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PETITIONER: MUNICIPAL CORPORATION OF GREATER BOMBAY

       Vs.

RESPONDENT: NAGPAL PRINTING MILLS & ANR.

DATE OF JUDGMENT17/03/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR 1009            1988 SCR  (3) 274  1988 SCC  (2) 466        JT 1988 (2)    11  1988 SCALE  (1)625

ACT:      Bombay Municipal  Corporation Act,  1888: ss. 169, 276, 277 and  461/Water Charges  and  Sewerage  &  Waste  Removal Rules, 1976: Rule III(d)(i)-Water-Supply of-Determination of water charges-Corporation  empowered to  levy charge only in respect  of   water  actually   supplied  and  consumed-Rule III(d)(i) containing  no  methodology  for  measuring  water supplied-Held beyond rule making power of Corporation.

HEADNOTE: %      Section 169  of the  Bombay Municipal  Corporation Act, 1888 empowers the Standing Committee to make rules to charge for the  supply of  water and by such rules to determine the water charges in lieu of water tax based on a measurement or estimated measurement  of the  quantity of  water  supplied. Section 276 provides for fixing of meters for measurement of water supplied  and maintaining  the instruments  in  proper order. Bye-laws  framed under  s. 461  in 1968 empowered the Commissioner to  fix a  quota. Rule  III(d)(i) of  the Water Charges and  Sewerage and  Waste  Removal  Rules  framed  in exercise of  the powers  given by ss. 169 and 276 of the Act which became effective in 1976 provided for charging for the shortfall between  the quota and the recorded consumption in respect of industries for which a quota has been fixed.      The respondents were being charged for water upto June, 1977 on the basis of their actual consumption. In July, 1977 they were sought to be billed for the difference between the charges on  the quota  basis under  the said  rule  and  the actual consumption  basis, which  was  objected  to  by  the respondents. The  writ petition  filed by  them in  the High Court was rejected by a single Judge.      In appeal  before the  Division Bench  it was contended that the  Rule lII(d)(i)  of the  Rules was  ultra vires the rule-making  power   of  the   Standing  Committee   of  the Corporation being  inconsistent with  s. 169 of the Act. The High Court held that s. 169 empowers the Corporation to levy charge only  in respect  of the  water that has in fact been supplied 274 275 to and  consumed by  the consumer  and it is to be levied on

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the basis  of  measurement  or  estimated  measurement,  and struck down the rule.      Dismissing the  special leave  petition  filed  by  the Municipal Corporation, ^      HELD: There  being no  methodology in Rule IlI(d)(i) of the Water  Charges Rules  for  measuring  the  actual  water supplied, that rule is beyond the powers of the Corporation. The High  Court, was,  therefore, right in striking it down. [278H; 279A]      The Corporation cannot estimate and charge on the basis of water  it makes  available for  use by  a  consumer.  The supply referred  to in  s. 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.  Where  the measuring  device   has  failed   to  record   the   correct consumption it might be estimated. But that must be on sound guidelines otherwise  it would  be arbitrary  and mere  ipse dixit of the authorities concerned. [278D-E]      The by-laws made in 1968 empowering the Commissioner to fix a  quota do not indicate any guidelines. That is bad and unwarranted. [278E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (C) No. 13154 of 1987.      From the  Judgment and  order dated  16.9.1987  of  the Bombay High Court in Appeal No. 425 of 1981 .      R.P. Bhatt and D.N. Mishra for the Petitioner.      Shri  Narain   and  Mrs.   M.   Karanjawala   for   the Respondents.      The following Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  petition  for  leave  to appeal under  Article 136  of the  Constitution is  directed against the  Judgment and order of the Division Bench of the High  Court   of  Bombay,  dated  September  16,  1987.  The respondents were  in the  business of dyeing and printing at Industrial Estate, Kandivali, Bombay. They had originally an 1/2 inch  water connection  in their  premises. In 1971 they had applied  to the Municipal Corporation of Greater Bombay, for a larger 276 water connection.  In 1975  they were  given  an  11/2  inch connection.  It   appears  that  on  24th  September,  1975, according to the Corporation, it fixed a water quota for the respondents in  the figure  of 27,18,000  litres per  month. This was, however, disputed by the respondents. But the High Court proceeded upon the basis that this was the water quota fixed for them.      Water Charges  and Sewerage  and Waste Removal Rules of the Greater  Bombay became  effective from  1st April, 1976. These Rules  were framed  in exercise of the powers given by sections 169  and 276  of the  Bombay Municipal  Corporation Act, 1888  (hereinafter called  ’the Act’).  Rule  III(d)(i) provides as follows:           "(d)(i) In case of industries for which a quota of           water has  been fixed, if the recorded or computed           consumption falls  short of 9/10th of the quota of           water for any month, a consumption equal to 9/10th           of the quota of water shall be charged. "      It appears,  upto June,  1977 water  charge bills  were sent to  the  respondents  on  the  basis  of  their  actual consumption.  In   July,  1977   the  respondents   received

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supplementary bills for the difference between the charge on the  quota   basis  under  the  said  rule  and  the  actual consumption basis.  This was objected to by the respondents. The respondents  contended that  though they  had kept their taps open  for the  full 24  hours of the day, water was not available to  make up  anywhere near  the  quantity  of  the quota. The  respondents asserted  that the  Corporation  had agreed to verify this. The Corporation threatened to cut off the respondents’  water supply. The respondents filed a writ petition in  the  High  Court  of  Bombay  to  restrain  the Corporation from doing so.      The learned  Single Judge  of the  High Court  found no substance in  the case  of the  respondents. Rule  nisi was, therefore, discharged.  The respondents  went up  in  appeal before the Division Bench.      It was contended that the said rule was ultra vires the rule-making  power   of  the   Standing  Committee   of  the Corporation being  inconsistent with section 169 of the Act. It was  further urged  that  the  Corporation  was,  in  the meanwhile, not  justified in  charging on  the basis  of the quota because  it was  in no position to supply the quantity of water fixed. It was also urged that the said rule did not provide any  guideline in respect of the industries to which it was  to be  applied and  as to  how the  quota was  to be fixed. Section 169 of the Act provides as follows: 277      "169.(1) Notwithstanding  anything contained in section      A 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  services  rendered  by  the      Corporation under  Chapter X  and shall  by such  rules      determine-      (i)  X X X      (ii) a water  charge in lieu of a water tax, based on a           measurement  of   estimated  measurement   of  the           quantity of water supplied; . . ." Sections 276 and 277 provide as follows:      "276.(1) Where  water is  supplied by  measurement, the      Commissioner may  either provide a meter and charge the      consumer for  the same  such rent as shall from time to      time be  prescribed in  this  behalf  by  the  standing      committee, or  may permit  the consumer  to  provide  a      meter of his own of such size, material and description      as the Commissioner shall approve for this purpose:      (Provided that  if such  consumer is an occupier of any      premises, he  shall not  be provided  with a  meter  or      permitted to  provide himself  with a meter of his own,      unless he  complies with  such  conditions  as  may  be      prescribed by the Commissioner).      (2) The Commissioner shall at all times keep all meters      and other  instruments for  measuring water, let by him      for hire  to any  person, in proper order for correctly      registering the  supply of water, and in default of his      so doing  such person  shall not  be liable to pay rent      for  the   same  during   such  time  as  such  default      continues.      277.  Where  water  is  supplied  by  measurement,  the      register of the meter or other instrument for measuring      water shall  be prima  facie evidence  of the  quantity      consumed."      It may  be  mentioned  that  section  461  of  the  Act empowers the  Corporation to  make byelaws, not inconsistent with  the   Act,  for  regulating  all  matters  and  things connected with the supply and use of

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278 water. It  further appears  that by  an amendment  in  1968, byelaws  framed   under  section   461(a)  and  (b)  empower regulating all  matters and things connected with the supply and use of water, and is defined to mean maximum quantity of water any  consumer or  class of  consumers is  entitled  to receive. It  is to  be fixed by the Municipal Corporation by order on  the basis  of an assessment of the requirement. It further stipulates  that no  consumer in  respect of whom an order has  been made,  may consume  water in  excess of such quantity.      The High Court held that the rule was framed, in terms, in exercise  of the  powers given  by sections  169 and 276. Section 169  specifically empowers the Standing Committee to make rules  to charge  for the  supply of  water and by such rules to determine the water charges "based on a measurement or estimated measurement of the quantity of water supplied." The High  Court has  emphasised the  past tense  of the word "supply", which is important and refers to something already done. We are in agreement with the High Court’s view that it empowers 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. This  has been  conferred by  the terms of  Section 277  of the  Act. It  is only  that supply which can be measured. Where the measuring device has failed to record  the correct consumption, it may be estimated. But that must  be on  sound guidelines  otherwise  it  would  be arbitrary and  mere ipse dixit of the authorities concerned. The bye-laws  made in  1968 here empower the Commissioner to fix a  quota. But no guideline is indicated. That is bad and unwarranted.      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. We  are in  agreement with  the High Court that where  the measuring  device has  failed to  record the correct consumption,  it may be estimated. The circumstances m which  the measuring  device could be said to have failed, the modes  of estimation  in such circumstances are provided for by  rule lII(a), (b) and (c) of the Water Charges Rules. The Corporation  can not estimate and charge on the basis of water it  makes available for use by a consumer. There is no warrant for such a construction.      Therefore, there  being  no  methodology  in  Rule  III (d)(i) of  the Water  Charges Rules for measuring the actual water  supply,  that  rule  is  beyond  the  powers  of  the Corporation. The High Court was, there 279 fore, right  in striking down the Rule III(d)(i) of the said Rules as  effective from  1st April,  1976. If  there is  no supply, the question of measurement cannot arise by estimate or otherwise.      There  is   no  ground   to  interfere.  The  petition, therefore, fails and is dismissed. P.S.S.                              Petition dismissed. 280