IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 OP.No. 26774 of 2002(K) ------------------------------------ PETITIONER(S): ------------------------- MIDLAND LATEX PRODUCTS LTD., PLOT NO.14-C, COCHIN EXPORT PROCESSING ZONE, KAKKANAD, COCHIN -682 030, REPRESENTD BY ITS GENERAL MANAGER, MR. KURIAN POTHEN. BY ADV. MR.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): ------------------------------- 1. THE KERALA WATER AUTHORITY, JALA BHAVAN, TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, KALAMASSERY-683 104. 3. THE EXECUTIVE ENGINEER, WATER SUPPLY DIVISION, K W A, KALAMASSERY - 683 104. R1 TO R3 BY ADV.MR.M.DINESH, SC, KWA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.45474/2002 IN OP.NO.26774/2002 K CLOSED 5/06/2009 SD/- V.K. MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER DTD. 21/04/1999 SENT BY THE DEVELOPMENT COMMISSIONER OF THE CEPZ TO THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY DETAILING THE DIFFICULTIES FACED BY THE PETITIONER UNIT. P2: COPY OF THE LETTER WRITTEN TO THE 2ND RESPONDENT DTD. 16/04/1999. P3: COPY OF THE DEMAND NOTICE DTD. 5/09/2001 FROM THE 2ND RESPONDENT. P4: COPY OF THE DISCONNECTION ADVISE DTD. 30/11/2001. P5: COPY OF THE JUDGMENT IN O.P.NO.38216/2001 ISSUED TO THE PETITIONER ON 18/12/2001. P6: COPY OF THE MINUTES OF THE EXECUTIVE ENGINEER CONCERNED ISSUED TO THE PETITIONER DTD. 16/07/2002. P7: COPY OF THE DEMAND NOTICE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DTD. 27/08/2002. RESPONDENT'S EXHIBITS: R2(A): COPY OF CALCULATION OF BILL NO.KWA/TKA/AUG./202/-154 DTD. 27/08/2002. R2(B): COPY OF JUDGMENT IN OP.NO.38216 OF 2001 (Y) DTD. 18/12/2001. /TRUE COPY/ P.A.TO JUDGE Kss V.K.MOHANAN, J. --------------------------------------------- O.P.No. 26774 of 2002 K --------------------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T The petitioner-company, who is a consumer of the Kerala Water Authority, having two separate consumer numbers viz., T 1516 and T 2658, entered into an agreement with the said authority during the year 1992. In this writ petition, the petitioner challenges Exts.P6 and P7 notices. 2. The case of the petitioner is that against the arbitrary bill issued by the Water Authority, he had approached this Court by preferring O.P.No.38216 of 2001 and the same was disposed of by this Court by Ext.P5 judgment whereby the third respondent- Executive Engineer was directed to consider the appeal which was preferred by the petitioner and to pass appropriate orders. But, according to the petitioner, though the third respondent has convened a meeting pursuant to the appeal preferred by the petitioner,as per Ext.P6 minutes, he had not issued any order or bill in terms of the direction contained in Ext.P5 judgment. Hence, the petitioner has approached this Court by filing the present writ petition with a prayer to quash Exts.P6 and P7. OP NO.26774 of 2002 :-2-: 3. A counter affidavit is filed for and on behalf of respondents 1 to 3 , along with which they produced Ext.R2(a) calculation of bill and also Ext.R2(b), a copy of the judgment of this Court produced by the petitioner along with this writ petition. In Ext.R2(a), it is stated that the actual demand for the period mentioned therein was Rs.6502/-, Rs.5542/- and Rs.22168/- and the difference in demand for the above period is Rs.4704/- which is clearly specified in the bill. Thus the total demand, according to the water authority, will come to Rs.2,00,270/-. As per the counter, the said amount was arrived in terms of the direction issued by this Court in terms of the judgment referred above and after deleting penalty and fine amount, and on the basis of the agreement arrived in terms of the proceedings of the third respondent-Executive Engineer. Therefore, according to the Water Authority, the authority has relinquished a sum of nearly Rs.47,000/- towards the penalty and fine. Therefore, according to the respondents, the petitioner is liable to pay the amount as calculated and demanded as per Ext.P7 revised bill. 4. I have heard learned counsel for the petitioner as well as respondents and also perused the materials available on record. OP NO.26774 of 2002 :-3-: 5. The specific case of the petitioner is that to the water connection namely,T1516, the Water Authority has not supplied the agreed quantity of water and therefore, the petitioner is not liable to pay the amount as calculated and demanded as per Ext.P3 which was simply on the basis of the slab fixed. Now, the case of the petitioner is that in spite of the direction issued by this Court as per the judgment referred above, the third respondent has not considered the grievance and the contentions raised before him, but the said Officer, by way of dereliction, authorised the second respondent to issue fresh bill and thus, Ext.P7 revised bill is issued. Learned counsel for the petitioner has pointed out that the second respondent, while issuing Ext.P7 revised bill, simply excluded the amount towards the fine and penalty and no method is adopted to assess the actual quantity of water supplied by the water authority. The meter reading shown in Ext.P7 is not fully correct and according to the petitioner, the petitioner has got its own readings and details regarding the actual quantity of water supplied by the respondents. According to the learned counsel, this mistake was repeated since the third respondent, instead of making fresh assessment, after considering the contentions and grievance of the petitioner, relegated the matter to the second OP NO.26774 of 2002 :-4-: respondent who simply repeated the calculation on the basis of Ext.P3. On a perusal of Ext.P6 minutes, the third respondent has categorically recorded as follows:- “In this context to avoid unnecessary taxing of the consumer without proper meter readings or details of water consumptions and as a relief to the consumer it was decided to collect the monthly slab for the entire default period without any fine or penalty and is to be recommended to higher Authority to waive the fine and penalty by the H.O. and KWA Board.” (emphasis supplied) On a close perusal of the above quoted portion, it can be seen that the third respondent is of the opinion that it is better to avoid unnecessary taxing of the consumer without proper meter readings or details of water consumption and had also decided to collect charge for the entire default period on the basis of the monthly slab. It is evident from Ext.P3 and as admitted by both the parties, originally the charge was calculated on the basis of the slab. It was against which this Court directed the petitioner to prefer an appeal before the third respondent and to take a decision on merit on such appeal. But, from Ext.P6, it appears that a decision was taken to calculate the water charge on the basis of the slab fixed but by excluding the penalty and fine. The OP NO.26774 of 2002 :-5-: above approach of the third respondent is not correct. This Court in a proceedings under Article 226 of the Constitution of India is not in a position to come into a conclusion regarding the disputed issues involved in the case. However, the third respondent has failed to consider the appeal preferred by the petitioner on merit in spite of the direction given by this Court as per the judgment referred above. Therefore, I am of the view that this writ petition can be disposed of directing the third respondent to take up the matter and pass fresh orders. In the result, Exts.P6 and P7 are quashed for the purpose of enabling the third respondent to take a fresh decision on the basis of the appeal preferred by the petitioner. As evidenced by the observation of third respondent in Ext.P6, there was no correct and proper meter reading or details regarding the water consumption. Therefore, the third respondent is specifically directed to take a decision, determining the actual quantity of water consumed by the petitioner instead of fixing the consumption on the basis of monthly slab and to fix the water charge accordingly after deleting the fine and penalty as they have already done in this case. OP NO.26774 of 2002 :-6-: The Original Petition is disposed of as above. V.K.Mohanan, Judge MBS/ OP NO.26774 of 2002 :-7-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 26774 OF 2002 -------------------------------------------- J U D G M E N T DATED: 5-6-2009 OP NO.26774 of 2002 :-8-: