Civil Writ Petition No.15785 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.15785 of 2007 Date of Decision:06.01.2011 Micron Instruments Private Limited ......Petitioner Versus Chandigarh Administration and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.D.S.Patwalia, Advocate, for the petitioner. Mr.Suveer Sheokand, Advocate, for respondent No.1. Mr.K.K.Gupta, Advocate, for respondent Nos.2 to 4. **** M EHINDER S INGH S ULLAR , J.(oral) The challenge in the instant writ petition filed by the petitioner, invoking the provisions of Articles 226/227 of the Constitution of India, is to the impugned order dated 18.09.2007(Annexure P-14), by virtue of which, the respondents reiterated the demand of the impugned amount, in lieu of water supply, by levying a penalty at the rate of Rs.90,000/- per month with effect from 05.06.2000, as per Rule 45(i) of the Water Supply Bye Laws 1960, raised vide various bills (Annexures P-1, P-2, P-6, P-11 and P-12) etc. 2. The epitome of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy involved in the instant writ petition and emanating from the record, is that Micron Instruments Private Limited-petitioner-Company (hereinafter to be referred as “the petitioner- Company”), is running its business in Phase-I, Industrial Area, Chandigarh. It installed a tubewell, without prior requisite approval of the competent authority in Civil Writ Petition No.15785 of 2007 2 its premises. The respondents raised a demand of Rs.18 lacs vide letter/notice dated 17.11.2006(Annexure P-11) and an additional demand of Rs.59 lacs, vide letter dated 16.11.2006 (Annexure P-12) in this behalf. 3. Aggrieved by the demand letters(Annexures P-11 and P-12), the petitioner-Company earlier filed the Civil Writ Petition No.18771 of 2006, which came up for hearing on 28.11.2006 before a Division Bench of this Court and the following order was passed:- “Counsel for the petitioner, by referring to averments made in paragraph No.9 of the writ petition, inter alia, states that even as per notification issued by Union Territory of Chandigarh on 05.06.2000, for digging up and running a tubewell of 2” diameter, the person concerned is supposed to pay an amount of Rs.9,000/- per month and in case of digging up of tubewell without any permission, as per the notification, only double the amount may be charged by the Corporation. Counsel further states that even if it is presumed that the petitioner had dug up the tubewell in September, 2005, he can be charged only at the rate of Rs.9,000/- per month or may be at the rate of Rs.18,000/- per month, and as such, under no circumstances, the petitioner is liable to pay an amount of Rs.77.00 lacs. He further states that the petitioner was asked to furnish information, vide letter, Annexure P/10 and within five days, he has been asked to pay Rs.77.00 lacs vide Bill, Annexure P/12, which demand has been raised, even without affording any opportunity of hearing. Notice of motion for 15.12.2006. Dasti only. Subject to the petitioner's depositing Rs.18,000/- per month from the month of September, 2005 with the Corporation, within three days from today, further recovery and disconnection of water connection of the petitioner shall remain stayed. Copy dasti on usual payment.” 4. Not only that, the earlier writ petition came to be disposed of by a Division Bench of this Court vide order dated 22.02.2007, which is to the following effect:- “Taken up today. This petition is disposed of with liberty to the petitioner to comply with Civil Writ Petition No.15785 of 2007 3 communication dated 6.11.2006, Annexure P-10. The necessary affidavit/information shall be given to respondent No.2 within a week from today. Thereafter, further proceedings shall be taken up in respect of cross verification at site etc., under the provisions of Water Supply Bye Laws, 1960, as amended from time to time. Until the final decision is taken, the interim directions given on 28.11.2006 shall continue to operate. Disposed of in the above terms.” 5. Thereafter, in pursuance of the order of this Court, on the basis of inspection note(Annexure P-13) and again reiterating the demand of imposing a penalty at the rate of Rs.90,000/- per month with effect from 05.06.2000, the respondents passed the impugned order dated 18.09.2007(Annexure P-14) in this context. 6. The petitioner-Company still did not feel satisfied and filed the instant writ petition challenging the impugned order(Annexure P-14), mainly on the ground that neither the respondents were legally competent to raise the impugned amount at the indicated rates, nor with effect from 05.06.2000, the date of issuance of notification of the Water Supply Rules. It was claimed that at the most the respondents can claim the water charges as per un-amended water supply rules prevalent at the relevant time that too with effect from May, 2005, when the tubewell was installed. 