Mukunddas vs City of Jabalpur Corporation

By this application under Article 226 of the Constitution of India the petitioners question the legality of the imposition of "general water rate" by the Jabalpur Corporation on the tenements of a building owned by them.

According to the petitioners soon after the completion of the building in 1955 they sank two wells within the compound appurtenant to the building and installed three electric motor pumps for pumping water for distribution in the different tenements; that they had to make their own arrangement for water supply as the Corporation water mains in the Wright Town area where the building is situated did not maintain sufficient pressure for supply of water even on the ground floor and much less on the other floors; that on 9th September 1955 they took 1/2" and 3/4" water pipe connections from the Corporation and these pipe connections dropped directly into one of the wells situated in the compound that by an order passed by the Corporation on 1st November 1955 the petitioners were made liable to pay a water rate for water supplied through these water connections in accordance with Rule 3 of the Rules framed by the Municipal Committee, Jabalpur, under the C P. and Berar Municipalities Act, 1922, for the imposition of a water rate on persons residing within the limits of the Jabalpur Municipality and that thereafter in the re-assessment proceedings held in 1958 compulsory water rate under Rule 9 of the said Rules was imposed on each of the tenements. The applicant''s objection to the assessment of water rate was rejected by the Secretary of the Corporation 31st December 1959 and the order of the Secretary was up held in appeal on 7th November 1960 by the Chief Executive Officer of the Corporation. The applicants contended that they are not liable to pay any general water rate under Rule 9 and pray that a writ of certiorari be issued for quashing the assessment order passed in 1958 and upheld by the Secretary and the Chief Executive Officer of the Corporation.

It was argued by Shri Sen, learned counsel appearing for the petitioners, that u/s 120 (1) (d) of the City of Jubbulpore Corporation Act, 1948, a water rate could only be imposed for water supplied by the Corporation, and unless water was supplied to a particular tenement by the Corporation, no rate could be levied in respect of the tenement. Learned counsel proceeded to say that the respondent Corporation was unable to supply water to the petitioners'' premises and it was because of this inability of the Corporation that the applicants were compelled to make their own arrangements for the supply of water to the various tenements from wells sunk in the compound, that the quantity of water supplied through the 1/2" and 3/4" pipe connections dropping into one of the wells was negligible and the meter attached to the fitting did not record any reading; and that though there existed a public water standard beyond 200 yards of the petitioners building, the Corporation installed another water standard some two years back within 200 yards of the building just to enable them to impose a water rate on the petitioners under Rule 9 (a). It was said that this new water standard was a dummy and that no water rate under Rule 9 could at all be imposed on the petitioners as they already had a pipe connection to the well from the service pipe of the Corporation and were being charged under Rule 3 for the water supplied through this connection.

The contentions advanced on behalf of the petitioners are thus two namely, first that when the petitioners are pacing under Rule 3 for the water supplied through the 1/2" and 3/4" pipe connections to the well, they cannot be assessed to any water rate under Rule 9, and, secondly, that no rate under Rule 9 can be imposed unless water is actually supplied to the tenements concerned There is no substance in these contentions. Section 120 (1)(d) of the Act is as follows:-

120 (1) For the purposes of this Act, the Corporation shall impose:-

* * *

(b) a water-rate, where water is supplied by the Corporation:

* * *

The Rules framed by the Jabalpur Municipality under the C. P. and Berar Municipalities Act, 1922, continue to be operariue and are deemed u/s 3 (2) of the Act as Rules made under the Corporation Act, 1948. The first two rules deal with the charge to be made when water is supplied for domestic use to consumers by their own private connections from the service pipe of the Committee. The third rule is concerned with the charge to be made where any building or land has a private water supply. Rule 9, so far as is material here, is as follows:-

In the case of buildings or lands not supplied with water through an independent private pipe connection or where water supply is cut off though there is a pipe connection, water rate shall he imposed on the annual rental value at the following rates:-

(a) Five pies per rupee of the rental value if the building or land is situated at a distance of 200 yards or less from the public standard.

(b) One and quarter pie per rupee of the rental value if the building or land is situated at a greater distance than 200 yards from a public water standard.

* * *

It will be seen that under rule 9 water rate is assessable on every building or land which is not supplied with water through independent private pipe connection from the service pipe of the Committee. The rate is determined on the annual rental value of the building according to the distance of the building from the public water standard. Here, admittedly, the 1/4" and 3/4" water pipe connection which the petitioners took from the service pipe of the Corporation were to the well. It was not a pipe connection through which water was being supplied to the petitioners, building. Rule 9 is applicable in those cases where the building is not supplied with water through an independent private pipe connection. The petitioners cannot, therefore, escape their liability for payment of water rate under rule 9 by saying that inasmuch as their well is fitted with a pipe connection chargeable under rule 3, rule 9, is not applicable to their case. In our opinion, notwithstanding the water pipe connection from the service main to the well, the applicants are liable to pay water rate under rule 9 in respect of their building:

The contention that under rule 9 there can be no liability for the payment of water rate unless water is actually supplied to the building or land is not sound and cannot be accepted. u/s 63 (1) (k) the Corporation is under a statutory obligation to manage and maintain Municipal water-works and construct new ones for providing a sufficient supply of suitable water for public and private purposes. For discharging this statutory obligation the Corporation has to spend large sums of money for the construction, management and maintenance of water-works. The scheme of the Act is that when the Corporation is carrying out this statutory duty by expending money, than all the Owners of the buildings or lands where water is made available should be called upon to pay a contribution in the form of a general water rate. The words "where water is supplied by the Corporation" in Section 120 (1) (d) do not mean that water must be supplied to particular and individual tenements before imposing a water rate. They only mean that where the Corporation has made arrangements for the supply of water in the town, a water rate can be imposed on the owners of all buildings and lands to whom water is made available irrespective of the fact whether they actually consume it or not. This construction of Section 120 (1) (d) is supported by the decision of a Division Bench of this Court in Ganpatrao Vs. Municipal Committee. Nagpur I. L. R. 1947 Nag. 305. In that case this question came up for consideration with reference to Section 66 (1) (k) of the C. P. and Berar Municipalities Act 1922, which is analogous to Section 120 (1) (d) of the Corporation Act, 1948. Rejecting the argument of the assessee that u/s 66 (1) (k) of the C. P. and Berar Municipalities Act, 1922, assessment of water rate is dependent upon the supply of water to a building or land itself, the learned Judges constituting the Division Bench said that the assessment of water rate was not dependent upon the consumption of water by the assessee but upon the supply of water by the Municipal Committee in the area under its administration. They proceeded to observe: -

It makes no difference whether water is taken or not so long as the water main pipe or standard is found within 200 yards of the land in question. The words ''where water is supplied by the committee'' do not refer to supply of water to individuals but refer to committees which have undertaken the supply of water to the areas controlled by them... In our opinion, therefore, lands lying within the municipal limits which are within 200 yards of a water standard or main pipe must pay the general water-rate irrespective of whether the water is used by the occupieror not. Since the municipality is under a statutory obligation to supply water and is compelled to embark upon an expensive venture, there is nothing prima facie unfair in its claim for a contribution in the shape of a general water rate from all the owners of buildings or lands to whom water is made available whether they take it or not.

A similar argument advanced in Brahmin Mitra Mandal Co-operative Housing Society, Ltd. Vs- Municipality of Ahmedabad ILR 1940 Bom. 667 did not find favour with the learned Judges of the Bombay High Court. They held that the words "water supplied by the Municipality" in Section 73 (x) of the Bombay Municipal Boroughs Act, 1925 meant water supplied for general public purposes and not supplied to a particular tenement by the Municipality, and that the true construction of Section 73 (x) was that the Municipality could charge a water-rate if they supplied water to the borough.

Learned counsel for the petitioners referred us to Manindra Nath Pal and Others Vs. Municipal Commissioners of Baranagore Municipality and Another, where it has been held with reference to Sections 278 and 302 (1) of the Bengal Municipal Act. 1932, and Rules made thereunder that the Commissioners of a municipality are not bound to supply any water for domestic use, but it is lawful for them to do so, but ones they decide to levy a water-rate on the rate-payer, Section 278 imposes a statutory liability upon the municipality to provide a sufficient supply of water for the domestic use of the inhabitants, This case is not in point. There is a material distinction between Sec 120 (1) (d) of the Corporation Act, 1948, and Section 302 (1) of the Bengal Municipal Act, 1932. The provision in the Bengal Act expressly provides that "the occupier to every premises to which water is supplied shall be entitled to have, for each rupee paid quarterly as the water-rate on account of such premises and free of further charge such quantity of water per quarter for, domestic purposes as the Commissioners at a meeting may from time to time prescribe". Thus an obligation has been cast on the Commissioners to supply to the consumer the prescribed quantity of water and the prescribed quantity must be "sufficient supply of water". The Calcutta High Court held that it must be presumed that the quantity specified under the rules is the measure of sufficiency. This case is of no assistance in the construction of Section 120(1) (d).

Nothing turns on the question whether it was necessary for the Corporation to instal an additional public water standard within 200 yards of the petitioners building when one at a distance of more than 200 yards already existed. There is no provision prohibiting the installation of an additional public water standard within 200 yards of a building when there is already one beyond that distance. As to the petitioner''s objection that the additional public water standard is merely a dummy, it is sufficient to say that it raises a question of fact which cannot be investigated in these proceedings. For the purpose of this petition it must be accepted that the water standard installed is a real one.

For all these reasons this petition is dismissed with costs. Counsel''s fee is fixed at Rs.100. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioners.