TRUST ESTATE KHIMJI KESHAWJI & ANR versus THE KOLKATA MUNICIPAL CORPORATION & ORS.
[2023] 10 S.C.R. 824, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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TRUST ESTATE KHIMJI KESHAWJI & ANR.
v.
THE KOLKATA MUNICIPAL CORPORATION & ORS.
(Civil Appeal No. 4230 of 2023)
JULY 05, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Kolkata Municipal Corporation Act, 1980 – s. 238 and s.271
– Validity of notice under – A Notice was issued to the apellant-
owner (occupying ground and sixth floor) of the building consisting
ground plus six floors, which stated that appellant had contravened
s. 238 of the Act by using water supplied for domestic purpose, for
purpose other than domestic – It also stated that s. 271 prohibits
use of water supply for domestic purpose for any other purpose –
High Court held notice to be valid – On appeal, held: Impugned
notice does not mention any reason or specific violation committed
by the appellant – Law is settled that where notice is vague and
non-speaking, the same deserve to be quashed – As per the scheme
of the Act, Sub-section 4 to s.272 starts with a non-obstante clause
and it states that wholesome water may be used in lieu of unfiltered
water for non-domestic purposes where supply of unfiltered water
is not available – In the instant case, it is admitted position that
there was no supply of unfiltered water in the locality/area where
building in question was situated – As such, the filtered water or
the wholesome water could be used for purposes other than domestic
by the owner/occupier of the building in question – Thus, it cannot
be said that
there was any violation of s.238 or 271 of the Act –
Further, KMC had issued trade licenses to all the occupiers of the
1st to 5th Floor of the building – The statute primarily lays down
the liability on the occupier of the building to pay water charges –
It was therefore mandatory for the Corporation to first give notice
to the occupiers and make an attempt to recover the charges from
them – However, KMC having failed to initiate any proceedings
against the occupiers committed serious error in initiating the
proceedings only against the owner – Therefore, the impugned
notices are quashed.
[2023] 10 S.C.R. 824 : 2023 INSC 609
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Allowing the appeal, the Court
Held : 1. Sub-Section 4 of Section 272 of the Kolkata
Municipal Corporation Act, 1980 starts with a non-obstante clause
and it states that wholesome water may be used in lieu of unfiltered
water for non-domestic purposes where supply of unfiltered water
is not available. In the present case, it is admitted position that
there is no supply of unfiltered water in the locality/area where
building in question is situated. As such, the filtered water or the
wholesome water could be used for purposes other than domestic
by the owner/occupier of the building in question. Thus, it cannot
be said that there was any violation of Section 238 or 271 of the
Act. [Paras 20, 21][839-D-E]
2. In the fact situation, it could not be alleged by the KMC
that there was any violation of Section 271 or 238 of the Act where
specific license has been issued for use of the premise for other
than residential purpose and moreover where there was no supply
of unfiltered water in the area/locality. The occupiers would,
therefore, be well within their rights to use water supply for
domestic purpose for any other purpose in view of Section 272(4)
of the Act. [Para 24][840-C-D]
3. KMC was fully conscious and aware of the occupiers of
all the seven floors of the building in question i.e. the ground
floor plus six floors. They were also aware that the appellant,
who is the owner of the building was occupying the ground floor
and the 6th Floor. KMC had issued
trade licenses to all the
occupiers of the 1st to 5th Floor. The statute primarily lays down
the liability on the occupier of the building to pay water charges.
It was therefore mandatory for the Corporation to first give notice
to the occupiers and make an attempt to recover the charges
from them. It is only upon failure to recover dues, if any, from the
occupiers that the demand could be raised against the owner. In
the present case, KMC having failed to initiate any proceedings
against the occupiers committed serious error in initiating the
proceedings only against the owner. [Para 25][840-E-F]
4. The High Court committed error by not relying upon
the non-obstante clause in sub-Section 4 of Section 272 of the
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS.
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Act as it would have overriding effect over anything contained in
that chapter i.e. Chapter XVII. Section 272(4) of the Act,
therefore, would have overriding effect over and above Sections
238 and 271 of the Act, once, it is admitted position that there
was no supply of unfiltered water. The use of wholesome water
for purposes other than domestic cannot be held to be violative
of any of the provisions and all the more when the trade license
permitted use of the same. [Para 28][841-C-D]
5. Section 271 of the Act prohibits any person from using
water supply for domestic purposes for any other purpose without
the written permission of the Commissioner. Here, this Court
finds that the trade license which is issued by the KMC actually
permitted use of water supply whether filtered or unfiltered.
Further, in the absence of any supply of unfiltered water, the
wholesome water could be used for non-domestic purposes. [Para
29][841-D-E]
Biecco Lawrie Ltd. v. State of West Bengal (2009) 10
SCC 32 : [2009] 11 SCR 972; Woolcombers of India
Ltd. v. Workers Union (1974) 3 SCC 318 : [1974] 1
SCR 504; Uma Nath Pandey v. State of U.P. (2009) 12
SCC 40 : [2009] 4 SCR 374 – referred to.
K. Vinu v. State of Tamil Nadu; 2019 SCC Online Mad
123 – referred to.
Case Law Reference
[2009] 11 SCR 972
referred to
Para 17
[1974] 1 SCR 504
referred to
Para 17
[2009] 4 SCR 374
referred to
Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4230
of 2023.
From the Judgment and Order dated 19.11.2019 of the High Court
at Calcutta in APO No. 213 of 2012.
Rana Mukherjee, Sr. Adv., Siddharth Gautam, Ms. Surabhi Guleria,
Samarth Mohanty, Shekhar Kumar, Advs. for the Appellants.
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S. B. Upadhaya, Sr. Adv., Sujoy Mondal, Satish Vig, Advs. for the
Respondents.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
Leave granted.
2. This appeal assails the correctness of judgment and order dated
19.11.2019 passed by Division Bench of Calcutta High Court whereby
intra court appeal preferred by appellant was dismissed affirming the
judgment and order dated 07.05.2012 passed by learned Single Judge
disposing off the writ petition of the appellant with directions.
3. Facts giving rise to the present appeal are summarized
hereunder:
3.1. Notice dated 22.08.2008 was issued by Kolkata Municipal
Corporation1 under Sections 238 and 271 of the Kolkata Municipal
Corporation Act, 19802. The said notice was addressed to the
appellant describing it as owner or occupier of premises No.30,
C.R. Avenue, Kolkata. It stated that appellant had contravened
Section 238 of the Act by using water supplied for domestic
purpose, for purposes other than domestic; that there was no
permission under Section 271 of the Act for using water supplied
for domestic purposes for any other purpose; that such
unauthorised use is a punishable offence under Section 610 of the
Act making the appellant liable for prosecution; and that if the
said contravention is not stopped immediately, the water connection
would be cut off under Section 275(1)(c) of the Act. The said
notice is reproduced hereunder:
“Form No. W.S.4
THE KOLKATA MUNICIPAL CORPORATION
Water Supply
Department
(Notice to desist from contravening Section 238 & 271 of
C.M.C. Act, 1980)
1 In short “KMC”
2 In short “the Act”
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS.
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Notice No…..018
Section/Ward….G/47
Dated…..22.08.08
To
Estate Khimji Keshawji
The Owner or Occupier of the
Premises No.30, C.R. Avenue
It has been brought to the notice of the undersigned
that in contravention of the provision of Section 238 of the
C.M.C. Act, of 1980 (W.B. Act LIX of 1980) the water supplied
for domestic purpose in the premises no.30, C.R. Avenue, Ward
No.47 is being used/and or allowed to be used for purposes
other than domestic in the premises viz. Business & Office.
Please note that under the provision of Section 271 of
the C.M.C. Act, 1980 no person shall, without the written
permission of the Municipal Commissioner use or allow to be
used water supplied for domestic purposes, for any other
purposes. Besides, the unauthorised use is a punishable
offence under Section 610 of the C.M.C. Act, 1980 and you
may be liable to prosecution.
The undersigned as such, require you forthwith desist
from using or allowing to be used water supplied to the
premises no.30, C.R. Avenue, Ward No.47 for any purpose
other than domestic purpose, failing which the water
connection would be cut off or the supply of water thereto
would be turned off under the provision of Section 275 (1)
(c) of the Act, without any further reference.
Sd/-
Sd/-
Sd/-
Asst.
     SAE,W.S./G
Exec.Engineer
Engineer
Section ‘G’
Water Supply(C)
C.P.-67 – 28-10-06-5,000
Dated 22.08.2008"
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3.2. It would also be relevant to state that another notice of even
date was issued for contravention of Section 258 read with Section
558 of the Act calling upon the appellant to immediately remedy
the fault in the supply line failing which KMC would itself carry
out the repair work and recover its expenses from appellant. It
further warned the appellant that supply could be turned off or
cut off under provisions of Section 275(1)(f) & (i) of the Act.
3.3. Proceedings with respect to the notice under Section 258 of
the Act came to an end as repair work was carried out by appellant
to the satisfaction of KMC. As such only issue which survives for
consideration is the validity of notice under Section 238/271 of the
Act.
3.4. The appellant preferred writ petition before the High Court
registered as WP No.1414 of 2008 challenging the notice under
Section 238/271 of the Act. In the said petition it was stated that
appellant was owner of the said premises which comprised of
ground floor and six floors. Apart from the top floor and the ground
floor which was occupied by the appellant for residential purposes,
rest of the floors were let out to various offices and commercial
establishments. Various other grounds were raised in the petition.
However, for consideration of this appeal, following grounds raised
would be relevant which are stated hereunder: -
(i)
The notice was only addressed to the owner and not to all
the occupiers, details of which were available
with KMC
as trade licences were issued by it from time to time in
favour of different occupants.
(ii)
Under Section 272(4) of the Act, which begins with a non-
obstante clause, it was provided that wholesome water may
be used in lieu of unfiltered water for non-domestic purposes
where supply of unfiltered water is not available. It is
admitted case that unfiltered water is not available in the
locality where the premises in question is situate.
(iii)
The impugned notice was non-speaking as it did not give
details of alleged violations; as such no specific response
could be given by the appellant.
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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(iv)
The contravention of Section 275(1)(c) of the Act gives
the power to the Commissioner to cut off or turn off supply
of water where occupier of the premises contravenes
Section 238 of the Act. It was as such submitted that without
notice to various occupiers the notice itself was bad in law.
(v)
The owner (appellant) was using the water supply only for
residential/domestic purposes as such there was no violation
of any provision by them.
(vi)
The appellant had also filed supplementary affidavits before
the writ court stating all further facts relevant to the case
and also annexed the trade licences issued to various
occupants, wherein it was clearly mentioned that the water
charges were being charged under Section 238(2) of the
Act. This in effect permitted use of wholesome water for
purposes other than domestic.
3.5. The learned Single Judge did not agree with submissions of
the appellant and accordingly held the notice to be valid. It however
granted liberty to the appellant to seek necessary permission for use of
water in their premises for non-domestic purposes from the Municipal
Commissioner under Section 239 of the Act. Such application could be
filed within seven days from the date of the judgment which was to be
dealt with in accordance with law by a reasoned order within four weeks
of submission of such application. Further, it kept the impugned notice in
abeyance till an order is passed by the
Commissioner. It also granted
liberty to the appellant to recover fees, which it may have to pay in
seeking the permission, from the occupiers. The operative portion of the
order of the learned Single Judge is reproduced hereunder:
“…In view of the aforesaid discussion I hold that the impugned
notice upon the writ petitioner No.1 is lawful and valid. In
similar circumstances, another learned Single Judge of this
Court in the case of Ashwin Properties Ltd. & Anr. Vs. Calcutta
Municipal Corporation & Ors. Reported in 2005 (4) CHN
134 upheld similar notice upon the owners of the premises.
However, in view of the fact that the writ petitioners are entitled
to seek necessary permission for user of water in their
premises for non domestic purposes from the Municipal
Commissioner, I grant liberty to the writ petitioner to make an
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application in terms of Section 239 of the Act of 1980 before
the Municipal Commissioner for seeking permission for user
of water in the premises for non domestic purpose. In the
event, such application is made within seven days from date,
the Municipal Commissioner shall deal with the same in
accordance with law and pass a reasoned order thereon. The
Municipal Commissioner shall pass such an order within four
weeks from the date of making such application for
permission. In the event, an application is made within the
period as stated hereinbefore, the impugned notice dated 22nd
August, 2008 under Section 238 read with Section 271 of the
Act of 1980 shall remain in abeyance till an order is passed
thereon by the Municipal Commissioner, as aforesaid.
I make it clear that any application for necessary
permission for use of water for non domestic purposes and
payment of any fees therefore by the petitioners as the owner
of the premises would not stand in their way of availing of
any remedy available in law to recover the same from the
occupiers of the premises and the Corporation authorities
shall render all necessary assistance in that regard in
accordance with law.
With the aforesaid directions, the writ petition is disposed
of. All interim orders stand vacated. There shall be no order
as to costs...”
3.6. Aggrieved by the judgment of the learned Single Judge the
appellant preferred an appeal before the Division Bench which
came to be dismissed vide
impugned order dated 19.11.2019.
4. We have heard learned counsel for the parties and also perused
the material on record including the counter affidavit filed by KMC.
5. Before proceeding further, it would be appropriate to refer to
the relevant statutory provisions from the Act. The following definitions
from Section 2 of the Act which are relevant for this case are reproduced
hereunder:
(21) “Corporation” means the 2[Kolkata] Municipal
Corporation established under this Act;
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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(29) “domestic purposes”, in relation to the supply of water
means the purposes other than those referred to in sub-Section
(2) of Section 238;
(38) “filtered water” means waler intended for domestic use
and tested for its potability and purity and found fit for such
use;
(60) “occupier” includes any person for the time being paying
or liable to pay to the owner the rent or any portion of the
rent of the land or building in respect of which the word is
used or for damages on account of the occupation of such
land or building, and also a rent-free tenant:
Provided that an owner living in or otherwise using his own
land or building shall be deemed to be the occupier thereof,
(62) “owner” includes the person for the time being receiving
the rent of any land or building or any part of any land or
building, whether on his own account or as agent or trustee
for any person or society or for any religious or charitable
purpose or as a receiver who would receive such rent if the
land or building or of any part of the land or building were
let to a tenant;
6. Part-V of the Act deals with Civic Services and Chapter XVII
thereof deals with water supply. Section 234 mandates that it shall be
the duty of the KMC to take steps for supply of wholesome water in the
entire Kolkata and also to ensure that it is available in sufficient quantity.
Section 234(1), which is relevant for our purpose is reproduced hereunder:
“234.
Corporation’s duty to supply water:-
(1) It shall be the duty of the Corporation to take steps from
time to time—
(a) for ascertaining the sufficiency and wholesomeness of
water supplied within 1[Kolkata];
(b) for providing a supply of wholesome water in pipes to
every part of 1[Kolkata] in which there are houses, for domestic
purposes of the occupants thereof, and for taking the pipes
affording that supply to such point or points as will enable
the houses to be connected thereto at a reasonable cost, so,
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however, that the Corporation shall not be required to do
anything which is not practicable at a reasonable cost or to
provide such a supply to any part of 1[Kolkata] where such a
supply is already available at such point or points aforesaid:
[Provided that the Corporation may, at any time, levy an annual
fee at such rate as may be fixed by regulations, or as stated
in the budget estimate under sub-section (3) of section 131,
in this behalf, on the owner or the occupier of, or on the
person liable to pay 2 [property tax] on, any house to which
such supply of wholesome water is made:
2[Provided further that the Corporation may levy annual fee
on the basis of annual valuation of buildings or premises in a
graded manner, at such rates, as may be determined by the
Corporation by regulations, but such rate shall not exceed
ten per cent of the annual valuation as may be so determined
or seperately calculated in respect of the premises or building
or portion thereof.].]
[Explanation I--.- Supply of water shall include supply
through service mains of the Corporation or through tubewell
allowed to be sunk within the premises or both or procured
from any other municipal source.
Explanation II.- “House” includes a building, flat as defined
in the West Bengal Building (Regulation of Promotion of
Construction and Transfer by Promoters) Act, 1993 (West Ben,
Act XX of 1993), or apartment as defined in the West Bengal
Apartment Ownership Act, 1972 (West Ben. Act XVI of
1972);]
(c) for providing, as far as possible, a supply of wholesome
water otherwise than in pipes to every part of 1[Kolkata] in
which there are houses, for domestic purposes of the
occupants thereof and to which it is not practicable to provide
a supply in pipes at a reasonable cost, and in which danger
to health arises from the insufficiency or unwholesomeness
of the existing supply and a public supply is required and
can be provided at a reasonable cost, and for securing that
such supply is available within a reasonable distance of every
house in that part.
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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7. Section 234(A) of the Act gives a right to the owner of a building
to recover fee for supply of water from the occupier thereof, who uses
the same for residential purpose or otherwise. The proviso thereto further
permits that amount may be apportioned in case there are more than
one occupier. The aforesaid Section is reproduced hereunder:
“234A. Recovery of fee for supply of water by owner from
occupier:-
The owner of a part or flat of a building for which fee for
supply of water is charged may recover the entire amount of
such fee from the occupier thereof who uses it for residential
purpose or otherwise:
Provided that if there is more than one such occupier, the
amount of fee for supply of water may be apportioned or
recovered from each such occupier in such proportion as the
annual value of the portion occupied by him bears to the
total annual value of the building comprising such part or
flat.”
8. Section 235 of the Act mandates that KMC shall provide supply
of unfiltered water in Kolkata. The proviso to the said Section allows the
Corporation to discontinue supply of unfiltered water where supply of
wholesome water in sufficient quantity is available. The said Section is
reproduced hereunder:
“235. Supply of unfiltered water.-The Corporation shall
provide a supply of unfiltered water—
(a) in those parts of 1[Kolkata] in which such water is provided
at the commencement of this Act, and
(b) in such other parts
of 1[Kolkata] as it may think fit:
Provided that the Corporation may discontinue the supply of
unfiltered water in any part of 1[Kolkata] where a supply, in
sufficient quantity, of wholesome water becomes available.”
9. Section 238 of the Act restricts the use of wholesome water
for domestic purposes only and further provides the purposes for which
wholesome water may not be used. The said Section is reproduced
hereunder:
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“238. Supply of water for domestic purposes not to include
any supply for certain specified purposes.-
(1) The use of wholesome water shall be for domestic purposes
only.
(2) The supply of water for domestic purposes under this Act
shall not be deemed to include any supply—
(a) for washing of animals kept for sale or hire, or
(b) for such trade, manufacture or business as may be
determined by the Mayor-in-Council, or
(c) for fountains or swimming baths, or
(d) for watering gardens or streets, or
(e) for any ornamental or mechanical purpose, or
(f) for building purposes, or
(g) for flushing purpose other than the purpose of flushing
privies in bustees, or
(h) for washing cars, carriages and [other vehicles, or
(i) to any institutional building, assembly building, business
building, mercantile building, industrial building, storage
building or hazardous building, referred to in sub-clause (c),
sub-clause (d), sub-clause (e), sub-clause (t), sub-clause (g);
sub-clause (h), or sub-clause (1), as the case may be, of clause
(2) of Section 390, or to any part of any such building, other
than that used as a residential building or educational building
within the meaning of sub-clause (a) or sub-clause (b), as the
case may be, of clause (2) of Section 390:
Provided that in. case of emergency, wholesome water may
be used for extinguishing fire.”
10. Section 271 of the Act restricts any person to use water supply
for domestic purposes for any other purpose without
written permission
of the Commissioner. The said Section is reproduced hereunder:
“271. Water supplied for domestic purposes not to be used
for non-domestic purposes.- No person shall, without the
written permission of the Municipal Commissioner, use or
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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allow to be used water, supplied for domestic purposes, for
any other purposes.”
11. Section 272 of the Act mentions the purposes for which
unfiltered water can be used. The same is reproduced hereunder:
“272. Use of unfiltered water.- (1) Unfiltered water shall be
used for the following purposes :
(a) extinguishing of fire;
(b) street watering;
(c) flushing of drains of the Corporation, gully-pits, public
privies and urinals.
(2) Unfiltered water may also be used, free of charge,
(a) for flushing privies and urinals in private premises
connected with sewers;
(b) for flushing of drains in private premises;
(3) Unfiltered water shall not be used for domestic purposes
or, without the written permission of the Municipal
Commissioner, for any purposes other than those specified in
sub-sections (1) and (2).
(4) Notwithstanding anything contained hereinbefore in this
Chapter, wholesome water may be used in lieu of unfiltered
water for non-domestic purposes where the supply of
unfiltered water is not available for the time being.”
12. The Municipal Commissioner under Section 275 of the Act is
vested with the power to cut off or turn off supply of water to premises
under various conditions which are enlisted therein. Under Clause (c) of
Section 275(1) of the Act, one of the conditions provided is where the
occupier of the premises contravenes Section 238 of the Act. As this
case does not relate to any other violation except
contravention of Section
238 of the Act, Section 275(1)(c) of the Act is reproduced hereunder:
“275. Power of Municipal Commissioner to cut off or turn off
supply of water to premises:-
(1) Notwithstanding anything contained in this Act, the
Municipal Commissioner may cut off the connection between
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any water works of the Corporation and any premises to which
water is supplied from such works, or may turn off such
supply, in any of the following cases, namely:
....................
(c) if the occupier of the premises contravenes section 238;”
13. The arguments advanced by the learned counsel for the
appellant are summarized hereunder:
(i) The impugned notice is bad in law as it is a non-speaking notice
and does not give any details of the violation. It is vague and
general in nature to which no specific reply can be given.
(ii) Despite the fact that KMC was well aware of the other
occupiers of 1st to 5th Floor of the building in question, as trade
licenses were already issued to such occupiers, no notice was
given to them thereby vitiating the entire proceedings.
(iii) The appellant, who is the owner of the building and occupied
only the ground floor and the 6th Floor had been using the water
supply only for domestic purposes and not for any other purpose,
as such, the notice to the appellant was liable to be discharged.
(iv) It is admitted position that there is no supply of unfiltered
water in the locality where the building in question is situate and,
as such, the use of wholesome water for non-domestic purposes
is permitted under Section 272(4) of the Act. The impugned notice
under Section 271/238 of the Act, thus stood vitiated in law.
(v) As per the trade licenses issued by the KMC in favour of the
occupiers of the 1st to 5th Floor of the
building in question, property
tax was being levied for use other than domestic and water charges
were also levied for such use, as such also the impugned notice
was liable to be discharged. The use of wholesome water for
purposes other than domestic was permitted and justified.
14. On the other hand, learned counsel for the respondent-KMC
sought to justify the notice and submitted that as liberty had been given
by the learned Single Judge to take appropriate proceedings for
rectification of the lapses on the part of the appellant, this Court may not
interfere with the same. The notice under Section 238/271 of the Act
was valid and justified as admittedly the occupiers of 1st to 5th floor were
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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using it for commercial/business/office purpose, which was other than
residential. The learned Single Judge as also the Division Bench rightly
did not interfere with the impugned notice. There is no illegality warranting
interference, as such, the appeal deserves to be dismissed.
15. Having considered the submissions, we find that this appeal
deserves to be allowed not on one but on many counts.
16. We have perused the notice impugned in the writ petition before
the learned Single Judge. The said notice is under Section 238/271 of the
Act. Section 271 of the Act prohibits use of water supply for domestic
purpose for any other purpose. Section 238(2) of the Act provides for
the purposes for which supply of water for domestic purposes cannot be
used. Section 238(2) of the Act enlists nine categories for which supply
of water for domestic purpose should not be used. It was, therefore,
incumbent for the authorities to mention the specific violation in the notice
under Section 238(2) of the Act and specify that supply of domestic
water was being used for which purpose other than domestic. The
impugned notice does not mention any reason or specific violation
committed by the appellant. It is a general and a vague notice to which
apparently no answer/explanation could be given.
17. Law on the point is well settled that where a notice is vague
and non-speaking, the same deserves to be quashed. Reference may be
had to the
following cases:
(i) Biecco Lawrie Ltd. Vs. State of West Bengal; (2009) 10
SCC 32.
(ii) K.Vinu Vs. State of Tamil Nadu; 2019 SCC Online Mad
123.
(iii) Woolcombers of India Ltd. Vs. Workers Union; (1974)
3 SCC 318.
(iv) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40.
18. Under the Scheme of the Act, it was the Corporation’s duty to
supply water. Section 234 of the Act clearly mandates that the KMC
was duty bound to ensure and take necessary steps from time to time
for ascertaining the sufficiency and wholesomeness of water supply
within Kolkata. The above Section further laid down the guidelines and
the procedure for levy of annual fee where water was being supplied to
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any building. It also carved out exceptions where no fee would be levied
on supply of water.
19. The Scheme of the Act further provided two categories of
water being supplied by the KMC. First is the filtered water or wholesome
water which was potable also and could be used for domestic purposes
and the other is unfiltered water which could be used for purposes other
than domestic which are enlisted under Section 238 of the Act. The
Scheme further provided under Section 271 of the Act that water supply
for domestic purposes could not be used for any other purpose except
domestic without written permission of the Commissioner.
20. Section 272 of the Act describes the purposes for which
unfiltered water can be used, for example, extinguishing of fire, street
watering, flushing of drains of the Corporations for flushing privies and
urinals in private premises, for flushing of drains in private premises.
Under sub-Section 3, it is provided that unfiltered water would not be
used for domestic purpose without written permission of the
Commissioner or for any purpose other than those specified in sub-
Sections 1 & 2. Sub-Section 4 starts with a non-obstante clause and it
states that wholesome water may be used in lieu of unfiltered water for
non-domestic purposes where supply of unfiltered water is not available.
21. In the present case, it is admitted position that there is no
supply of unfiltered water in the locality/area where building in question
is
situated. As such, the filtered water or the wholesome water could be
used for purposes other than domestic by the owner/occupier of the
building in question. Thus, it cannot be said that there was any violation
of Section 238 or 271 of the Act.
22. The non-obstante clause in Section 272(4) of the Act clearly
mentions that notwithstanding anything contained in hereinbefore in this
chapter which covers Section 271 as also Section 238 of the Act as the
entire scheme of water supply is covered under Chapter XVII of Part-
V beginning from Section 233 right up to Section 276 of the Act. Section
272(4) of the Act would thus have overriding effect with respect to all
the provisions of that chapter namely Chapter XVII of Part V of the
Act.
