IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 8624 of 2005(B) ------------------------- PETITIONER(S): --------------- SALY DAVIS, HOUSE NO.VII/453 D, TRANS SQUARE SHOPPING COMPLEX, MAVELIPURAM COLONY ROAD, KAKKANAD. BY ADV. SRI.R.PADMARAJ SRI.BIJU HARIHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, IRRIGATION (WSC) DEPARTMENT, THIRUVANANTHAPURAM. 2. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, WATER WORKS, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, ALUVA. 4. THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KALAMASSERY, ERNAKULAM DISTRICT. SRI.BABU VARGHESE, SC, KWA FOR R2 TO 4 GOVERNMENT PLEADER SRI. K. SANIL KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).8624/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF ORDER NO.3588/WSC/3/2000/Ir.D BY R1 EXT.P2:-TRUE COPY OF LETTER DT.12.7.2000 TO CHIEF ENGINEER,KWA EXT.P3:-TRUE COPY OF LETTER DT.1.12.00 BY R4 EXT.P4:-TRUE COPY OF INSTALLATION SANCTION AND ITS ANNEXURE EXT.P5:-TRUE COPY OF PROVISIONAL INVOICE CARD ISSUED TO THE PETITIONER EXT.P6:-TRUE COPY OF LETTER DT.4.7.01 ISSUED TO R4 EXT.P7:- TRUE COPY OF LETTER DT.17.7.01 ISSUED TO CHIEF ENGINEER,KWA EXT.P8:- TRUE COPY OF LETTER DT.19.7.01 BY R4 EXT.P9:- TRUE COPY OF LETTER DT.24.7.01 TO R4 EXT.P10 &10(a):- TRUE COPY OF PAY ORDER FOR RS.434/- & COVERING LETTER DT.2.12.02 TO R4 EXT.P11:-TRUE COPY OF TABLE TO COMPUTE WATER TARIFF ISSUED BY KWA EXT.P12:- TRUE COPY OF WATER METER CARD EXT.P13:- TRUE COPY OFLETTER DT.22.10.03 ISSUED BY R3 EXT.P14:- TRUE COPY OF LETTER DT.1.11.03 ISSUED TO R3 EXT.P15:- TRUE COPY OF BILL NO.KWA/TKA/AUGUST 2004/26 DT.31.7.04 ISSUED BY R4 EXT.P16:- TRUE COPY OF LETTER DT.1.10.04 TO R4 EXT.P17:- TRUE COPY OF REPRESENTATION DT.14.2.05 SUBMITTED TO HONOURABLE MINISTER OF IRRIGATION. RESPONDENT'S EXHIBITS:- EXT.R2(A):- TRUE COPY OF CALCULATION ISSUED BY ASST.EXECUTIVE ENGINEER EXT.R2(B):-TRUE COPY OF ORDER NO.KWA/HO/RMC/R3-234/08 DT.21.7.08 A/W CALCULATION STATEMENT. okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.8624 OF 2005 ------------------------------ Dated this the 7th day of July, 2009 J U D G M E N T ---------------------- 1. The challenge in this writ petition is against Exts.P13 and P15 demand for payment of 'Water Charges', issued against the petitioner. The respondents have provided a water connection in the commercial building complex constructed by the petitioner, as allotted by Exts.P4 and P5 orders. After providing the connection, the petitioner was issued with Ext.P5 'Provisional Invoice Card' in which the bimonthly water charges due from the petitioner is fixed as Rs.5,600/- along with Rs.4/- towards meter inspection charges. The petitioner objected the fixation of such a higher rate through Ext.P6 and requested the 4th respondent to re-fix the rate treating the connection as a 15- mm single connection. In Ext.P6 itself the petitioner requested that if refixation is not possible then the connection may be 'capped' on a temporary basis. Since Ext.P6 was not responded, the petitioner submitted Ext.P7 to the Chief Engineer of the 2nd respondent. Through Ext.P8 reply the petitioner was intimated that as per a resolution adopted by 2nd respondent there is a decision to charge connections provided to common sumps in building having different rooms, on the basis of the total number W.P.(C).8624/2005 2 of doors in such buildings, calculating the minimum non domestic tariff for each of such number of doors. In Ext.P8 it is further informed that, if the petitioner wants disconnection, then he should make application in the prescribed form after clearing upto date dues of water charges. Eventhough the petitioner submitted Ext.P10 letter to the 4th respondent requesting further clarifications in the matter and also requesting to furnish a copy of the resolution referred in Ext.P8, there was no response. Then she had forwarded a pay order for an amount of Rs.434/- towards charges of water consumed, based on the Meter reading, through Exts.P10 and P10(a). But the pay order was returned as per endorsement recorded on Ext.P10(a) to the effect that a cheque cannot be accepted. Thereafter the petitioner was issued with Ext.P13 notice threatening disconnection of water supply alleging default in payment of Rs.37,659/- being arrears of water charges. The petitioner again responded through Ext.P14 repeating request to disconnect supply on a temporary basis in order to avoid further disputes. But without disconnecting supply Ext.P15 Bill was issued in 2004, demanding a huge amount of Rs.1,57,241/- towards arrears of Water charges along with penalty due thereon. Eventhough the petitioner submitted further requests through Ext.P16 and P17 for redressal of her grievances no positive steps W.P.(C).8624/2005 3 was taken in the matter, so she had approached this Court challenging the demand. 2. Through an interim order dt. 23.3.2005 this Court directed the respondents to effect temporary disconnection of the water supply and stayed further steps of recovery of amount covered under the impugned demands. The crux of the dispute is as to whether the method adopted for computing water charges in the connection provided is correct or not. The petitioner alleges that there is no provisions in the Kerala Water Supply and Sewerages Act 1986 or in the Regulations made thereunder, for adopting such a method for fixing the rate of charges payable. According to her, there is no such resolution adopted by 2nd respondent as alleged in Ext.P8, imposing water charge on the basis of the number of doors contained in the complex. In support of her contention, the petitioner had produced copy of the 'Meter Reading Card' (Ext.P2) which will reveal that her consumption from 2.6.2001 (date of connection) till 8/04 is only 71 KL:. Therefore she contended that there is no justification to impose a huge amount of Rs.5600+4 on bi- monthly basis as provisional charges. Or rather there is no justification in fixing a huge amount as provisional charge, based on the number of doors in the building, which does not have any nexus with the actual usage. W.P.(C).8624/2005 4 3. The averments in the counter affidavit are to the effect that, the Kerala Water Authority has adopted a policy to install meters at 'common sump' to bulk connections and to divide the total supply by number of doors and to charge each door for the quantity, subject to minimum charge of the non- domestic tariff. It is further contended that the petitioner is liable for payment of the minimum charges at the rate fixed for 28 non-domestic connections, and since the payments are defaulted she is liable for penalty at the rate of 2% per month. Ext.R2(a) is a calculation statement produced along with the counter affidavit. The amount due from the petitioner for the period from 6/01 to 3/05 along with penalty was seen worked out to a total amount of Rs.2,08,283/- (as on 30.3.2005). 4. Yet another contention of the petitioner is that since there was continuous requests for disconnection and since the respondents have failed to effect disconnection either on the basis of request of the petitioner or on the allegation of default in payment, within any reasonable time, the demand is unsustainable. According to the respondents, the disconnection was not effected because the petitioner had not applied for in the prescribed form worth Rs.15/-, after remitting Rs.50/- towards disconnection fee, and after clearing all dues, which are the formalities prescribed under the Regulations. But it is pertinent W.P.(C).8624/2005 5 to note that inspite of mounting up of the alleged arrears to a huge amount and inspite of repeated notices issued threatening disconnection, the water supply was not disconnected even alleging default in payment. According to the petitioner, the attitude of the respondents in this regard was totally malafide and motivated only to wreak vengeance, because she had disputed fixation of water charges in an unreasonable method and also requested for disconnection within no time after providing the supply. 5. During pendency of this writ petition, the matter was referred to the Lok Adalath organised by the Kerala High Court Legal Service Committee for exploring possibilities of settlement. In the proceedings of the Lok Adalath, dt: 7.1.2008 it is observed that, inspite of the stand taken earlier by the Standing Counsel appearing for respondents 2 to 4 as well as the Government Pleader appearing for the 1st respondent that they could produce the alleged policy decision taken either by the Government or by the 2nd respondent to show that the method of charging adopted in the case of the petitioner is a general decision as in the case of all such connections, they could not produce any such decision. Hence the Lok Adalath directed the respondents to place the matter for consideration of the 2nd respondent Board, so that some terms of settlement can be W.P.(C).8624/2005 6 arrived on a broad basis. 6. The learned Standing Counsel appearing for respondents 2 to 4 had fairly conceded that pursuant to the direction of the Lok Adalath the matter was considered by the Board, and the Managing Director was directed to dispose of the issue as per the governing law, with regard to these type of connections. The Standing Counsel made available copy of a proceedings issued by the Managing Director vide No:KWA/HO/RMC/R3-234/08 dt:21.7.08. I am persuaded to take on record the above proceedings on the files of this case, marking the same as Exhibit R2(b). From Ext.R2(b) it is evident that it was decided to treat the connection as a single non- domestic connection, and to re-assess the water charges accordingly. The calculation statement appended with Ext.R2(b) showed that the total arrears has been reduced to Rs.16,839/- as on July 2008. On going through the calculation statement it is noted that the demand is worked out @ Rs.102/- per month from the date of connection till the date of disconnection (March 2005). Thus the amount due till disconnection is calculated at Rs.7627/- (as on March 2005). Thereafter penalty (interest) @ 2% per month is seen added to the said amount till July 2008, i.e: till the date when the proceedings was issued. 7. In view of Ext.R2(b) the controversy regarding the W.P.(C).8624/2005 7 method of charging no more survive for consideration. But the learned counsel for the petitioner contended that there is no justification for the demand of water charges, even at the minimum amount of on non-domestic connection from the date of Ext.P6 onwards, on which date the petitioner requested for temporary disconnection. It is stated in the writ petition that, when the respondents failed to disconnect supply, the petitioner herself stopped consuming water from the connection from April 2003 onwards. This statement seems to be true as evident from Ext.P12 Water Meter Card, that the reading noted is stale at 71 KL: on 5.8.2003 and on 16.8.2004. The petitioner further contents that the respondents are not entitled to impose penalty for delay in payment, because they had in fact refused to accept payment effected through pay order as per Ext.P10 & P10(a). 8. From the entire facts and circumstances it is evident that the respondents have failed to substantiate their action in fixing a huge amount as provisional charges. It is further evident that there was failure on the part of respondents in effecting disconnection for a prolonged period which precipitated the issue, by mounting the alleged arrears to a huge amount. At the same time it is to be noted that the respondent had taken a magnanimous attitude in re-fixing the liability by demanding minimum charges treating it as a single connection. W.P.(C).8624/2005 8 So also it is evident that the petitioner had enjoyed the water connection at least for the period from 2.6.2001 till April 2003. Hence on an anxious consideration I feel that it will only be just and reasonable to hold that the petitioner is liable for payment of charges as worked out in Ext.R2(b) till the date of actual disconnection, i.e.:till April 2005, exonerating him from the liability for further penalty (interest) on the amount as accrued on that date. The above decision is also aimed at putting a quietus to the long pending issue and to meet the ends of justice. 9. In the result, the writ petition is disposed of directing the petitioner to make payment of Rs.7,627/-, which is the amount due as on March 2005 as per Ext.R2(b), to the 4th respondent within a period of one month from today. If the petitioner remits the said amount within the period as stipulated above, he will be exonerated from any further liability of water charges or penalty with respect to the connection bearing Consumer No:TKA-7316 which now stand disconnected pursuant to interim order of this Court dt:23.3.2005. It is made clear that if the petitioner commits any default in making such payment, then she will be liable for payment of the entire amount demanded under Ext.R2(b) along with penalty applicable for further periods. 5. It is made clear that the settlement of the issue as W.P.(C).8624/2005 9 above will not preclude the petitioner from approaching the respondents 2 to 4, either for availing fresh connection or for revival and re-connection of supply to her building in question, and in such case it is for the respondents 2 to 4 to take appropriate decision based on the existing regulations, and in terms of the decision adopted in Ext.R2(b). The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb