THE HON’BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR <+ WRIT PETITION No.14125 of 1997 % WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY, TWO THOUSAND AND NINE # The Hyd.Sanitary Engineers & Licensed Plumbers Association rep.by its President Sri Karam Ali Khan and another ….Petitioners Versus $ Hyderabad Metropolitan Water Supply & Sewerage Board, rep.by its Managing Director, Hyderabad and 4 others …..Respondents ! Counsel for the Petitioners : Mr.P.Nageswar Sree ^ Counsel for the Respondents : GP for Municipal Admn. & Urban Dev. < Gist : > Head Note: ? Cases Referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.14125 of 1997 Between: 1 The Hyd. Sanitary Engineers & Licensed Plumbers Association rep.by its president Sri Karam Ali Khan, S/o Noor Ali Khan, Regd. No. 47/67, Water Works Compound, Gosha Mahal, Hyderabad. 2 Y.H.Veeresh Babu, S/o Y.Harikishan Licenced plumber, 5-2-160/1, Jam Bagh, Hyderabad. ..... PETITIONERS AND 1 Hyderabad Metropolitan Water Supply & Swerage Board, rep by its Managing Director, Hyderabad. 2 The State Government of A.P., rep. by its Secretary, Housing & Municipal Administration, Secretariat, Hyderabad. 3 Director of Technical, Hyderabad Metropolitan Water Supply & Swerage Board, Hyderabad. 4 Chief General Manager, Maintenance & Operational Circle-I, Khairatabad, Hyderabad. 5 Chief General Manager, Maintenance & Operational Circle-I, Secunderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to declare and order that the said provisions of Rule 4,5,6,7,8,9 & 10 of Hyderabad Metropolitan Water Supply and Sewerage Board Regulations of 1992 are ultraviers and unconstitutional, null and void and the respondents be directed to do internal constitution of work of laying down the water connections or Sewerage connections to be connected to the main water supply sewerge connections shall be carried out by the said licenced plumbers who were earlier licenced prior to Act.15 of 1989 or subsequently there after and the same be certified by the said licenced plumbers only and by no other person by issuance of writ of Mandamus and to grant such other relief or reliefs as the petitioners are entitled to in the circumstances of of the case and to award costs. Counsel for the Petitioner:MR.P.NAGESWAR SREE Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following: Form-NIC-OGS/WP{ANURADHA} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.14125 of 1997 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) When the matter listed for hearing on 23.01.2008, it was directed to print the name of Smt.M.Venkateswari, learned standing counsel for respondents. Though her name was printed in the next date of hearing, none appeared for the respondents. Therefore, we have heard the learned counsel appearing for the petitioners on 21.01.2009, 28.01.2009 and 02.02.2009. 2. The Hyderabad Sanitary Engineers and Licenced Plumbers Association, represented by its President and one of the licenced plumbers by name Sri Y.H.Veereshbabu filed this writ petition seeking to issue a Writ of Mandamus, declaring the Rules 4 to 10 of the Hyderabad Metropolitan Water Supply and Sewerage Board Regulations of 1992 as ultra virus, unconstitutional, null and void and direct the respondents to permit the licenced plumbers alone to do internal constitution of the work of laying down the water connections or sewerage connections to be connected to the main water supply sewerage connections who were earlier licenced prior to Act 15/1989. 3. It is the case of the petitioners that earlier Water Supply and Sewerage connections to twin cities were controlled and regulated under the Hyderabad City Water Supply Act, 1954. The Hyderabad City Water Supply Rules 1976 were made under the said Act 30/1954. Subsequently, the Hyderabad Metropolitan Water Supply and Sewerage Board Act 1989 (hereinafter referred to as “the Act”) was enacted, under which Hyderabad Metropolitan Water Supply and Sewerage Board was constituted. In exercise of powers conferred under Secs.50 and 75 of Act 15/1989, the Board made regulations called “Hyderabad Metropolitan Water Supply and Sewerage Regulations, 1992. 4. It is stated that the earlier plumbers used to be granted licences by the Water Supply Department under 1954 Act and Drainage (Sewerage) Licences from MCH. Subsequent to formation of the Board, the licences are merged into singe licence which were being given earlier by the Board as a licenced Engineer or Plumber, who used to be considered as authorized person to submit the application for carrying out any water connections or sewerage connections and execution of such internal work in any house. However, the Board under the Act 15/1989 interpreted as if the internal execution of the work for water connections should not be carried on by the licenced plumber and the application for granting supply of water connection, sewerage connection to any house, water need not be supplied through the licenced Engineer or licenced Plumber. In fact, the licenced Engineers or licenced Plumbers are prohibiting from carrying out any internal construction work, for providing water supply or sewerage supply. Consequently, a large number of licenced plumbers lost their employment and therefore, the petitioners question the provisions of the said regulations prohibiting the licenced plumbers from carrying on their trade and business depriving their livelihood. It is further submitted that Regulations 7(5) and 10 made under the Act 15/1989, prohibiting the licenced plumbers from executing any work are illegal and unconstitutional and contrary to provisions of the Act 15/1989. 5. As per Sec.48 of the Act 15/1989 the licenced Engineer or Plumber authorized by the Board is entitled to issue a certificate to execute the internal water supply connection of the premises. Any permission for execution of the internal water supply connection shall be given for its execution in accordance with the standard specifications prescribed under the Act. The licenced Engineers or Plumbers are entitled to inspect and issue a certificate for execution of such work. Any licenced plumbers violate any terms and conditions of the licence, such licences are liable to be suspended or cancelled, apart from penal liabilities. 6. The learned counsel for the petitioner submits that the “licenced Engineer or Plumber”, as defined under Sec.2(g) of the Act 15/1989, means “a person licenced under the provisions of the Act as an Engineer or Plumber.” In fact, as per the Act, the licenced plumbers shall be permitted to carry out the execution of such internal work in any premises or house for supply of water or sewerage connection, but by the impugned regulations made under the Act 1989, regulated in exercise of powers under Sec.50 and 75 of the Act 15/89, the licenced plumbers or engineers are totally prohibited for carrying out such works of water and sewerage connections. Therefore, the petitioners seek to declare Rules 7(5) and 10 of Hyderabad Metropolitan Water Supply and Sewerage Board Regulations of 1992 as illegal and unconstitutional on the ground that the said regulations are unreasonable or arbitrary and contrary to the Act and in violation of Articles 14, 19(1)(g) and 21 of the Constitution of India. 7. A counter has been filed contending that before formation of the respondents Board, the Hyderabad City Water Supply was under the control of the Municipal Corporation of Hyderabad. The Water Supply and Sewerage System were jointly to be under the control of the respondents Board after the enactment of Act 15/1989. Thus, it is stated that the earlier Water Supply Rules 1976 are not applicable after the formation of the Board with effect from 01.11.1989. It is further stated that in exercise of powers conferred under Sec.50 and 75 of the Act 15/1989, the Regulations 1992 have been made and as per the said regulations, if the licenced plumbers to whom the licences were granted earlier are not interested in obtaining such licences for the specific job, they are free to carry on their trade as private plumbers. But under the said regulations, the licenced plumbers or engineers are prohibited from carrying out the internal and external plumbing works. Thus, it is stated that it is for the petitioners either to opt licences or to execute the work without obtaining any licences. Therefore, it is stated that the right of the plumbers in any way to carry out as trade and business is not deprived in any manner. It is stated that the licences are granted to the qualified plumbers or engineers to simplify the certification system. If any of the licenced plumbers wants for execution of work, they need not obtain any licence and they are free to execute internal and external plumbing works. But, whoever desires to have a certification, they are not entitled to execute the work. 8. We have perused the counter and considered the contentions of the learned counsel for the petitioner. It is not in dispute that under sub- Sec.