1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL No.100 of 1991 1. The State of Maharashtra. 2. The Executive Engineer, Environmental Engineering Works. 3. The Sub-Divisional Officer, Kirkess Cantonment Water Supply. ... Appellants. V/s. Sind Co-operative Housing Society Ltd., Pune – 7. ... Respondents. Ms. S. P. Manchekar, A.G.P. For the Appellants. Mr. B.P. Israni for Respondents. CORAM : J.H. BHATIA, J. DATE : 23RD SEPTEMBER 2008. ORAL JUDGMENT :- The appeal is preferred against the Judgment and Decree passed by the Second Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.239 of 1984 whereby it was declared that the Plaintiff/Respondent is not liable to pay the bill of an amount of Rs.2,39,228.75 as demanded by the bill/letter dated 11.4.1984 issued by 2 Defendant Nos.2 and 3. 2. Even though there were number of contentions from both the parties and several issues were framed. Now several facts are admitted between the parties. The Plaintiffs/Respondents is a Co-operative Housing Society. It has about 400 flats at Sadhu Vaswani Nagar, Ganesh-Khind Road, Aundh Road, Pune. When the suit was filed about 300 flats were already developed and construction was completed. The Defendants Nos.2 and 3 were responsible to supply the water. They had given two pipe lines, one of 2 inch and the another of 3 inch, to the society and the water was supplied for all the users to that society by those two pipe lines and this was a bulk supply. There were internal pipe lines for each house and meters were also fixed on them and the society used to collect the charges from its members on the basis of their meter readings. Admittedly, when the Defendants used to supply water in bulk, the rates used to be 2/3 of the rates of the retail supply. During the relevant period, rate was 65 ps. per 1000 ltrs. upto the maximum 7000 litrs. supplied during the period of 30 days through 3 inch pipe lines for the consumption of more than 7000 ltrs. the rate would be Rs.1 per 1000 ltrs. over and above the supply of 7000 ltrs. In respect of water supplied by 2 inch pipe lines the initial rate was 65 ps. per ltr. upto maximum of 3,60,000 ltrs. and above that the rate 3 would be Rs.1 per 1000 ltr. These are the retail rates. Bulk rates were 2/3rd of the retail rate. Admittedly, the Defendants had supplied the water to the society in bulk and it was not responsible for the supply to the individual nor it was collecting the charges from the individuals for the consumption. Therefore, the Defendants could charge only the bulk rates for the total supplies to the society through both the pipe lines. From time to time the rates were changed. Admittedly, number of times the meters were changed because of the complaints that they were not working properly and because non-return volves were not fixed. Admittedly, initially the society was paying Rs.5,700/- per month towards the charges and thereafter, the society used to deposit Rs.10,000/- per month. As on number of occasions, it was not possible to ascertain the exact supply and consumption of the water by the society, joint readings were taken from the meters fixed on both the pipe lines from 20.08.1981 to 26.05.1982. On 26.05.1983, the meters were changed and the readings were again taken from 26.5.1983 to 18.12.1982. The Defendants issued a bill-cum-notice dated 19.12.1983 to the society based on the average water supply was 9,17,000 ltrs. per day from both the pipe lines and accordingly, amount of Rs.1,84,391.35 ps. was claimed from the society. This letter was replied by the society by letter dated 25th October 1983 disputing the correctness of that bill. The society however made some payments by issuing cheques 4 at the rate of Rs.10,363.85ps. contending that the consumption was only 4,41,100 ltrs. per day and not 9,17,000 ltrs. per day. The Defendant No.2 issued a letter dated 11th April 1984 pointing out that amount of Rs.2,49,228.75 ps. was due from the society towards the arrears of the water bill and also threatened to dis-connect the supply if the payment was not made up to 20th April 1984. This letter was also replied. However, apprehending that the Defendants would disconnect the supply, the Plaintiff/society filed the suit for declaration that they were not liable to pay the amount claimed by the Defendants. The Society also sought perpetual injunction against disconnecting the supply. 