Case: Hindustan Ciba Giegy Limited Vs. Municipal Corporation of Greater Bombay

The Petitioners are a Company incorporated under the Indian Companies Act inter alia manufacturing and selling pharmaceuticals and cosmetics. The Petitioners have a Research Centre at Goregaon. By this petition the Petitioners challenge the levy of water charges and sewerage charges in respect of their Research Centre at Goregaon. It may be immediately made clear that the challenge in the petition is limited by the learned Counsel for the Petitioners; to imposition of sewerage charges levied in respect of Research Centre at Goregaon. Petitioners have averred that the Research Centre at Goregaon was constructed and started functioning in the year 1963 and the Petitioners carry out fundamental chemical and biological researches therein. It is asserted by the Petitioners that when the Research Centre was constructed, there was no drainage system by the Municipal Corporation of Greater Bombay in the nearby area. The Petitioners, therefore, constructed septic tank system to handle the used water in laboratories as well as in the housing colony; which is also situated within the Research Centre complex. The effluent is collected at the low lying area and treated further and such treated water is used for horticulture in the Research Centre campus. According to the Petitioners, the effluent is collected by the Petitioners in their own drainage system and taken to low laying area in the campus where oxidation ditch is situated. The Petitioners categorically asserted that they are not discharging or throwing out used water to any drainage service line of the Municipal Corporation. In fact, assert the Petitioners, there is no sewerage line of thein the vicinity of the Petitioners Research Centre. The Standing Committee of the Respondents, by resolution dated 27th February 1976 made rules in exercise of powers under Section 170 of the Bombay Municipal Corporation Act. It provided for rates of recovery of sewerage charges, sewerage tax and sewerage benefit tax. The rules were called "Sewerage and Waste Removal Rules". They came into effect from 1st April 1976. It is asserted by the Petitioners that they are not liable to pay any sewerage charges under the rules framed by the Standing Committee as also under any provisions of Bombay Municipal Corporation Act. It is an agreed position before us that Petitioners have been paying sewerage tax. Inspite of correspondences the Corporation insisted that petitioners must pay sewerage charges. Petitioners have preferred this petition challenging the said action of the corporation i.e. insisting that the petitioners are liable for payment of sewerage charges in respect of their Research Centre at Goregaon and the demand notice in that behalf.2.Affidavit in reply has been filed on behalf of the Municipal Corporation. With regard to the assertion of the Petitioners in paragraphs 6 and 7 of the petition affidavit in reply in paragraph 7 thereof asserts that at certain times inter alia in monsoon period water is discharged into municipal storm water drain which is ultimately carried out into the open drain or channel which ultimately discharges into the municipal drains across the road. The copy of the Sketch Plan of the property is also annexed to the affidavit. In paragraph 27 of the affidavit in reply it is stated as under :"I deny that merely because, no regular municipal sewer line is connected with the Petitioners property, but the Municipal infrastructure i.e. open drain or channel etc. to carry the effluents is connected with the petitioners property, the Petitioners are liable to pay sewerage charges."he affidavit further asserts that the judgment of the Division Bench in Nirlons Case lays down that two conditions must be fulfilled before the sewerage before the sewerage charges can be levied, first is that water must charges can be levied, first is that water must be supplied by the meter measurement and the second that the effluents is carried out by municipal infrastructure or municipal sewer line is connected with the petitioners property. It is asserted that in the present case, municipal infrastructure carries effluents of the factory premise. It is further stated that when the affiant of the affidavit inspected the property in the year 1993, it was found that during certain months, petitioners trade effluents are carried through the municipal infrastructure which ultimately carries the effluents across the road.

Court's reasoning:
We find it difficult to accept the submission of the learned counsel for the Corporation that the word "connected" used in rule 4.1 in the context of the provisions of the Act and provisions of Chapter IX and Section 170 in particular, must be read asSection 142, the Sewerage Tax shall be levied only in respect of the premises: (a) situated in any portion of Greater Bombay in which public notice has been given by the Commissioner that the collection, removal and disposal of all excrementitious and polluted matter from privies, urinals and cesspools, will be undertaken by municipal agency, or (b) in which wherever situate, there is a privy,cesspool, urinal, t bathing place or cooking place connected by a drain with a municipal drain. Thus, under provisions of Section 142(1)(a) the moment Commissioner gives a public notice as contemplated, sewerage tax becomes leviable. The provisions of Section 170 provides that the Standing Committee shall from time to time make such rules as shall be necessary for removing human wastes, etc . ... ... .. and for charging any fittings, fixtures or services rendered by the Corporation under Chapter IX and shall by such rules determine(i) the charges for the supply of such services by a sewerage tax; or (ii) a sewerage charge in lieu of a sewerage tax, based on a measurement or estimated measurement of the quantity of water supplied for the premises or of the quantity of wastes discharges from the premises. Under sub section (2) a person who is charged for sewerage services under(ii) or (iv) of(1) shall not be liable for payment of the sewerage tax. Thus, rules contemplated under Section 170 are for charging any fittings, fixtures or services rendered by the Corporation under Chapter IX. The interpretation sought to be placed on rule 4.1 by Shri Singhavi could have been possibly understandable, if, there was absolute obligation to connect drainage of any premises to the municipal drain or to other municipalthe moment such municipal drain oris made available at a distance not exceeding 100 feet from some part of the premises. The provisions and the Scheme of the Act do not spell out such obligation automatically. On the contrary, the Act contemplated that there may be premises which in the opinion of the Commissioner are having sufficient means of a effectual drainage and in such case, there is no automatic obligation to connect the same with municipal drain. Provisions of Section 231 show that where any premises are, in the opinion of the Commissioner, without sufficient means of effectual drainage and a municipal drain or some place legally set apart for the discharge of drainage is situated at a distance not exceeding one hundred feet from some part of the said premises, the Commissioner may, by written notice, require the owner or occupier of the said premises(a) to make a drain of such material, size and description and laid at such level and according to such alignment and with such fall and outlet as may appear to the Commissioner necessary, emptying into such municipal drain or place aforesaid. Section 232 provides that where any premises in the opinion of the Commissioner, are without sufficient means of effectual drainage, but no municipal drain or such place as aforesaid is situated at a distance not exceeding one hundred feet from some part of the said premises, the Commissioner may, by written notice, require the owner or occupier of the saidto construct a drain up to a portion to be prescribed in such notice, but not distance more than 100 feet from some part of the said premises, or (b) to construct a closed cesspool of such material, size and description in such a position, at such level, and with allowance for such all as the Commissioner thinks necessary, and drain or drains emptying into Cesspool.Section 260 provides that the Commissioner may, if he thinks fit, cause any work described in the Chapter IX to be executed by municipal or other agency under his own orders, without first of all giving the person by whom the same would otherwise have to be executed, the option of doing the same. Sub Section (2) provides for expenses of work so done shall be paid by the person as aforesaid. Thus in our opinion, it is for the Commissioner to form the opinion whether any premises are without sufficient means of effectual drainage in which case, the Commissioner may, by written notice, require the owner or occupier to do the things which are provided in Section 231 or 232. The Commissioner is also having power to get the work executed. In our opinion, all these provisions clearly indicate that premises have to be actually connected with the municipal sewers or any other municipalReading Sewerage and Waste Removal Rules in its entirety, it is clear that for the purpose of rule 4.1, the premises have to be actually connected to the municipal sewers or any other municipalRule 4.4 provides that whenever water is supplied to ships or activities in high seas, no sewerage charges shall be levied. Rule 8 provides : Levy of Sewerage Tax where Sewerage Charges are not levied. Rule 8.1 is as under:"Wherever the sewerage tax is leviable under Section 142 of the Bombay Municipal Corporation Act, 1888 for services rendered under Chapter IX and the Sewerage Charges are not levied under rule 4 of these rules, the sewerage Tax at the rate of 5 percent of the ratable value on all residential premises and at the rate of 8 percent of all ratable value for all other than residential premises shall be levied by the Commissioner in the following cases :8.1.1 : Wherever the premises are connected to the Municipal Sewer and/or any other municipalas specified in4.1 and water is supplied bywater connection.8.1.2 : Wherever the premises are not connected to the Municipal Sewer and/or any other municipalso specified in4.1 and water is supplied byor metered water connection."Reading of all these rules together, clearly support the submission that sewerage tax and sewerage charges are mutually exclusive. Sewerage taxes are payable even when there is no connection, whereas sewerage charges are for services rendered and in such a case, provisions of rule 4.1 clearly contemplate actual and physical connection to the municipal sewers or any other municipalin other words, actual beneficial user of the municipal sewer or municipalbefore the Corporation can levy sewerage charges in lieu of sewerage tax.13.In view of the aforesaid, we find it difficult to accept the submission that in rule 4.1 the word "connected" has to be read as "connectable" as held by Dhanuka J. in the aforesaid decision.14.On the basis of material on record in the case before us, we find that premises concerned in the petitions are not connected with the municipal sewers or any other municipalwithin meaning of rule 4.1 of Sewerage and Waste Removal Rules of the Bombay Corporation effective from 5th April 1987 onwards. If that be so, the Corporation obviously is not entitled to levy sewerage charges in respect of the said premises.