(3) of Sec.48 of Act 15/1989 the Board is empowered to make a regulation for compliance by the licenced engineers or plumbers. The respondents’ board is also empowered to prescribe the charges to be paid to the licenced engineer or plumber from time to time. The board is also empowered to frame regulations under the Act and according to the said regulations, any private plumber who specialized in the internal and external plumbing work is entitled to carry out the work and he shall not be prevented by the Board in carrying out any internal and external plumbing work. Any qualified plumber is free to carry on private trade in execution of private plumbing work. But, we do not understand the reasons in prohibiting the licenced plumbers who are also entitled to certify the execution of the work as per the specifications and relevant standards, to carry out internal and external water connection works. The contention of the learned counsel for the petitioners that the licenced plumbers alone are entitled to carry out the internal connections and external connections, but not by any private plumbers specialized in these works is without any basis as the consumer is at liberty to choose better service oriented and a qualified plumber instead of going to the few selected licenced plumbers by the Board. The eligible plumbers and engineers are also given licences, but there is no any rationale or reason to prohibit such licenced plumbers from executing internal and external plumbing works. 9. The licenced plumber or an officer authorized by a Board is eligible to give completion certificate after satisfactory completion of internal and external pipe works as per the specifications and regulations. For issue of such licences, the eligibility and conditions for the licence has been prescribed in regulations 6 and 7. But there is no justification in prohibiting the licenced plumbers from undertaking the execution of the work. It is the sole responsibility of the respondents Board to regulate and control with regard to illegal connections and it is open for the board to delegate its powers of certification, but merely because the licences have been given for such certification in the absence of any specific prohibition contemplated under the Act, we are of the opinion that under the Regulations, the Board is not entitled to prohibit the licenced plumbers from carrying out the internal and external plumbing work. 10. It is not in dispute that the licenced plumbers under the earlier regulations framed by the respondents under the Act 1989 are entitled to carry out the plumbing work. The petitioners are aggrieved by Regulations 7(5) and 10, which are extracted hereunder. Regulation-7: Conditions for Licence: (1)……… (2)……. (3)…… (4)…… (5) The Licensed Plumber shall not carry out the plumbing work. Regulation-10: Performance of Work: (1) No licenced Engineer or Plumber to whom licence is granted only for the sole purpose of issue of completion certificate after verification and inspection of works done by an applicant in accordance with standard specifications prescribed thereto, shall undertake execution of work in any premises. (2) No licensed Engineer or Plumber shall canvas in any form in favour of any applicant seeking a service connection. It shall not be lawful for any licenced Engineer or Plumber to arrange or cause to arrange for the boring of Board’s Water main and for the connection of Board Sewer. Failure to comply with these regulations shall render the licence for immediate cancellation of the licence and forfeiture of the deposit. (3) The Chief General Manager (Engg) concerned shall with the previous approval of the Director (Engg) specify charges to be paid by the consumer-applicant from time to time to the Licenced Engineer or Plumber towards fees for issue of a completion certificate. No licenced Engineer or Plumber shall demand or receive more than the fees so specified failing which the licence shall be cancelled, agreement annulled and security deposit forfeited. 11. Under Sec.48 of the Act it has been laid down that no person other than the Engineer or Plumber licenced by the Board shall issue a certificate for execution of internal water supply connections of premises. Therefore, if connection is to be sought, a certified is needed by the consumer from a licenced Engineer or Plumber. We do not see any justification in imposing restriction on licenced plumbers that they shall not do any private work which would in effect means that once they are licenced under the said regulations they cannot do any plumbing work except to issue certificates. We are of the opinion that the said restriction imposed on the licenced plumbers not to carry out the plumbing work obstructs their pursuits with regard to their profession. We do not see any purpose in imposing such a restriction and it is not known what the Board wants to achieve by imposing such a restriction under Regulation 7(5). A person who is trained and licenced plumber cannot be asked only to issue certificates and not to work as plumber. Therefore, we are of the opinion Regulations 7(5) and 10 are not in accordance with the intendment of the Act for which the licences are sought to be granted and there is no prohibition under the Act prohibiting to carry on plumbing work by the licenced plumbers. 12. The impugned provisions, in effect, would amount to complete unreasonable restriction on the licensed sanitary engineers and licensed plumbers whereby they are prohibited from carrying out any work. The provisions, therefore, would amount to completely prohibiting the licensed personnel under the Act from carrying out their profession which violates the Article 19(1)(g) of the Constitution of India. We are unable to see any rational reason or justification for putting such prohibition and the said impugned provisions, therefore, cannot be justified on the ground of reasonable restriction, as under the guise of restriction a prohibition is imposed. 13. At the time of admission of this writ petition, a learned single Judge of this court, after examining the said provisions and by a reasoned order, had suspended the operation of the impugned regulations 7(5) and 10 till disposal of the writ petition. The learned single Judge also added, “….But, as a matter of caution, it is further directed that if the licensed plumber himself executes a work, he should not give a certificate for such work and that should be obtained from some other licensed plumber…..” The said order has been operating in the matter from 09.04.1998 i.e., for the last almost ten years. We are, therefore, of the view that the impugned provisions are liable to be held unconstitutional, however, with the rider as above. 14. Under Section 48(1) of the Act, the licenced Engineer or Plumber and the authorized officers of the Board shall alone are entitled to issue a certificate for execution of internal water supply connections of a premises. Unless the execution of internal water supply connection is in accordance with standard specifications prescribed under the Act, the certificate cannot be issued. However, in respect of trivial nature of the work, no such certificate is required. For issuance of the certificates by the competent persons, the Board is entitled to make regulations under Sec.48(3) of the Act to such Engineers or Plumbers. Merely because certain plumbers have been given licences authorizing them to issue certificates for execution of internal water supply connections of a premises, it cannot be said that they are not entitled to execute internal water supply connections on par with any other qualified plumber or engineer. The Board while making the regulations under Sec.50 of the Act with regard to issuance of licences, it can impose certain terms and conditions for ensuing the standard specifications prescribed under the Act for supply of internal water supply connections, and for suspension or cancellation of such licences. But under the guise of certain prescribed terms and conditions of such licences, we are of the opinion that the statute does not prohibit the licenced plumbers from executing the internal water supply connections. We are also of the opinion that the licenced plumbers as well as unlicenced plumbers both are entitled to execute the work, but the licenced plumbers apart from executing the internal and external plumbing works, are alone entitled to issue certificates for the work done by other unlicenced plumbers. Accordingly, we declare Regulations 7(5) and 10 in so far as they prohibit the licenced plumbers from carrying out the plumbing work on par with unlicenced qualified plumbers, as illegal and ultra virus and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. We further make it clear that the private qualified plumbers are also entitled to carry out the internal and external plumbing works, on par with the licenced plumbers. 15. The Writ Petition is, accordingly, allowed to the extent indicated above. No order as to costs. _____________________ V.ESWARAIAH,J _______________________________ VILAS V. AFZULPURKAR,J Dated: 18.02.2009 Dsr Note: LR copy to be marked B/o Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Hyderabad Metropolitan Water Supply & Swerage Board, rep by its Managing Director, Hyderabad. 2 The State Government of A.P., rep. by its Secretary, Housing & Municipal Administration, Secretariat, Hyderabad. 3 Director of Technical, Hyderabad Metropolitan Water Supply & Swerage Board, Hyderabad. 4 Chief General Manager, Maintenance & Operational Circle-I, Khairatabad, Hyderabad. 5 Chief General Manager, Maintenance & Operational Circle-I, Secunderabad. 6 2. 2CCs to 7. 2CD copies