Bombay High Court
Mahila Griha Udyog Lijjat Papad And Anr. vs Municipal Corporation Of Gr. Bom. And ... on 23 November, 1992
Equivalent citations: 1993(2)BOMCR145
JUDGMENT B.P. Saraf, J.
1. The writ petitioner 'Mahila Griha Udyog Lijjat Papad' a society registered under the Societies Registration Act has filed this petition challenging the supplementary demands raised by the Bombay Municipal Corporation (BMC) on account of water charges and notice dated 9-2-1987 (Exhibit--B) by which the petitioner was asked to pay the amount failing which it was stated that the water connection would be disconnected as per provisions of section 279 of the Bombay Municipal Corporation Act without any further intimation.
2. The petitioner society is approved by the Khadi and Village Industries Commission as it had undertaken the Khadi and Village Industries programme approved by the Khadi and Village Industries Commission, Bombay. The petitioner society is a member of one Kandivali Praful Co-operative Housing society Ltd. (Housing Society) wherein it owns two flats. Sometime in the year 1976 there was a dispute between the housing society and the petitioner society in regard to the user of the two flats. According to the housing society the petitioner was not using the flats for residential purposes. The user was alleged to be commercial. A complaint was made by the housing society to the BMC in this regard. The BMC on the complaint of the housing society informed the petitioner that they were liable to pay water charges applicable to commercial establishments. The petitioner in reply wrote to the BMC that it has been paying water charges to the housing society at the rates applicable for use for residential purposes and if it were to pay for the water used by it at the rates applicable for commercial purpose it can be asked only to pay the difference. Thereafter it appears correspondence ensued between the petitioner society and the BMC which need not be gone into. The petitioner was also paying charges to the Corporation.
3. On 24-1-1987 the Assistant Engineer, R South, Water Works of the BMC wrote a letter to the petitioner society whereby it was informed that the petitioner was liable to pay for 14% of the total domestic consumption of the housing society as according to the Corporation that was the estimated consumption of the petitioner. In the said letter it was also mentioned:
"However, it is observed that form April 81 onwards the consumption was not bifurcated properly resulting in production of wrong bills by the Computer upto March 86.
Now the records on the Computer (sic) properly updated since April 86. Hence bills are correctly produced for the period from April 86 onwards. Thus these bills are not wrong and you are requested to pay the same.
As on the basis explained above, the bills already issued for April 81 to March 86 are undercharged as such necessary supplementary bills are being issued & you are therefore, requested to pay the same on receipt thereof."
The petitioner society replied to the aforesaid letter by its letter dated 10th February 1987. It was mentioned that the petitioner was a society approved by the Khadi and Village Industries Commission; it was liable to pay the water charges to the housing society and not to the Corporation, that estimation of water consumption of the society as 14% of the total consumption of the housing society was without any basis and that issue of supplementary bills on the ground of computer mistake for periods from 1981 to 1986 was not justified. The letter was not considered. The petitioner was not heard nor any reply given. What followed was the final impugned notice referred to above directing the petitioner to pay the demand raised by the BMC or else face disconnection of water supply. The petitioner then approached this Court. Rule was issued and interim relief was given in terms of prayers (d) and (f).
4. I have heard learned Counsel for the petitioner as well as the BMC. The various contentions of the petitioner can be summarised as under. The impugned notice is illegal and arbitrary. No basis has been disclosed in the notice for bifurcating 14% of the total consumption as the consumption by the petitioner. The bifurcation is wholly arbitrary. The demand for arrears from 1981 to 1986 on the basis of charges payable in 1986 on the ground of alleged computer mistake in unjustified inasmuch as except for the statement of the BMC that there was a computer mistake there is nothing to show what was the extent of mistake, if any, and what was the rational behind taking the figure of 1986 as the figure for 1981 also. Further even on the basis that the premises in question were not used for residential purposes it cannot be charged at the rates applicable to shops and commercial establishments because there is a separate category described as "Premises occupied by Khadi Gramodyoga & Village Industries for purposes other than residential". It is contained in Rule 1.3.1 of the Water Charges Rules effective from 5th April 1987. It is an admitted position that identical was the provision in the corresponding rules applicable to earlier years. Such a category did exist in the 1967 Rules as amended from time to time. Therefore, even for commercial user of the premises by the petitioner the rate applicable can be the one prescribed under the said specific rule and not under the general rule.
