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PETITIONER: MUNICIPAL CORPORATION OF GREATER BOMBAY

       Vs.

RESPONDENT: BOMBAY TYRES INTERNATIONAL LTD. & ORS.

DATE OF JUDGMENT:       27/03/1998

BENCH: K.T. THOMAS S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. RAJENDRA BABU. J. C.A. 1179/94 & SLPS (C) Nos. 15507/87. 853/88 and 14587/87.      In SLPs leave granted.      In this  batch of  cases, the  appellant  is  Municipal Corporation of  Greater Bombay, which has made provision for Water Charges  by framing  appropriate  Rules  and  Bye-laws pursuant to  Section 141  and  Section  169  of  the  Bombay Municipal  Corporation   Act,  1888.   The  scope  of  these provision was considered in Municipal Corporation of Greater Bombay, vs., Nagpal Printing Mills & Anr. 1988 (3) SCR, 274, by this  Court and  the view  of the  Bombay High Court that Rule III  (d) (i)  to be  invalid and beyond the rule making power Corporation  was upheld.  It was  made clear  by  this Court in  the said  decision that the said provisions of the Act would  empower the  Corporation to  levy charge  only in respect of  water that  has in  fact been  supplied  to  and consumed by the consumer and it is to be levied on the basis of measurement  or estimated measurement. It is also noticed that an  estimated amount  could be  fixed on  the basis  of sound guidelines  and the power given to the Commissioner to fix a  gupta  has  no  guidelines.  On  the  basis  of  this decision,  the  High  Court  disposed  of  several  matters. Challenging the correctness of those decisions these appeals have been  preferred before  this Court  contending that the decision in  Nagpal’s case  required reconsideration and the provision  of   the  Municipal  Corporation  Act  considered earlier have  been relied upon to contend that the appellant has  competence   to  frame  Rule  III  (d)  (i)  while  the respondents have  reiterated the  view expressed in Nagpal’s case. On  hearing this aspect, a Bench of two learned Judges referred this  matter to a larger Bench for consideration on the correct  scope of the provisions that were considered in Nagpal’s case. Thus the matter is before us.      We do  not think there is any good reason to reconsider the decision  in Nagpal’s case. The view taken by this Court in Nagpal’s  case is  a plausible  on and  subsequently that Rule having  been deleted  is now replaced by a new rule. We respectfully follow  the view  expressed by  this  Court  in Nagpal’s case and uphold the order made by the High Court.

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    However, Shri  S.K. Dholakia,  learned Senior  Advocate for the  appellant submitted that at any rate this Court had not occasion  to examine  the scope  of the quota rule, and, therefore tit  need not  have made  the observations  to the following effect:-      "The bye-laws  made  in  1968  here      empower the  Commissioner to  fix a      quota.   But    no   guideline   in      indicated.   That    is   bad   and      unwarranted. This  aspect   also  need   not   be   re-examined   because subsequently by  the rules  framed in 1994 the definition of quota has been altered and whether this present rule answers the objections  noticed by  this Court  in Nagpal’s decision need not  be examined  as the  new Rules are not in question before us.      The  High   court  having  allowed  the  petitions  has directed the  refund of  the amounts  with certain  rates of interest and  if those amounts have already been refunded to the parties  concerned, we  do not  think it  appropriate to allow the  appellants to  recover such amounts again but if, however,  such  amounts  have  not  been  refunded  and  are retained by  the  Corporation,  such  amount  shall  not  be refunded. We  are making  this order  being conscious of the fact that  the rule  had been  struck down not on the ground that it was incompetent to frame such Rule but on account of clear provisions not having been framed. Further, we are not sure in  the absence  of investigation  as  to  whether  the respondents had  included  in  their  prices  structure  the amounts paid  to the  Corporation  pursuant  to  the  demand raised under  the invalidated  rules and  whether the burden had been passed on  to the consumers, in which event it will be wholly  inequitable to  allow respondents  to claim  such amounts back from the Corporation.      We, therefore,  partly allow  appeals  to  the  limited extent to  allowing the  appellants to  remain  amounts  not refunded to  the respondents,  at the  same time  making  it clear that they shall not recover any amount on the basis of demands  arising  under  the  invalidated  rules.  In  other respects, appeal  stands dismissed.  Ordered accordingly, No costs. Special Leave Petition (C) 9620/95      The petitioner  had claimed  for refund  of amount in a writ petition  filed under  Article 226 of the Constitution. The petitioner  is running a mill and consumes water. In the writ petition  filed on  20th January,  1989, the petitioner sought  for   refund  of  the  amounts  in  respect  of  the consumption of  for the  period commencing  from March 1984, ending with  May 1985,  September, 1979, ending with January 1978. January 1976, ending with June 1987. On the basis that water charges were recovered without authority of law as the Rules relevant  thereto had been nullified by the High Court and upheld by this Court in Municipal Corporation of Greater Bombay vs.  Nagpal Printing Mills., & Anr,. SCR 1988(3) 274, the petitioner  contended that  the Corporation was bound to refund said  amounts and  when such  a claim  had been  made before the  Corporation,  the  same  had  been  rejected  on imperishable grounds.      The learned  Single Judge  who  disposed  of  the  writ petition held that the petition does suffer from undue delay and consequently the claim to refund from vice of laches but in spite  of such laches, relief could be granted in respect of a  period prior to three years from the date of filing of the petition in respect of the charges paid from January 28, 1986 onwards  and directed  the Corporation  to compute  the

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said amount  and refund  the same. On appeal to the Division Bench the  Bombay High  Court took  the view that the relief granted by  the learned Single Judge could not be sustained. The reasoning adopted by the High Court is that the rule was struck down  by the  High Court  is that the rule was struck down by  the Division  Bench  of  the  High  Court  on  16th September, 1987  which was subsequently upheld by this Court on 17th March, 1988. The application for the refund had been made on October 23. 29+ ad writ petition had been filed only on January  11. 1990,  long after  the last  charges paid in December, 1986. In those circumstances, the Court was of the view that there were laches on the part of the petitioner in making the claim.      Attacking this  finding, the  learned counsel  for  the petitioner relied  upon  the  decisions  of  this  Court  in Salghah Tex  Company Ltd. vs. Superintended of Taxes Nowgong & Ors. etc. 1988 (2) SCR 474, and Mahabir Kishore & Ors, vs. State of Madhya Pradesh 1989 (3) SCR 596, and submitted that levy of  water charges  itself being illegal, the recoveries made pursuant  to that  provision could  not be retained but refunded in  which event  and principles  of  limitation  or laches would  not apply.  This  is  not  a  case  where  the provision of  the rule  which  enabled  the  levy  of  water charges  was   struck  down   on  the  ground  that  it  was incompetent out  on a  ground that such rule had been framed inarticulately and  was not  clear enough.  Payments made by the petitioner  should be  treated as  having been  made  by mistake but  once a  declaration of law had been made by the Bombay High  Court on  16th September,  1987, it was open to the petitioner  to claim  for recoveries and the same should have been  made within  a reasonable  time  thereafter.,  On ascertaining what  is reasonable  time for  claiming refund, the courts have often taken note of the period of limitation prescribed under the general Law of Limitation for filing of suits for  recovery of  amount due  to them.  In the present case also  that standard  adopted by  the High  Court is the same in  ascertaining whether  there has  been laches on the part of the appellant in seeking relief in due time or  not. The finding  clearly recorded is that long after the charges had been  paid and  law had  been declared by the Court, the writ petition  has been  filed and, therefore, such a refund should not  be allowed. We do not think such a view taken by the High  Court calls  for interference under Article 136 of the Constitution. Hence we dismiss the petition.