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SUPREME COURT OF INDIA
B.R. GAVAI, VIKRAM NATH, JJ.
Trust Estate Khimji Keshawji & Anr. – Appellants
Versus
The Kolkata Municipal Corporation & Ors. – Respondents
Civil Appeal No. 4230 Of 2023, Arising out of SLP (C) No. 4150 Of 2021
Decided On : 05-07-2023
Water Supply - Kolkata Municipal Corporation Act, 1980 - Section 238, Section 271, Section 234, Section 234A, Section 235, Section 272, Section 275 - The court found that the notice under Section 238/271 of the Act was vague and non-speaking, and therefore quashed. It held that the use of wholesome water for non-domestic purposes was permitted under Section 272(4) of the Act, and the trade licenses issued by the KMC permitted such use. The court also emphasized that the Corporation should have given notice to the occupiers before cutting off the water supply, and that the impugned notice could not be sustained in the absence of supply of unfiltered water in the area.
Fact of the Case:
The Kolkata Municipal Corporation issued a notice to the appellant for contravening Section 238 of the Kolkata Municipal Corporation Act, 1980 by using water supplied for domestic purpose for non-domestic purposes. The appellant challenged the notice in a writ petition, arguing that the notice was vague and non-speaking, and that the use of wholesome water for non-domestic purposes was permitted under the Act. The Single Judge held the notice to be valid but granted the appellant liberty to seek necessary permission for non-domestic use of water. The Division Bench affirmed the Single Judge's decision.
Finding of the Court:
The court found that the notice under Section 238/271 of the Act was vague and non-speaking, and therefore quashed. It held that the use of wholesome water for non-domestic purposes was permitted under Section 272(4) of the Act, and the trade licenses issued by the KMC permitted such use. The court also emphasized that the Corporation should have given notice to the occupiers before cutting off the water supply, and that the impugned notice could not be sustained in the absence of supply of unfiltered water in the area.
Issues: Validity of notice under Section 238/271 of the Act, permissibility of using wholesome water for non-domestic purposes, requirement of notice to occupiers before cutting off water supply
Ratio Decidendi: The notice under Section 238/271 of the Act was vague and non-speaking, and therefore quashed. The use of wholesome water for non-domestic purposes was permitted under Section 272(4) of the Act, and the trade licenses issued by the KMC permitted such use. The Corporation should have given notice to the occupiers before cutting off the water supply, and the impugned notice could not be sustained in the absence of supply of unfiltered water in the area.
Final Decision: The Appeal was allowed, and the impugned judgment and orders passed by the Division Bench of the High Court and the learned Single Judge were set aside. The writ petition succeeded, and the impugned notices were quashed.
JUDGMENT :
(Vikram Nath, J.)
Leave granted.
2. This appeal assails the correctness of judgment and order dated 19.11.2019 passed by Division Bench of Calcutta High Court whereby intra court appeal preferred by appellant was dismissed affirming the judgment and order dated 07.05.2012 passed by learned Single Judge disposing off the writ petition of the appellant with directions.
3. Facts giving rise to the present appeal are summarized hereunder:
3.1. Notice dated 22.08.2008 was issued by Kolkata Municipal Corporation1[In short “KMC”], under Sections 238 and 271 of the Kolkata Municipal Corporation Act, 19802[In short “the Act”]. The said notice was addressed to the appellant describing it as owner or occupier of premises No.30, C.R. Avenue, Kolkata. It stated that appellant had contravened Section 238 of the Act by using water supplied for domestic purpose, for purposes other than domestic; that there was no permission under Section 271 of the Act for using water supplied for domestic purposes for any other purpose; that such unauthorised use is a punishable offence under Section 610 of the Act making the appellant liable for prosecution; and that if the said contravention is not stopped immediately, the water connection would be cut off under Section 275(1)(c) of the Act. The said notice is reproduced hereunder:
THE KOLKATA MUNICIPAL CORPORATION
Water Supply Department
(Notice to desist from contravening Section 238 & 271 of C.M.C. Act, 1980)
Notice No…..018
Section/Ward….G/47
Dated…..22.08.08
To
Estate Khimji Keshawji
The Owner or Occupier of the
Premises No.30, C.R. Avenue
It has been brought to the notice of the undersigned that in contravention of the provision of Section 238 of the C.M.C. Act, of 1980 (W.B. Act LIX of 1980) the water supplied for domestic purpose in the premises no.30, C.R. Avenue, Ward No.47 is being used/and or allowed to be used for purposes other than domestic in the premises viz. Business & Office.
Please note that under the provision of Section 271 of the C.M.C. Act, 1980 no person shall, without the written permission of the Municipal Commissioner use or allow to be used water supplied for domestic purposes, for any other purposes. Besides, the unauthorised use is a punishable offence under Section 610 of the C.M.C. Act, 1980 and you may be liable to prosecution.
The undersigned as such, require you forthwith desist from using or allowing to be used water supplied to the premises no.30, C.R. Avenue, Ward No.47 for any purpose other than domestic purpose, failing which the water connection would be cut off or the supply of water thereto would be turned off under the provision of Section 275 (1) (c) of the Act, without any further reference.
| Sd/- | Sd/- | Sd/- |
| Asst. Engineer | SAE,W.S./G | Exec.Engineer |
| Section ‘G’ | Water Supply(C) |
C.P.-67 – 28-10-06-5,000
Dated 22.08.2008”
3.2. It would also be relevant to state that another notice of even date was issued for contravention of Section 258 read with Section 558 of the Act calling upon the appellant to immediately remedy the fault in the supply line failing which KMC would itself carry out the repair work and recover its expenses from appellant. It further warned the appellant that supply could be turned off or cut off under provisions of Section 275(1)(f) & (i) of the Act.
3.3. Proceedings with respect to the notice under Section 258 of the Act came to an end as repair work was carried out by appellant to the satisfaction of KMC. As such only issue which survives for consideration is the validity of notice under Section 238/271 of the Act.
3.4. The appellant preferred writ petition before the High Court registered as WP No.1414 of 2008 challenging the notice under Section 238/271 of the Act. In the said petition it was stated that appellant was owner of the said premises which comprised of ground floor and six floors. Apart from the top f
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