3. The Defendants contested the suit by filing written statement and mentioned that as per joint reading of both the meters, the average consumption was 9,17,000 ltrs. per day and the bills were issued accordingly, after approval from Defendant No.2 the Executive Engineer. It is contended that the claim of the Plaintiffs was not correct and is liable to be dismissed. 4. The Trial Court after hearing the parties came to the conclusion that the calculation made by the Defendants was not correct and accordingly, the suit came to be decreed in favour of the Plaintiffs. 5 5. Heard the learned Counsel for both the parties. Perused the impugned Judgment and documentary evidence placed by both the parties before the Trial Court. 6. Following points arise for determination and I record my findings against them for the reasons given below :- (i) Whether the bills submitted by Defendants 2 and 3 on the basis of average consumption of 9,17,000 ltrs. per day was correct ? - Yes. (ii) Whether the amount claimed by the Defendants by the letter dated 11.4.1984 is wrong ? - No. Subject to adjustment of the payments already made by the society. 7 At the outset it may be stated that the several facts and circumstances beginning from 1978 were pleaded and evidence was led on those points and the Trial Court also discussed them. However, in my considered opinion, most of the things are not relevant for discussion, in view of the facts which are no more in dispute. It is an admitted fact that 6 there were the difficulties in the working of meters and from time to time they were changed. On many occasions the meters were not functioning for long time and therefore, it was impossible to find out the accurate consumption during the particular period or month. Admittedly, there was a grievance that non-return volves were not fixed since installation of the meters and hence it was difficult to have correct reading about water supply. In view of these reasons admittedly on 18.8.1981 new meters for 2 inch pipe lines as well as 3 inch pipe lines were fixed. Those meters continued upto 6.5.1982. It appears that those meters had also stopped working and therefore, new meters were fixed on 26.5.1982 and their readings were taken upto 18.12.1982. It will be useful to quote the complete chart showing that reading, which the Trial Court has quoted in para 24 of the Judgment. ---------------------------------------------------------------------------------------------------- --- Date Water meter 2”Q. Water meter 3”Q Signature of No.161265 No.088831 Both parties. A/c. No.2189. A/c. No.2059. Reading. Reading. ---------------------------------------------------------------------------------------------------- --- 18.8.81 00000 00000 sd/xx 1230 19.8.81 003,78,960 008,30,600 sd/xx 160 Date Water Meter 2” Q Water Meter 3” Q. Signature 7 No.161265 No.088831 1 2 3 4 ---------------------------------------------------------------------------------------------------- 20.8.81 006,55,000 015,26,000 sd/xx ----------- 1630 21.8.81 ----------- 009,13,000 023,18,000 sd/xx 1630 24.8.81 ---------- 01077000 4237000 sd/xx 1630 25.8.81 ---------- 01077000 04950000 sd/xx 1630 26.8.81 ---------- 01077000 5678000 sd/xx 1630 27.8.81 ----------- 01077000 06450000 sd/xx 1630 28.8.81 01077000 07217000 3.9.81 --------- 01077639 11,806.12 1000 sd/xx 1300 5.9.87 --------- same 01077639 13766.50 sd/xx 1330 8.9.81 --------- same 01077639 15884000 sd/xx 1045 8 18.9.81 same 01077639 22858000 sd/xx 28.9.81 same 01077639 23612000 sd/xx 2.10.81 same 01077639 24973000 sd/xx 16.10.81 same 01077639 26466000 sd/xx 18.11.81 ------------ same 01077639 32095000 sd/xx 0930 9.12.81 same 01077000 33294000 sd/xx 31.3.82 same 01077000 33634000 sd/xx 14,4.82 same 01077000 34731000 sd/xx 15.4.82 same 01077000 3488.5000 sd/xx 30.4.82 same 01077000 35100000 sd/xx 14.5.82 same 01077000 35254000 sd/xx 20.5.82 same 01077000 35327000 sd/xx 26.5.82 same 01077000 35337000 sd/xx The water meters were installed on 26th May 1982 having the meter reading nil. The daily average meter reading for both the meters 2” and 3” diameter taken jointly as per the register Exhibit 53 are narrated below :- ___________________________________________________________ ______ Date Water Meter 2” Q. Water Meter 3” Q Signature 50 M.M. 80 M.M. No. 0877301 Nil 1 2 3 4 ---------------------------------------------------------------------------------------------------- - 26.5.82 00001 0010 sd/xx Cover looses (No Cover) No glass No glass 27.5.82 00247000 005,52000 sd/xx 31.5.82 01266.300 02876.900 sd/xx 9 1.6.82 01528000 03481000 sd/xx 8.6.82 03418000 07756000 sd/xx 14.6.82 04567000 11504000 sd/xx 16.6.82 04567000 12758000 sd/xx 18.6.82 04567000 12960000 sd/xx 29.6.82 04567000 20194000 sd/xx 12.7.82 04567000 28769000 sd/xx 29.7.82 04567000 39438000 sd/xx 4.9.82 04567000 61092000 sd/xx 30.9.82 04567000 74885000 sd/xx 12.10.82 04567000 77037000 sd/xx 13.12.82 04567000 77065000 sd/xx 18.12.82 04567000 77065000 sd/xx ___________________________________________________________ ______ 8. If these readings are carefully perused, it would appear that in respect of the meter for 2 inch pipe line, the meter reading was Zero on 18.8.1981 at 12.30 hours when the meter appears to have been fixed. On 21.8.1981 at 16.30 hours reading of that meter was 9,13,000. It indicate that from 18.8.1981 to 21.8.1981 average supply of water was 2,28,250 ltrs. per day. In fact the period did not cover full 4 days and the consumption could be more also. The next reading is of 24.8.1981. It was 10,77,000. It continued upto 26.5.1982. There is no change in reading taken on 24th and 28th August 1981. This show that the meter has stopped working prior to 24.8.1981. The difference between the readings taken on 21.8.1981 and 24.8.1981 was just 1,64,000 ltrs. If for first 4 days the consumption was 2,28,250 ltrs. per day, it could not have been just 50 10 or 60 thousand ltrs. per day from 21.8.1981 to 24.8.1981. Therefore, in my considered opinion the readings of that meter should be considered only from 18.8.1981 to 21.8.1981. For the remaining period, there was no change in the reading and therefore, that is of no help. 9. The meter for 3 inch pipe lines show Zero reading on 18.8.1981. The reading taken on the different dates upto 18.9.1981 i.e. for a period of about 31 days would indicate that the meter was working properly. On 28.8.1981 the reading was 72,17,000. The average consumption comes to 6,54,545 ltrs. per day during that period of 11 days. Reading on 8.9.1981 was 1,58,84,000. On the basis of difference between 28.8.1981 and 8.9.1981 the average consumption during that period was 7,87,909. Reading on 18.9.1981 was 2,28,58,000. On the basis of the difference in the reading taken on 8.9.1981 and 18.9.1981, the average consumption during that period of 10 days comes to 6,97,700 per ltr. It appears that after 18.9.1981, that meter was also not working properly. The reading on 28.9.1981 i.e. after 10 days was 2,36,12,000 which shows the consumption of only 7,54,000 ltrs. during the period of 10 days. In fact as earlier figures indicate approximate consumption was around 7,00,000 ltrs. per day while for 10 days the consumption as per reading was just 75,000 ltrs. Per day which could not be correct. Same is the position with the reading upto 11 26.5.1982. After careful calculation, I find that from 28.8.1981 t0 26.5.1982 the supply from 3 inch pipe lines was only 48,750 ltrs. per day as per the meter which could not be correct. In view of this readings. I find that the meter was correctly functioning from 18.8.1981 to 18.9.1981 and the average consumption comes to 7,37,355 ltrs. per day. While the consumption from 2 inch pipe lines was 2,28,250 ltrs. per day. The total consumption from both the pipe lines comes to 9,65,605 ltrs. per day. 10. As stated earlier both the meters had stopped working and the meters were again changed on 26.5.1982 and readings were taken from 26.5.1982 to 18.12.1982. The readings of meter for 2 inch pipe line indicate that on 26.5.1982 the reading was 000001 and on 8.6.1982 the reading was 34,18,000. Next reading of 14.6.1982 was 4567000. Same reading continued upto 18.12.1982. It is difficult to say when the meter had stopped working but certainly it was before 14.6.1982. If the reading for first 13 days from 26.5.1982 to 8.6.1982 is considered, the average consumption for 13 days was 2,62,923 ltrs. per day. 11. The meter in respect of 3 inch pipe lines reveals that on 26.5.1982 its reading was 00000. The reading on 4.9.1982 was 61092000. The average consumption for the said period covering 101 days was 12 599406 ltrs. per day. It appears that thereafter, there was some defect in the meter and it has slowed down substantially and on or before 13.12.1982 the meter had completely stopped. 