IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.23218 and 23668 of 2008 and M.P.Nos.1, 1 and 2 of 2008 Khivraj Tech Park Pvt. Ltd., rep by its General Manager – Operations, Mr.A.Lakshminarayanan Plot No.1, SIDCO Industrial Estate, Guindy, Chennai-600 032. .. Petitioner in both writ petitions Vs. 1.Chennai Metropolitan Water Supply and Sewerage Board, rep by its Managing Director, No.1, Pumping Station Road, Chintadripet, Chennai-600 002. 2.The Area Engineer IX, Chennai Metropolitan Water Supply and Sewerage Board, No.15,V.V.Koil Street, Saidapet, Chennai-600 015. .. Respondents in both writ petitions W.P.No.23218 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to process the application of the petitioner dated 30.08.2006 for which charges have already been paid and complete the water supply and sewerage service connections in terms of the earlier orders of this Court in W.P.No.4088 of 2008, dated 6.3.2008. W.P.No.23668 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent relating to the letter No.CMWSSB/O&M/Area IX/Regn./2008, dated 31.07.2008 and quash the same and to direct the respondents to process the application of the petitioner dated 30.08.2006 for which charges have already been paid and complete the water supply and sewerage service connections in terms of the earlier orders of this court in W.P.No.4088 of 2008, dated 06.03.2008. For Petitioner : .Mr.R.Muthukumarasami, SC for Mr.D.B.R.Prabhu in both W.Ps. https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.P.Wilson, Additional Advocate General for Mr.B.Mani, Standing Counsel for CMDA in both W.Ps. COMMON ORDER The petitioner in both writ petitions is one and the same. The petitioner is a private Limited Company represented by its General Manager (Operations). In the first writ petition, i.e., W.P.No.23218 of 2008, the prayer of the petitioner is for a direction to the respondents to process the application of the petitioner dated 30.8.2006 for which charges were already paid by the petitioner and to complete water supply and sewerage service connections in terms of the earlier order passed by this Court in W.P.No.4088 of 2008, dated 6.3.2008. When that writ petition came up for hearing, the learned Standing Counsel for the respondents Chennai Metropolitan Water Supply and Sewerage Board (for short Metro Water) took notice. Pending the writ petition, though an interim direction was sought for, no orders were passed on the application. 2.Even at the time of filing of the writ petition, the petitioner was aware of the order passed by the respondent Metro Water, dated 31.07.2008, wherein and by which the petitioner was directed to pay water and sewerage connection charges as per the application form enclosed. They were asked to apply along with the challan and other documents. They were also requested to furnish a proof of having paid the Infrastructure Development charges to the Metro Water for further action. A copy of the said order is also found enclosed in pages 19 and 20 of the typed set. However the petitioner was not asked to enclose the completion certificate in view of the earlier order passed by this Court. Thereafter, the petitioner sent representations, dated 14.8.2008 and 1.9.2008. Even without any change of circumstances and as they did not get further orders on the last representation, they filed the second writ petition being W.P.No.23668 of 2008 challenging the order dated 31.7.2008 demanding the water and sewerage connection charges as per the application form. 3.In the impugned order, they were clearly informed that the order came to be passed only after taking note of the earlier order passed by this Court in W.P.No.4088 of 2008, dated 6.3.2008. In the second writ petition, they had also taken out an application for an interim direction. The writ petition was not admitted, but after hearing the arguments of Mr.R.Muthukumaraswamy, the learned Senior Counsel as well as the Additional Advocate General, K.Suguna, J. by an order dated 13.10.2008 gave a direction to the respondents Metro Water. In paragraph 4 of the order, it was stated as follows: "4.Taking note of the arguments of both sides, I am of the opinion that ends of justice would be met by the directing the petitioner to pay a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.50,00,000/- (Rupees fifty lakhs only) within a period of eight weeks from the date of receipt of a copy of this order and on such payment, the respondents shall give water and sewerage connection to the building in question within a period of two weeks. Besides that, the petitioner is also directed to submit a proper application form seeking water and sewerage connection within a period of one week from the date of this order. However, the said payment and the submission of application form by the petitioner is subject to the result of the writ petition. Accordingly, this miscellaneous petition is closed." (Emphasis added) By the order granting an interim direction, the court had virtually granted the main relief but without going into the merits of the case except that the direction was given to the petitioner to submit a proper application form seeking water and sewerage service connections though it was made subject to the result of the main writ petition. 4.In the light of the subsequent writ petition, practically nothing survives in the first writ petition. It was agreed that the first writ petition, i.e., W.P.No.23218 of 2008 may be dismissed along with its miscellaneous petition as the issue had survived for consideration in the subsequent writ petition. Accordingly, W.P.No.23218 of 2008 will stand dismissed. Consequently connected miscellaneous petition stand closed. 5.Before going into the rival contentions, it must be noted that the petitioner company had constructed an Information Technology building at the Olimpia Technology Park in SIDCO Industrial Estate at Guindy. When they had applied for a completion certificate, an opinion was sought for from the Metro Water and CMDA pending the service connections. The matter was placed before the Sub committee of Monitoring Committee in its meeting held on 27.3.2007. The Committee on scrutiny of papers found that the construction did not satisfy the compliance certificate norms. It was decided that the petitioner must apply for a revised approval. These facts were intimated by the CMDA to the Secretary to the Government, I.T. Department. The CMDA also wrote to the petitioner intimating the decision of the Committee and also various deviations found in the building. Out of 37 norms for completion certificate, it was found that 20 norms were not applicable to them. While they had observed 12 norms, in respect of 5 norms, there was no satisfaction. Therefore, they were advised to file a fresh application for approval. Instead of complying with the same, the petitioner had moved this court through a writ petition in W.P.No.4088 of 2008. But, the petitioner did not challenge the report of the Committee pointing out the deficiencies. On the other hand, in the writ petition they had asked for a direction to provide water supply and sewerage connections without insisting on a completion certificate. V.Dhanapalan, J. on perusal of the Sub Committee's report recorded a finding that the deviations of the https://hcservices.ecourts.gov.in/hcservices/ building constructed by the petitioner company were only minimal. After relying an unreported decision of this Court, the learned Judge had directed the respondents to accept the application of the petitioner to provide water and service connection. The CMDA was directed to complete water and sewerage connections in the said property. Liberty was given to CMDA to take action against deviation in accordance with law at the time of issuance of the completion certificate. Therefore, without a completion certificate and thanks to the interim order passed by this court, the petitioner got their water and sewerage connection. By the same interim order dated 13.10.2008 they also got the water and sewerage connection within two weeks and after making adhoc payment of Rs.50 lakhs. 6.From the narration of the earlier proceedings, it will be clearly shown that the petitioner building did not have a completion certificate. The Sub Committee of Monitoring Committee did not grant approval for the grant of completion certificate. 5 out of 17 norms were not satisfied though this court recorded that there were only minimal deviations, but the direction was issued that these deviations can be taken note of at the time of issuance of clearance certificate. Though the production of completion certificate was made mandatory in terms of Development Control Rules, the petitioner had the benefit of water and sewerage connections and also they were not asked to pay due charges. A perusal of the interim order, dated 13.10.2008 will show that the petitioner was directed to submit a proper application form seeking water and sewerage connections within one week from the date of the order. If that is the position on 13.10.2008, in the earlier order dated 6.3.2008 in W.P.No.4088 of 2008, this Court had observed that they should accept the application of the petitioner to provide water and sewerage connections. 7.When the matter came up for final disposal, a detailed counter affidavit was filed by the first respondent, dated 30.1.2009 together with supporting typed set of documents. In the counter affidavit sworn to by the Managing Director of the Metro Water, it was stated that the water and sewerage connection application form with challan at free of cost was available at the Metro Water Head office. The application form was a self contained one. It contained classifications, calculation of charges and computing advance tax. A consumer who intends to avail the services has to remit the connection charges at the Metro Water account of the Canara Bank through a challan along with a self declaration which is issued along with the application form. The consumer had to register the application form at the registration counter in the Head Office in person or send it through post with necessary enclosures. It was thereafter, the Area Manager will verify the application and register in the Computer