IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1551 of 2011 Date of Decision: 23.9.2011. The Municipal Corporation & others --Appellants Versus Micron Instruments Private Ltd. --Respondent CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MS. JUSTICE RITU BAHRI. Present:- Ms. Lisa Gill, Advocate for the appellants. Mr. D.S. Patwalia, Advocate for the caveator-respondent. *** PERMOD KOHLI.J (ORAL) This L.P.A has been preferred against the judgement dated 6.1.2011 passed by the learned Single Judge partly allowing the writ petition filed by the respondent no.1-company. Precise facts necessary for the disposal of this L.P.A are that respondent no.1-company is running its business in Phase-I, Industrial Area, Chandigarh. It installed a tube well without the prior approval of the competent authority in its premises. Municipal Corporation, Chandigarh- appellants herein raised a demand of Rs.18 lacs vide notice dated 17.11.2006 and an additional amount of Rs.59 lacs vide letter dated 16.11.2006. This demand was challenged by the respondent no.1-company in CWP No. 18771 of 2006. This writ petition was considered by a Division Bench of this Court on 28.11.2006. While issuing notice of motion, following interim order came to be passed:- “ Notice of motion for 15.12.2006. Dasti only. LPA No. 1551 of 2011 -2- Subject to the petitioner's depositing Rs.18,000/- per month from the month of September, 2005 with the Corporation within three days from today, further recovery and disconnection of water connection of the petitioner shall remain stayed. Copy dasti on usual payment.” The writ petition was, however, finally disposed of vide order dated 22.2.2007 with the following directions:- “ Taken up today. This petition is disposed of with liberty to the petitioner to comply with communication dated 6.11.2006, Annexure P-10. The necessary affidavit/information shall be given to respondent no.2 within a week from today. Thereafter, further proceedings shall be taken up in respect of cross verification at site etc., under the provisions of Water Supply Bye Laws, 1960, as amended from time to time. Until the final decision is taken, the interim directions given on 28.11.2006 shall continue to operate. Disposed of in the above terms.” It seems that an inspection was carried out in compliance to the aforesaid directions. After the inspection, the inspection team submitted its report without formulating any opinion, though, on the basis of the information gathered through the representatives of the respondent- company, it has been noticed that an attempt was made by the boring party to install the box in May, 2005 but it did not work. The boring agency again tried to install the box in the month of September, 2005, but it again did not work and then finally in October, 2005, it was abandoned and pipe was cut and filled with earth. It is, however, reported that no documentary evidence was made available except the incoming and outgoing register maintained by the company. It seems that on consideration of the inspection report the Municipal Corporation passed the impugned order dated 18.9.2007 levying penalty @ Rs.90,000/- per month w.e.f. 5.6.2000 under the Water Supply LPA No. 1551 of 2011 -3- Bye Laws 45 (i) of 1960 and reiterated the demands already raised. Respondent no.1 again challenged the demand and the order, referred to above in CWP No.15787 of 2007 which has been disposed of by the impugned judgement. Learned Single Judge on examination of the record came to the conclusion that the company installed the tube well without the requisite approval of the competent authority, however, there is no material to establish the installation of the tube well w.e.f. 5.6.2000, the date considered by the Municipal Corporation for imposition of penalty. Learned Single Judge observed that the company is liable to pay the penalty for the period May, 2005 to October, 2005. Learned Single Judge has also held that under the Bye Law 45 of Water Supply Bye Laws for 2 inch size bore the charges payable are @ Rs.9,000/- per month and where the tube well has been installed without the approval of the competent authority, the consumer is liable to pay double the charges. Accordingly, respondent no.2 was held liable to pay Rs.18,000/- per month for the period May, 2005 to October, 2005. The company deposited an amount of Rs.2,70,000/- on 29.11.2006 pending the disposal of the writ petition. Municipal Corporation, appellant herein has assailed the aforesaid judgement on the ground that the company has failed to establish that the tube well was installed in May, 2005. The Municipal Corporation imposed the penalty w.e.f. 5.6.2000, the date when the notification for levying the penalty was issued under Rule 45 (i) of the Water Supply Bye Laws. During the course of arguments, Ms. Lisa Gill, learned counsel appearing for the appellant has fairly conceded that there is no material on record to indicate that the tube well was installed in the year 2000. LPA No. 1551 of 2011 -4- According to her in absence of any proof tendered by the company, the Corporation is well within its rights to levy the penalty from the date of issuance of the notification. This argument is totally fallacious and needs to be rejected. In the earlier writ petition this Court had permitted the Municipal Corporation to carry out the site verification. The inspection team constituted could not establish that the tube well was installed on any date prior to May, 2005. The representative of the company not only made a statement before the Corporation that the tube well was attempted to be installed again in October, 2005 but on the basis of the inspection also, it was established that the tube well stands closed and abandoned. Except the statement of the representative of the company no other material has been collected either by the Corporation or the inspection team to establish that the tube well was functional on any date prior to May, 2005. Mr. Patwalia, learned counsel appearing for the respondent- company has referred to document Annexure P-9, which is an invoice dated 8.5.2005 regarding payment for digging etc. It also contains an endorsement that “work not complete stop payment.” Another document Annexure P-5 at page 95 also indicates that some rejected material was sent to M/s Shakti Constructions, an agency engaged by the company for digging the tube well etc. He has further referred to communications dated 6.10.2005 and 24.10.2005 (Annexures P-4 & P-5) in support of his contention that only 2 inch bore with 165 feet depth was installed, which was abandoned in October, 2005. On the basis of the aforesaid document the respondent- company can only be held liable for payment of charges for a period of 6 LPA No. 1551 of 2011 -5- months i.e from May, 2005 to October, 2005. It is admitted position that the tube well was installed without permission. Under the amended rules the Corporation can impose penalty @ Rs.90,000/- per month. However, learned Single Judge has imposed penalty @ Rs.18,000/- per month. We are of the view that the respondent-company is liable to pay penalty @ Rs.90,000/- per month. Mr. Patwalia has agreed to pay penalty at this rate. Vide order dated 16.9.2011 Mr. Patwalia was directed to deposit an amount @ Rs.90,000/- per month for the period of six months by adjusting the amount already deposited. He has produced the receipt for deposit of the entire amount @ Rs.90,000/- per month. In view of the above, this appeal is disposed of by holding the respondent-company liable for the penalty, referred to herein above, which amount already stands deposited. (PERMOD KOHLI) JUDGE (RITU BAHRI) JUDGE 23.9.2011. lucky