7. The respondents contested the claim of the petitioner-Company and filed the written statement, inter alia, pleading certain preliminary objections of the maintainability of the writ petition and locus standi of the petitioner-Company. The case set-up by the contesting respondents, in brief, insofar as relevant was that, during the course of inspection, it was found that the petitioner-Company has illegally installed the tubewell, without requisite approval of the competent authority and the respondents have rightly raised the demand, after imposing the penalty under Rule 45(i) of the Water Supply Amended Bye Laws 1960. In all according to the respondents that, the demand raised by them is legal and justified. Civil Writ Petition No.15785 of 2007 4 It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. 8. Controverting the allegations of the written statement and reiterating the pleadings contained in the writ petition, the petitioner-Company filed the replication. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted. 10. What is not disputed here is that the respondents issued a show- cause-notice dated 06.10.2005(Annexure P-4) to the petitioner-Company, requesting it to intimate the date of installation of tubewell, hand-pump and also if any permission was obtained from the Municipal Corporation, Chandigarh, in this respect. The petitioner-Company intimated the respondents vide reply dated 24.10.2005(Annexure P-5) that the tubewell with depth of 165 feet and water outlet line of 2 inches diameter was installed in the month of May, 2005, without any permission from the Municipal Corporation. However, it demonstrated its intention to obtain the permission, if required. Meaning thereby, it is established on record that since the petitioner-Company installed the tubewell with depth of 165 feet and water outlet line of 2 inches diameter in the month of May, 2005, without any approval, so it is liable to pay the water charges as per Rule 45(i) of the Water Supply Bye Laws 1960. 11. Above being the position on record, now the sole question that arises for determination in this case is that, at what rate, the petitioner-Company was liable to make the payment of water charges? 12. As is evident from the record that the respondents have raised the demand vide impugned order(Annexure P-14) by imposing a penalty of Rs.90,000/- per month with effect from 05.06.2000, as per modified Bye Laws 45 Civil Writ Petition No.15785 of 2007 5 amended vide Notification dated 28.09.2006. Here, to my mind, the respondents have slipped into legal error in this relevant context. “Bye Law 45 of Water Supply Bye Laws reads as under:- The Municipal Corporation, Chandigarh shall levy following amount from the owners of the premises within its municipal limits who install tubewells in their premises after obtaining prior sanction from the competent authority, namely:- Size of bore Amount(Rs.) 50 mm (2”) 9,000 per month 65 mm (2-1/2”) 15,000 per month 80 mm (3”) 22,000 per month 100 mm (4”) 26,000 per month 120 mm (5”) 40,000 per month 150 mm (6”) 45,000 per month Above 150 mm (above 6”) 50,000 per month (ii) The consumer will be charged double the normal rates described above, for installation of tubewell without approval of the competent authority for the period from the date of installation of tubewell till the approval is obtained in this behalf.” 13. Meaning thereby, the respondents can only recover the amount of water charges as per Water Supply Bye Laws 1960, operating at the time of relevant year i.e., May, 2005, when the tubewell was installed by the petitioner- Company, (Annexure P-5). Therefore, the demand raised by the respondents as per modified Bye Laws 45, amended on 28.09.2006, is not only arbitrary but illegal as well. 14. As indicated earlier, it stands proved on record that the petitioner- Company has installed the tubuwell without sanction with depth of 165 feet and with water outlet line of 2 inches diameter in the month of May, 2005. In that eventuality, the respondents can only raise a demand of Rs.18,000/- per month of water outlet line of 2 inches as a penalty of double the normal rate, for the relevant period with effect from May, 2005, as per Clause (ii) of the original Water Supply Bye Laws, as reproduced above. In this manner, the demand of excess amount of Civil Writ Petition No.15785 of 2007 6 water supply deserves to be and is hereby set aside in the obtaining circumstances of the case. 15. It is not a matter of dispute rather clear from the affidavit of Rajat Kapoor, Senior Manager of the petitioner-Company, that an amount of Rs.2,70,000/- was paid vide letter dated 29.11.2006 and demand draft No.026464 (Annexure A-1) drawn on HSBC Bank, Chandigarh, in favour of Executive Engineer, MCPH, Division-II, Chandigarh. Therefore, the excess amount, if any, already deposited deserves to be adjusted in the account of the petitioner-Company in this relevant connection. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforesaid reasons, the writ petition is hereby partly accepted and the excess demand and the impugned order are modified accordingly, in the manner indicated here-in-above. January 06, 2011 (MEHINDER SINGH SULLAR) seema JUDGE