A corporation is not entitled to claim any tax, fees, etc. at the rate specified in the budget estimate unless the Act, Rules, or Regulations recognizes such a rate to be one fixed by law.

BHASKAR BHATTACHARYA, J.

1. By this writ application, the writ petitioners have prayed for direction upon the Kolkata Municipal Corporation to forthwith install water meter in the petitioners' premises and further for setting aside the notice of demand dated September 18, 1996 issued by the respondent no.3 being Annexure D to the instant writ application.

2. The case made out by the writ petitioners may be summarised thus:-

3. The petitioner no.1 in the year 1989 made an application before the Corporation for supplying water to its factory premises for non-domestic purpose. The respondents issued a bill asking the petitioner no.1 to deposit a sum of Rs. 1,000/- towards water connection fee, Rs. 50/- towards road opening fee and a further amount of Rs. 125/- as meter rent. On compliance of such requirements, the respondents gave the water connection to the petitioner no.1 through a 19.05 mm. ferrule. The petitioners complain that although installation of water supply was made in the year 1989 but till the date of filing of the writ application no meter had been fixed. All on a sudden, the respondents issued a demand notice dated September 18, 1996 asking the petitioners to pay a sum of Rs. 76,079/- being water charges. In the said demand notice, a sum of Rs. 59,279/- was described as charges towards arrears and Rs. 16,800/- as water charges for the period from April 1, 1996 to March 31, 1997. According to the petitioners, the Corporation has not disclosed the basis of charging water fees nor has it mentioned about the period of arrears.

4. The petitioners thus prayed for direction upon the Corporation to provide a water meter and attach the same to the supply pipe of the premises as provided in section 262 of the Kolkata Municipal Corporation Act, 1980 (Act) and also for setting aside Annexure D.

5. The aforesaid application has been opposed by the Corporation by filing affidavit-in-opposition. In the affidavit-in-opposition, it has been alleged that water charges are determined on the basis of size of ferrule supplied to the premises as per relevant provision of the Act and in the said affidavit-in-opposition the respondent has disclosed the total amount due and payable by the petitioner from May 21, 1989 to March 31, 1997. It is asserted in the affidavit that although total amount due and payable was Rs. 1,22,401/-, in the demand notice, a lesser amount was claimed through mistake.

6. Mr. Chatterjee, the learned counsel appearing on behalf of the petitioners in this connection has relied upon the provision contained in section 239 of the Act as it stood the relevant point of time and submits that the Municipal Commissioner under the aforesaid provision with the prior approval of the Mayor-in-Council and subject to such terms and conditions as to payment of quantity or period as may be fixed under the said Act or the Rules or the Regulations made thereunder supply water for any purpose other than domestic purpose. Mr. Chatterjee submits that in the absence of any provision in the Act or Rules or Regulations fixing the rate of such water charge, the Corporation could not demand the amount.

7. Mr. Chakraborty, the learned Counsel appearing on behalf of the Corporation on the other hand tried to justify the action of the Corporation by drawing attention of the Municipal Corporation Mayor's Budget Estimates in the year 1992-93 showing the rate of water charge fixed therein. It appears from Annexure D that Rs. 16,800/- has been shown to be the total for period form April 1, 1996 to March 31, 1997 at the rate of Rs. 1,400/- per month. However, as regards arrears amount of Rs. 59,279/-, no period has been mentioned. Thus, it is apparent that the amount shown in the affidavit-in-opposition does not tally with the amount mentioned in Annexure D.

8. It appears from the amended provision of section 239 of the Act that by virtue of West Bengal Act XXXII of 1994 with effect from May 11, 1994 a proviso was added to section 239(1) authorizin