IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 WA.No. 2492 of 2007 --------------------------- AGAINST THE JUDGEMENT IN OP.25804/1999 Dated 30/11/2006 .................... APPELLANT/1ST PETITIONER: ------------------------------------------ CONSUMER PROTECTION COUNCIL OF KERALA, THIRUVANANTHAPURAM, REGN.NO.TVM/98/85, REPRESENTED BY ITS FORMER GENERAL SECRETARY AND PRESENT PRESIDENT SRI.N.K.NARAYANA PILLAI, PRASANTH PRESS ROAD, THIRUVANANTHAPURAM-1. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN RESPONDENTS/RESPONDENTS & 2ND PETITIONER: ------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. 3. THE ASSISTANT EXECUTIVE ENGINEER, WATER WORKS SUB DIVISION, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 4. DIRECTOR, DEPARTMENT OF LEGAL METROLOGY, VIKAS BHAVAN, THIRUVANANTHAPURAM-33. 5. D. RAJAGOPALA PILLAI, T.C.29/888, PALKULANGARA, THIRUVANANTHAPURAM-24.(DELETED) Deleted at the risk of the appellant as per order dt. 22.11.07 in IA 931/07 BY SC SMT.AMBIKADEVI FOR R1 & 4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 2492 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2011 JUDGMENT J.Chelameswar, C.J. The sole appellant, a body registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, was the first petitioner in O.P. No. 25804 of 1999. The Society is formed with the object of espousing the cause of consumers in the State. The 2nd respondent is a body corporate with perpetual succession and common seal created for the purpose of various functions enumerated under Section 14 of the Kerala Water Supply and Sewerage Act, 1986 (for short 'the Act'). Broadly speaking; the functions are supply of water and the disposal of waste water and all matters connected or incidental thereto. For the purpose of the present appeal, we are only concerned with the supply of water but not with the disposal of waste water. 2. Under the scheme of the Act, the supply of water by the 2nd respondent is a service, for which the 2nd W.A. No. 2492 of 2007 -:2:- respondent collects fee/charges. Under Section 31 of the Act it is provided regarding the cost of the supply of water as follows: “31. Cost of water.- (1) The Authority shall, by notification in the Gazette, fix the cost of water to be supplied by it according to volume and also the minimum cost to be charged in respect of each connection. (2) The Authority may, in lieu of charging the cost of water according to volume accept a fixed sum for a specified period on the basis of expected consumption of water during that period.” 3. In view of the fact that the supply of water is subject to the payment of some charges either based on the volume of the water supplied to the individual consumer or otherwise. The 2nd respondent, admittedly, has been following a policy of supply of water and collecting charges on the basis of the volume of water supplied to the consumers. 4. Obviously for the purpose of determining the charges required to be paid by the consumer, there must be some method or procedure by which the quantity of water consumed is required to be assessed. For the said purpose, Section 42 of the Act authorises the 2nd respondent to W.A. No. 2492 of 2007 -:3:- install/attach appropriate meters measuring the water consumed by each of the consumer. Section 42 reads as follows: “42. Provision of water meters.-(1) The Authority may provide a water meter and attach the same to the service pipe in premises connected with the water works of the Authority. (2) The expenses of installation and the rent for the use of water meter referred to in sub-section(1) shall be paid by the consumer. (3) The provision of water meters and the transfer of connection thereto, the use, maintenance and testing of such meters and the expense of installation thereof and their rents and the furnishing of security, if any, in connection therewith shall be regulated by regulations.” 5. It can be seen from Section 42(3), that the 2nd respondent is authorised to make appropriate subordinate legislation(called Regulations) for the various purposes contemplated under Section 42. 6. Section 65 of the Act empowers the 2nd respondent to make regulations for the administration of the affairs of the authority. Section 65(1) reads as follows: “65.Regulations.- (1) Authority may, with the previous approval of the Government make W.A. No. 2492 of 2007 -:4:- regulations not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Authority.” 7. Further, under Section 65(2) the 2nd respondent is authorised to make regulations with reference to various matters enumerated therein. It is made clear under the said sub section that the enumeration is only illustrative but not exhaustive of the matters with reference to which the regulations could be made. Clauses (h) and (i) are relevant in the facts of the present case which read as follows: “(h) the terms and conditions for supply of water for domestic or other purposes; (i) the installation of meters or transfer of their connection and their use, maintenance, testing, disconnection and reconnection, the fees, the rent and other charges in respect thereof including the furnishing of security by the consumer and matters connected therewith.” 8. In exercise of the power under Section 65, the 2nd respondent made regulations known as the Kerala Water Authority(Water Supply) Regulations, 1991. Regulation 12 thereof deals with installation of water meter and stop cock. The said regulation underwent amendments from time to W.A. No. 2492 of 2007 -:5:- time. By the notification dated 20.06.1998, marked as Ext.P1, certain amendments were made to the said Water Supply Regulations. By the said notification, Clauses (b), (c) and (e) of Regulation 12 came to be amended apart from various other regulations with which we are not concerned in the instant appeal. The amendments in so far as they are relevant for the present purpose read as follows: “(v) in regulation 12.