Calcutta High Court
The Kolkata Municipal Corporation & Ors vs M/S. Neelambar Finvest P.Ltd on 16 March, 2009
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
IN THE HIGH COURT AT CALCUTTA
APPEAL FROM AN ORDER PASSED
IN ITS CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
Hon'ble Mr. Justice Ashim Kumar Banerjee
And
Hon'ble Mr. Justice Prasenjit Mandal
APO No. 231 of 2003
W.P.No. 964 of 2002
The Kolkata Municipal Corporation & Ors.
Vs.
M/s. Neelambar Finvest P.Ltd.
APO No. 232 of 2003
W.P.No. 870 of 2002
The Kolkata Municipal Corporation & Ors.
Vs.
Hitesh P.Karodia
APO No. 233 of 2003
W.P.No. 859 of 2002
The Kolkata Municipal Corporation & Ors.
Vs.
Kerbs & CIE (India) Ltd.
APO No. 49 of 2003
W.P.No. 964 of 2002
The State of West Bengal
Vs.
M/s. Neelambar Finvest P. Ltd.
APO No. 50 of 2003
W.P.No. 859 of 2002
The State of West Bengal
Vs.
Kerbs & CIE (India) Ltd.
APO No. 50 of 2003
W.P.No. 859 of 2002
The State of West Bengal
Vs.
Hitesh P.Karodia
For the Kolkata Municipal Corporation:
Mr. Bimal Kumar Chatterjee, Senior Advocate
Mr. Ashok Kumar Das Adhikari, Senior Advocate
Mr. Sandip Kumar De, Advocate.
For KERBS & CIE (India) Ltd.:
Mr. Anindya Kumar Mitra, Senior Advocate
Mr. Samrat Sen, Advocate
Mr. Ambar Nath Banerjee, Advocate.
For the State:
Mr. Balai Chandra Roy, Advocate General
Mr. Tapas Sinha, Advocate.
Heard on.: February 11, 2009, February 18, 2009, February 25, 2009,
March 4, 2009, March 5, 2009 and March 6, 2009.
Judgment on: March 16, 2009.
ASHIM KUMAR BANERJEE, J.:
1. POINTS OF CONTROVERSY :
1.1. Section 214 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the "said Act of 1980" ) provides for method of recovery of tax by the Corporation. As per the said provision the Corporation was obliged to issue a bill upon the person liable to pay the tax. Despite presentation of the bill, if no amount is paid within thirty days notice of demand is served under Section 217. Despite notice of demand if amount is not paid such amount together with cost, interest and penalty as per the provisions of Section 217 would be recovered under a warrant by distress and sale of movable property under Section 219. Under Section 220 the procedure for distress sale has been prescribed. In terms of Section 221A on an unsuccessful attempt to recover the outstanding tax by adopting the mode discussed hereinbefore the Corporation is entitled to attach and sell immovable property belonging to the person liable. The Corporation is also entitled to attach rent payable by the tenants of any immovable property belonging to the debtor. Chapter-XVI has dealt with payment and recovery of taxes and Section 214 to 232 have prescribed a complete mode of recovery of taxes. Earlier under the old Act of 1951 there had been a provision for filing of suit for recovery of taxes. Ultimately the same was repealed while introducing the new law of 1980 wherein the Corporation is additionally empowered to recover the dues under Bengal Public Demanded Recovery Act, 1913.
On a composite reading of Chapter - XVI it thus appears that the prescribed mode under Section 214 is a step-by-step procedure for recovery of taxes and/or statutory outgoing payable to the Corporation.
1.2. Chapter XVII of the said Act of 1980 has dealt with water supply. In the said Chapter Section 275 has empowered the Municipal Commissioner to cut off or turn off supply of water to any premises on the eventualities prescribed therein. On a plain reading of the said provision such eventualities pertain to use and/or misuse of water in any premises. All the eventualities prescribed therein have a direct nexus with water supply except sub-section 1(g) where water supply is liable to be disconnected in case use of the said premises has been prohibited for human habitation. Sub-section 1(j), inter alia, provides that in case of non-payment of tax for water supply the supply connection is liable to be disconnected. 1.4. By an amendment brought in through West Bengal Bengal Act VIII of 2001 the Legislature introduced sub-section (1)(aa) which reads as follows :-
"(aa) if, in respect of the premises, any taxes or rates or fees or charges are in arrear for payment for more one year."
With such incorporation Section 275(1) as of date reads as follows :-
"275.Power of Municipal Commissioner to cut off or turn-off supply of water to premises.-(1) Notwithstanding anything contained in this Act, the Municipal Commissioner may cut off the connection between any water works of the Corporation and any premises to which water is supplied from such works, or may turn off such supply, in any of the following cases, namely:-
(a) if the premises are unoccupied;
[(aa) if, in respect of the premises, any taxes or rates or fees or charges are in arrear for payment for more than one year;]
(b) if, after receipt of a written notice from the Municipal Commissioner requiring him to refrain from so doing, the owner or occupier of the premises continues to use the water or to permit the same to be used, in contravention of this Act or of any regulations made thereunder;
(c) if the occupier of the premises contravenes section 238;
(d) if the occupier refuses to admit any officer or employee of the Corporation duly authorised in that behalf into the premises for the purpose of making any inspection under this Act or under any regulations relating to water supply made under this Act, or prevents such officer or employee from making such inspection;
(e) if the owner or the occupier of the premises wilfully or negligently injures or damages his meter or any pipe or tap conveying water from any works of the Corporation;
[(ee) if the owner or the occupier of the premises fails to maintain water reservoir with covered lid or completely empty water tank once in a week;]
(f) if any pipes, taps, works or fittings connected with the supply of water to the premises be found, on examination by the Municipal Commissioner, to be out of repair to such an extent as to cause so serious a waste or water that, in the opinion of the Municipal Commissioner, immediate prevention is necessary;
(g) if the use of the premises for human habitation has been prohibited under this Act from the date from which the premises are to be vacated in pursuance of an order under this Act;
(h) if there is any water-pipe situated within the premises to which no tap or other efficient means of turning the water off is attached
(i) if by reason of a leak in the service-pipe or fitting, damage is caused to the public street and immediate prevention is necessary;
(j) if the occupier of the premises fails to pay in full any amount due from him for supply of water under this Act:
Provided that-
(i) water supplied for flushing privies or urinals shall not be cut off or turned off except when the Municipal Commissioner thinks it necessary to cut off or turn off such water for preventing damage to or accident on public streets;
(ii) water shall not be cut off or turned off in any case referred to in [clause (a) or clause (aa) or] clause (g) or clause (j) unless written notice of not less than seventy-two hours has been given to the occupier of the premises;
(iii) in any case referred to in clause (f) or clause (i), the Municipal Commissioner may carry out necessary repair to pipes, taps, works or fitting and recover the expenses thereof from the owner of the occupier of the premises."
