ORDER
1. Leave to amend granted.
2. The petitioners in this writ petition are the Presidents of the Hotel Owners Association, Dombivli, and of Hotel Owners Assocatlon, Kalyan. They have challenged the Circular dated 16th March, 2001 issued by the Respondent-Kalyan Dombivli Municipal Corporation issued pursuant to the resolution of the Corporation whereunder a decision has been taken that the water supply bills pertaining to the period 1st October, 2000 to 31st March, 2001 shall be on the basis of minimum rates prescribed. A translated copy of the aforesaid Resolution has been placed before us, and in this writ petition, the petitioners are aggrieved by the rates prescribed for non-residential and commercial consumption under Heads F-1 and F-2, which read as follows :--
Customers Rates F- 1 , Beer Bars & Permit Rooms & Country Bars Minimum Rs. 2,500/- per month Rs. 30/- per cubic metre F-2 Restaurants (Gradewise)
a) Minimum Rs. 2500/-per month Rs. 30/- per cublic metre
b) Minimum Rs. 1500/-per month Rs. 30/- per cubic metre
(c) Minimum Rs. 1000/-per month Rs. 30/- per cubic metre
d) Minimum Rs. 300/- per month Rs. 30/- per cubic metre."
3. Counsel for the Corporation explained to us that under Heads F-1 and F-2, the Corporation will charge a sum of Rs. 2,500/-per month, being the minimum charge while calculating the charges for the supply at the rate of Rs. 30 per cubic metre. In other words, the charges will be calculated at the rate of Rs. 30 per cubic metre, but in a case where the quantity of water supplied is not to the extent that Rs. 2,500 becomes payable, even so, the Beer Bars, Permit Rooms, Country Bars and Restaurants will have to pay the minimum charge of Rs. 2,500/- per month. In sum and substance, the impugned Circular prescribes for the levy of a minimum charge for the supply of water, regardless of the quantity of water actually supplied.
4. Counsel for the petitioners submitted that the aforesaid Resolution and the Circular issued pursuant thereto are illegal, as they are in the teeth of the provisions of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). Reference has been made to Section 134 of the Act, which provides as follows :--
"134. Fixed charges and agreements for payments in lieu of taxes for water supplied.
(1) The Commissioner may-
(a) in such cases as the Standing Committee shall generally approve, instead of levying the water tax in respect of any premises liable thereto, charge for the water supplied to such premises by measurement at such rate as shall from time to time be prescribed by the said Committee in this behalf or by the size of the water connection with the municipal main and the purpose for which the water is supplied at such rates as shall from time to time be prescribed by the Corporation.
(b) in such cases as the Standing Committee shall generally approve, compound with any person for the supply of water to any premises for a renewable term of one or more years not exceeding five, on payment of a fixed periodical sum in lieu of the water tax or charge by measurement or by the size of the water connection which would otherwise be leviable from such person in respect of the said premises.
(2) The Standing Committee may, for the cases in which the Commissioner charges for water by measurement or by the size of the water connection under Clause (a) of Sub-section (1), from time to time prescribed such conditions as it shall think fit as to the use of the water and as to the charge to be paid for water consumed whilst a meter is out of order or under repair; and for the cases in which a composition is made under Clause (b) of the said sub-section the said Committee may prescribe such conditions as to the use of the water as it shall think fit:
Provided that no condition prescribed under this sub-section shall be inconsistent with this Act or rules or bye-laws.
(3) A person who is charged for water by measurement or by the size of the water connection or who has compounded for a fixed periodical sum shall not be liable for payment of the water tax, but any sum payable by him on account of water shall, if not paid when it becomes due, be recoverable by the Commissioner as if it were an arrear of water tax."
It is submitted that Section 134 in terms provides only three methods for levy of water charges, namely on the basis of measurement of the water actually supplied, or by reference to the size of the water connection or by compounding under Section 134(1)(b). It is submitted that Section 134 does not give any discretion to the Municipal Corporation to levy water charges on any other basis, and, therefore, the Circular, which provides for a minimum charge regardless of the actual quantity of water supplied, is bad.
5. Reliance is placed on a judgment of the Supreme Court in Municipal Corporation of Greater Bombay v. Nagpal Printing Mills. . In that case, the validity of Rule 111(d)(i) of the Water Charge and Sewerage and Waste Removal Rules of the Greater Bombay was challenged, which pro-vided that in case of industries for which a quota of water had been fixed, if the recorded or computed consumption fell short of 9/10th of the quota of water for any month, a consumption equal to 9/10th of the quota of water shall be charged. This rule was struck down as ultra vires the rule-making power of the Standing Committee of the Corporation being inconsistent with Section 169 of the Bombay Municipal Corporation Act, 1888. Their Lordships considered the provisions of Sections 169 and 276 of the concerned Act, and held that Section 461 empowered the Corporation to make bye-laws, not inconsistent with the Act, for regulating all matters and things connected with the supply and use of water. Section 169 specifically empowered the Standing Committee to make rules to charge for the supply of water and by such rules to determine the water charges "based on a measurement or estimated measurement of the quantity of water supplied". Agreeing with the view taken by the High Court, the Apex Court held that the use of the past tense of the word 'supply' referred to some thing already done, and, therefore, that Act empowered the Corporation to levy charge only in respect of water that had in fact been supplied to and consumed by the consumer, and Jt was to be levied on the basis of measurement or estimated measurement. It is only that supply which could be measured . Where the measuring device had failed to record the correct consumption, it could be estimated. But that could be done on sound guidelines otherwise it would be arbitrary and merely whimsical. Emphasising that Section 169 of the concerned Act referred to a supply which is, in fact, supplied to the consumer and consumed by it, it was only that supply which could be measured, and only in the event of the measuring device having failed to record the correct consumption, it may be estimated. It was, therefore, held that the Corporation could not estimate and charge on the basis of water it made available for use by a consumer, and there was no warrant for such a construction.
6. In the instant case also, we find that it is open to the Municipal Corporation to levy water charge based on the measurement of the quantity of water actually supplied and consumed as recorded in the water-meter. It is also open to the Corporation to levy water charges on the basis of the size of the water connection. Lastly, it is open to the Municipal Corporation to enter into an agreement with the consumer under Section 134(1)(b), and fix the rate at which water is to be supplied. By the impugned circular, though the exact quantity of water supplied is capable of being measured and is in fact measured, the charges are not based on the actual consumption of water but a minimum charge is prescribed regardless of the fact that the actual quantity of water supplied and consumed may not justify the charges levied by way of minimum charges even by application of the rates prescribed for supply of water. So far as the petitioners are concerned, under Heads F-1 and F-2 of the impugned Circular, they are required to pay a minimum charge of Rs. 2,500 per month, and this is regardless of the quantity of water supplied. This, to our mind, is not permissible.
7. Counsel for the Corporation then submitted that the water tax levied under Heads F-1 and F-2 may be confined to cases where the measuring device has failed, and it is not possible to record the actual consumption of water supplied. It is not possible for this Court to re-write the Resolution and the Circular, and, therefore, it is for the Corporation to suitably modify its decision, if that be the intention of the Corporation, though we express no opinion in the matter.
8. In the circumstances, we hold that the Circular dated 16th March, 2001, insofar as it levies water tax on Beer Bars, Permit Rooms, Country Bars and Restaurants under Heads F-1 and F-2 at a minimum rate of Rs. 2,500 per month, is illegal and in breach of the provisions of Section 134 of the Bombay Provincial Municipal Corporations Act, 1949. The impugned Resolution and the Circular dated 16th March, 2001 issued pursuant thereto are quashed to this extent.
9. This writ petition is allowed to the extent indicated above.
10. Parties be given copies of this Order duly authenticated by the Sheristedar.