Federation Of Group Housing ... vs Govt. Of Nct Of Delhi & Anr
2011 Latest Caselaw 671 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 4th February, 2011.

+        W.P.(C) 8711-15/2005 & CM No.8018/2005 & CM No.6522/2005
         (both for stay)

%        FEDERATION OF GROUP HOUSING SOCIETIES
         & ORS.                                  ..... Petitioners
                     Through: Mr. Pushkar Sood, Adv.

                                   Versus

         GOVT. OF NCT OF DELHI & ANR            ..... Respondents
                      Through: Ms. Shobhana Takiar, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                          Yes

2.       To be referred to the reporter or not?                   Yes

3.       Whether the judgment should be reported
         in the Digest?                                           Yes

RAJIV SAHAI ENDLAW, J.

1. The petitioner no.1 claiming to be a federation of 118 Cooperative

Group Housing Societies located at Indraprastha Extension, Patparganj,

Delhi and petitioners no.2 to 5 being some of the members of the petitioner

no.1 have filed this writ petition for quashing of the Circulars dated 28/29th

January, 2005 and 7th April, 2005 of the respondent no.2 Delhi Jal Board

(DJB) levying „service charge‟ on the societies which are members of the

petitioner no.1. The grievance of the petitioners is that the respondent DJB

is seeking to recover, what was earlier called as „access charge‟ and now

called „service charge‟ on the basis of number of dwelling units/flats in

each Society, though a single bulk water supply connection is provided to

each Society and not separate connections to each dwelling unit/flat in

each Society. It is contended that each Society has itself made

arrangements for storage of water from the single connection and for

supply of water to each dwelling unit/flat.

2. Notice of the writ petition was issued and vide interim order dated

20th May, 2005 which continues to be in force, the respondent DJB was

directed not to insist upon payment of such access/service charge in respect

of each of the Societies, subject to payment of 50% of the amounts raised

towards the said charges. Pleadings have been completed. The counsels

for the parties have been heard.

3. The counsel for the petitioners has first invited attention to the

Circular dated 28/29th January, 2005 with the subject "Revised Water

Tariff in Delhi". The revised water tariff consists of "fixed access charge"

and "water use charges"; the fixed access charges are payable "by all

registered consumers to meet the cost of access to the network, operation

and maintenance".

4. The counsel for the petitioners has contended that since the fixed

access charges are payable by registered consumers only, the respondent

DJB can at best claim access charges as provided for one single connection

from each Society which has been provided a bulk supply connection and

not access charges on the basis of number of dwelling units/flats in the

Society. It is urged that the Circular aforesaid permits levy of access

charges on registered consumer and levying access charges on per flat

basis tantamounts to levying the same on each flat owner, who is not the

registered consumer of respondent DJB and with whom DJB has no

privity. Attention is also invited to Clauses 2.3 and 2.6 of the said Circular

where also reference is made to "registered consumer" or to "per

connection" and it is contended that thus the Circular provides for fixed

access charges against each connection or each consumer and in case of

registered Society, the connection being single and the consumer being

one, the fixed access charges would be of single unit only and not

multiplied by the number of dwelling units/flats in the Society as is being

demanded by the respondent DJB.

5. It is rather contended that in the Circular dated 28th /29th January,

2005, there is no provision for levying fixed access charges on Societies.

It is shown that the Circular categorizes the premises into several

categories and prescribes the rate of access charges for each category and

the premises of the Societies do not fall in any of the categories and thus

no access charges at all can be levied on premises of Societies.

6. The Circular dated 7th April, 2005 sought to modify/clarify the

revised water tariff. It changed the nomenclature of fixed access charges

to "service charges". It also provides that service charges with regard to

the bulk water connections including to Cooperative Group Housing

Societies shall be levied for each of the constituent unit.

7. The counsel for the petitioners has contended that once the revised

tariff referred to per consumer and per connection, the subsequent Circular

could not alter the tariff by making the fixed access charges payable not

per connection/ per consumer but per constituent unit of a single consumer.

It is contended that the clarification/modification is in excess of the tariff

and thus unsustainable.

8. The respondent DJB in its counter affidavit has pleaded:

(i) That DJB established under the Delhi Water Board Act, 1998,

is discharging the functions not only of water supply but also

sewerage and sewage disposal and drainage within the National

Capital Territory of Delhi.

(ii) That over the years, there has been a substantial increase in

the water treatment capacity with the setting up of new Water

Treatment Plants, Booster Pumping Stations and commissioning of

new tube wells; there has also been an increase in the capacity of

sewage treatment with more Sewage Treatment Plants and Sewage

Pumping Stations are being constructed/commissioned as a measure

of environment pollution control; that all this has increased the

expenditure of DJB.

(iii) Attention is invited to Section 55 of the Act empowering the

Board to, for the purposes of services rendered by it under the Act,

levy fees, charges including development charges, rentals and

collect deposits, interest etc. and providing for fixation of the said

fee, charges, rentals etc. to ensure recovery of all costs of operation,

maintenance, repayment of debt and return of not less than 3 % on

net fixed assets; it is pleaded that the costs being paid to Bhagirathi

Plant and to Bhakra Beas Management Board for raw water have

increased over the years.

(iv) It is thus pleaded that all this has led to increase in the

operational costs being incurred by the DJB.

(v) That in the context of bulk water supply as to Cooperative

Group Housing Societies, the benefit of free supply of upto 6 kl per

month is extended to each dwelling unit in the Society and not per

Society; it is thus contended that on the same parity the fixed access

charges are also taken per the number of dwelling units in the

Society and not per Society (I may mention that the counsel for the

petitioners has contended that the petitioners are agreeable to the

respondent DJB withdrawing the said benefit and giving benefit of 6

kl per connection per month and in which way the charges levied on

the Society would be much less).

(vi) It is pleaded that the occupier of each dwelling unit of the

Society is beneficiary of network and services being provided by the

respondent DJB directly or indirectly.

(vii) That since the respondent DJB is also providing sewage

disposal facilities and for which no separate bills are raised and the

costs whereof are also included in the water bills only, the

respondent DJB is justified in levying fixed access charges per

dwelling unit since each of them contribute to the sewage.

9. Being of the opinion that judicial review in the matter of price/tariff

fixation is limited (see Jheel Kuranja Residents Welfare Association

(Regd.) Vs. DDA 115 (2004) DLT 491 relating to DJB only and Rohtas

Industries Ltd. Vs. Chairman, Bihar State Electricity Board 1984 (Supp.)

SCC 161 relating to tariff fixation), I have at the outset enquired from the

counsels whether there is any machinery provided in the Act for fixation of

tariff as in the case of electricity and for challenge thereto. The only

provision shown is Section 55 (supra) which empowers the Board to fix

the tariff. I however find that Section 8 of the Act provides for constitution

of a Water Consultative Council, one of the functions whereof is to advise

the DJB on matters pertaining to interests of consumers and which Council

is to comprise inter alia of experts, representatives of consumer interests,

employees of the government and of MCD and NDMC. The counsels are

however not able to inform whether such Water Consultative Council has

been constituted or not. It appears that the grievances of the consumer

against the tariff are to be made before the said Water Consultative

Council.

10. The counsel for the petitioners has however argued that he is not

challenging the tariff but the working by the DJB of the Circular aforesaid

and the tariff prescribed therein.

11. The question which thus arises is as to whether the Revised Tariff

permits levy of access/service charges on premises of Society and if so, to

what extent.

12. The Circular dated 28th /29th January, 2005 provides that the fixed

access charges are payable by "all registered consumers". There is nothing

to show that any of the consumers were to be exempted from payment of

fixed access charges. The Societies are admittedly consumer of DJB and

there is even otherwise no reason to exclude the Societies from payment of

fixed access charges. The categorizations of premises of consumers made

for prescribing the rate of fixed water charges have to be thus read in the

said light, i.e. with a view to find in which category, the Societies best fit

and merely because there is no separate category of Societies cannot lead

to the inference that the tariff does not provide for levy of fixed access

charges on Societies. The contention of the petitioners that because a

specific category of CGH Societies is not included, such Societies are

exempt from fixed access charges, ignores imposition of fixed access

charges on all consumers and thus cannot be accepted.

13. The next question which arises is as to at what rate fixed access

charges are leviable on Societies. The categorization in Circular dated 28th

/29th January, 2005 is on the basis of size of the premises/dwelling unit to

which connection is provided; separate provision is made for premises of

other nature viz. Hostel, Charitable/ Educational Institutions etc. However,

none of the said categories deals with single point bulk water supply

intended for separate dwelling units, as is the case in the case of a Society.

The only case of bulk supply dealt with in the said Circular is to MES and

NDMC, supply to whom is on actual cost basis. It may be mentioned that

the fixed access charges and the water use charges recovered from the

other consumers are stated to be not representing the actual cost incurred

by DJB in rendering the services and are stated to be much lower than the

actual cost incurred.

14. In my opinion, out of the categories mentioned in Circular dated 28th

/29th January, 2005, the category in which the Society falls is that of a bulk

consumer of water; DJB was therefore entitled to, in accordance with

clause 6.1 of the Circular, recover from the Societies the actual cost of

water supplied by assessment of total expenditure including cost of

depreciation and interest. DJB however opted to bill the Societies at the

rates of consumption provided for other consumers and with fixed charges

multiplied with the number of dwelling units/flats in the Society.

15. The Societies protested/represented thereagainst. In response

thereto, in the subsequent Circular dated 7th April, 2005, a separate

category for Societies was created with provision for fixed access charges

on per dwelling unit/flat basis. In my opinion, the Societies will have to

shell out much more for the water supplied, if made to pay on actual cost

basis and are better off with payment as demanded.

16. In view of the subsequent Circular dated 7th April, 2005, the

question of the claim of DJB being outside or contrary to Revised Tariff

does not arise. In so far as the argument of petitioners of fixed access

charges being levied on the consumer and per connection are concerned,

the said words have to be read in the context of the services being provided

by the respondent DJB. The connection for a single dwelling unit cannot

be compared to a connection to the Society having large number of

dwelling units and no case of discrimination is made out. As aforesaid, the

respondent DJB is not charging merely for water but also for sewage

disposal and treatment. It cannot be said that the sewage outflow from a

Cooperative Group Housing Society where more than 100 families are

residing, would be comparable to the sewage disposal from a residential

house where a single family is residing.

17. The counsel for the petitioners has relied on Commissioner of

Central Excise, Lucknow, U.P. Vs. Chhata Sugar Co. Ltd. (2004) 3 SCC

466, para 27 to contend that there has to be an element of quid pro quo for

imposition of fee. However, there are no pleadings to the effect that the

amount being charged from the petitioners or the amount totally being

realized by the respondent DJB from the city is in excess of the operational

costs and 3% return on assets as provided in Section 55 (2) of the Act.

Rather, the said judgment supports the claim of DJB, of the fixed charges

qua Society being more than qua a single dwelling unit/flat.

18. The counsel for the respondent DJB has also invited attention to

Clause 3.5 of the Circular dated 28/29th January, 2005 which empowers the

Director (Revenue) to classify premises not falling in any of the categories

mentioned, depending upon the use/nature of the premises. She contends

that since in the Circular no specific mention is made of premises of

Cooperative Group Housing Societies, the Director (Revenue) of the

respondent DJB was empowered under the said Clause to make a separate

classification with respect thereto. However the said clause allows the

Director of DJB to adjust the premises not classified into one of the

categories and does not empower creation of a new classification. The said

clause thus does not help DJB. However a new classification was created

vide Circular dated 7th April, 2005 and which DJB was entitled to do.

19. The petitioners in the alternative have also claimed the relief of

direction to DJB to provide separate connection to each dwelling unit/flat

in the Society. It is pleaded that water supplied through single bulk

connection is not sufficient requiring Societies to spend money on drawing

and distributing ground water also; if separate connections are provided,

the Society will not have to spend money on ground water. It is also

contended that if separate connection is provided the pipeline till each

dwelling unit/flat shall be laid by the DJB and not by the Society as has

presently been done. DJB in its counter affidavit has stated that presently

it is not technically feasible to provide separate connections and the bulk

supply is as per assessment of requirement depending upon dwelling

units/flats in each Society.

20. I may at the outset state that a separate connection is no assurance of

sufficiency of supply; cases of single dwelling unit/flat also making

alternative arrangement are not unknown. I also do not find any merit in

the contention that for separate connection pipeline till each dwelling

unit/flat will have to be laid by DJB. Section 15(5) of the Act requires the

agency carrying out multistoried construction to ensure provision of water

supply through storage tanks, booster pumping station etc; the obligation

of DJB is only to give water in the mains feeding the service pipe. The

Societies are thus not prejudiced in any manner. In view of the technical

non-feasibility expressed and no ground for interference therewith in

judicial review having been made out, the relief of granting separate

connections cannot be granted.

21. There is thus no merit in the writ petition; the same is dismissed.

The petitioners are granted three months time to pay the amounts payment

whereof has remained stayed under interim orders of this Court, together

with interest at the rate of 9% per annum from the date when the charges

fell due and till the date of payment. Upon the failure of the petitioners or

any of the Societies to so pay the said amount within three months, the

respondent DJB shall be entitled to take action for disconnection of water

supply and other coercive action as may be entitled to.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 04, 2011 bs