IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23/01/2004 CORAM THE HONBLE MR.JUSTICE P.D. DINAKARAN Writ Petition No.7836 of 2003 and WPMP.No.10057 of 2003 Sadan Tools Room Pvt. Ltd., rep. by Director, Mr.Ashokkumar Shetty, 16, Race Course Road, Guindy, Chennai-32. .. Petitioner -Vs- 1.Chennai Metropolitan Water Supply and Sewerage Board, rep. by its Chairman and Managing Director, 1, Pumping Station Road, Chennai-2. 2.The Senior Accounts Office, Area IX, Chennai Metropolitan Water Supply and Sewerage Board, 15, V.V.Koil Street, Chennai. 3.The Special Tahsildar, Chennai Metropolitan Water Supply and Sewerage Board, Chennai. .. Respondents Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr.P.B.Balaji For Respondents : No appearance :O R D E R The petitioner seeks a writ of Certiorarified Mandamus to call for the records relating to the impugned demand dated 31.12.2002 served on 11.2.2003 on the file of the second respondent and consequent Distraint Notice No.18235 dated 6.3.2003 on the file of the third respondent, quash the same and to consequently forbear the respondents from taking any coercive steps against the petitioner. 2. The respondents viz., Chennai Metropolitan Water Supply and Sewerage Board by impugned proceedings dated 31.12.2002 raised a demand for a sum of Rs.98,596/- i.e. Rs.57,747/- towards water and sewerage tax and Rs.40,849/- towards surcharge from the petitioner. The said Rs.57,747/- towards water and sewerage tax was demanded as per the following details: Period Tax Rs. 2/1988-1989 917.00 1/1992-1993 837.00 2/1992-1993 837.00 1/1993-1994 837.00 2/1993-1994 837.00 1/1994-1995 837.00 2/1994-1995 837.00 1/1995-1996 837.00 2/1995-1996 837.00 1/1996-1997 1754.00 2/1996-1997 1754.00 1/1997-1998 1754.00 2/1997-1998 1754.00 1/1998-1999 1754.00 2/1998-1999 4596.00 1/1999-2000 4596.00 2/1999-2000 4596.00 1/2000-2001 4596.00 2/2000-2001 4596.00 1/2001-2002 4596.00 2/2001-2002 4596.00 1/2002-2003 4596.00 2/2002-2003 4596.00 3. Mr.P.B.Balaji, learned counsel for the petitioner while fairly concedes as to the liability of the petitioner to pay the water and sewerage tax viz., Rs.57747/- for the periods referred to above, stoutly disputes the liability of the petitioner to pay the surcharge viz., Rs.40,849/- contending that the question of paying surcharge would arise only when the petitioner fails to pay the water and sewerage tax within the time specified in the demand notice dated 31.12.2002. 4. According to Mr.P.B.Balaji, learned counsel for the petitioner, the petitioner was served with a demand notice only on 31.12.2002 and therefore, since the petitioner is willing and ready to pay the said sum of Rs.57,747/- demanded by notice dated 31.12.2002, the question of demanding surcharge on the said water and s ewerage tax does not arise. 5. Inter alia, the learned counsel for the petitioner placing reliance on Regulation 27(iv) of the Chennai Metropolitan Water Supply and Sewerage Service Charges (Levy and Collection) Regulations, 1998, contends that the respondents are empowered to waive the surcharge in appropriate cases viz., (a) during drought period, (b) during the period of no water supply and (c) defective water supply due to unforeseen circumstances. Since the respondents in their counter affidavit have not disputed the averment made by the petitioner that there was no water supply to the petitioner's building during the periods referred to above, the petitioner is entitled to the waiver of the surcharge. 6. Unfortunately, there is no representation on behalf of the respondents Board. However, I am unable to accept the contention of Mr.P. B.Balaji learned counsel for the petitioner that the liability of the petitioner to pay the surcharge starts only when the petitioner fails to pay the water and sewerage tax after the receipt of the demand notice. 7. Regulation 10 of the Chennai Metropolitan Water Supply and Sewerage Boards Water Tax and Sewerage Tax (Levy and Collection) Regulations, 1991, empowers the respondents Board to levy and collect the water and sewerage tax, which shall be 7% of the property tax assessed by the Corporation of Chennai under the provisions of Chennai City Municipal (Corporation) Act, 1919, which, of course, is not disputed by the learned counsel for the petitioner. Once the liability of the petitioner to pay the property tax after the same has been arrived at by the Corporation of Chennai commences, a duty is cast upon the petitioner to pay the water and sewerage tax statutorily by operation of law. The moment the petitioner fails to pay the water and sewerage tax, he is liable to pay surcharge on the said tax and the right vested on the respondents Board to collect the surcharge simultaneously starts. It is only in this context the respondents Board levied surcharge for the belated payment of the water and sewerage tax. 8. Even though an emphasis was made on behalf of the petitioner that the first limb of Regulation 10 of the said Regulations viz., the payment of water and sewerage tax shall be made as specified in the demand notice, water and sewerage tax card or as intimated by the Board from time to time, in my considered opinion, it would only mean that a duty is cast upon the petitioner to pay the amount as demanded because such a payment is based on the statistics prescribed under the statute itself viz., 7% of the property tax and not for any other purpose particularly not for the commencement of its liability. But, at the same time, even though the liability of the petitioner commences simultaneously at the moment the Corporation of Chennai assesses property tax, the legislature is clear that such a liability is not an automatic one irrespective of the reasons for such non payment of tax in time. For that reason, the respondents Board is empowered with power of waiver of such tax, but not water and sewerage tax as provided under Regulation 27 of the said regulations, which reads as follows: 27(i) *** (ii) *** (iii) *** (iv) Surcharge may be waived on the following reasons after proper examination and on approval of Competent Authority:- (a) During drought period. (b) During the period of no water supply. (c) Defective water supply due to unforeseen circumstances. Therefore, under the genuine and bona fide circumstances of the case, which may differ from case to case, either with reference to the drought period or period of no water supply or defective water supply due to unforeseen circumstances, as in the instant case that there was no water supply during the relevant period to the petitioner's premises, which is not disputed by the respondents Board in their counter affidavit, the alternative contention of Mr.P.B.Balaji, learned counsel for the petitioner seeking waiver of the surcharge requiring the respondents to exercise the power under Regulation 27(iv) of the said Regulations cannot be rejected. Hence, I am inclined to pass the following order:- (i) the petitioner shall pay a sum of Rs.57,747/- towards the water and sewerage tax demanded by notice dated 31.12.2002, of course after deducting the payment already made by him pursuant to the orders of this Court dated 6.10.2003; (ii) the petitioner is at liberty to make a representation to the first respondent to waive the surcharge explaining the reasons relied upon by the petitioner within thirty days from the date of receipt of a copy of this order; and (iii) on receipt of such representation seeking waiver of surcharge by the petitioner as permitted above, the respondents Board shall pass appropriate orders on the same within sixty days from the date of receipt of a copy of the representation. The writ petition is disposed of accordingly. No costs. Consequently, WPMP.No.10057 of 2003 is closed. Index : Yes Internet: Yes ATR To; 1.The Chairman and Managing Director, Chennai Metropolitan Water Supply and Sewerage Board, 1, Pumping Station Road, Chennai-2. 2.The Senior Accounts Officer, Area IX, Chennai Metropolitan Water Supply and Sewerage Board, 15, V.V.Koil Street, Chennai. 3.The Special Tahsildar, Chennai Metropolitan Water Supply and Sewerage Board, Chennai. 