Smt. Pravabati Mohanty vs State Of Odisha And Others
2021 Latest Caselaw 9336 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

            WRIT PETITION (CIVIL) No.5243 of 2005


   (An application under Article 226 of the Constitution of India)



    Smt. Pravabati Mohanty                      ....            Petitioner

                                   -versus-
    State of Odisha and Others                  ....      Opposite Parties


   Appeared in this case by Video Conferencing mode:

    For Petitioner             :         Mr. Devashis Panda, Advocate

    For Opposite Parties       :                         Mr. M.S. Sahoo
                                              Addl. Government Advocate

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE B.P.ROUTRAY
                              JUDGMENT

07.09.2021 Dr. S. Muralidhar, CJ

1. This writ petition filed on 15th April, 2005 by a resident of Cuttack City alleges that water charges levied and collected from the inhabitants of Cuttack City are illegal and exorbitant. The Petitioner seeks the quashing of a resolution dated 1st December, 1980 of the Housing and Urban Development Department (H & UD Department), Government of Odisha by which the "Orissa Waters Works (Urban Local Bodies) Rules, 1980 (hereafter 'the

1980 Rules') were notified. The challenge is also to the resolution dated 16th August, 1996 of the H & UD Department amending the 1980 Rules thereby revising the drinking water tariff provided thereunder. A corrigendum dated 28th August, 1996 to the said rules providing for an automatic increase of the water tariff @ 10% every year and for revision every five years of the structure of the tariff and for the annual rate of increase has also been challenged.

2. The fourth document to be challenged is a communication dated 3rd August, 2001 from the Executive Engineer (PH) Division clarifying to the Sub-Divisional Officer, that the water tariff will continue to be automatically increased @ 10% every year with effect from 20th August, 2021 onwards. The fifth document to be challenged is a resolution dated 30th June, 2005 of the H & UD Department further revising the water tariff. The next document to be challenged are a bill raised on the Petitioner in the sum of Rs.768/- for the yearly water charges from April, 2005 to March, 2006 (Annexure 9).

3. Two receipts dated 11th November, 2005 and 13th February, 2006 (Annexure 9-A) evidencing payment of water charges from April to September, 2005 and October, 2005 to March, 2006 respectively in the sum of Rs.384/- each have also been asked to be quashed. A further prayer is for a direction to the Opposite Parties to refund to the Petitioner the total water charges of Rs.5688/- for the period from 1983-84 till 2004-05 with interest

and for the sum of Rs.768/- for the period from 1st April, 2005 to 31st March 2006 with interest.

4. It must be mentioned at the outset that the quashing of Annexure-9 and 9A as well as the prayer for refund of the water charges was made by an application Misc. Case No.2796 of 2006 dated 2nd March, 2006 seeking amendments to the writ petition, which was allowed by this Court by an order dated 8th May, 2006.

5. At one stage, the petition was dismissed for non-prosecution on 8th December, 2006. However, it was subsequently restored and thereafter listed on some dates in 2008. It was listed sporadically thereafter till 4th March, 2013. The matter then was listed after four years on a few dates. On 27th March, 2019 a direction was issued to the Additional Government Advocate (AGA) to place on record the rate of water tax and its maximum limit as referred to in Section 131-A (5) of the Odisha Municipal Act, 1950 (OM Act) as well as the schedule of the rates of water tax.

6. Meanwhile, the original writ petitioner Mr. Madan Mohan Mohanty expired. By an order dated 15th November, 2019 he was substituted by his wife Smt. Pravabati Mohanty.

Counter affidavits and rejoinders

7. There have been numerous counter affidavits and rejoinder affidavits which will be referred to hereafter. The Opposite Party No.1, i.e. the H & UD Department, first filed a counter affidavit

on 16th August, 2005 in which it was stated that under Section 131-A of the OM Act, the Government has the power to increase any tax or fee in the Urban Local Bodies (ULBs) and that this explained the resolution dated 1st December, 1980. It was pointed out that prior to 1980, no Rules were prescribed for the ULBs. Earlier for the Bhubaneswar Notified Area Council a set of rules titled "Bhubaneswar Water Works Rules, 1972" were made to regulate supply of drinking water. The 1980 Rules were meant to apply uniformly in all ULBs and since they were charging different rates of water tariff.

