commissioner. In that view of the matter, prayer (iii) cannot be considered in these proceedings. Challenge in that regard is therefore kept open.
7. In view of aforesaid decision, the following order is passed.
(i) The order dated 18.11.2003 passed by the Additional Commissioner, Nagpur Municipal Corporation is set aside.
(ii) The order passed by the Deputy Municipal Commissioner, Nagpur Municipal Corporation dated 24.3.2003 stands restored.
(iii) The writ petition is allowed in aforesaid terms, with no order as to costs.
JUDGE Hirekhan ...../-
::: Uploaded on - 30/06/2016 ::: Downloaded on - 30/07/2016 06:24:34 :::