23. The appellant had annexed copy of the trade licenses issued
to the occupiers of 1st to 5th floor, copy of the same are attached as part
of the supplementary affidavit (Annexure P-8). The fee and charges
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
under various Sections of the Act are mentioned in the trade license.
Rs.1,000/- was being charged as fee under Section 199 of the Act which
refers to a certificate of enlistment for profession trade and calling.
Further fee/charges have also been levied under Section 307 of the Act
which is for levy of fee for drainage and severage services. Thereafter,
fee/charges have been levied under Section 435 of the Act where
premises are to be used for non-residential purposes. The next fee/charge
is under Section 238(2) of the Act for use of water.
24. From the above, it is clear that trade license was issued for
use of the premises by the licensees for purposes other than non-
residential and necessary levy for fee under various heads including
water charges was also made. In such fact situation, it could not be
alleged by the KMC that there was any violation of Section 271 or 238
of the Act where specific license has been issued for use of the premise
for other than residential purpose and moreover where there was no
supply of unfiltered water in the area/locality. The occupiers would,
therefore, be well within their rights to use water supply for domestic
purpose for any other purpose in view of Section 272(4) of the Act.
25. KMC was fully conscious and aware of the occupiers of all
the seven floors of the building in question i.e. the ground floor plus six
floors. They were also aware that the appellant, who is the
owner of the
building was occupying the ground floor and the 6th Floor. KMC had
issued trade licenses to all the occupiers of the 1st to 5th Floor. The statute
primarily lays down the liability on the occupier of the building to pay
water charges. It was therefore mandatory for the Corporation to first
give notice to the occupiers and make an attempt to recover the charges
from them. It is only upon failure to recover dues, if any, from the occupiers
that the demand could be raised against the owner. In the present case,
KMC having failed to initiate any proceedings against the occupiers
committed serious error in initiating the proceedings only against the
owner.
26. There is one more reason why notice to the occupier was
essential. The notice mentioned that in case water supply for domestic
purpose was being used for any other purpose other than domestic, under
Section 275(1)(c) of the Act, the water supply could be cut off or turned
off. Section 275(1)(c) of the Act, which is already reproduced above
clearly refers to occupier of the premises contravening Section 238 of
the Act. Therefore, notice ought to have been addressed to the occupier
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in the first place before cutting off the connection or turning off the
supply.
27. Perusal of the counter affidavit filed by the Corporation before
this Court and also from the specific stand taken by the Corporation
before the High Court, it is apparent that KMC admits that there is no
supply of unfiltered water in the area. Once that is the fact situation
coupled with demand of charges on water for purposes other than
domestic as per the trade license, the impugned notice cannot be sustained.
28. The High Court committed error by not relying upon the non-
obstante clause in sub-Section 4 of Section 272 of the Act as it would
have overriding effect over anything contained in that chapter i.e. Chapter
XVII. Section 272(4) of the Act, therefore, would have overriding effect
over and above Sections 238 and 271 of the Act, once, it is admitted
position that there was no supply of unfiltered water. The use of
wholesome water for purposes other than domestic cannot be held to be
violative of any of the provisions and all the more when the trade license
permitted use of the same.
29. Section 271 of the Act prohibits any person from using water
supply for domestic purposes for any other purpose without the written
permission of the Commissioner. Here, we find that the trade license
which is issued by the KMC actually permitted use of water supply
whether filtered or unfiltered. Further in the absence of any supply of
unfiltered water, the wholesome water could
be used for non-domestic
purposes.
30. For all the reasons recorded above, the Appeal deserves to be
allowed. The impugned judgment and orders passed by the Division Bench
of the High Court and the learned Single Judge are set aside.
31. The writ petition succeeds and is allowed. The impugned
notices therein are hereby quashed.
32. Pending applications, if any, stand disposed of.
33. KMC would be at liberty to initiate such proceedings as may
be permitted in law afresh.
Ankit Gyan
Appeal allowed.
(Assisted by : Tamana, LCRA)
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS. [VIKRAM NATH, J.]