8. It was pointed out by the H&UD Department that the Orissa Water Supply Sewerage Board Act, 1991 ('OWSSB Act') came into force on 3rd June, 1991. Under Section 16 (2)(h) thereof, the OWSSB is empowered to approve the tariff for water supply in the respective local areas comprised within its jurisdiction and such other local bodies as have entered into an agreement with the OWSSB for such purpose. As per the existing arrangement, the Public Health Engineering Organization (PHEO) is responsible for providing water supply services to ULBs and OWSSB is entrusted with the execution of mega water supply and sewerage water supply projects in the State. After completion of the projects, OWSSB hands over the facilities to PHEO for operation and maintenance. Therefore, as per the present policy, the OWSSB "has no jurisdiction in the matter of providing services in the water supply sector" and therefore, the provisions of the OWSSB Act in relation to tariff "is not applicable". It is submitted

by the H&UD Department that "Government is the sole authority to introduce/change any tariff as per necessity.

9. The 10% percent automatic increase is justified on account of the increase in cost of labour, chemicals and consumables and other important materials. It is pointed out that there is no element of profit making. However, to improve the sustainability of the water supply system, revision of water tariff becomes indispensable "to close the gap between the revenue receipt and expenditure". In a tabular column the receipt and expenditure for the years 1998-99 to 2003-04 is set out to show that in each year the expenditure is several times the receipts. This seeks to substantiate the contention of the H&UD Department that the water supply system is running on a loss basis and therefore, the question of making profit does not arise.

10. The Petitioner filed a rejoinder affidavit on 8th November, 2005 contending that Section 131-A of the OM Act has no application since the 1980 Resolution had not been issued thereunder. It was contended that OWSSB had not approved the tariff rate and therefore, the collection of water charges in terms of the Resolutions at Annexures-1 to 3 is illegal. It was pointed out that after filing of the writ petition, by a notification dated 23rd July, 2005 an amendment was effected to Rule 48 of the 1980 Rules reducing the rate of automatic increase from 10% to 5%. This too was assailed as being arbitrary and unreasonable.

11. Another counter affidavit was filed on 8th August, 2006 by the H & UD Department. It was sought to be contended that the Government, as a service provider, had the "inherent power to revise water tariff from time to time to achieve sustainability of water supply service sector progressively". The annual rate of increase which was kept to 5% it was stated to have been based on the decision of a High-Powered Committee chaired by the Chief Secretary which studied the prevailing water tariff in the adjoining States.

12. The H & UD Department filed an additional affidavit on 24th March, 2006. This was filed in response to the amended writ petition. The automatic increase in the tariff was again sought to be justified by contending as under:

"It was observed by the State Government that the extent of tariff revision should be linked to the variation in the composite index of cost of operation and maintenance subject to a ceiling of the rise in the wholesale price index during the preceding year. Accordingly, the quantum of increase per year at the rate of 5% has been worked out by linking to the variation in the wholesale price index for all commodities during the preceding 5 years. The provisions under rule 48 have been made to cope with the expected increase in the cost of input materials (resources) such as cost on establishment, chemicals and consumables, repairs, replacement and energy charges in subsequent years. Therefore, there is arbitrariness in the Government decision under Annexure-8."

13. The Petitioner then filed a rejoinder/objection to the above counter affidavit, which is again a reiteration of the earlier contentions regarding the inapplicability of the OM Act. The case of the Petitioner appears to be that it is the OWSSB Act which would be applicable. Since it came into force only on 1st August, 1991 any levy and collection of water charges prior thereto under the 1980 Rules would be illegal.

14. Another affidavit was filed on 11th November, 2009 by the Executive Engineer, Public Health Division on behalf of the Opposite Party No.1. This was in response to the observations made in the Court's order dated 29th October, 2009 regarding the modality and procedure adopted by the H & UD Department for fixation of water charges and the rationale behind its enhancement. It was explained in this affidavit that since cost recovery in shape of revenue from consumers was to the tune of about 1/3rd of the operation and maintenance cost, the Chief Engineer, Public Health (Urban) placed a proposal before Government for revision of water tariff during September, 1995. A committee constituted under the Chairmanship of Engineer-in- Chief, Public Health (Urban) and comprising 5 other expert members submitted its recommendations in June, 1996 that the escalation in the price of consumables, chemicals, petrol, diesel and lubricants, energy charges as well as wages of employees engaged in production and distribution of water, necessitated a substantial upward revision in the water tariff. The Committee also opined that the annual increase in cost of production and

distribution was assessed to be more than 10%. Accordingly, the Committee recommended an increase in the water tariff by 10% every year.

15. Several years later on 4th July, 2017 a further affidavit was filed by the H & UD Department. By resolution dated 6th February, 2010 the Government had introduced an additional 5% on water tariff to the consumables bills to pay water charges one year in advance. It appears that on 17th April, 2012 under the Chairmanship of the Chief Secretary, Odisha a high-level meeting was held to formalize the water tariff rules to regulate the maximum water charges from the consumers in ULBs. In this affidavit it was disclosed that the State Government had notified the "Orissa State Urban Water Supply Policy, 2013" which envisages that all houses shall have access to water by direct pipe connection and the urban poor shall receive all the other facilities available to other residents at affordable cost on sustainable basis. A copy of the said policy was enclosed as Annexure-A/1. It was claimed that by notification dated 2nd December, 2015 the procedure to access safe drinking water connection for all urban houses including the poor was simplified. By notification dated 24th May, 2016 the State Government waived the fee for domestic water connection for all urban poor. The H & UD Department is stated to have consulted the Law Department and was in the process of formalizing and implementing a set of rules.

16. The H & UD Department filed yet another affidavit on 7th May, 2019 explaining the increase in the rate of water charges from 1980 onwards. It was explained that there was no schedule of rates prescribed under Section 131-A (5) of the OM Act so far as imposition of water charges within the limits of municipal areas was concerned. For the first time, Article 162 of the Constitution of India was invoked to explain that the resolutions have been published under the order of the Governor.

Submissions of counsel

17. This Court has heard the submission of Mr. Devashis Panda, learned counsel for the Petitioner and Mr. M.S. Sahoo, learned Additional Government Advocate for the Opposite Parties (State).

18. Mr. Panda insisted that the Petitioner could challenge in 2005 the resolutions of 1980 as adopted and modified in 1996 since according to him, bills were being raised against the Petitioner even in 2005 on that very basis. His contention was that the resolution of 1980 and the amendment/corrigendum thereto have no legal basis since there were not made under Section 131-A (5) of the OM Act. They could not be said to be in exercise of the executive power of the State under Article 162 of the Constitution since the resolutions do not themselves expressly say so. Mr. Panda contended that even at present, there is no legal frame work to enable the State to levy and collect water charges.

19. Mr. Sahoo, learned AGA, on the other hand referred to the decision in Union of India v. Moolchand Kheraiti Ram Trust (2018) 8 SCC 321 which explains the scope of executive power of the State under Article 162 of the Constitution of India. It is pointed out that there is no conflict between Section 131-A of the OM Act, which authorizes the State impose tax/fee and the rates at which such imposition has been made, and the 1980 Rules. Both are stated to be operating in mutually exclusive areas. In other words, the Government is no longer seeking to explain the legality of the 1980 Rules with reference to Section 131-A of the OM Act.

Analysis and reasons

20. The above submissions of learned counsel for the parties have been considered. At the outset, it must be observed that the challenge raised by the Petitioner to the legal sanctity of the 1980 Rules and the amendments/corrigendum thereto in 1996 is indeed belated. Clearly the Petitioner has been paying water charges earlier as well and in other words, this is not as for the first time the Petitioner received the water charges for the year April, 2005 to March, 2006. Why the Petitioner suddenly choose to challenge the 1980 Rules for the first time after 25 years is not explained satisfactorily in the petition. The Petitioner has in para 6 of the petition being setting out all the water charges paid from 1983-84 onwards. The question of laches and delay in the filing of this petition has not been satisfactorily explained.

21. It is well settled that the remedy under Article 226 of the Constitution is a discretionary one. Even if there is no specified period of limitation within which a writ petition ought to be filed, it has been explained in a series of judgments of the Supreme Court of India that a writ petition has to be filed within a reasonable period. Where a Petitioner approaches the High Court later than say three years from the date when the cause of action to seek the relief arose, such Petitioner is obliged to offer some convincing explanation for the delay in approaching the writ court. In Tamil Nadu Housing Board, Chennai v. M. Meiyappan (2010) 14 SCC 309 the Supreme Court reversed the judgments of the Single Judge and Division Bench of the High Court of Madras and observed:

"14. At the outset, we must state that on the facts of this case, the High Court was not justified in entertaining the writ petition. In our opinion, the writ petition must fail on the short ground that the writ petition had been filed 16 years after the award was announced by the Collector. It is trite law that delay and laches is one of the important factors which the High Court must bear in mind while exercising discretionary power under Article 226 of the Constitution. If there is such negligence or omission on the part of the petitioner to assert his right which, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party, the High Court must refuse to invoke its extra-ordinary jurisdiction and grant relief to the writ petitioner."

22. In Banda Development Authority v. Motilal Agarwal (2011) 5 SCC 394, the Supreme Court, in the context of challenge to land acquisition proceedings by way of writ petitions, observed:

"16. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits.

23. In the present case, the Court is therefore not satisfied that there has been any reasonable explanation offered by the Petitioner for the inordinate delay of 25 years in challenging the 1980 Rules and nearly 10 years in challenging the corrigendum of 1996 made thereto.

24. Nevertheless the Court has also examined the issue on merits. It is true that the 1980 Rules do not refer to the source from which it is sought to be made. It does not refer to Article 162 of the Constitution of India or even Section 131-A of the OM Act. The text of Section 131A of the OM Act also does not help the Opposite Parties. The proviso to sub-section (5) of Section 131A of the OM Act states that "in no case the rate of any such tax/fee, after such increase shall exceed the maximum limit provide therefor in this Act". Section 131A of the OM Act appears to be a general provision regarding the power of Government to "abolish, suspend, reduce or increase the rate of any tax or fee". It is not

clear that resolution was made under this Section at all. In fact in the written note of submissions dated 31st August, 2021 the stand of the Opposite Parties is that Section 131 A of the OM Act and the 1980 Rules "operate in mutually exclusive fields" and that the collection of the water charges is in terms of the 1980 Rules. That more or less settles the issue that Sections 131-A of the OM Act is inapplicable to the issue of collection of levy and water charges.

25. At the same time, the Court is unable to agree with the contention of Mr. Panda, learned counsel for the Petitioner that the 1980 Rules and the corrigendum/amendments thereto are invalid and therefore, collection of waters charges from the inhabitants of Cuttack city thereunder is illegal. Although the resolution does not expressly state so, it is clear that it has been made "by order of the Governor".

26. In Moolchand Kheraiti Ram Trust (supra), the Supreme Court discussed extensively Article 162 of the Constitution and its explanation in Ram Jawayya Kapur v. State of Punjab AIR 1955 SC 549. The following passages of Ram Jawayya Kapur (supra) were noted:

"7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49(2) respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the Union and the States, following the same

analogy as is provided in regard to the distribution of legislative powers between them. Article 162, with which we are directly concerned in this case, lays down:

162. Extent of executive power of State .-

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."

8. Thus, under this article the executive authority of the State is executive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament.

Similarly, article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to made laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in

exceptional cases the executive power of the Union shall extend to these matters also.

Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them.

On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. Pathak's contention.

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12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.

The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not

contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.

It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.

13. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.

The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on

or supervision of the general administration of the State.

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17. Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.

18. In the present case it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing the text books for recognised schools in Punjab were estimated and shown in the annual financial statement and that the demands for grants, which were made under different heads, were sanctioned by the State Legislature and due Appropriation Acts were passed.

For the purpose of carrying on the business the Government do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people. This power of contract is expressly vested in the Government under article 298 of the Constitution. In these circumstances, we are unable to agree with Mr. Pathak that the carrying on of the business of printing and publishing text books was beyond the competence of the executive Government without a specific legislation sanctioning such course."

27. Indeed in the present case too, the State Government appears to have resorted to the exercise of executive power instead of

going in for a legislation for that purpose. The absence of legislation does not per se render the levying collection of water charges illegal. It is trite that the executive power of the State under Article 162 of the Constitution is co-extensive with its legislative power. As explained by the Supreme Court the language of article 162 clearly indicates that "the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already."

28. Also, merely because Article 73 and Article 162 talk of the legislation being made with respect to the matters in the respective lists of the Seventh Schedule to the Constitution, it does not mean that "only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them." Further it has been explained by the Supreme Court that the executive function includes "initiation of legislation, maintenance of the order and carrying on supervision, General Administration of to the State." While a legislation facilitates a uniform approach to the levy and collection of water charges, the exercise of executive power in the area in the form of Rules seems to adequately perform the same function. The Rules do appear to put in place a proper procedure for the levy and collection of water charges. It has worked well for over four decades. There is no reason to expect it will not continue to do so.

29. The Court is also not satisfied that any ground has been made out by the Petitioner to challenge the water charges on the ground of arbitrariness. The increase in water charges appears to be nominal given the year expenditure incurred towards supply of safe drinking water and water for other needs. The fact that the expenditure is far excess of the revenue collection has not been able to be disputed by the Petitioner.

30. Here, the Court would like to note that by a notification the urban poor have been exempted from the payment of water charges. As regards the other urban classes, the charges do not appear to be unaffordable. Moreover, one of the significant changes in the past two decades, which the petition does not account for, is the increased reliance by the middle and upper classes on bottled drinking water which is sold in containers of all sizes. The Court is therefore not satisfied that the increase in the rate of water tariff for the period in question i.e. between 1980 and 2005 was arbitrary, unreasonable or disproportionate.

30. This Court finds no ground made out for quashing the 1980 Rules and the amendments thereto or for granting any of the other reliefs prayed for.

31. The writ petition is dismissed, but in the circumstances, with no order as to costs.

32. An urgent certified copy of this order be issued as per rules.

(S. Muralidhar) Chief Justice

(B.P. Routray) Judge S.K.Jena/PA