Registration System. After the same, he should forward it to the Area Engineers. The Area Engineer should sanction the applications and after making entries in the office through Computer, the Work Orders along with documents shall be sent to the respective Depot Engineers for effecting connections within 7 days from the date of registration https://hcservices.ecourts.gov.in/hcservices/ of the application with a copy of the work order sent to the Consumer. Before effecting water and sewerage service connections, verification will be made by the office of the Metro Water about the correctness of details furnished by the consumer for effecting connections. A division bench of this court by an order dated 23.08.2006 had held as follows: "ix)To avoid future violations, building should be certified as having been constructed in compliance of Planning Permit and other applicable laws. The certifying officer is personally responsible if any illegal building is certified. Electricity, water connection and occupation should be contingent on such certificate." 8.The petitioner Company have paid a sum of Rs.1,30,54,800/- towards water connection charges, sewer connection charges and advance tax. Along with challan for payment, the petitioner should have enclosed a Plan sanction by the CMDA with completion certificate, copies of letters seeking assessment of property tax, water and sewerage tax, drawing showing internal plumbing works and connection to public water/sewer main with length, nature of Road portion signed by the consumer. They must also enclose a self declaration letter for Rain Water Harvesting, proof of having paid Infrastructure Development charges to the Metro Water, an Indemnity Bond and a copy of challan. The petitioner did not furnish any formal application for water and sewerage connections along with mandatory attachments at the registration counter at Head office to process their application form. Even after the order made in W.P.No.4088 of 2008, dated 6.3.2008 by V.Dhanapalan, J., the petitioner did not submit any application for water and sewerage connection. Therefore, the petitioner was informed by the impugned order, dated 31.7.2008 that they must submit a proper application and enclose documents as per the guidelines. 9.When the petitioner's representatives had visited the Metro Water office, details were shown to the representatives to the effect that their building comes under the list of Special/Multistoried buildings and amounts paid but not registered for water and sewerage connection for requirement of Completion certificate. The petitioner instead of complying with the same, had sent an another letter, dated 1.9.2008, but did not furnish prescribed water and sewerage connection application with required documents. Thereafter, the Metro Water had sent a reply, dated 23.9.2008 by stating that they had never agreed to the application of the petitioner as it was not in due form. They have also not furnished the required documents. It is only after an interim order was passed, the petitioner Company had submitted a proper application on 24.10.2008 as per the interim order given by this court on 13.10.2008 and appropriate number was assigned to their application and sent to the Area Engineer IX. While the petitioner company had declared the number of units as 1286 and the connection charges payable was Rs.1,92,92,000/-, but an inspection by the https://hcservices.ecourts.gov.in/hcservices/ Metro Water officials found that the total number of units were identified as 1721 and the connection charges payable at Rs.2,58,17,000/-. The petitioner company had only paid Rs.32,00,450/- towards water connection charges and Rs.60,59,350/- towards sewerage connection charges on 13.09.2006 even before filing of the writ petition. Subsequent to the interim order, as per the direction of this court, an another Rs.50,00,000/- was paid on 15.12.2008. Even though there were deficiencies, in order to obey the interim order, water and sewerage connection was effected in the building and the advance tax paid was to be adjusted towards water and sewerage charges payable. The petitioner Company was legally liable to pay a sum of Rs.2,58,17,000/-, but whereas they had paid actually Rs.1,42,59,800/- and there is still balance of Rs.1,15,57,200/-. The petitioner Company has to produce the proof of having paid Infrastructure Development charges to the Metro Water collected by the CMDA at the time of issuance of planning permission. 