Calcutta High Court
M/S Abdul Khalique & Sons Restaurant vs Kolkata Municipal Corporation & Ors on 18 May, 2017
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
WP 288/2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S ABDUL KHALIQUE & SONS RESTAURANT
Versus
KOLKATA MUNICIPAL CORPORATION & ORS
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date : 18th May, 2017.
Mr.Tarique Quasimuddin,
Mrs.Zainab Tahur, Advs., for
the petitioner.
Mr.Barin Banerjee,
Mr.Gopal Chandra Das,
Mr.S. Panda, Advs., for the
KMC.
Mr.Manoj Malhotra,
Mr.Suman Dey, Advs., for the
State.
Mr.Soumabha Ghose,
Mr.Arnab Sardar, Advs., for
the respondent nos.5 to 8.
The Court : Admittedly, the petitioner was using the water for commercial purposes more particularly for running the restaurant on the ground of floor at premises no.32, 2 Marquis Street, Kolkata - 700 016 which was later on found to have been used without the valid permission. The Corporation issued a notice in this regard and it is not in dispute that the petitioner was prevented from extracting the water from the tube-well. Subsequently, the petitioner made an application with the Kolkata Municipal Corporation for supply of water for commercial purposes. Though there is no written order passed by the Corporation Authorities, but according to the petitioner, they were verbally communicated that unless the consent of the landlord is taken, supply of water cannot be effected for commercial purposes at the place of his establishment of the petitioner.
Mr.Banerjee, learned Advocate for the Corporation, submits that the application made by the petitioner is not in conformity with Section 239 of the Kolkata Municipal Corporation Act inasmuch as no certificate issued by the plumber is appended thereto. What is sought to be contended by the Corporation that the supply of water for the commercial purposes must reach through the plumber empanelled with the Corporation.
3Before proceeding to deal with such plea, it would be apt and profitable to quote Section 239 of the Act which runs thus :
"239. Power to supply water for non-domestic purpose.-[(1) The Municipal Commissioner may supply water for any purpose, other than domestic purpose, on receiving a written application specifying the purpose for which the supply is required and the quantity likely to be consumed:
Provided that the payment of any fee for the supply of water under this sub-section shall be made at such rate as may be fixed by regulations or as stated in the budget estimate under sub-section (3) of section 131:
Provided further that till such time as the Corporation provides any water-meter and attaches the same to the supply pipe in any premises or building connected with the service mains of the Corporation, or where such water- meter goes out of order, or where there is a dispute about the proper operation of such water-meter, the fee for the supply of water under this sub-section may be levied on the 4 basis of the size of the ferrule attached to the supply pipe in such premises or building.] [(2) Subject to the provisions of sub- section (1), when an application under that sub-section is approved, the Municipal Commissioner may by order place or allow to be placed the necessary pipes and water fittings of such dimension and character as may be specified in the order.
(3) Notwithstanding anything contained in sub-section (1) or elsewhere in this Act, the Municipal Commissioner, on receipt of any information that the water supplied under that sub-section is being consumed for any purpose other than the purpose specified in the application thereunder, may, without prejudice to any other action which he may be entitled to take under this Act, levy fee for such consumption of water at such rate as stated in the budget estimate under sub-section (3) or section 131, with effect from such date as the Municipal Commissioner may determine: 5
Provided that no such fee shall be levied under this sub-section without giving the person concerned an opportunity of being heard."
Upon meaningful reading of the aforesaid provision, this Court does not find any substance in the submission of Mr.Banerjee that the certificate from empanelled plumber is sine qua non and mandatory to proceed with the said application for supply of water for commercial purposes. The requisites under the aforesaid section are two folds. Firstly, the application must specify the purpose for which supply is required and secondly, the quantity likely to be consumed. If two parameters are present, this Court does not find any difficulty on the part of the Corporation Authorities in proceeding with the said application. There is no prescribed form for such application and, therefore, if two conditions are specifically mentioned in the application, it would be treated to have been made in conformity with the aforesaid provision and the authorities must proceed on the basis thereof. However, this Court finds that the application appearing at page 149 of the writ petition though contained the purpose for supply of water but the quantity likely to be 6 consumed has not been spelt out. If one of the requisite conditions is absent, the authority cannot be blamed for inaction in proceeding further.
This Court, therefore, permits the petitioner to make a comprehensive application with the municipal commissioner within a week from date specifying the purpose as well as the quantity likely to be consumed. If such application is made within the time as indicated above, the municipal commissioner shall proceed with the application and shall take a decision thereupon within two weeks therefrom and shall communicate the same to the petitioner within a week thereafter. It is, however, made clear that Section 239 of the Act do not postulate any consent or no objection from the owner and, therefore, the municipal commissioner while taking the decision shall keep the same in mind.
With these observations, the writ petition is, thus, disposed of.
No costs.
(HARISH TANDON, J.) sd/