:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 968 OF 2008 WITH CIVIL APPLICATION NO. 2492 OF 2008 Alok Industries Ltd. ..Appellant Vs. Maharashtra Industrial Development Corporation. ..Respondent Mr. S.G. Deshmukh i/by Mr. D.S. Mhaispurkar for appellant. Ms. Deepa Chavan i/by M/s. Little and Co. for respondent. CORAM: B.H. MARLAPALLE & D.B. BHOSALE,JJ. CORAM: B.H. MARLAPALLE & D.B. BHOSALE,JJ. CORAM: B.H. MARLAPALLE & D.B. BHOSALE,JJ. Dated: July 08, 2008. Dated: July 08, 2008. Dated: July 08, 2008. P.C.: P.C.: P.C.: 1. This appeal filed by the appellant-plaintiff impugns the Judgment and Decree passed by the learned IInd Joint Civil Judge, Senior Division at Thane, thereby dismissing Special Civil Suit No. 177 of 2002. The plaintiff has challenged two different bills issued by the defendant-Corporation for water supply charges. The first bill was issued in September 2001 demanding an amount of Rs.28,04,846/- :2: and the second bill was issued in October, 2001 for a sum of Rs.8,82,091/-. In Special Civil Suit No. 177 of 2002 the plaintiff sought the relief of declaration that the bills were issued without any authority in law and the Corporation had no right to levy penalty charges at 1.5 times the original rate of water supply. 2. The trial court held that the plaintiff had committed breach of the terms and conditions of the agreement for water supply and the impugned bills could not be held to be illegal. Consequently, the trial court held that the plaintiff was not entitled for declaration as prayed for and in addition, the prayer for injunction was also turned down. 3. In addition to the issues raised before the trial court, Mr. Deshmukh the learned counsel for the plaintiff urged before us that the Circular dated 5/11/1997, on the basis of which the impugned bills were issued, could not be said to be the regulation within the meaning of Section 64 of the Maharashtra Industrial Development Act, 1961 and the demand of :3: water charges at 1.5 times more rates was not as per the contractual obligation between the parties and hence on both these grounds the Corporation did not have the legal right to demand the said charges. 4. The plaintiff is a public limited company and by an agreement dated 20/3/1992 executed between the plaintiff and the defendant-corporation, a plot of land was agreed to be leased to the plaintiff-company for industrial activity. The lease agreement was executed on 24/5/1996 and the plaintiff was required to construct a structure of at least 9534.36 sq.mtrs. to be used as an Industrial Unit (Factory) and the construction was to be completed by 12/12/1997. The agreement of lease did not provide for levying water charges at any extra rates if the construction was not completed by 12/12/1997. On 10/9/1996 the defendant-corporation granted part occupancy certificate for the ground floor area of about 4547.32 sq.mtrs. and the company applied for water connection and accordingly the same was granted as per the agreement dated 20/3/1992. In the meeting held on 3/10/1997 of the Board of the defendant-corporation, :4: Resolution No. 246 was passed to levy water charges at 1.5 times of the normal water rates to the consumer who did not obtain the building completion certificate within the stipulated period and accordingly the Circular dated 5/11/1997 was issued by the Corporation. There is no dispute that the said Circular was applicable to all the Units, including the plaintiff’s Unit. Mr. Deshmukh, as noted earlier, vehemently argued that the Circular did not have any force in law nor was the contractual obligation demanding that the penal water charges were required to be paid. 5. There is no dispute that within the stipulated time, the building completion certificate could not be obtained by the plaintiff for the entire area. So far as the authority in law to levy the penal water charges or extra water charges is concerned, Ms. Chavan the learned counsel for the Corporation has referred to the judgment of this court (Division Bench) in the case of Emtex Industries (India) Ltd. and anr. vs. Maharashtra Industrial Development Corporation Ltd. and anr. [2004 (4) ALL MR 135] and :5: the same judgment was also cited before the trial court in support of the Corporation’s right to levy the water charges at 1.5 times more. Mr. Deshmukh submitted that the said judgment could not be relied upon by the Corporation as this court was called upon to consider the Circular issued by the Executive Engineer on 31/7/1998 and the Circular dated 5/11/1997 was not under consideration. We are not impressed by these submissions. The main issue raised by the plaintiff is, whether the defendant-Corporation has the legal authority to charge penal rate of 1.5 times if the completion certificate was not obtained within the stipulated period. In para 3 of the judgment in the case of Emtex Industires (India) Ltd. (Supra), this court stated as under:- "3. The grievance of the petitioners is that the Deputy Engineer of the first respondent illegally refused to accept the Building Completion Certificate ("B.C.C." for short) issued by the Area Manager of respondent No.1. Consequently a demand was :6: made for payment of more than rupees two crores as difference between normal rate and penal rate of water charges. According to the petitioners, they had regularly paid water charges at normal rates. The action of the first respondent in demanding water charges at penal rate of 1.5 times is illegal, contrary to law and unlawful. Since the first respondent-Corporation is insisting for penal rate of water charges, the petitioner is constrained to approach this Court." 6. These were the contentions raised before the Division Bench and they were considered. We have, therefore, no doubt in our mind that the Division Bench in Emtex’s case clearly framed the issue regarding payment of 1.5 times penal water charges and upheld it thus giving a legal sanction to the right of the defendant-Corporation to levy such charges if the building completion certificate was not obtained within the fixed period. So far as Mr.Deshmukh’s contention that the Circular of 31/7/1998 issued by :7: the Executive Engineer was considered by the Division Bench and not the Circular of 5/11/1997 issued by the Corporation, we must note that after the Circular dated 5/11/1997 was issued, all the Industrial Units made a representation to the defendant-corporation and a meeting was held and in the said joint meeting, it was agreed that the Circular dated 5/11/1997 shall be made applicable from 1/8/1998 and pursuant to this joint meeting resolution, the Executive Engineer had issued the Circular of 31/7/1998. The plaintiff was also one of the companies who had made the representation and in the joint meeting the same was considered. It is for these reasons that the rates at 1.5 times by way of penal charges were made applicable from 1/8/1998 as was originally stated in the Circular dated 5/11/1997. We are, therefore, satisfied that the issue raised by Mr. Deshmukh regarding the authority of charging penal rate at 1.5 times by the defendant-corporation is finally settled by the judgment of this court in the case of Emtex Industries (India) Ltd. and the authority of the defendant-corporation to levy such charges has been upheld. :8: 7. Under these circumstances, the challenge to the decree passed by the trial court in dismissing the suit is unsustainable and hence the appeal must fail at the threshold. 8. Hence, the appeal is hereby dismissed in limine. 9. Civil Application No. 2492 of 2008 stand disposed off. 10. Mr. Deshmukh the learned counsel for the appellant made an oral application to continue ad-interim relief granted earlier for a period of eight weeks. Application is allowed. :9: (D.B. Bhosale, J.) (D.B. Bhosale, J.) (D.B. Bhosale, J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)