12. As pointed out above from 26.5.1982 to 8.6.1982 the average consumption from 2 inch pipe line was 262923 while for a period of about 101 days in respect of meter for 3 inch pipe lines the average consumption was 599406. Thus, the average of both the meters collectively comes to around 861328. As per the reading of the earlier meter, the consumption from both the meters was 965605. If the average consumption of all the meters is taken into consideration, the average consumption per day comes to 913967 which is almost close to the figure of 917000 ltrs.per day shown in the bill prepared by the distributors. Therefore, in my considered opinion the bills issued by Defendant Nos.2 and 3 on the basis of average consumption of 917000 ltrs. per day were correct. 12. It is material to note that after giving the chart of readings in para 25 of the Judgment, the Trial Court observed that the total consumption by 2 inch pipe lines was 176000 ltrs. per day and by 3 inch pipe lines the consumption was about 737000 ltrs. per day as stated in the letter at Exhibit 37. The Trial Court observed that no explanation is coming 13 forth how they calculated the daily consumption was 917000 per day. The learned Advocate for the Plaintiff/Respondent made an attempt to show that the average consumption from 2 inch pipe lines was about 228350 ltrs. per day and from 3 inch pipe lines it was about 272423 ltrs. per day and therefore, the average consumption from both the pipe lines could be 610772. It appears that the Trial Court must have been guided by the similar calculations but period during which the meters were not working were not properly considered. Admittedly, by both the pipe line the water was being supplied by moderate speed. As admitted during the evidence, if the difference between the pipe line with 2 inch diameter and 3 inch diameter is taken into consideration, the difference could not be just 33% or so. Mathematically, the supply from the 3 inch pipe line would be about 2.25 times more than from the 2 inch pipe line. This aspect has not been considered by the Trial Court and without giving any valid reason, the Trial Court came to conclusion that the Defendant had not given any valid reasons for the calculation. On the contrary, in view of the reading pointed out above, I find that Defendant Nos.2 and 3 had rightly assessed the supply of water of 9,17,000 ltrs. per day. In view of this, it must be held that the Trial Court committed error in holding that the bill was wrong and in the result the Trial Court committed error in passing the decree of declaration of injunction in favour of the Plaintiff. 14 13. It may be noted that it was not a suit for recovery of the bill by the concerned Department and therefore, it is not necessary for this Court to find out exactly how much amount was due from the Plaintiff. The Plaintiff had filed the suit for declaration of injunction and they have failed to prove that calculation of daily consumption made by the Defendants was wrong. The learned Advocate for the Plaintiff contended that the Plaintiff/Society was paying about Rs.10,000/- per month and for few months it was Rs.10,365/- per month. According to him, this amount was not adjusted by the Defendants while making the claim by the bill dated 19.10.1983 and then 11.4.1984. There is no dispute about the rate which could be charged by the Defendants because the Plaintiff/Society was taking bulk supply and the Defendants could claim the rates for bulk supply only and not for retail. On the basis of supply, the bill can be calculated and if the Plaintiff/Society has already made some payments and if those payments have not been already adjusted, then payment will be adjusted against the claim of the Department. It is as good as settling the claim of both the sides and whatever payment is made by the society is liable to be adjusted against the claim of the Defendants and balance if any, can be recovered by the Defendant from the society. In my opinion, with this clarification, appeal deserves to be allowed. 15 14. The appeal is hereby allowed. 15. The impugned Judgment and decree are hereby set aside. As noted in the last para, the Defendants shall be entitled to recover the bill on the basis of average consumption of 9,17,000 ltrs. per day, on the basis of the bulk rates, after adjustment of the amounts which might have been already paid by the Plaintiff/Society. (J.H. BHATIA, J.)