IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF MARCH 2001
THE HON’BLE MR. JUSTICE HARINATH TILHARI
W.P NO. 2487/1999 (GM-BWSSB)
W.P. NO. 2487/1999
MANIPAL CENTRE APARTMENT
BY ITS SECRETARY:
No. 47, Dickenson Road,
Bangalore – 560002.
(By Sri. M.G. Kumar, Advocate) PETITIONER
1. STATE OF KARNATAKA
BY ITS SECRETARY:
Dept. of H.U.D. Vidhana Soudha, Bangalore.
2. Bangalore Water Supply & Sewerage Board
By its Chairman:
Cauvery Bhavan, K.G. Road, Bangalore-9
3. Asst. Executive Engineer,
BWSSB, Sub-Division (East)
Old Madras Road, Ulsoor,
(By Sri. Bharamagowda, G.P. for R-1)
(Sri. T.R. Subbana, Advocate for R-2 & R-3) RESPONDENTS
The Writ Petitions is filed under Articles-226 and 227 of the Constitution of India praying to quash the Regulations No. 7.3 of the Bangalore Water Supply Regulations, instructed by the Bangalore Water Supply (Amendment) Regulation 1998, published in the Karnataka Gazette in part III Section 2 vide reference dated 06.02.1998 vide Ann-E and declaring that this Regulation is unconstitutional and violation of Article-14 and 19 of the Constitution of India etc.,
The above Writ Petition coming on for preliminary hearing this day, the Court made the following:-.
O R D E R
1. Heard Sriyuts, P.A. Bhat, M.G. Kumar, Ananth Mandgi, P. Krishnappar learned counsel for the Petitioner. Learned counsel Sri. D.R.Subbana, learned Senior Advocate assisted by Sri.K.T. Mohan learned counsel for Respondent Nos.1 and 2 and Sri. Bharama Gowda, learned High Court Government Pleader for Respondent No. 3 for good length of time in all these Writ Petitioners.
2. As these Writ Petitions raise the common question of law of importance as to the interpretation of Sections-31, 35 and other Sections of the Bangalore Water Supply and Sewerage Act 1964 on the question of varies of Regulations 7.3 of the Bangalore Water Supply Regulations Act of 1965 as introduced by the Bangalore Water Supply (Amendment) Regulations, 1998, the present Writ Petitions are hereby disposed off by the one common Judgement and Order.
3. The question that has been raised and that arises for consideration of this court is as to whether Regulation 7.3 of the Regulations as has being sought to be introduced by the Bangalore Water Supply (Amendment) Regulations, 1998 as Regulation 7.3 to the Bangalore Water Supply Regulations, 1965 is ultra virus of the powers of the Bangalore Water Supply and Sewerage Board, in view of the provisions the Bangalore Water Supply Act, 1964, particularly Section-31 of the Act.
Regulation 7.3 by the Bangalore Water Supply (Amendment) Regulation, 1998 reads and is quoted herewith as under:
“Consumer having water supply connections of size 20mm and
above to their premises (excluding residential apartments shall
be charged for the minimum quantity specified other quantity as
may be specified by the Board from time to time). The actual
consumption whichever is higher.
Size of Bore Min. Consumption per month in ltrs
20 mm 40,000/-
25 mm 70,000/-
37 mm 1,30,000/-
50 mm 3,00,000/-
75 mm 6,00,000/-
100 mm 10,00,000/-
150 mm 20,00,000/-
200 mm 36,00,000/-
300 mm 78,00,000/-
Before, I proceed forward to deal with this subject it will be appropriate to give few facts of the case.
4. In W.P. No. 2727/1999, the Petitioner according to its own case is a partnership firm carrying on the business of Boarding and Lodging in the name and style of M/s. Brindavan Hotel. According to the Petitioner, the Asst. Executive Engineer, E1 Water Supply Division, Bangalore Water Supply and Sewerage Board, Ulsoor, Bangalore (1st Respondent herein) used to take and verify the quantity of water supplied by the Board and issued bills each month. The Petitioner used to pay the bill amount regularly as and when it is raised. According to the Petitioner that under the amended regulations, Respondent-1, in the month of December 1998 issued a bill making the Petitioner to pay a sum of Rs. 34,900/- as against the supply of water to the tune of Rs. 2,37,000/-. The Petitioner’s case is that this amount of Rs. 34,900/- has been arrived at on the assumption that the Petitioner is deemed to have consumed an average of 6,00,000 liters per month as the Petitioner is having supply connection 75 mm bore i.e., size. According to the Petitioner, the amendment in the regulations came into force with effect from 18.11.1998. As such, the Petitioner has filed this Writ Petition under Article 226 and 227 of the Constitution of India, challenging the vires of the regulation 7.3. The regulation had been challenged as being beyond the scope of the power of the Bangalore Water Supply and Sewerage Board to frame regulations. It has also been challenged on the ground that it is hit by Articles 14and 19 of the Constitution of India.
5. Similarly, the Petitioner in Writ Petition No. 2487/1999 which is a registered association of the owners of premises in Manipal Centre apartment, Bangalore, has filed this Writ Petition. According to the Petitioner, the maximum water supplied and consumed by the Petitioner in the months of September, October, November and December 1998 was 3,23,000 litres, 3,42,000 litres, 3,09,000 litres and 3,25,000 litres respectively. But according to the Petitioner, Respondent-3 has issued bills in the month of October 1998 for a sum of Rs. 18,430.80, for November 1998 and Rs. 19,570/- and for December 1998 for Rs. 17,590/-. The case of the Petitioner is that the Respondents have always been irregular in the supply of water and the Respondents supplied water to the Petitioner one or two hours a day and that too for 4 or 5 days in a week and the supply suffers from shortage of water. After having referred to Regulation 7.3, the Petitioner has alleged that after the amendment and the introduction of Regulation 7.3 as the Petitioner’s water supply connection pipe is of 4 inches, i.e., 100 mm, so Respondent-3 served on the Petitioner in January 1999 – on the basis of the above regulation – a bill for Rs. 1,00,510/ fixing the minimum consumption of water to the Petitioner per month is 10 lacs litres though the Petitioner per month only consumes 3.25 lacs litres of water per month. The bill dated 12.1.1999 Annexure-E according to the Petitioner is shown to contain the amount of Rs.59,050/- for the current month and a sum of Rs. 41,460/- as the maxium consumption difference amount. Feeling aggrieved from the said bill, the Petitioner has filed this Writ Petition challenging the vires of Regulation 7.3 referred to above.
6. In W.P. No. 4720 and 4721 of 1999, the Petitioners, viz., and M/s. Ramanashree Housing Developers, are carrying on the business of boarding and lodging and are having water supply connection given by the Bangalore Water Supply and Sewerage Board (Respondent-2 herein). According to the Petitioners, the connecting joint between the Petitioner’s pipe and the second Respondent’s pipe is having 4” width, which is called as bore. According to the Petitioner earlier to 1999, the Petitioners used to receive the bills with respect to water that was supplied to the Petitioners and the Petitioner’s used to pay those bills, which the Petitioners have annexed the same as Annexures A, A1 and A2. According to the Petitioner’s case under Regulation-7.3 as introduced by the Bangalore Water Supply (Amendment) Regulations, 1998, because the Petitioners are having 4” width or 100 mm bore will be saddled with minimum water consumption of 10,00,000 litres per month irrespective of the actual consumption of the water by the Petitioners or the effected by the 2nd Respondent. The Petitioners, as such, have come up before this Court by way of Writ Petition, challenging the vires of Regulation-7.3 of Bangalore Water Supply (Amendment) Regulations, 1998.
7. Similarly, in Writ Petition No.3592/1999, the Petitioner has been served with a demand notice or bill on the basis of deemed consumption of water for Rs. 1,13,675/-. The Petitioner’s case is that the Board could have been charged Rs. 53,700/- only towards the water consumed by the Petitioner. The Petitioner’s case is that it had not utilized even 10,000 litres of water in the month and the notice of demand based on Regulation 7.3 is illegal and by Regulation .3 (page 18 line 9) Bangalore Water Supply (Amendment) Regulations, 1998, is ultra vires on the ground that it being in excess of the powers under Section 31, of the Bangalore Water Supply and Sewerage Board Act, 1964 and Regulation-7,3 is discriminatory.
8. The case of the Petitioner in Writ Petition No. 5479/1999 is that the Petitioner is a partnership firm and it is carrying on the business of boarding, lodging and restaurant under the name and style M/s. Hotel Ajanta. In paragraph 2 of the Writ Petition, the Petitioner has stated that the Second and Third Respondents have supplied water to the Petitioner. In the month of September 1998-5,09,000 litres, in October 1998-4,92,000/- litres, in November 1998- 3,61,000/- in December 1998-6,26,000/- litres, in January 1999-5,05,000 litres and in February 1999-7,77,000/- litres and served the bills for the amounts as shown in para-2 of the petition. It has been mentioned that in the months of January and February 1999, the Respondent-3 charged a sum of Rs.58,900/- as the minimum consumption charges at 10,00,000 litres per month. According to the Petitioner after the amending of regulations and the introduction of Regulation-7.3, on account of the Petitioner’s water supply connection pipe being 4” in size, i..e, 100 mm bore, Respondent-3 issued a bill in the month of January 1999 for Rs. 81,860/- inclusive of arrears for the month of December 1998 fixing the minimum consumption of the Petitioner at 10,00,000 litres per month, though the bill itself shows that the Petitioner had consumed only 5,05,000 litres of water during the said month. The Petitioner had annexed the said bill vide Annexure-E to the writ petition. The Petitioner has stated that he has paid the said bill under protest. According to the Petitioner ‘s case, Respondent-3 could not issue the bill for a total sum of Rs. 60,788/– charging it for deemed minimum consumption of 10,00,000 litres per month. While reading shows and according to which, the Petitioner had consumed 7,77,000 litres of water. The Petitioner in this case had also challenged Regulation-7.3 of the Bangalore Water Supply (Amendment) Regulation, 1998 to be illegal, ultra vires and it is hit by Article-14 of the Constitution of India.
9. According to the Petitioner in W.P. No. 6331/1999, it was getting and consuming water between 4 to 5 lakhs litres of water per month for which Second Respondent-Board used to issue the bills therefore which have been annexed in this writ petition as Annexures A, B and C and the Petitioner had paid those bills. The Petitioner’s case is that it is having 4” width i.e., 100 mm bore pipe line for getting the water from the main supply. According to the Petitioner, the Petitioner had been served with revised pattern of bills in terms of the Amended Regulation, viz., Regulation 7.3 taking deemed consumption to be 10 lacs litres of water per month on the basis of the size or the bore of pipe connection/line. According to the Petitioner, Regulation-7.3 is arbitrary, discriminatory and ultra vires. The Petitioner’s case is that while the Petitioner is getting only 4 to 5 lacs of water per month it is illegally being subjected to pay for 10,00,000 litres of water per month on the basis of the assumed consumption under Rergulation-7.3. According to the Petitioner, the said Regulation is arbitrary, illegal and ultra vires and the Petitioner had prayed for quashing the said Regulation.
10. The Petitioner in W.P. No. 3278/1999 claiming to be partnership firm registered under the Indian Partnership Act represented by one of its partners in respect of the premises which is the multi storied complex bearing Corporation No. 121 (New No. 48) situated at Dickenson Road, Bangalore. The Petitioner is the consumer having water supply connection through the water meter No. 47457 – NO2 – 264 and availing the supply of water from Respondents 2 and 3 for the said purpose. The case of the Petitioner is that the Petitioner had consumed water in the months of September, October, November and December 1998 as 1,37,000 litres, 1,26,000 litres, 1,11,000 litres and 2,00,000 litres respectively. According to the Petitioner, the Second Respondent (issued bills for a sum of Rs.8,537/- in September 1998, for Rs. 7,720.80 in October, in November for Rs. 6,320/- and in December 1998 for Rs. 12,274/- vide Annexures-A to D. The Petitioner had complained about irregular supply of water. According to the Petitioner, the water supply connection pipe is 4” in width, i.e., 100 mm bore. Hence, in the month of January 1999 Respondent-3 issued the bill under Regulation-7.3 for Rs. 1,08,160 litres fixing the minimum consumption per month at 10 lacs litres of water though the Petitioner had consumed only 2,94,000 litres in that month vide Annexure-L to the writ petition. According to the Petitioner the said bill indicates a sum of Rs. 58,900/- being for the current month and Rs. 48,000/- is charged as the minimum consumption difference amount claimed for the previous month. The Petitioner had challenged the said bill as well as Regulation-7.3 fixing minimum consumption or deemed minimum consumption to be unconstitutional and ultra vires of the powers of the Board being in excess, and in breach of the Provisions of Bangalore Water Supply and Sewerage Act, 1964. The Petitioner had challenged Regulation-7.3 to be ultra vires of powers of the Board under Section-31 of the Act as well as in the ground that it is hit by Articls-14 and 21 of the Constitution of India.
11. Similar is the case with reference to W.P. No. 4974/1999. According to the Petitioner’s case, the owners of Mittal Tower Commercial Complex consists of three wings namely, A, B and C. It admits that the entire complex is supplied with water by the Second Respondent-Board. The Petitioner’s case is that there has been no proper supply of water and the supply being irregular both domestic and commercial, and on account of which the Petitioner was forced to dig up the bore wells. According to the Petitioner’s case since the time Regulation-7.3 was enforced in the month of November 1998, the Second Respondent-Board issued two bills vide Annexures E and F, even though the Petitioner had already made payment of water charges for the months of November and December 1998 on actual consumption basis and there was no arrears, according to the Petitioner, on the basis of Regulation-7.3., and on the Petitioner’s water consumption having been deemed to 10,00,000 litres of water per month. The Petitioner had challenged Regulation-7.3 on the similar grounds taken by the other Petitioners.
12. The Petitioner in W.P. No. 5302/1999 is also an association and owners of Barton Centre Owner’s Association, M.G. Road, Bangalore. According to para-2 of the petition, there had been supply of water to the Petitioner and consumed water as mentioned in para-2 during the months of August, September, October, November, December, January and February was as indicated therein. The said bills are annexed in this petition vide Anneures-A to G to the writ petition. According to the petition, the Petitioner had paid the said bills. The bill for the month of January 1999 shows the actual consumption to be 6,85,000 litres amounting to Rs. 38,905/- however the Second Respondent raised the bill for Rs. 74,965/- on assumed, presumed or deemed consumption of water to be 10,00,000 litres per month. The Petitioner in this writ petition had prayed for quashing Regulation-7.3 and challenged its vires on grounds similar to be one taken in other petitions, he has as well prayed for a direction to the Respondents to adjust the amount collected in excess of actual consumption and not to disconnect the water supply and sewerage connection.
13. According to the Petitioner in W.P. No. 7203/1999, the Petitioner is a consumer of water supply by Respondent Nos. 2 and 3. According to the Petitioner, during the month of August, September of 1999, January and February 2000, the water was supplied to the tune as indicated in paragraph-2 of the Writ Petition and the bills inclusive of minimum charges were served for the amount mentioned in Annexure A and B to the writ petition. The case of the Petitioner is that the Respondents were able to supply to a maximum of 7 to 9 thousand litres of water per month to the Petitioner through 20 mm bore pipe. According to the Petitioner’s case, the Petitioner’s water supply connection pipe being 20 mm bore in size and with the enforcement of and implementing ReEgulaiton-7.3, the 3rd Respondent issued the bill for the month of January 2000 for a sum of Rs. 3,747/- fixing the minimum consumption of 40,000 litres per month while the bill indicates that the water consumed was only 9,000 litres during the month of January 2000. Thus, according to the Petitioner, 3rd Respondent charged a sum of Rs. 1,996/- as the minimum charges. According to the Petitioner the bill for January 2000 was issued making charges for 40,000 litres of water including the arrears for the earlier month, i..e, December 1999 while the meter reading shows that the Petitioner had consumed only 9,000 litres during the month of December 1999 and 5,000 litres during the month of January 2000. The Petitioner’s case is that the bill that has been served on the Petitioner taking the minimum consumption of water to be 40,000 litres based on Regulation 7.3 which is ultra vires of the power of Board to frame the Regulation and the amount charged from the Petitioner on the basis of assumed consumption of 40,000 litres of water is illegal and bad. The Petitioner had challenged Regulation-7.3 as arbitrary as well as beyond the scope and power of the authority and on similar ground as raised by the other writ petitioners.
14. Similarly, in W.P. No. 23957/1999, the Petitioner-Mother Dairy has also challenged the water bill served on the Petitioner issued on the basis of Regulation-7.3 by Bangalore Water Supply (Amendment) Regulations, 2998 to be illegal and bad as the said regulation according to it is also illegal and ultra virus and sought for quashing of the notice dated 21.01.1999 (Amendment-C) which had been issued to the Petitioner by 2nd Respondent. It may be mentioned here, that 2nd Respondent had issued the notice on 21.01.1999 asking the Petitioner to pay a sum of Rs. 5,58,600/- over and above the consumption charges being the difference. In Annexure-B, the Petitioner had given the actual consumption and the average consumption of water every year, i..e., 1996, 1997 and 1998. As mentioned earlier, Regulation-7.3 has been challenged as being ultra virus of the powers of the Board to frame the regulations as well as to be hit by Article-14 of the Constitution of India and the Petitioner had sought for refund of the excess amount collected by it.
15. Similarly, in W.P. No. 3921/1999, the Petitioners have challenged the bill – Annexure-A which according to them have been paid. The Petitioner’s case is that the letter dated 19.01.1999 (Annexure-B) the Petitioners have been required to pay a further sum of Rs. 2,12,260/- for the month of November 1998 and December 1998 on the basis of assumed minimum consumption of 20,00,000 litres of water under Regulation-7.3 as Petitioners’ building has been connected with water pipe of 150 mm size i.e., bore. The Petitioners’ case is that this bill is excessive and not in accordance with law and Regulation 7.3 by Bangalore Water Supply (Amendment) Regulations, 1998 is ultra vires of the power of the Board and is hit by Section-31 of the Bangalore Water Supply and Sewerage Act, 1964 and Articles-14 and 21 of the Constitution of India.
On notice being issued to the Respondents, the Respondents have filed the counter affidavit trying to explain why and for what purpose Regulation-7.3 by Bangalore Water Supply (Amendment) Regulations, 1998 has been framed and deemed minimum water supply doctrine has been applied under Regulation-7.3. It has also been asserted that Regulation 7.3 is intra vires of the power of the Board and is not hit by any of the provisions of the Constitution.
16. According to the Respondent’s case the monthly consumption of the Petitioners’ are higher than the minimum consumption as prescribed by Regulation 7.3. It is further stated that if the consumer does not utilize the minimum quantity of water in spite of the constant supply of water by the Board, the cost of supply will turn out to be in excess over head charges for the Board which may result in the loss of revenue. It has further been stated that the minimum quantity of water has been fixed after taking into consideration the actual monthly consumption of the existing bigger size connections and the average has been worked out by fixing only the approximate of 70 per cent average consumption and the same is proposed as minimum consumption. The Respondents asserted that the Petitioners’ are not affected by the amended regulations as their water consumption is more than the minimum prescribed. It has further been stated that to avoid hardship or injustice to genuine bulk consumers, amended Regulation No. 7.4 have also been incorporated which provides that such consumers who desires to have change of the bore to the higher or lower size than the existing connection he can opt for the same and his request for the reduced size of connection, which is suitable for his demands will certainly be considered by the Respondent-Board. The Respondents have submitted that Regulation-7.3 is not arbitrary, illegal or unconstitutional. In the counter affidavit it has been asserted that the water rates fixed by the Board are common to all the consumers and that the Petitioners’ in the instant cases are deliberately not taking the water beyond certain limits by restricting the B.W.S.S.B. water consumption by closing the valve during supply hours for obvious reasons. The Board has taken a stand that it has got power to make and amend the regulation in order to provide for administration, augmentation of its funds and other properties of the Board by virtue of the provisions of Sections 16, 31, 61 and 68 of the Act. In paragraph 11 of the additional statement of objections filed by Second and Third Respondents, it has been stated that the Board is justified in fixing the minimum under Regulation-7.3, which has been done taking into consideration the impact upon the finance and economic liability of the scheme under taken by the Board, viz., the construction of and execution of various developmental schemes and works, otherwise there is likelihood of a serious set back in the matter of supply of water. The Respondents have tried to justify the slab under Regulation-7.3 as reasonable and valid.
17. It may be mentioned here that the Petitioners’ have clearly stated that they are liable to pay the water charges for the water actually supplied and consumed and are ready to pay the same and have also paid as well, but the Board is trying to extract money for water not supplied to the Petitioners’ in other words, for assumed and deemed consumption, when the actual consumption is different, on the basis of the provisions of Regulation-7.3. The learned Counsels’ for the Petitioners’ vehemently contended that the Board is not entitled to charge any amount in excess of what the Petitioners’ are legally liable to pay for the water actually supplied, but under regulation no amount can be charged for water assumed to have supplied or deemed to have been supplied, though not the actually supplied. The Petitioners’ Counsels’ urged that charge / fee for water can be charged by the Respondent on the value of the quantity of water supplied and consumed under Section-31 of the Act. The learned Counsel contended that the use of expression “for all water supplied” payment shall be made at such rates as may be specified by regulation clearly means and indicates the liability to make payment only for and on the basis of the quantity of water supplied. The learned Counsel for the Petitioners’ also invited the attention of the Court to the provisions of Section-47 and 48 of the Act in support of their contentions and submitted that the provisions for providing of water meter to be provided and attached to the service pipe in the premises is to measure the water supply. The learned Counsels’ contend that when Section-48 provides that whenever water is supplied under this Act through a meter, it shall be presumed that the quantity of water indicated by the meter has been consumed unless contrary is proved. In view of the provisions contained in Section-31 read with Sections-47 and 48 of the Act, the learned Counsels’ for the Petitioners’ argued that the Board is only entitled to charge the payment for the actual quantity of water supplied to the consumer or the owner of the building to suffice his requirement. The learned Counsels’ for the Petitioners’ submitted that Regulation-7.3 is in conflict with Section-31 of the Act as payment is to be charged under Section 31 of the Act for the water supplied and consumed by the owner and it does not provide for payment or charges for the assumed supply of or deemed supply of water. The learned Counsels’ contend that Regulation-7.3 as such is in conflict with Section-31 of the Act. Regulation-7.3 being inconsistent with and derogation with the provisions of the Act is ultra vires of the derogated rule making power of the Board and is illegal, null and void and needs to be held. The above contentions of the learned Counsel for the Petitioners’ has hotly been contested on behalf of the Respondents.
18. Sri. T.R. Subbanna, learned Senior Counsel has contended that in view of the provisions of Section 16 and 35 of the Bangalore Water Supply and Sewerage Act, 1964 it has been open to the Respondents to provide for deemed consumption or minimum consumption on the basis of diameter of the service pipe. He placed much reliance on Sectin-35 of the Act to contend that Regulation-7.3 is not illegal, null and void of the provisions of the Act. The learned Counsel also made efforts to place reliance to Section 16 of the Bangalore Water Supply and Sewerage Act, 1864 and submitted that Section 16 confers power on the Board to levy rates, fees, rentals, and other charges from time to time in order to provide sufficient revenue to meet the expenses towards the maintenance, supply of water as well as to discharge its obligations and to make repayment of the loans.
`I have applied my mind to the above contentions advanced by the learned Counsels appearing for the parties.
19. It may be mentioned here that the Bangalore Water Supply and Sewerage Board is a public institution constituted under Section-3 of the Karnataka Act No. 36 of 1964. Karnataka Act No. 36 of 1964 has been enacted to make provisions for water supply, sewerage and sewage disposal in the Bangalore Metropolitan area and for matters connected therewith. Section-16 of the Act empowers the Board that for the purpose of carrying on its operation and discharge its obligations under the Act, if shall levy rates, fees, rentals and other charges and shall also be entitled to vary such rates, fees, rentals and other charges and shall also be entitled to vary such rates, fees, rentals and other charges etc., in order to provide funds or revenue to cover operating expenses, taxes and interest payments and to provide for adequate maintenance and depreciation, to meet repayments of loans and other borrowings, to finance normal year to year improvements, and to provide for such other purposes beneficial to the promotion of water supply and disposal of sewage in the Bangalore Metropolitan Area as the Board may determine. Section 16 of the Act is a provision which provides the general provision conferring Power on Board to make levy rates, fees, etc., and vary the same to provide sufficient revenue. But special Provision with reference to supply of water and rate of charges for water supply are contained in Chapter IV and with reference to Sewers and Sewerage as contained in Chapter V of the Act. Here in this case the question for the decision relates to water supply and charges, i.e., water charges. The provision of Section 16 is to be read with and in consonance and in harmony with special provision and it can’t be so read then, special will prevail over general.
Chapter IV of Bangalore Water Supply and Sewerage Act, 1964, which contains Section 26 to 62, deals with and makes provision for water supply and relevant thereto.
“Section 31 of the said Act, reads under: Section 31: Payment to be made for water supplied:-Notwithstanding anything contained in Section 127 or any law, contract or other instrument for all water supplied under this Act, payment shall be made at such rates, at such times and under such conditions as may be specified by regulations, and different rates may be prescribed for supply of water for different purposes”
(Provided that where an arrangement has been entered into with the Corporation under Section 149-A of the City of Bangalore Municipal Corporation Act, 1949, water shall be supplied by the Board in accordance with such arrangement to the inhabitants of the City).
A reading of this section per se reveals that it provides that notwithstanding anything contained in Section 127 or any law, contract or other instrument for all water supplied under the Act, payment shall be made at such rates, at such times and under such condition as may be specified by regulation. Section 31 of the Act makes the use of expression “for all water supplied”. This section does not use the expression water deemed or the section is very clear that liability is fasten for payment on the citizen or owner to pay for all water which is supplied to him or to his premises. Section 47 and 47 of the Act provides the mode of measurement of water supplied and presumption regarding thereto.
(i) Section 47 of the Act reads as under:
47. Power to provide meters:- (1) The Board may provide a water meter and attach the same to the service pipe in premises connected with Board water works.
(ii) The cost of meters, the expenses of the installation and the rent payable for use of meters, shall be such as may be prescribed by regulations and shall be paid by the owner of the premises).
(iii) The use, maintenance and testing of meters shall be regulated by bye-laws made in this behalf.”
Section 48 of the said Act, reads as under:
Sec. 48. Presumption as to correctness of meters:- Whenever water is supplied under this Act through a meter, it shall be presumed that the quantity indicated by the meter has been consumed until the contrary is proved”.
Section 61 of the Bangalore Water Supply and Sewerage Act, 1964 provides for framing regulations regarding the water supply and the said section reads as under:-
61: Regulations regarding water supply:- (1) The Board may with the previous approval of the State Government, make regulations to carry out the purpose of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing provisions, such regulations may provide for:-
(a) the power of the Board:-
(i) to stop the supply of water, whether for domestic purpose or not or for gratuitous use; and
(ii) to provide the sale and use of water for the purpose of business;
(b) The power of the Board to take charge of private connections;
(c) The prohibition of fraudulent and unauthorized use of water and the prohibition of tampering with meters;
(d) The licensing of plumbers and fitters, and for the compulsory employment of licensed plumbers and fitters.
(3) In making any regulation under this section, the Board may provide that a breach thereof shall be punishable with a fine which may extend to one hundred rupees and in case of continuing breach with an additional fine, which may extend to ten rupees for every day during which the breach continues after the receipt of a notice from the Board to discontinue such breach.
Sec. 61A. Bye-laws regarding water supply; Subject to the provisions of the rules and the regulations, the Board may after previous publication, make bye-laws to provide for:-
(a) the connection of water supply pipes for conveying to any premises a supply of water from Board Water Works;
(c) the power of the Board to alter the position of connections;
(d) the equitable distribution of water supplied to occupiers;
(e) the size, material, quality, description and position of the pipes and fittings to be used for the purpose of any connection with or any communication from any board, water works and the stamping of pipes and fittings and fees for such stampings.
(f) The size, material, quality and description of pipes, cisterns and fittings which are found on an examination under the provisions of the Act to be defective that their cannot be effectively repaired.
(g) the provision and maintenance of meters when water is supplied by measurement;
(h) the maintenance of pipes, cisterns and other water works;
20. A perusal of Section 31 read with Section 47 and 48 per se reveals that payment is subject to the quantity of water supplied and is to be paid at such rates, at such times and under such conditions as may be specified by regulations. Section 31 deals with and provides for payment of charges of water supply. The expression ‘supply’ in the context of Section 31 means and refers to the quantity of water supplied to a person or owner of premises’. It means the actual supply of water conveyed to the premises of the owner, lessee or occupier of the premises for use. How the quantum of water supplied is to be determined, the provision is made under Section 47. That power has been conferred on the Board to provide water meter and attach the same to the service pipe in premises connected with Board water works. Section 48 indicates that whenever water is supplied under this Act through a meter, it shall be presumed that the quantity indicated by the meter is the quantity of water to have been consumed. A reading of this section along with Section 31 leads me to hold that under Section 31 payment has to be made for the quantity of water supplied and consumed. In this sense it is water supplied and consumed as indicated or shown by the meter to have been consumed by the person concerned is to form the basis for payment at the rates of charges prescribed. Section 47 read with Section 48 of the Act does provide the clue to the interpretation of expression of ‘water supplied’ and it leads me to hold that; it does not merely mean that water which has been made available in the service pipe, but really it means that water conveyed or provided and consumed by the owner, lessee or occupier of the building/premises and as indicated and shown by the water meter consumed. Section 31 does not use the word all water supplied or water deemed to be supplied”. It uses the expression ‘all water supplied. To interpret it as to include water deemed to have been supplied would be adding some words in the section not provided or used by legislature, which is not permissible to be done in course of interpretation as per settled principles of Interpretation of Statute. Further, it may run contrary to the provisions of Section 48 even. In the case of MUNICIPAL CORPORATION OF GREATER BOMBAY Vs. M/S. NAGPAL PRINTING MILLS, BOMBAY (A.I.R. 1988 S.C. 1009), the context of Section 169(2) and 276 Bombay Municipal Corporation Act, 1988 and the Rules framed thereunder, the said question as to interpretation of expression ‘water supplied’ had arisen. Really that question had first arisen before the Division Bench of the Bombay High Court in the same case and the Division Bench of the Bombay High Court in the case of M/s. Nagpal Printing Mills, Bombay Vs. Municipal Corporation of Greater Bombay (A.I.R. 1988 BOMBAY 91) laid it down as under:-
“In our view, Section 169 does not provide for such manner of computation. The supply that is there referred to is the supply which is in fact supplied to the consumer and consumed by him. It is only that supply which can be measured. Where the measuring device has failed to record the correct consumption it may be estimated.”
The last portion of the observations to the effect that where the measuring device has failed to record the correct consumption it may be estimated. Their lordships further observed that there is no warrant for the submission that the Corporation can estimate and charge on the basis of water it makes available for use by a consumer. Section 169(2) no doubt provide the rule of determination that it may be based on measurements or estimated measurements of the quantity of water. Their lordships observed that only where the measuring device has failed to record the correct consumption it may be estimated and those circumstances are indicated in Rule 3(a). But, their lordships very clearly observed that there cannot be any estimate or assumptions or deemed supply to form the basis for levy of water charges ordinarily. The Bombay High Court ruled that the supply referred to is that the supply which in fact is made to the consumer meaning thereby that ordinarily supply refers to supply which is in fact made to the consumer and the water that has been used by him. This interpretation given by the Division Bench of the Bombay High Court has been affirmed and approved by their lordships of the Supreme Court.
In para 8 of A.I.R. 1988 SC 1009 at page 1011, their lordship of the Supreme Court laid it down and observed :-
“It appears that the ‘supply’ referred to in Section 169 of the Act is a supply which is, in fact, supplied to the consumer and consumed by it. It is only that supply which can be measured”.
Their lordship further laid down:-
‘The Corporation cannot estimate and charge on the basis of water it makes available for use by a consumer”.
21. In the case of M.R. SHANKARAPPA Vs. THE STATE OF MYSORE (Law Reports Mysore, Volume 8, 1966 p. 458) at paragraph 31, the Division Bench of this Court has observed that the levy contemplated by Section 31 of the Water Supply Act is not a tax but a fee in return for a service namely, supply of water. These rates are imposed only on those persons who are supplied with water. What the section contemplates is that the levy imposed on a person should be based on the quantity of Water supplied. The section does not contemplate the Board imposing rates for its general purposes irrespective of any supply of water to the person on whom the levy is imposed or the quantity of water supplied to him.
A reading of these decisions clearly reveals that levy of fee or charge is to be made or imposed on a person/consumer on the basis of the quantity of water supplied. It further lays down that imposition of rate or fee for water supplied the section does not contemplate that it can be imposed for its general purposes irrespective of any supply of water to the person on whom the levy is imposed or the quantity of water supplied to him. The Division Bench decision of this Court is very clear on this aspect of the matter. These decisions appeared to support my view which I have expressed above in the context of Sections 31, 47 and 48 of the Act.
Section 31 of the Act, confers power on the Board to determine the rates and period when it will be paid etc., and that can be done by framing the regulations. So the power is given to the Board to prescribe rates and it empowers different rates may be prescribed for supply of water for different purposes. Under Secttion 61 of the Act, the Board is empowered with the previous approval of the State Government, make regulations for the purpose of Chapter IV which contains the provisions of Section 31. No doubt, admittedly the Board had framed the regulation with respect to the rate of water supply vide Regulation 36 of Bangalore Water Supply Regulation, 1965. There is no dispute in the present cases with respect to the rates as prescribed under Regulation 36 of the Bangalore Water Supply Regulations, 1965. The question that has been raised in these writ petitions is whether it is open to the Board to frame the regulations or Regulation 7.3 – which does not fix or determine the rates, but which provides for deemed and assumed consumption (supply on the basis of the diameter of the pipe line or size of the bore irrespective of the actual consumption indicted or shown by the water meter. I am of the view that Section 31 per se provides the basis for charges for water and rates are prescribed only to determine the fee or charges to be paid for the quantity of water actually supplied to the consumers and consumed and as recorded in the water meters. The section does not appear to contain any provision for deemed supply of water’ or ‘assumed supply of water’ to the consumes under Section 31, nor dos it appear to contain a provision as Section 169(1)(ii) of the Bombay Municipal Corporation Act. Section 169 as quoted in the Bombay case reads as follows:
“169(1) Notwithstanding anything contained in Section 128, the Standing Committee shall, from time to time, make such rules as shall be necessary for supply of water and for charging for the supply of water and for any fittings, fixtures or service rendered by the Corporation under Chapter X and shall by such rules determine:-
(ii) a water charge in lieu of a water tax based on a measurement or estimated measurement of the quantity of water supplied……”
No such provision as clause (ii) of 169(i) of Bombay Act has been brought to my notice by the learned Counsel appearing for the Respondents which can be said to provide for or to empower the Board to frame the rule for applying the doctrine of estimated measurement of quantity of water supplied or deemed supply. In the present cases, the Bangalore Water Supply and Sewerage Act, 1964, provides for the payment of charges at the rates prescribed for all water supplied by the Board and consumed by the consumer as indicated by the water meters and the meter reading or the quantity indicated by the meter, is presumed to be the quantity of water supplied and consumed.
22. The learned Counsel for the Respondents vehemently contended that under Section 16, the Board has put power to levy rates, fees, rentals and other charges and can vary such rates, fees, rentals and other charges from time to time in order to provide sufficient revenue for the purpose indicated. This section cannot be read in isolation and Section 31 of the Act is specific. When Section 31 indicates the criteria on the basis of which fees, rentals etc., may be levied and collected from the citizens and consumers the power of Water Board to levy rates, fees, rentals and other charges in respect of the water supplied is deemed to be controlled by the provisions of Section 31 itself which is special provision, and it is clear in language. The noncombatant clause used in Section 31 further leads to the conclusion that payment or levy of charge of fee has ‘to be based on the actual quantity of water supplied’ on the rates prescribed under Regulation 36 of the Bangalore Water Supply Regulation, 1969 and the Board cannot for augmenting its funds only levy rates, fees, rentals and other charges otherwise than in accordance with law. No doubt, it has got power to revise the rates. Section 35 which has been referred to by the learned Counsel for the Respondents is not at all helpful to the Respondents. This is a provision which provides that for any purpose other than a domestic purpose an application is to be made specifying the purpose for which the water is required and the quantity of water required or likely to be consumed and then the Chief Engineer may, with the sanction of the Board supply water and for that purpose Sub-section (2) of Section 35 provides that subject to such charges and rates as may be fixed by the regulations, Board may allow to be laid the necessary pipes and water fittings of such dimensions and description as may be prescribed by the regulation and may arrange for the supply of water through such pipes and fittings. This section does not appear to lay down any such thing as contended by Sri. T.R. Subbana, learned Senior Counsel appearing on behalf of the Respondents. Thus, it appears that a citizen or a person can be compelled to pay fees, charges, rentals etc., for only that much quantity of water supplied to him and consumed by him as indicated by the water meter. I mean to say the actual supply of water to a consumer and consumed by him. There is no provision in the Act, authorizing levy rates, fees, rental and other charges on the basis of the estimated measurement of water supply. Or on the basis of deemed supply of water-and not the actual supply of water-on the basis of diameter or size of the bore. Section 61 only confers power to fix the rates and to frame the regulation for the purpose. It does not empower the Board to levy or charge on the basis of or for the estimated or deemed supply or consumption of water.
23. Thus, considered I am of the opinion that Regulation 7.3 of the Bangalore Water Supply (Amendment) Regulations, 1998, is beyond the scope of regulation making power of the Board and it runs in conflict with the scheme of Section 31, 47 and 48 of the Bangalore Water supply and Sewerage Act, 1964, as well as it is in excess of the power conferred on the Board to make the regulations. Thus, I am of the considered view that contentions of the learned Counsel for the Petitioners have got much substance and Regulation 7.3 of the Bangalore Water Supply Regulations 1965 as inserted by the Bangalore Water Supply (Amendment) Regulations, 1998, is held to be ultra vires as being in excess of the delegated regulations power, i..e, regulation making power conferred on the Board under Section 61 of the Act read with sections 31, 47 and 48 of the Act and as it appears to run or to contain a provision which in derogation of Sections 31, 47 and 48 of the Act.
24. The decision reported in the case of SOUTH DEVON WATER BOARD Vs. GIBSON (All England Law Reports, 1955, Vol. 2 p. 813) is not of much assistance to the case of the Respondents. When the law on this subject is clear and has been clearly laid down by the Supreme Court, as well as by the Division Bench of this Court in M.R. Shankarappa Vs. The State of Mysore (L.R. Mysore Vol.. 8 1966 p.458) and no decision to the contrary has been shown, Regulation 7.3 of the Bangalore Water Supply Regulation as inserted by the Bangalore Water Supply (Amendment) Regulations, 1998, has to be and is held to be ultra vires, illegal, null and void on account of its having been framed in excess of the rule/regulation making power of the Board as well as being in conflict with provisions of Sections 31, 47 and 48 of the Act. All the writ petitions have to be and are hereby allowed.
The Respondents are hereby restrained from realizing any amount or money on the basis of the deemed or assumed consumption of water under Regulation 7.3 of the Bangalore water Supply Regulaiton 1965 as introduced by the Bangalore Water Supply (Amendment) Regulations, 1998, but it shall levy rates, fees, rentals and otter charges only for the actual quantity of water supplied as per Section 47 and 48 of the Act to the Petitioners on rates as prescribed under Regulation 36 of the Bangalore Water Supply Regulations, 1965.
The Respondents are further directed not to insist upon the Petitioners to pay any fees, or charge for supply of water otherwise than the quantity of water actually supplied and consumed and as indicated or shown in the water meter.
Further, the Respondents are directed that if any sum or amount as already been realized by the Board from the Petitioners any or each of them on the basis of Regulation 7.3 and that amount is really in excess of fee or charge for the water actually supplied and consumed adjustment of that excess amount, if any, paid by the Petitioners or any of them shall be made in the future bills of the Petitioners or the Petitioner concerned so desired and prayed by him.
The writ petitions, as such, are hereby allowed as stated above and costs made easy.