10.Thereafter, in the counter affidavit, similar contentions were found repeated. Finally, in paragraph 37 while resisting the claim of the petitioner Company, it was averred as follows: "A)Demanding of current tariff or water supply and sewer connection charges from the petitioner is legal. In spite of request made by CMWSSB to submit application during 2007 the petitioner has not submitted the application. It is a fact that the petitioner was not having mandatory attachments to enclose along with the prescribed application at the time of making payment of connection charges under self declaration during 2006, that is the reason the petitioner has not submitted his application at the time of making payment of connection charges. B)The communication is justifiable and reasonable as charges for water and sewer connection applicable at the time of submitting the water and sewer application only have to be paid by the petitioner firm. C)Section 6(2)(xii) in chapter II of the Chennai Metropolitan Water Supply and Sewerage Board Act, 1978 enjoin that without prejudice to the generality of the foregoing provision, the Board shall have power to determine, levy and collect taxes, rates, fees, charges, surcharges, rents and costs and expenses authorized under this Act. The Board in its 287th Meeting of Board of Directors of CMWSS Board held on 14.01.2008, after detailed discussion accorded approval vide Resolution No.29/2008 to adopt the revised rates for new water/sewer connection charges with effect from 01.02.2008. Hence, the claim of the respondent Board is within the jurisdiction and with the authority of law. Therefore, the communication of https://hcservices.ecourts.gov.in/hcservices/ the Board is legal. D)As discussed in Para (C), the communication sent was justifiable and legal. E)At the time of communication, the petitioner has not submitted the application prescribed with attachments for water and sewer connection. The amount can be calculated by the applicant under self calculation. The details are vividly explained in the application. Only after submission of application, CMWSSB engineers will inspect and verify the correctness of the details furnished by the applicant and amount paid under self calculation by the applicant. Hence, the communication is not vague and the request of the petitioner is not genuine. As discussed in reply to Para-13 of petitioner's affidavit, the petitioner has to pay Rs.1,15,57,200/- towards difference in connection charges. F)It is a fact that the petitioner was not having mandatory attachments as discussed in reply to Para-6 of petitioner's affidavit to enclose along with the prescribed application at the time of making payment of connection charges under self declaration during 2006, that is the reason the petitioner has not submitted his application at the time of making payment of connection charges. G)As discussed in Para-F, the petitioner has not submitted the application to CMWSS Board with required attachments to provide water, sewer connection to the Petitioner's building during 2006. H)Even after the Hon'ble High Court order dated 06.03.2008 in W.P.No.4088 of 2008 for non-insistence of Completion Certificate from CMDA, the firm has not submitted water, sewer application to obtain water, sewer connection to the firm's building. As discussed in reply to Para-13 of petitioner's affidavit, the firm has sent a letter dated 25.07.2008 to the respondent Board for which a reply dated 31.07.2008 as discussed in reply to Para-13 of petitioner's affidavit was sent to the firm. I)The petitioner has paid the connection charges under self calculation during 13.09.2006 by way of CMWSSB challan which is an enclosure with a prescribed application. It is a fact that the petitioner was not having mandatory attachments to enclose with the prescribed application at the time of making payment of connection charges under self calculation during 2006, that is the reason the petitioner has not submitted his application at the time of making https://hcservices.ecourts.gov.in/hcservices/ payment of connection charges. As discussed in reply to Para-8 of petitioner's affidavit, CMWSSB has sent a letter dated 25.05.2007 to the petitioner and requested the petitioner to apply with required attachments to avail service connections. The petitioner ignored the CMWSSB letter dated 25.05.2007 for his convenience. The connection charges were revised by CMWSSB with effect from 01.02.2008. The petitioner has produced an order dated 06.03.2008 in W.P.No.4088 of 2008 of the Hon'ble High Court of Madras for not insisting Completion certificate from CMDA for effecting water and sewer connection. CMWSSB not insisted Completion certificate from the petitioner for this building based on the Hon'ble High Court order dated 06.03.2008. Even after the Hon'ble order of the High Court, the petitioner has not submitted application for service connection for this building. Based on the interim order of the Hon'ble High Court in W.P.No.23668 of 2008, the petitioner has submitted the prescribed application only on 24.10.2008. The petitioner to pay the connection charges prevailing at the time of submitting the application with required attachments. The difference in connection charges of Rs.1,15,57,200/- as discussed in reply to Para-13 of petitioner's affidavit has to be paid by the Petitioner's firm. J)The statement of the petitioner is denied. The amount paid by the petitioner was under self- declaration through a challan issued along with the prescribed application as discussed earlier, the petitioner has not submitted his application for want of required attachments. This is the fault of the petitioner. CMWSS Board has communicated to the petitioner's firm as early during 25.05.2007 to apply in the prescribed application with required documents. Whereas the connection charges were revised during 01.02.2008. Therefore, it is submitted that the petitioner's request cannot be accepted. K)It is submitted that the petitioner has paid the connection charges on 13.09.2006 under self declaration. The details of CMDA letters have been discussed in reply to Para-8 of petitioner's affidavit. As discussed in reply to Para-8 of petitioner's affidavit, the communication to the petitioner was sent by CMWSSB on 25.05.2007. The connection charges were revised with effect from 01.02.2008. It is the fault of the petitioner for not having submitted the application with required documents before the revision of the connection charges. It is a fact that the petitioner was not having the required documents to enclose along with the application, without which the application cannot https://hcservices.ecourts.gov.in/hcservices/ be sanctioned. Hence, the petitioner has not submitted the application. The petitioner has to pay the revised prevailing connection charges. The difference in connection charges of Rs.1,15,57,200/- as discussed in reply to Para-13 of petitioner's affidavit has to be paid by the petitioner's firm. L)It is submitted that as discussed in earlier paras, the petitioner has not fulfilled the requirements to avail the water, sewer connections before the revision of connection charges. Therefore, the petitioner has to pay the difference in connection charges as discussed in reply to Para-13 of the petitioner's affidavit. M)The petitioner's statement is denied. As discussed in reply to Para-8 of petitioner's affidavit, the petitioner's firm has been numbered as 74th item in the list of Special/Multi-storeyed buildings amount paid but not registered for water and sewer connections for requirement of Completion Certificate from CMDA. Therefore, the petitioner's statement cannot be accepted. N)As discussed in earlier paras, it is submitted that the statements of the petitioner cannot be accepted. O)The petitioner firm has submitted the prescribed application only on 24.10.2008 as per the interim order dated 13.10.2008 in W.P.No.23668/2008 by the Hon'ble High Court of Madras. Also it is submitted, the applicant has never submitted the application before the revision of connection charges by CMWSSB. Hence, the petitioner has to pay the revised water and sewer connection charges. The difference in connection charges of Rs.1,15,57,200/- as discussed in reply to Para-13 of the petitioner's affidavit has to be paid by the petitioner firm and this Writ Petition may kindly be dismissed." 11.There was no reply affidavit filed challenging the stand of the respondent Metro Water. The respondents have also filed a detailed typed set of documents enclosing all the documents relating to the petitioner's case. They have also produced the original files at the time of hearing. 12.Heard the arguments of Mr.R.Muthukumaraswami, learned Senior Counsel leading Mr.D.B.R.Prabhu, learned counsel appearing for the petitioner Company and Mr.P.Wilson, learned Additional Advocate General appearing for Mr.B.Mani, learned Standing Counsel for the Metro Water. 13.Mr.R.Muthukumaraswami, learned Senior Counsel submitted that water and sewerage connection charges cannot be levied on https://hcservices.ecourts.gov.in/hcservices/ fanciful basis. It should be the rate as found at the time of submission of the original application and not the amount which was demanded at present. 14.Refuting the stand of the petitioner, Mr.P.Wilson, learned Additional Advocate General took this court to various documents to show that the so-called application filed by them was never in terms of the legal requirement. He also referred to the earlier judgment of a division bench of this Court in Consumer Action Group Vs. State of Tamil Nadu and others reported in 2007 (1) MLJ 897. In that case, the division bench while entertaining a Public Interest Litigation with reference to mushrooming growth of multistoried building in Tamil Nadu without proper regard to Building Control Rules, gave several directions. In order to oversee its compliance, in paragraph 32 it also provided for a Monitoring Committee. Further, in order to avoid the Real Estate Operators making the issue fait accompli, this Court in paragraph 32(ix) had clearly held that Certifying Officers will be personally responsible if any illegal building is certified and electricity, water connection and occupation should be contingent upon such certificate. That judgment was also confirmed by the Supreme Court subsequently. When there was a clear direction from the division bench, it was not open to this Court to give any contra direction. 15.In the present case, the Monitoring Committee had found that there were deviations though this court held that there was only minimal deviations. It is not clear as to how such a finding can be rendered in the teeth of the division bench's order. In the present case, admittedly, the petitioner had not complied with the guidelines prescribed in the application form. 16.In this context,