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High Court Of Calcutta
Soumitra Pal
ASHWIN PROPERTIES PVT.LTD - Appellant
Versus
CALCUTTA MUNICIPAL CORPORATION - Respondent
W. P. 2021 Of 2000
Decided On : 09/03/2004
WATER SUPPLY - CUT OFF - DOMESTIC PURPOSE - NON-DOMESTIC USE - POWER OF MUNICIPAL COMMISSIONER - SECTIONS 238, 271, 275 OF THE CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - INTERPRETATION - The Calcutta Municipal Corporation Act, 1980 empowers the Municipal Commissioner to turn off supply of water to premises if the occupier contravenes the provisions of section 238 of the Act, which prohibits the use of water supplied for domestic purposes for any other purposes.
Fact of the Case:
The petitioner, the owner of a building housing offices, received notices from the Calcutta Municipal Corporation alleging that water supplied for domestic purposes was being used for non-domestic purposes in contravention of section 238 of the Calcutta Municipal Corporation Act, 1980. The petitioner replied to the notices denying the allegations. Despite the replies, the Corporation disconnected the water supply to the premises under section 275 (1) (C) of the Act.
Finding of the Court:
The court held that the Municipal Commissioner was justified in issuing the notices and disconnecting the water supply as the petitioner was using water supplied for domestic purposes for non-domestic purposes in contravention of section 238 of the Act. The court found that section 275 of the Act, which empowers the Municipal Commissioner to turn off supply of water, contains a non-obstante clause that gives overriding power to the Municipal Commissioner to take such action without resorting to the principles of audi alteram partem.
Issues: 1. Whether the Municipal Commissioner had the power to turn off the water supply without a hearing under section 275 of the Calcutta Municipal Corporation Act, 1980? 2. Whether the petitioner was using water supplied for domestic purposes for non-domestic purposes in contravention of section 238 of the Act?
Ratio Decidendi: 1. The non-obstante clause in section 275 of the Calcutta Municipal Corporation Act, 1980 gives overriding power to the Municipal Commissioner to turn off supply of water on the premises if there is a contravention of section 238 of the Act. 2. The petitioner was using water supplied for domestic purposes for non-domestic purposes in contravention of section 238 of the Act, as the building housed offices and came under the purview of section 390 (2) (e) of the Act.
Final Decision: The writ petition was dismissed and the interim order passed on 31. 8. 2000 was vacated. The court clarified that it had not gone into the other issues relating to the bills and the existence of the ferrules as the same were not the subject-matters of the writ petition.
( 2 ) THEREAFTER the Corporation issued another notice on 4. 5. 2000 under section 238 of the Act, having identical number, whereby the petitioner was requested to comply with the requisition contained in the notice dated 24. 4. 2000 within a week since it was not complied, otherwise filtered water connection to the premises might be cut off for non-compliance of the notice. The petitioner replied to the said notice dated 4. 5. 2000 intimating that compliance has been made by the petitioner.
( 3 ) ACCORDING to the petitioners, on 11. 8. 2000 the Calcutta Municipal corporation (for short "the Corporation") cut off the water supply of the said premises, illegally and without providing any opportunity of hearing. It has been contended that the petitioners and the tenants pay fees for the supply of water and the allegation of infringement of section 238 made by the Corporation is unsustainable. Since, the building was constructed long ago, and as the corporation collected fees from each of the tenants for the supply of water, the question of contravention of the provisions of sections 238 and 271 of the Act did not arise. It was stated that penal provisions under section 275 of the Act can be only invoked under certain circumstances mentioned therein. Since the notices did not disclose any ground for violation of section 238 of the Act, petitioners should have been given a hearing before disconnection of supply of water. Being aggrieved by the said notices and the disconnection of water supply, the petitioners moved the writ petition on 31. 8. 2000. Directions were issued to file the affidavit-in-opposition and the affidavit-in-reply. Affidavits have since been exchanged. Pursuant to directions, the supply of water was restored on certain terms.
( 4 ) THE writ petition was moved seeking certain reliefs which are as follows: " (a) A declaration that section 238 (2) (i) and section 390 (2) as amended are ultra vires the Constitution of India; (b) A writ in the nature of Mandamus and/or order or orders and/or direction or directions of like nature commanding the respondents to forthwith restore supply of water to premises No. 11, Pollock Street, calcutta - 700 001 and to withdraw, recall and cancel and/or set aside the decision to disconnect water supply to the said premises. (c) A writ in the nature of Mandamus and/or an order or orders and/or direction or directions of like nature commanding the respondents to cancel, rescind and withdraw the notices/letters dated 24th April, 2000 and 4th May, 2000 being annexure to this petition and/or not to give any effect or further effect to the said notices/letters in manner whatsoever; (d) A writ in the nature of Certiorari and/or an order or orders and/or direction or directions of like nature commanding the respondents to certify and transmit the records relatin
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