In the absence of regulations framed under section 289(3) read with section 307 of the Kolkata Municipal Corporation Act, the KMC cannot demand any payment for drainage connection.

Sudip Ahluwalia, J.

1. A multi-storied building was constructed by the writ petitioners at premises no. 15, Kabithirtha Sarani, Borough IX, Kolkata. Initially a temporary sanction and drainage connection being No. 530/2007-08 dated 17th August 2007 was given to the petitioner when the construction was on, as their labour and manpower were staying there.

2. Subsequently the petitioner by its letter dated 9th June 2009 (Annexure P. 8) requested the Municipal authorities to give the External sanction and permanent connection for their In-house drainage. In reply the authorities demanded advance deposit of an amount of Rs. 18,83,300/- (Rupees Eighteen Lakhs Eighty Three Thousand and Three Hundred only) towards the cost of “road restoration, supervision fees, notification charges and road opening charge for the proposed rider sewer” as according to the Corporation, the necessary laying of sewer would have to be done from the petitioner’s end as per the internal sanction plan.

3. The petitioner has challenged such demand raised by the Corporation and has contended that in effect this is a demand towards “drain development charges” which have been held to be illegal and unenforceable by various Benches of this Court in the absence of the existence of any regulatory mechanism under section 289(3) read with section 307 of the Kolkata Municipal Corporation Act. It has been pointed out on behalf of the petitioner that earlier a writ petition (WP No. 2072 of 2004) had been filed in respect of the same premises and building plan, in which an amount of Rs. 23,92,643/- on account of drain development fees was demanded from the land owners by the Corporation. By its order dated 7th December 2004 a Single Bench of this Court in Writ Petition 2072 of 2004 had permitted the petitioners to pay the composite money demanded by the authorities, but after excluding the sum specified on account of “drain development fees”. The contention of the writ petitioners before this Court is that the demand now raised by the KMC authorities is again essentially towards the same “drain development fees” but under differently invented headings and nomenclature.

4. Such assertion has, of course, been denied on behalf of the Kolkata Municipal Corporation/respondents. From their side it has been asserted that the demand has been made in terms of sections 290 and 316 of the Kolkata Municipal Corporation Act, 1980. At this juncture it would be appropriate to refer to the provisions contained in the relevant Sections of the Kolkata Municipal Corporation Act, 1980, which have been referred to by the contesting sides during hearing. These sections are:-

“S. 289. - Right of owner or occupier of premises to drain into municipal drain. - (1) Subject to such regulations as the Corporation may make in this behalf, the owner or occupier of any premises having a private house-drain may apply to the Municipal Commissioner to have his house-drain made to communicate with the municipal drains and thereby to discharge foul water and surface water from those premises:

Provided that nothing in this sub-section shall entitle any person:-

(a) to discharge directly or indirectly into any municipal drain any trade effluent from any trade premises except in accordance with the provisions made under this Act or any liquid or other matter the discharge of which into municipal drains is prohibited by or under this Act or any other law for the time being in force;

(b) where separate municipal drains are provided for foul water and for surface water, to discharge directly or indirectly:-

(i) foul water into a drain provided for surface water;

(ii) except with the permission of the Municipal Commissioner, surface water into a drain provided for foul water;

(3) The Municipal Commissioner may, if he thinks fit, construct such part of the work necessary for having a private house-drain made to communicate with a municipal drain as is in or under a public street and in such a case, the expenses incu