- (a) for clause (b) the following clause shall be substituted, namely:- “(b) In the case of all types of connection, the meter at the premises shall be provided by the consumer. Where, however, the meter has already been provided by the Authority, the hire charges for such meters shall be Rs.10 per month.” (b) in clause (c), for the words “Applicants for the water supply connection shall have the choice to install their own meter at their premises provided the meter is having the words,”The meter installed as provided in clause (a) shall be substituted; (c) in clause (c), for the words and figures, “when a meter provided by the owner or occupier goes out of order the same shall be got replaced or repaired, as the case may be, within a period of 30 days of the report of the damage by the Assistant Executive Engineer, at the cost of the owner or occupier” the words symbols and figures, “when a meter provided by the W.A. No. 2492 of 2007 -:6:- owner/occupier of the premises, goes out of oder, the same shall, within 30 days of report of the damage by the Assistant Executive Engineer, be repaired or replaced by the owner or occupier of the premises at his own cost. In case of default a surcharge at the rate of 25% on the monthly water charges, as fixed in accordance with clause (b) of regulation 13, for the first month after the expiry of the period of notice, 50% for the next 2 months and 100% beyond that period shall also be levied. In case of continued default the Assistant Executive Engineer shall have the power to disconnect the water supply to the premises without further notice”, shall be substituted.; (d) in clause (f); for the words “and where the facility for servicing the meter provided by the Authority towards servicing charges of meters”, the words “towards meter inspection charger” shall be substituted.” 9. By the judgment under appeal, a learned Judge of this Court closed the writ petition without granting any one of the prayers of the writ petition. The prayers in the writ petition are as follows: “i) declare the amendment brought about to regulation 12 of the Kerala Water Authority (Water Supply) Regulation 1991 by Ext.P1 is void and strike it down being arbitrary, ultravires of the Act and unconstitutional; ii) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records W.A. No. 2492 of 2007 -:7:- leading to Ext.P2 and similar notices issued by the 2nd and 3rd respondents and quash them; iii) declare that it is the obligation of the Kerala Water Authority to provide and maintain water meters in the premises of domestic consumers. (iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd and 3rd respondents to provide water meters and maintain them in the premises of domestic consumers; (v) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd and 3rd respondents to ensure supply of drinking water conforming to the standards prescribed by Bureau of Indian Standards Act 1985; (vi) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 4th respondent to ensure that the 2nd and 3rd respondents comply with the provisions of the standards of Weights and Measures Act 1976 and Standards of Weights and Measures (Enforcement) Act 1985 and the Rules made thereunder; (vii) grant such other relies as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this original petition.” 10. Subsequently, a review petition No.130 of 2007 came to be filed aggrieved by the judgment dated 30.11.2006. The said review petition also was dismissed by an order dated 21.03.2007. Hence the appeal. W.A. No. 2492 of 2007 -:8:- 11. The substance of the impugned amendment is that prior to the amendment the responsibility of maintaining the meters installed was on the 2nd respondent and its officers but as a consequence of the amendment the responsibility to keep the meters in good repair is shifted to the consumer and according to the appellant, such a shifting of the responsibility is inconsistent with the language of Section 42 of the Act. According to the appellant, the employment of expression 'rent for the use of water meter' occurring under Section 42(2) is clearly indicative of the fact that the meters are the property of the respondent and therefore, necessarily the obligation to maintain the meters should remain only with the respondent but not with the consumer and any regulation such as the impugned regulation which purports to shift the responsibility of the upkeep and maintenance of the meters to the consumer is inconsistent with the language of Section 42 and therefore not authorised by law and hence illegal. 12. Heard the learned Standing Counsel for the 2nd respondent, Smt.Ambikadevi. W.A. No. 2492 of 2007 -:9:- 13. We do not propose to go into the question whether the meters contemplated under Section 42 are the property of either the 2nd respondent or the consumer. We presume for the purpose of the present appeal that the meters are the property of the 2nd respondent, even then, in our opinion, there is nothing in the language of Section 42 which limits the authority of the 2nd respondent to make a regulation shifting the legal responsibility to keep the meters in good repair to the consumer. The owner of property may have a choice normally to maintain or not the property in good repair. Even such a liberty can be regulated and curtailed by law having regard to the nature of the property and the need to maintain the same in good repair in the larger public interest. At the same time, if the context so demands, nothing prevents the law from satisfying the responsibility of maintaining the property of one person in good repair to another person who has some legal relationship to the property. The very fact that the meters are installed within the premises owned by the consumer over which the consumer has an absolute control, where as the respondent only has a legal right to access the W.A. No. 2492 of 2007 -:10:- premises for the purpose of inspection of its works etc., makes it, in our opinion, a logical requirement to obligate the consumers to maintain the meters. As otherwise, it would be beneficial to the consumers either to tamper with the meters or at least not to attend the defects of the meters. It needs no further explanation to say that a defective meter enables the consumer to draw unlimited quantity of water on payment of limited charges. In the circumstances, we do not find any reason to interfere with the judgment under appeal nor any illegality in the impugned amendments. The Writ Appeal is therefore dismissed at the admission stage. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb