Ekta Apartments Condominium vs Executive Engineer(Water Works) ...
2016 Latest Caselaw 3146 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                        
                            NAGPUR BENCH, NAGPUR
                                              WRIT PETITION No.4994 OF 2003




                                                                                                       
    Ekta Apartments Condominium,
    RMS Colony, Katol Road, Nagpur. 
    Thru. Secretary Shir Avdhut s/o Vinayakrao
    Metkar, R/o Ekta Apartments, 
    RMS Colony, Katol Road, Nagpur.            ...                                                                    ...           Petitioner. 




                                                                                 
                                                ..Versus..
                                                    
    1.      Executive Engineer ( Water Works). 
            Nagpur Municipal Corporation, 
                                                   
            Nagpur.

    2.       Nagpur Municipal Corporation 
             th. Additional Municipal Commissioner, 
           


             Nagpur Municipal Corporation, 
             Civil Lines, Nagpur.  
        



    3.       State of Maharashtra,
             In the Ministry of Housing and Urban Devpt.
             Through the Secretary, Mantralaya, 





             Mumbai-32.         .                  ...                                                                ...    Respondents.
    .......................................................................................................................................................

Mr. Rohan Chhabra, advocate for petitioner.

None for respondent nos.1 & 2.

Mr. K.L. Dharmadhikari, Assistant Government Pleader for respondent no.3. .......................................................................................................................................................

CORAM : A.S. CHANDURKAR, J.

DATED : 23 rd JUNE, 2016.

ORAL JUDGMENT.

The petitioner is aggrieved by the order dated 18.11.2003 passed

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by the respondent no.2 in revision proceedings challenging the order passed

by the respondent no.1 while considering the objections raised by the

petitioner to the demand for water bill.

2. The facts on record indicate that the petitioner is an Association

of Apartment Owners. There are in all 49 flats in the said scheme which was

constructed in the year 1990. A water meter was installed and an 80 mm

diameter connection was utilized for supplying water to the said scheme.

According to the petitioner, till the year 2000 the bills were being issued on

the basis of actual consumption of water. As demand came to be made of

Rs.8,000/- along with meter rent and a letter in that regard was issued on

13.12.2000, the petitioner raised an objection to the aforesaid bill. The

dispute was considered by the Deputy Municipal Commissioner who allowed

the appeal preferred by the petitioner on 16.6.2001 and directed issuance of

bill at the rate of Rs.50/- per flat. This order was challenged by the

respondent no. 1 and the Additional Municipal Commissioner allowed the

revision application by order dated 2.4.2002. In Writ Petition No.

1940/2002, the proceedings came to be remanded for fresh consideration.

Thereafter the Deputy Municipal Commissioner directed the water bill to be

calculated on the basis of rate of Rs.50/- per flat as per Clause 9(a)(i) of the

City of Nagpur Corporation Assessment and Collection of Water Rate Bye-

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Laws (for short, the Bye-Laws). This order came to be challenged before the

Additional Municipal Commissioner who allowed the revision application and

directed assessment on the basis of minimum rate fixed as per the size of the

meter connection. Being aggrieved, the petitioner has challenged the

aforesaid order.

3. Shri Rohan Chhabra, the learned counsel for the petitioner,

submitted that the Bye-laws in question came to be amended as per

notification dated 30.8.2000 and as per amended Bye-law no. 9(a)(i), the

minimum rate for a flat scheme was Rs.50/- per flat or as per actual

consumption whichever was higher in addition to charges of meter rent. He

submitted that the Deputy Municipal Commissioner had rightly taken into

consideration the amended Bye-laws and had directed the water charges to be

recovered on that basis. The Additional Municipal Commissioner without

considering the amended Bye-laws proceeded to observe that the bills were to

be issued by taking an amount of Rs.50/- per flat or actual consumption or

minimum rate fixed as per size of the meter connection, whichever was more.

According to him, the latter portion that is 'size of the meter connection'

could not be found in the amended Bye-laws. He submitted that if the

interpretation as applied by the Additional Municipal Commissioner was

accepted, the latter portion of the amended Bye-law no.9(a)(i) would not

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have any legal effect which was not permissible. He, therefore, submitted that

the order passed by the Deputy Municipal Commissioner ought to be restored.

4. There was no appearance on behalf of the respondent nos. 1 & 2

on 9.6.2016 and 14.6.2016. On 16.6.2016 at the request of counsel for

respondent nos. 1 & 2 the matter was adjourned and kept today. Today also

there is no appearance on behalf of the respondent nos.1 & 2. In the

submissions filed on behalf of respondent nos. 1 & 2 it has been stated that as

the petitioner was having 80 mm diameter connection, the minimum charge

of Rs.8,000/- was being levied. It has been further stated that in apartments,

the billing was not on the basis of per flat as there was only one meter for the

whole apartment.

5. Shri K.L. Dharmadhikari, the learned Assistant Government

Pleader appeared for the respondent no.3.

6. I have perused the material on record and I have given due

consideration to the submissions made by the petitioner as well as the written

submissions filed by the respondent nos. 1 & 2. The amendment to Bye-law

9(a)(i) is not in dispute. As per this Bye-law, the rates at which the water

consumption is to be charged have been mentioned. As per this bye-law for

800 mm diameter connection rate of Rs.8,000/- has been mentioned. It is

further stated that the minimum rate for flat scheme was Rs.50/- per flat or

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actual consumption whichever was more and in addition to said charges, the

meter rent would be charged extra. While considering this, the Deputy

Municipal Commissioner observed that the petitioner was covered by the

proviso to Clause 9(a)(i) and therefore the minimum rate for the flat scheme

would be Rs.50/- per flat or actual consumption whichever was more. The

said Authority has also observed that the billing was required to be done on

the basis of actual units of consumption. It has been further observed that it

was not mentioned in the said amended bye-laws that minimum charges as

per the size of the connection would be billed.

6. Perusal of the order passed by the Additional Municipal

Commissioner does not indicate the basis on which it was held that even the

minimum rate fixed as per the size of meter connection would be taken into

consideration. At least a plain reading of bye-law No. 9(a)(i) does not

indicate that such an interpretation is possible. When there was a specific

entry prescribing the minimum rate for flat schemes at the rate of Rs. 50/- per

flat or actual consumption whichever was more along with the meter rent,

there was no legal basis whatsoever for taking the diameter of the connection

into consideration. On that basis the impugned order passed by the

Additional Municipal Commissioner cannot be sustained. Moreover, the

Additional Municipal Commissioner has merely relied upon the earlier view

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taken in the order dated 2nd April 2002 and has given very same reasons. The

interpretation as arrived at by the Additional Commissioner is not based on a

plain reading of the bye-law No. 9(a)(i) and in fact amounts to reading

something additional in the Bye-Laws. On that count, the impugned order is

liable to be set aside.

As per order dated 16.4.2016 this writ petition was directed to be

placed before the Single Judge as there was a challenge to a quasi judicial

order passed by the Additional Municipal Commissioner. In that view of the

matter, prayer (iii) cannot be considered in these proceedings. Challenge in

that regard is therefore kept open.

7. In view of aforesaid decision, the following order is passed.

(i) The order dated 18.11.2003 passed by the Additional

Commissioner, Nagpur Municipal Corporation is set aside.

(ii) The order passed by the Deputy Municipal Commissioner,

Nagpur Municipal Corporation dated 24.3.2003 stands restored.

(iii) The writ petition is allowed in aforesaid terms, with no order as

to costs.

JUDGE

Hirekhan

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