Controversy arose when Corporation gave seventy-two hours notice to disconnect water supply in respect of the premises belonged to the respondents, inter alia, alleging that taxes were found due in respect of the premises in question for more than one year. Notices were issued, inter alia, by Chief Municipal Engineer, Water Supply as appears from page 31 of the Paper Book filed by the Calcutta Municipal Corporation in A.P.O.No. 233 of 2003 (hereinafter referred to as the said Paper Book). The respondents approached the learned Single Judge by filing independent writ petitions, inter alia, praying for an order of restraint as against the Corporation from disconnecting water supply. Initially there had been no challenge to the vires of the said amended provision. Learned Single Judge allowed such challenge to be made through a supplementary affidavit filed with the leave of the Court. 1.5. Learned Single Judge initially granted ad interim order restraining Corporation from disconnecting the water supply upon payment of a part of the outstanding. Ultimately by a common judgment and order dated September 24, 2002 the learned Single Judge struck down Section 275(1)(aa), however, kept the writ petitions pending to be decided on other issues. We are told that those writ petitions are still pending and awaiting their disposal.
2. THE DEVELOPMENT SUBSEQEUNT TO THE PASSING OF THE JUDGMENT AND ORDER IMPUGNED :
2.1. Altogether three writ petitions were dealt with by His Lordship by the above common judgment and order impugned herein. The Corporation as well as the State altogether filed six independent appeals from the said judgment and order. The appeals came up for hearing before a Division Bench in which I was a party. On perusal of the records it appears that the appeals started appearing before the said Division Bench on and from August 25, 2006. The matter was argued at length on behalf of the appellant Corporation. However, the State appellants being represented by learned Advocate General prayed for adjournment to consider as to the feasibility of bringing about amendment to the impugned section by taking care of the lacunas pointed out by the respondents/ writ petitioners and accepted by His Lordship. It further appears from record that on the prayer of the State the matter was adjourned from time to time. Ultimately on March 19, 2007 the Division Bench dismissed the appeals as neither any fruitful purpose was served by adjourning the matter nor any attempt was made on behalf of the State to amend the provision for which adjournments were obtained.
2.2. By the judgment and order dated March 19, 2007 the Division Bench after recording the facts relating to adjournment observed as follows :-
"In Course of hearing, it was felt that the impugned section needs appropriate amendment. The learned Judge also had the same view and, as such, struck out the impugned section. Adjournment was prayed for on behalf of the State which was granted by us. Sufficient time has been given to the State on that score. The matter is appearing today in our list after about five months. No useful purpose would be served by keeping this matter pending and giving further adjournment in the matter.
The impugned section as it stands today has been struck out by the learned Single Judge. We have perused the judgment and order. We do not find any scope of interference therein. Accordingly, the appeals are dismissed.
The State would, however, be free to bring about any appropriate amendment to the impugned section, if they so choose."
2.3. The Division Bench could not deal with the issue on merits as no further argument was advanced on that day on behalf of the appellants on merits. In fact the hearing was not concluded by and on behalf of the appellants and they went on praying for adjournment so that the proper amendment could be brought in. The Division Bench initially granted several adjournments. However, since no fruitful result was forthcoming it dismissed the appeals by granting opportunity to the State to bring proper amendment. In this back drop the Division Bench passed the order by observing as quoted (supra).
2.4. The State neither amended the law nor approached the Apex Court against the judgment and order of the Division Bench. The Corporation however, filed three separate Special Leave Petitions. The said Special Leave Petitions were allowed by the Apex Court by setting aside the judgment and order dated March 19, 2007 and remanding the appeals back to this Court for being heard afresh. The order of the Apex Court being relevant herein is quoted below :-
"From the impugned judgment of the Division Bench of the Calcutta High Court affirming the decision of the learned Single Judge, these appeals are filed by the Kolkata Municipal Corporation. The learned Single Judge has struck down Section 275(1)(aa) of the Kolkata Municipal Corporation Act, 1980. Against the said decision, number of Writ Appeals were filed by the Corporation. It appears from the impugned decision that at one stage, the matter stood adjourned on the ground that the State had agreed to amend the law. However, that did not materialize. By a cryptic order, the Division Bench has stated that they have perused the judgment and they did not find any scope for interference in the order of the learned Single Judge. We are of the view that in matters involving constitutionality, it would not be open for the High Court to dismiss Writ Appeals on such cryptic grounds.
In the circumstances, we set aside the impugned judgment of the Division Bench and we restore A.P.O.No.233 of 2003 and other Appeals to the file of the Kolkata High Court. We direct the High Court to expeditiously hear and dispose of the said appeals in accordance with law.
At this stage, learned counsel appearing for the Corporation states that the Corporation prays for stay of the judgment given by the learned Single Judge. We cannot grant such a prayer particularly when we are setting aside the impugned order passed by the Division Bench. However, it would be open to the Corporation to move the Division Bench in the pending Appeals for interim relief, if so advised."
2.5. The Apex Court passed the said order on January 16, 2009. This was communicated to the Registrar of this Court in its Original Side through fax by the Apex Court Registry on February 4, 2009. The matter was placed before us on February 5, 2009 by the Registry. We directed listing of all the Corporation appeals. We started hearing the said matter on February 11, 2009 when the learned Advocate General pointed out that the Apex Court directed all the appeals to be heard although it was not clear to us whether the state appeals were also remanded back in absence of any challenge by the State before the Apex Court. To avoid complication we directed the State appeals also to be listed and we continued hearing on the subsequent dates of all the six appeals which were heard on the above mentioned dates and are being disposed of once again by this common judgment and order. It is true that the Division Bench did not assign any reason on merits on the challenge to the vires of the said provision. Such omission was due to the subsequent developments discussed above. However, in deference to the desire of the Apex Court we heard the matters afresh by affording opportunity of hearing to all concerned. Only one respondent being Kerbs & Cie (India) Limited appeared. The other two respondents were conspicuously absent at the hearing.
3. THE ORDER OF REMAND AND ITS IMPLICATION :
3.1. Mr. Anindya Kumar Mitra, learned senior counsel appearing for the Kerbs & Cie (India) Limited contended that the Apex Court did not set aside the order of dismissal of the appeals on merits. The Apex Court rather asked this Court to assign reasons in support of the order of dismissal. In brief, if we have understood Mr. Mitra correctly, he wanted to mean that we do not have any scope to allow the appeals. We are only to supplement reasons for dismissal.
3.2. We have perused the order of the Apex Court quoted (Supra). We are unable to accept the contention of Mr. Mitra. Constitution of the earlier Bench was different from the present Bench although one member of the Bench is a common feature. The other member of the present Bench did not get any opportunity to apply his mind earlier. The appeals were directed to be heard afresh and disposed of as such. It might be true that the Apex Court prompted to allow the Special Leave Petition and passed an order of remand as the earlier order was devoid of reasons, that in our humble view, did not mean that the present Division Bench is only to supplement the reasons for dismissal of the appeals and did not have any authority to hold otherwise.
Accordingly, we decided to hear the appeal afresh and those were heard on the above mentioned dates. We granted opportunity to all concerned to place their views before us. However, except Kerbs & Cie the other writ petitioners did not chose to appear.
4. BRIEF CONTENTIONS OF THE PARTIES BEFORE THE LEARNED SINGLE JUDGE AS APPEARS FROM THE JUDGMENT AND ORDER IMPUGNED :
4.1. RESPONDENTS/WRIT PETITIONERS:
(i) Section 275(1) contemplated eleven specific contingencies which had nexus with use and mis-use of municipal water by the owners/ occupiers whereas the impugned provision did not have any nexus with regard to the supply of water.
(ii) The impugned provision contemplated disconnection in view of outstanding of property tax although charges for supply of water were fully paid and there was no default or delay on such account.
(iii) The impugned provision was unreasonable, arbitrary and violative of Article 14 of the Constitution as water being basic minimum amenity of human life deprivation of such would amount to violative of Article 21 of the Constitution.
(iv) The impugned notices were not issued by the Municipal Commissioner whereas Section 275 empowered only the Municipal Commissioner to disconnect the water supply. He was not competent to sub-delegate his power under the said provision.
(v) Mode of recovery of taxes was prescribed in Chapter - XVI. Section 214 prescribed the manner of recovery, over and above the immovable property remained charged for outstanding on account of property taxes in terms of Section 232. The Corporation was thus entitled to recover outstanding by filing a civil suit by enforcement of statutory charge under Section 232.
(vi) Procedure for recovery through disconnection of water supply was more onerous and prejudicial to a defaulting tax payer than the procedure prescribed under Chapter
- XVI.
(vii) The impugned provision had given blanket power to the Municipal Commissioner without prescribing any guideline for use of such power. There was no reasonable classification as to whether in case of a default the procedure laid down under Chapter - XVI would be followed or the impugned provision under Section 275(1)(aa).
(viii) Such arbitrary and uncontrolled power to realise arrears of property tax empowered the Municipal Commissioner to disconnect water supply.
(ix) There was no provision for appeal against the decision of the Municipal Commissioner to disconnect water supply. Seventy-two hours notice was also unreasonable being too short. Such provision suffered from the vice of excessive delegation without having any guideline and was thus violative of Article 14.
(x) The impugned provision might be misused by the owner of any property to evict any tenant or occupier by deliberately defaulting to make payment of the taxes and thereby inviting disconnection of water supply in the premises in question.
4.2. CORPORATION:
(i) Section 119 and Section 120 read together would depict that 30% of the property tax was to be utilized for water supply, sewerage and drainage. Hence, property tax had nexus with water supply.
(ii) Under the said Act of 1980 Corporation was under an obligation to supply wholesome water and for such purpose 30% of the property tax was to be utilized.
(iii) A rate payer in addition to property tax was required to pay other taxes including water tax. In absence of payment of property tax it would be impossible for Corporation to supply wholesome water as the fees and/or tax for supply of water did not cover the cost of maintenance of water supply.
(iv) The impugned provision had a guideline that in case there had been any arrear on account of taxes, rates and/or fees for more than one year such provision could be resorted to. The Municipal Commissioner being a responsible officer was empowered to avail such power and as such there was no excessive delegation or uncontrolled power conferred upon the Commissioner by the amended Act.
(v) Simply because power of disconnection was not included as a mode of recovery of tax in Chapter XVI the same could not be declared as void.
(vi) The Corporation could not be held liable or could not be compelled to supply water to the tenants in respect of a premises where the landlord was in default in payment of arrear taxes.
4.3 STATE :
State adopted the contentions raised by Corporation and additionally contended as follows :-
(i) Section 265(2) imposed a duty on the Corporation to make an endeavour to cover the cost of operation, maintenance, depreciation, interest payment and other charges related to water supply. However, such provision did not bind the Corporation to include all costs in the water fees for supply of water.
(ii) The impugned provision did not have any legislative incompetency.
5. VIEW OF THE LEARNED SINGLE JUDGE:
5.1. GENERALISED IMPRESSION ON INTERPRETATION:
(i) Article 14 prohibits class legislation, it, however, does not forbid reasonable classification.
(ii) Reasonable classification means ; (a) classification must be based on an intelligentable differentia ; (b) Distinguished mark must have a rational to the object.
(iii) The classification may be founded on different basis like geographical or according to object of occupation or like. However, it must have a nexus between the basis of classification and the object of the Act.
(iv) Article 14 condemns discrimination not only by a substantive law but also by a procedural law.
(v) Court would strike down a law if the same provides for delegation of arbitrary and uncontrolled power and discriminate between persons or things similarly situated and such discrimination is inherent.
5.2. VIEWS ON SUBJECT CONTROVERSY:
(i) Chapter XVI dealt with payment and recovery of taxes. It had also prescribed the mode of recovery.
(ii) Attachment of rent was also permissible under Section 214(e). However, such power could only be exercised in case of failure to recover any sum from the person primarily liable under Section 193.
(iii) Attachment of rent was thus only possible when the other mode failed. However, Section 275 (i)(aa) empowered the Municipal Commissioner to cut off water supply where the arrear was more than one year without indication of any guideline. Such provision was thus not legal in view of the majority decision of the Special Bench of this Court in case of S.N.Nawab Arif Vs. Corporation of Calcutta & Ors. reported in 64, Calcutta Weekly Notes, Page -1.
(iv) The Municipal Commissioner had uncontrolled and unguided power to discriminate between one defaulter and the other while exercising the power under the impugned provision.