5. Counsel for the BMC submitted that though the basis for estimating the consumption is not mentioned in the notice, the determination is not arbitrary and it has been arrived at after proper application of mind and as per rules. Counsel also submits that as there was a computer mistake which persisted for 5 years, the Corporation was entitled to raise a supplementary bill. Counsel, however, could not explain what was the justification for taking 1986 consumption figure as the basis for calculating the consumption for 1981 to 86. So far as the rate applicable to the petitioner is concerned, Counsel submitted that the petitioner falls under Rule 1.5.1. of the Water Charges Rules effective from 5th April 1987 because the activities carried on by the petitioner are trading activities and the premises are used as shop which falls in Item 1 of the said sub rule. Counsel also submits that Rule 1.3.1 has no application to the petitioner as the premises described in Item (17) thereof namely "premises occupied by Khadi Gramodyoga & Village Industries for purposes other than residential" only means premises occupied by such industries which are owned by the Khadi and Village Industries Commission and not Khadi and Village Industries owned by individuals or organisations other than the Commission.
6. I have carefully considered the rival submissions. So far as the factual part is concerned, it is evident that the petitioner on receipt of notice disputed the apportionment as well as the issue of supplementary bill for the period from 1981 to 1986 on the ground of alleged computer mistake. No reply was given to the petitioner's letter. The petitioner was entitled to know the basis. It was unreasonable on the part of the BMC to refuse even this much to the petitioner. If the basis had been disclosed to the petitioner the petitioner might have either been satisfied about the apportionment or it might have been able to explain to the BMC that the basis of their notice was not correct. The final notice issued by the BMC without considering these two grievances of the petitioner cannot be sustained. The petitioner has to be given an opportunity of hearing and has to be told of the basis on which the apportionment has been made and the arrears recalculated.
7. There, however, still remains a controversy in regard to the rate applicable to the petitioner. That will depend upon the category in which the petitioner falls. As earlier observed, there is no dispute that though the petitioner claims to be a voluntary and charitable organisation the activity carried on by it is of trading nature. At any rate, there is no dispute that the user of the premises in question is for nonresidential purposes. The main controversy appears to be whether the petitioner is a Khadi Gramodyoga & Village Industry. If that is so, then the premises occupied by such an industry for purposes other than residential will also fall under separate category which is specified in Rule 1.3.1. In that event the special category will have an overriding effect and it will prevail over the general category. Such an industry even if it runs a shop for trading purposes or a factory will not be governed by Rule 1.5.1 but by Rule 1.3.1. The answer to the controversy will, therefore, depend upon the true interpretation of Item 17 of Rule 1.3.1 that is "Premises occupied by Khadi Gramodyoga & Village Industries". The expression "Village Industries" has been defined in the Khadi and Village Commission Act, 1956. Section 2(h) thereof defines "Village Industries" to mean all or any of the industries specified in the Schedule and includes any other industry deemed to be specified in the schedule by reason of a notification under section 3. There is no dispute in the instant case that the activity carried on by the petitioner is an activity carried on by an industry falling in the list of industries specified in the schedule to the said Act. The only controversy is--can this clause be confined to industries owned by Khadi and Village Industries Commission or to all industries specified in Clause (h) of section 2 of the Act irrespective of their ownership. On a plain reading of Rule 1.3 of the Water Charges Rules I do not find any scope for giving such a narrower meaning to it. It is not possible to add words to this rule. If the interpretation sought to be given by learned Counsel for the BMC is to be accepted then this rule has to be read as "premises occupied by Khadi and Village Industries owned by Khadi and Village Industries Commission. It is well settled that such an interpretation is impermissible. I am, therefore, of the clear opinion that the petitioner in the instant case is liable to pay water charges for the premises used for purposes other than residential at the rate prescribed in Rule 1.3 and not the rate prescribed in Rule 1.5 which is applicable to all other shops, factories etc. not falling under Rule 1.3.1 or any other specific entry.
8. Under the circumstances, the matter is remanded to respondent No. 1 to furnish the requisite information as indicated above to the petitioner and after giving a reasonable opportunity of hearing to the petitioner decide the matter afresh keeping in mind the observations made above. The various impugned demand notices including the final notice (Exhibit--B) dated 9-2-1987 are, therefore, quashed.
9. Till this matter is finally decided by respondent No. 2 the petitioner shall however continue to pay water charges in terms of the directions contained in the interim order of this Court dated 7-9-1987.
10. Certified copy expedited.