(v) Once a tenant was prepared to pay the amount of rent payable to his landlord directly to the Corporation pursuant to an order of attachment of rent under Section 214(e) the Corporation was not entitled to disconnect the water supply to his detriment.
(vi) The Municipal Commissioner was not empowered to delegate his power under Section 275(1)(aa) exercising power under the provision of Section 48(3)(b) of the said Act of 1980.
(vii) Once there had been other mode of recovery of tax such unbridled and harsh power could not be allowed to be exercised.
(viii) Once the water fees and/or water taxes was fully paid the Corporation was not entitled to disconnect supply on the alleged plea of outstanding property taxes which had no nexus with water supply.
(ix) The Corporation was obliged to make an endeavour to recover the cost of water supply under Section 265(2) of the said Act of 1980 and include the same in water fees. Hence, for non-payment of property taxes the water supply could not be disconnected when it was not in arrears. The Corporation also used to sell water to various authorities including Port Trust which would show that property tax did not have nexus with cost of water supply.
(x) Corporation was also entitled to invoke the impugned provision by taking aid of Section 234 (1) of the said Act of 1980 to seal a tubwall although installed at the cost of the owner and maintained by the owner himself without having any nexus with property tax.
(xi) Disconnection of water supply was violative of provisions of Article 21 of the Constitution as water being a basic amenity citizen was deprived of getting supply of water in view of the impugned provision. Section 271(1)(aa) was discriminatory and violative of Article 14 and so void under Article 13.
6. CONTENTION OF CORPORATION/APPELLANT BEFORE US:
(i) Under the said Act of 1980 the Corporation was obliged to make provision for supply of water. Under Sections 119 and 120, 30% of the property tax was to be utilized for water supply, drainage and sewerage. Under Section 132 Corporation was to make provision for water supply in its annual budget. Hence, cost of supply of water came from the fund credited by Corporation by deposit of property tax in such fund to the extent of 30%. Hence, the water supply had nexus with property tax.
(ii) The procedure laid down under Section 214 was not sufficient to realise arrear taxes and the Legislature thought it fit to incorporate Section 275(1)(aa) as an additional mode for recovery of arrear taxes.
(iii) Apportionment of property tax was provided in Section 194. The said provision read with Section 180 imposed the primary liability on the owner to pay property tax coupled with liberty to recover half of the tax from the occupants being the tenants or the sub-tenants. Hence, tenants and/or sub-tenants and/or lawful occupants of the premises in question were also liable to pay property taxes. Hence, the tenant, although not primarily liable to Corporation to pay property tax, was obliged to pay such tax to the extent of 50%.
(iv) Mere placement of a particular provision in a wrong place in the Act did not make the same per se illegal so long it had nexus with the purpose.
(v) Alternatively if this court found that the said provision required any further guideline to be followed the court was competent to read down the said provision to make it harmonious with the purpose for which such provision was enacted by the Legislature.
7. CONTENTION OF THE STATE BEFORE US : (i) There had been no conflict between Chapter XVI and Chapter XVII as Chapter XVI provided for recovery of tax whereas Chapter XVII provided the procedure to be followed in the matter of water supply.
(ii) Section 214 clearly stipulated that such procedure was to be followed for recovery of arrear taxes "save as otherwise provided" in the said Act. Hence, the provisions contemplated in Section 214 was subject to other provisions of the said Act which included Section 275(1)(aa).
(iii) Section 275(1) clearly provided that notwithstanding anything contained in the said Act the Municipal Commissioner was authorized to disconnect water supply on the eventualities mentioned therein. Hence, the other provisions of the said Act, if in conflict with Section 275, would have no role to play because of the non-obstante clause incorporated in Section 275.
(iv) The power of the Legislature could not be questioned when it legislated any enactment in consonance with the policy of the Government. Hence, once the impugned provision did have a clear purpose to serve the object of the said Act of 1980 such power of the Legislature could not be questioned.
(v) The impugned provision being a taxing statute should be construed by the Court liberally and it could not be said to be illegal merely on the plea that it did not have any nexus with the other provisions contained in the original section.
(vi) Section 275(1) delegated the power for disconnection only upon the Municipal Commissioner and in case any other officer exercised such provision by virtue of a sub-delegated power such action should be struck down considering the facts and circumstances of a given case. However, the impugned provision could not be struck down on the mere plea that the Municipal Commissioner purportedly sub-delegated his power upon any sub-ordinate official.
(vii) To bring harmony and to cope up with the object of the said Act of 1980 the Court, if found fit and proper, should read down the said provision by imposing conditions and/or guidelines for its exercise.
8. CONTENTION OF KERBS AND CIE BEFORE US :
(i) The issue of legislative competence was not argued before the learned Single Judge and hence the appellants were not entitled to raise such plea for the first time before the Court of Appeal and that too when the appeals were remanded back for being heard afresh.
(ii) The non-obstante clause contained in Section 275(1) should be read in consonance with the original purport of the said provision prior to its amendment.
(iii) Chapter - XVI was a composite procedure for recovery of tax which did not contemplate disconnection in case of non-payment. Hence, such provision being incorporated in Chapter - XVII being repugnant to the object was not permissible.
(iv) Section 29 of the said Act of 1980 imposed an obligation on the Corporation to make provision for water supply. Hence, the impugned provision could not absolve the Corporation from its obligation to supply wholesome water even if there had been any default.
(v) Under Section 29 the Corporation was obliged to supply water for public and private purpose. The Corporation was also authorized to recover any arrear tax through the prescribed mode under Chapter - XVI. Hence, without availing such method as stipulated under Chapter - XVI the Corporation could not refuse supply on the mere plea of non-payment.
(vi) Article 21 guaranteed the right to life. Water being a basic amenity of life could not be refused on the mere plea of non-payment and that too to the occupants who were not primarily liable to pay property tax. Under the provision of the said Act of 1980 any domestic house was duty bound to apply before the Corporation for supply of water for domestic purpose and in default the Municipal Commissioner was obliged to compel the owner to take a connection from the supply maintained by the Corporation. Hence, it was the primary duty of the Corporation to see that every premises was connected with supply of wholesome water through Corporation supply system and the same could not be disconnected under the impugned provision.
(vii) Under Section 234 the Corporation was duty bound to supply water to all premises and such obligation could not be done away with on the plea of non- payment of property tax.
(viii) The impugned provision without having any guideline was liable to be struck down as it might be used/mis-used for oblique purpose being uncontrolled, unguided and arbitrary.
(ix) Under Article 243X of the Constitution the State Legislature was authorized to delegate power on the municipality to levy, collect, appropriate taxes and/or duties and/or fees in accordance with such procedure subject to such limits as may be specified in law. Article 243W empowered the State Legislature to authorize any municipality to function in respect of the matters listed in twelfth Schedule of the Constitution. The twelfth Schedule, inter alia, included water supply for domestic, industrial and commercial purposes. Hence, such obligation under the Constitution was to be performed by the Corporation being authorized by the State Legislature through the said Act of 1980.
(x) Once the State Legislature empowered the Municipal Commissioner to exercise such provision any officer subordinate to him was not entitled to exercise such power.
(xi)The impugned provision did not have any nexus with water supply and was bad being dehors the object of the original provision.
(xii) Under section 265 the Corporation must make an endeavour to cover the cost of supply, maintenance and other charges by imposing water fee. Hence, as long the water fees were paid regularly by an occupant and/or the owner the Corporation was not entitled to disconnect the same on the plea of outstanding property tax. Supply of water being basic need of a human being to survive, could not be refused which would amount to violation of Articles 14 and 21 of the Constitution.
(xiii) Under the old Municipal Law of 1951 the Corporation did not have any statutory obligation to supply water which was subsequently incorporated in the new Act of 1980. Hence, such primary purpose of the said Act of 1980 could not be throttled down on the mere plea of non-payment of property tax which had an exhaustive process of recovery under Chapter XVI.
9. REACTION OF KERBS AND CIE TO THE ARGUMENT ADVANCED BY THE CORPORATION AND THE STATE :
(i) Sections 119 and 120 did not specifically provide for allotment of fund for the sole purpose of water supply. 30% of the property tax was to be spent for the purpose of water supply as well as drainage and sewerage. Hence, such provision could not establish any nexus with the impugned provision specifically when Section 265 clearly imposed a duty on the Corporation to make an endeavour to have reimbursement of the cost of water supply through additional tax or fees.
(ii) The respondent/ writ petitioner challenged the vires of the impugned provision.
The learned Single Judge entertained such challenge and dealt with the same in the judgment without touching upon the factual matrix involved therein and kept the writ petitions pending for being heard on merits. Hence, the Court of Appeal was not entitled to enquire upon as to whether there had been any default on the part of the respondent and if so to what extent.
(iii) Limited scope in the appeals was only to supplement reasons for striking down the impugned provision and the Court of Appeal could not go beyond the said scope.
(iv) The order of remand was for a limited purpose to supplement reasons for the striking down. Hence, the Court of Appeal was not competent to go into the factual matrix involved in the respective writ petitions.
(v) The Court was competent to read down a provision only when it required a clarification to bring harmony with the object of the Act. It was not within the domain of the Court to provide guidelines which completely fell within the domain of the Legislature.
10. CORPORATION/ APPELLANT IN REPLY :
(i) There was no specific challenge to the vires of the impugned provision in the original writ petition. Hence, the learned Judge should not have allowed such challenge to be made through supplementary affidavit without amending the original writ petition.
(ii) Section 29 did not have any conflict with Section 275(1)(aa) as the Corporation was only duty bound to provide "means" of water supply by making provision for infrastructure for supply of water. Hence, there was no absolute obligation as erroneously contended on behalf of the respondent/ writ petitioners.
11. REACTION OF THE STATE IN REPLY :
(i) There had been no conflict between two modes and in view of the non-obstante clause the Legislature was entitled to empower the Municipal Commissioner to adopt the mode for recovery by exercising his power under the impugned provision.
(ii) The saving clause incorporated in Section 214 made it wide to have any other provision under the said Act to operate. Once the impugned provision contained a non-obstante clause having overriding effect over any other provision of the said Act including those contained in Chapter XVI, impugned provision would prevail over the other.
(iii) To examine a particular provision of the statute the entire statute was to be read as a whole and to be considered to find out the rationale and/or nexus the impugned provision had with the original Act.
(iv) In case the Court found that the apprehension of the respondent/ writ petitioners that there might be chance of misuse of power the Court was competent to lay down guidelines to eradicate chance of misuse.
12. CASES CITED BY THE PARTIES IN SUPPORT OF THEIR RIVAL CONTENTIONS:
(i) All India Reporter, 1961, Supreme Court, Page 1715 (The State of Orissa Vs. Dhirendranath Das)
(ii) All India Reporter, 1981, Supreme Court, Page 2138 (R.K. Garg Vs. Union of India & Ors.)
(iii) 1983, Volume - I, Supreme Court Cases, page 305 (D.S. Nakara & Ors. Vs. Union of India)
(iv) 1996, Volume - II, Supreme Court Cases, Page - 549 (Chameli Singh & Ors.
Vs. State of U.P. & Anr.)
(v) All India Reporter, 1998, Supreme Court, Page 1388 (A.G. Veradarajulu & Anr. Vs. State of Tamil Nadu & Ors.)
(vi) All India Reporter, 1999, Calcutta, Page 205 (Machinnon Machenzie & Co. Ltd. Vs. The Calcutta Municipal Corporation & Ors.)
(vii) All India Reporter, 2000, Supreme Court, Page 2747 (Vishin N. Khanchandani & Anr. Vs. Vidya Lachmandas Khanchandani & Anr.)
(viii) 2000, Volume - X, Supreme Court Cases Page - 664 (Narmada Bachao Andolan Vs. Union of India & Ors.)
(ix) 2001, Volume - I, Calcutta High Court Notes, Page 4 (C.M.C. & Anr. V. Abid Hossain)
(x) 2003, Volume - VI, Supreme Court Cases, Page 255 (Savitri Cairae Vs. U.P. Avas Evam Vikas Parishad & Anr.)
(xi) 2003, Volume - VII, Supreme Court Cases, Page 628 (Balaram Kumawat Vs. Union of India & Ors.)
(xii) 2003, Volume - X, Supreme Court Cases, Page 533 (Calcutta Gujarati Society & Anr. Vs. Calcutta Municipal Corporation & Ors.)
(xiii) 2005, Volume - XII, Supreme Court Cases, Page 77 (State of Rajasthan & Ors. Vs. Basant Nahata)
(xiv) 2006, Volume - VIII, Supreme Court Cases, Page - 399 (Confederation of Ex-servicemen Association & Ors. Vs. Union of India & Ors.)
(xv) 2008, Volume - VIII, Supreme Court Cases, Page - 720 [Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (smt)]
13. DISCUSSION ON THE PRECEDENTS :
(i) All India Reporter, 1961, Supreme Court, Page 1715 (The State of Orissa Vs. Dhirendranath Das) : In this case the Apex Court made a comparative study of a particular rules being Tribunal Rules and other disciplinary rules and held that the Tribunal Rules were less advantageous and more drastic than the service rules and such conferment of an unfettered discretion on the executive to apply either set of rules would offend Article 14.
(ii) All India Reporter, 1981, Supreme Court, Page 2138 (R.K. Garg Vs. Union of India & Ors.) : Paragraphs 7 and 8 were relied upon by the Corporation whereas State relied upon paragraphs 6, 7 and 8. The five Judges' Bench of the Apex Court observed that Article 14 does not forbid reasonable classification. Permissible classification under Article 14 means that such classification must not be arbitrary, artificial or evasive but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislature. When a particular provision comes for consideration as to whether it is violative of Article 14 it is necessary to bear in mind that there must be a presumption in favour of the constitutionality of the statute and thus the burden is upon the person who attacks it to show that there has been transgression. The other rule is that the laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc.
(iii) 1983, Volume - I, Supreme Court Cases, page 305 (D.S. Nakara & Ors. Vs. Union of India) : Five Judges' Bench of the Apex Court in paragraph 60 of the said decision observed that whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification, by striking words of limitation, the resultant effect may be of enlarging the class. In such a situation, the court can strike down the words of limitation in an enactment. That is what is called reading down the measure.
(iv) 1996, Volume - II, Supreme Court Cases, Page - 549 (Chameli Singh & Ors.
Vs. State of U.P. & Anr.) : In this case the Apex Court observed that right to live as a human being is not ensured by meeting only the animal needs of man. Right to shelter includes pure water.
(v) All India Reporter, 1998, Supreme Court, Page 1388 (A.G. Veradarajulu & Anr. Vs. State of Tamil Nadu & Ors.) : In this case Apex Court observed that while dealing with a non-obstante clause under which legislature wants to give overriding effect to a section the Court must try to find out the extent to which legislature had intended to give one provision overriding effect over another provision. Such intention is to gathered from the enacting part of the section.
(vi) All India Reporter, 1999, Calcutta, Page 205 (Machinnon Machenzie & Co. Ltd. Vs. The Calcutta Municipal Corporation & Ors.) : The Division Bench of Calcutta High Court considering sections 231 and 232 observed that tax could be recovered from the occupier by attachment of rent in case of failure to recover the tax from the persons primarily liable being the owner.
(vii) All India Reporter, 2000, Supreme Court, Page 2747 (Vishin N. Khanchandani & Anr. Vs. Vidya Lachmandas Khanchandani & Anr.) : The Apex Court decision in this case considered a non-obstante clause and observed, the same is used in a statute to avoid conflict with any other provision of the said or any other statute. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the object and reasons for which such an enactment is made has to be kept in mind.
(viii) 2000, Volume - X, Supreme Court Cases Page - 664 (Narmada Bachao Andolan Vs. Union of India & Ors.) : In this case the Apex Court observed, water is one element without which life cannot sustain. Therefore, it is to be regarded as one of the primary duties of the Government to ensure availability of water to the people. In paragraph 248 thereof, the Apex Court observed that water is a basic need for survival of human beings and is a part of the right to life and human rights as enshrined in Article 21.
(ix) 2001, Volume - I, Calcutta High Court Notes, Page 4 (C.M.C. & Anr. V. Abid Hossain) : To understand the provision one has to look to the language used in such provision. In case upon looking to the language if the power was found to be a quasi-judicial power the authority was obliged to give reasons and if necessary, opportunity of hearing to the persons likely to be affected by reasons of exercise of such power.
(x) 2003, Volume - VI, Supreme Court Cases, Page 255 (Savitri Cairae Vs. U.P. Avas Evam Vikas Parishad & Anr.) : The Apex Court held that ordinarily equality clause enshrined in Article 14 could not be invoked in the matter of enforcement of a State legislation vis-à-vis a Parliamentary legislation or legislation of another State. But the contention to the effect that Article 14 is not attracted could not be accepted considering the facts involved in the said case. There, the land acquired under the state legislation and the land acquired under the Land Acquisition Act being a Central Act provided for different rates of compensation. The Apex Court held the same as illegal.
(xi) 2003, Volume - VII, Supreme Court Cases, Page 628 (Balaram Kumawat Vs. Union of India & Ors.) : The Apex Court observed, the Court will reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. Reducing the legislation futility shall be avoided and in a case where the intention of the Legislature cannot be give effect to, the Courts would accept the bolder construction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve.
(xii) 2003, Volume - X, Supreme Court Cases, Page 533 (Calcutta Gujarati Society & Anr. Vs. Calcutta Municipal Corporation & Ors.) : The Apex Court in this case held that since a tenant had the ultimate liability to pay property tax to the extent of 50% it must have proper right to be heard at the time of assessment. While dealing with such question in paragraph 35 of this judgment the Apex Court considered the doctrine of "reading down". According to the Apex Court the rule of "reading down" empowers the Court to make a harmonious construction in a different name. It is resorted to smoothen the crudities or ironing out the creases found in a statute to make it workable. It also observed that in the garb of "reading down" it is not open to read words and expressions not found in it and thus venture into a kind of "judicial legislation".
(xiii) 2005, Volume - XII, Supreme Court Cases, Page 77 (State of Rajasthan & Ors. Vs. Basant Nahata) : The Apex Court decision in this case observed that the necessity of the Legislature's delegating its powers in favour of the executive is a part of the legislative function. Such delegation, however, cannot be wide, uncanalised or unguided. It, however, observed in paragraphs 30 to 32 of the said decision that the Court shall not invalidate a Legislation on the ground of delegation of essential legislative function or on the ground of conferring unguided, uncontrolled and vague powers upon the delegate without taking into account the preamble of the Act as also other provisions of the statute in the event they provide goods means of finding out the meaning of the offending statute.
(xiv) 2006, Volume - VIII, Supreme Court Cases, Page - 399 (Confederation of Ex-servicemen Association & Ors. Vs. Union of India & Ors.) : Five Judges' Bench of the Apex Court in paragraph 61 of the said decision observed that right to life guaranteed under Article 21 embraces within its sweep not only physical existence but the quality of life.
(xv) 2008, Volume - VIII, Supreme Court Cases, Page - 720 [Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (smt)] : The Apex Court herein held that as regards fiscal or tax measures greater latitude is given to such statutes than to other statutes. All decisions in the economic and social spheres are essentially ad hoc and experimental. Since economic matters are extremely complicated, this inevitably entails special treatment for special situations. The State must, therefore, be left with wide latitude in devising ways and means of fiscal or regulatory measures and the court should not, unless compelled by the statute or by the Constitution, encroach into this field, or invalidate such law.
14. OUR UNDERSTANDING ON THE LAW ON THE SUBJECT :
14.1. On a composite reading of the aforesaid precedents our understanding of the law is as follows :-
(i) A statute must not offend the basic structure of the Constitution including fundamental rights guaranteed to the citizens. However, it is permissible to the extent when there is reasonable classification having intelligible differentia.
(ii) To interpret a particular provision of a statute the statute must be read as a whole to get the true purport of the impugned provision.
(iii) Upon reading the entire provisions of the Act if it is found that the impugned provision has a nexus with the purpose for which the statute was enacted by the Legislature it should not be declared invalid.
(iv) When Legislature delegates the power on the executive such power must not be unguided, unbridled or uncanalised.
(v) Merely because impugned provision per se can be said to be uncontrolled or unguided it should not be struck down by the Court if it conforms the purpose of the statute as a whole. However, the Court should read down the said provision to maintain the harmony and to avoid conflict with any other provision of the statute or the Constitution, as the case may be.
(vi) "Reading down" is permissible by the Court to the extent when the purpose is not changed.
(vii) The Court has no power to legislate. Court can only iron out the creases contained in the statute.
15. OUR VIEW IN THE CASE IN HAND APPLYING THE ABOVE RATIO :
15.1. Article 21 guaranteed "right to life. The definition of "right to life" has been extended from time to time by the Apex Court which inter alia, included making provision for supply of pure water.
15.2. Section 29 of the said Act of 1980 has imposed an obligation upon the Corporation to provide by itself or by any agency means of supply of water for public and private purpose. In our view, this provision has imposed an obligation upon the Corporation to make adequate infrastructure so that every citizen residing in the city must have access to wholesome water. The Corporation is also entitled to compel an owner of any premises to have water connection through the Corporation.
If these provisions are read as a whole it would mean that the intention of the Legislature was to have appropriate infrastructure for supply of wholesome water through Corporation as also compelling the residents to have use of the same. Section 275(1) before its amendment provided that Municipal Commissioner was entitled to cut off water connection in any of the eventualities stipulated therein. If we read all these eventualities it would appear that it would restrict misuse of water. Sub-section 1(j), however, empowers him to disconnect in case of failure to make payment of water charges. Section 267 obligates the Corporation to make appropriate endeavour to cover the cost by way of imposition of appropriate water fees. Hence, the original provision of Section 275(1) read with other provisions of the said Act discussed above would mean that the Corporation did not have any absolute obligation to supply water to each and every premises irrespective of the fact whether the owner/ occupants/ residents pay for it or not. Such restriction, in our view, is a reasonable restriction imposed to avoid drainage of public exchequer as also imposing compulsion on the users to pay for it.
15.3. The Corporation in their wisdom has imposed water fees for commercial and/or industrial use as we are told, for domestic use it does not charge separately. Such action of the Corporation is not under challenge. Hence, we refrain from making any comment on the same. Sections 119 and 120 read together make it obligatory on the Corporation to spend at least 30% of the property taxes realised from the owners for the purpose of water supply, drainage and sewerage. Such 30% thus includes cost of water supply and such cost is spent by the Corporation to discharge its obligation cast upon it by the Legislature under Section 29 to honour the mandate of Article 21 of the Constitution so enlarged by the Apex court in the decisions discussed above. Hence, we find at the end of the day, Corporation must make provision for adequate infrastructure to supply water. Such cost comes from a substantial part of the property taxes. Hence, we do not find any illegality if the Corporation disconnects water supply to someone who refuses to pay property tax. We do not appreciate the argument of Mr. Mitra appearing for Kerbs and Cie when he says that water being a basic need must be supplied irrespective of payment. The original provision did stipulate that Corporation was entitled to disconnect in case of failure to pay water fees. If the Corporation's power to disconnect water supply in case of non-payment of water fees is lawful we do not why such disconnection in case of failure to pay property tax would be unlawful when a substantial part of it, is spent for supply of water. If we have to accept the contention of Mr. Mitra on that score we have to hold that the Corporation would be bound to supply water to all premises irrespective of the fact whether property tax is paid in respect of the said property or not.
15.4. Let us now come to the mode of recovery. Section 214 clearly stipulates the mode of recovery save as otherwise provided in the said Act itself. In view of such saving clause the other provisions, if any, contained in the statute with regard to mode of recovery are saved and they do not come in conflict with either Section 214 or any ancillary provision contained in Chapter - XVI. If we read sections 214 and 275 together we would find that the former was subject to other provisions of the Act whereas latter stands on an independent footing irrespective of any contrary provisions contained in the said statute. We do not find any conflict between these two provisions. Mr. Mitra tried to contend that when in fact Kerbs and Cie had been paying water fees regularly for their commercial connection they were immune from the "draconian" provision. We are unable to accept such contention. Firstly we say, such provision was not "draconian", secondly we say that there are eleven eventualities for which a premises is liable for disconnection of water supply and in any of the eventualities [except sub-section (1)(j)] the premises might be vulnerable to disconnection even if the water fees are paid regularly. Hence, we are of the view that the subject provision neither offends the prime object of the said Act of 1980 nor is in conflict with any other provisions of the said Act of 1980. Even if it is in conflict, because of the non-obstante clause it must have an overriding effect. 15.5. Let us now come to the issue of guideline. We fully agree with Mr. Mitra that the subject provision lacks proper guideline and there is a chance of misuse. At the outset, we must make it clear that on a plain reading of the section it is clear that the Municipal Commissioner is only authorized to exercise such power and in case any subordinate officer exercised such power such exercise was illegal and could not be protected under Sections 47 and 48 of the said Act. In our view, the impugned provision must have proper guidelines to prevent misuse. We fully agree with Mr. Mitra when he says that mere restriction on use of such provision for a defaulter less than one year was not enough as there might be a chance of discrimination between two persons being similarly circumstanced. To make it clear, for two persons having an outstanding for more than one year could be discriminated by the authority by exercising its power under the impugned provision in respect of one and proceeding against the other under Section 214 being less harsh. In this regard we fully rely on the majority decision of the Special Bench in the case of S.N. Nawab Arif (supra). We thus hold that the subject provision must have appropriate guidelines to prevent misuse and to avoid any violation of Article 14 and 21 of the Constitution. Hence, two options are before us; either to strike down the impugned provision and thus affirming the judgment and order of the learned Single Judge to the extent that it did not have any appropriate guideline or to read down the said provision by giving appropriate guideline to maintain harmony and to avoid misuse. 15.7. The doctrine of "Reading down" was interpreted by the Apex Court in the earlier precedents discussed above. If we take note of the decision in the case of Calcutta Gujarat Society (Supra) we would find that the Apex Court to give harmonious construction to the appropriate provision of assessment under the said Act of 1980 read down the provisions and held that since the occupants being the tenants and/or sub-tenants and sub-lessees and/or lessees would have the ultimate liability to pay property tax to the extent of 50% they must have a say in the matter of assessment. If we look to the original provision we would find that the Corporation was obliged to entertain objection from the owner or the person liable to pay the property tax in writing to the Municipal Commissioner before the date fixed in the notice under sub-section (4) of Section 184, in terms of Section 186. The Apex Court read down this provision and permitted hearing to the occupants also. The Apex Court held that in addition to public notice the tenants, sub-tenants and occupants were entitled to written notices for assessment, revision of assessment or amendment of assessment of the rate or tax. It also held that they would have a right of hearing although they were not persons primarily liable to pay such tax. In the instant case the Legislature thought it fit that to recover tax in addition to Section 214 the impugned provision should be added. We do not find any illegality therein. The manner in which such exercise would be made is really germane herein.
16. GUIDELINES 16.1. In the case of State of Rajasthan & Ors. Vs. Basant Nahata (supra) the Apex Court held that absence of guideline per se could not vitiate a particular provision if it otherwise conforms to the object of the statute, if read as a whole. We have just now held that the impugned provision did have a nexus with the object of the Act. It being a taxing statute must be interpreted liberally so that the Corporation can realise effectively property tax which is one of the main source of providing infrastructure for water supply. Hence, only because it lacks proper guidelines it should not be struck down. Hence, we intend to apply the doctrine of "reading down" by providing appropriate guide line for the same. The Municipal Commissioner is only authorized to exercise such power. He, being a highly responsible officer of the Corporation, must exercise it with great care and caution and as such he is not entitled to sub- delegate his power taking recourse to Section 47 and 48 of the said Act of 1980. 16.2. The Municipal Commissioner must also give reasonable notice to the owner as well as the occupants of the house so that they could offer explanation or take appropriate steps by approaching the court of law, inter alia, contending that such exercise of power in that particular facts and circumstances was not lawful. Seventy- two hours notice, in our view, was too short, more so when it is served at the end of the week putting hindrance on the notice from approaching the court of law. We, thus, feel seven days notice being a reasonable period should be given by the Commissioner himself before actual disconnection takes place. 16.3. There is a chance of misuse between same class of people both having outstanding more than one year. Hence, before issuance of such notice the Municipal Commissioner must record reasons in writing in the concern file of the Corporation to the extent that in his opinion in a given case exercise of such power would be in the interest of the Corporation. He must also record reasons why he does not think it appropriate to utilize other mode as contemplated under Section 214 or any other provisions of the Act before exercising such power. This is required to enable the court of law to examine the reasons, if approached by the notice, after receipt of notice. In this regard we may refer to section 400 of the said Act of 1980 where identical procedure has been laid down. Under Section 400(1) the Corporation can effect demolition of any unauthorized construction by giving reasonable notice being not less than five days and more than fifteen days from the date on which the copy of the order of demolition with a brief statement of reasons has been delivered to such person. Before effecting demolition the notice is also entitled to be heard on his objection, if filed and after the hearing is concluded the Municipal Commissioner would pass appropriate order for demolition. However, in addition to such procedure, section 400(8) provides another procedure to the effect that notwithstanding anything contained in the said Chapter in which such provision has been enacted if the Mayor- in-Council is of the opinion that immediate action is called for it may, for reasons to be recorded in writing, cause such building or work to be demolished forthwith. Such provision could be said less advantageous or harsh than the provision under sub- section (1) which provides for hearing to the objector. However, in such a case the Legislature thought it fit that the Mayor-in-Council would only be entitled to exercise such provision and that too after reasons to be recorded in writing. In our view, same procedure can be adopted while exercising such power by the Municipal Commissioner under the impugned provision.
Both the State and the Corporation must issue appropriate notification and/or cause the law to be amended, if necessary, incorporating the suggested guidelines before such impugned provision is exercised in future.
17. DUES OF KERBS & CIE:
17.1. Mr. Mitra in his submission made frantic attempt to divert our attention from the fact that there had been huge outstanding in case of the respondents above named. On the own showing of the Kerbs & Cie they had dues according to them to the tune of Rs. 37.00 lacs although the Corporation in the impugned notice claimed Rs. 85,37,300.36. The learned Single Judge directed deposit of Rs. 10.00 lacs while passing the interim order. We are told that from 2002 when the impugned provision was struck down by the learned Single Judge for last seven years not a single farthing was paid by the respondent. On a query made by this Court Mr. Das Adhikari appearing for the Corporation produced a print out of the outstanding which would show that as of date a sum of Rs. 4.00 crores and odd is due and payable by the respondent (Kerbs & Cie) to the Corporation on account of property tax. The respondent, however, are regularly paying poultry amount on account of water fees for commercial connection and the deep tubewel fees and claimed that they should have uninterrupted water supply. We enquired whether they would be in a position to pay the dues in a phased manner. We also invited them to place a proposal for clearing all the outstanding. They, however, blatantly refused on the plea that the Court of Appeal was not competent to go into such question. Other two writ petitioners did not even care to appear and contest the appeals. 17.2. Our conscience pricks and we cannot strike down such provision at the instance of earring defaulters who deliberately refused to pay the outstanding.
However, we feel that to avoid misuse the provision needs some guidelines which we have suggested hereinbefore. We hope and trust that both the State and the Corporation before exercising of such power would consider the views expressed by us in the foregoing decision.
18. RESULT :
18.1. The appeals succeed. The judgment and order impugned is set aside. The writ petition are dismissed by treating those as on day's list. There would be, however, no order as to costs. The appeals are disposed of with the observations and/or suggestions as to the guidelines stipulated above.
18.2. Urgent xerox certified copy of this order be given to the parties as expeditiously as possible, if applied for.
(Ashim Kumar Banerjee, J.) PRASENJIT MANDAL, J.
I agree.
(Prasenjit Mandal, J.)