Point of Law: Increase in water supply charges - Executive function includes “initiation of legislation, maintenance of the order and carrying on supervision, General Administration of to the State.

JUDGMENT :

S. Muralidhar, J

1. This writ petition filed on 15th April, 2005 by a resident of Cuttack City alleges that water charges levied and collected from the inhabitants of Cuttack City are illegal and exorbitant. The Petitioner seeks the quashing of a resolution dated 1st December, 1980 of the Housing and Urban Development Department (H & UD Department), Government of Odisha by which the "Orissa Waters Works (Urban Local Bodies) Rules, 1980 (hereafter ‘the 1980 Rules’) were notified. The challenge is also to the resolution dated 16th August, 1996 of the H & UD Department amending the 1980 Rules thereby revising the drinking water tariff provided thereunder. A corrigendum dated 28th August, 1996 to the said rules providing for an automatic increase of the water tariff @ 10% every year and for revision every five years of the structure of the tariff and for the annual rate of increase has also been challenged.

2. The fourth document to be challenged is a communication dated 3rd August, 2001 from the Executive Engineer (PH) Division clarifying to the Sub-Divisional Officer, that the water tariff will continue to be automatically increased @ 10% every year with effect from 20th August, 2021 onwards. The fifth document to be challenged is a resolution dated 30th June, 2005 of the H & UD Department further revising the water tariff. The next document to be challenged are a bill raised on the Petitioner in the sum of Rs.768/-for the yearly water charges from April, 2005 to March, 2006 (Annexure 9).

3. Two receipts dated 11th November, 2005 and 13th February, 2006 (Annexure 9-A) evidencing payment of water charges from April to September, 2005 and October, 2005 to March, 2006 respectively in the sum of Rs.384/-each have also been asked to be quashed. A further prayer is for a direction to the Opposite Parties to refund to the Petitioner the total water charges of Rs.5688/-for the period from 1983-84 till 2004-05 with interest and for the sum of Rs.768/-for the period from 1st April, 2005 to 31st March 2006 with interest.

4. It must be mentioned at the outset that the quashing of Annexure-9 and 9A as well as the prayer for refund of the water charges was made by an application Misc. Case No.2796 of 2006 dated 2nd March, 2006 seeking amendments to the writ petition, which was allowed by this Court by an order dated 8th May, 2006.

5. At one stage, the petition was dismissed for non-prosecution on 8th December, 2006. However, it was subsequently restored and thereafter listed on some dates in 2008. It was listed sporadically thereafter till 4th March, 2013. The matter then was listed after four years on a few dates. On 27th March, 2019 a direction was issued to the Additional Government Advocate (AGA) to place on record the rate of water tax and its maximum limit as referred to in Section 131-A (5) of the Odisha Municipal Act, 1950 (OM Act) as well as the schedule of the rates of water tax.

6. Meanwhile, the original writ petitioner Mr. Madan Mohan Mohanty expired. By an order dated 15th November, 2019 he was substituted by his wife Smt. Pravabati Mohanty.

Counter affidavits and rejoinders

7. There have been numerous counter affidavits and rejoinder affidavits which will be referred to hereafter. The Opposite Party No.1, i.e. the H & UD Department, first filed a counter affidavit on 16th August, 2005 in which it was stated that under Section 131-A of the OM Act, the Government has the power to increase any tax or fee in the Urban Local Bodies (ULBs) and that this explained the resolution dated 1st December, 1980. It was pointed out that prior to 1980, no Rules were prescribed for the ULBs. Earlier for the Bhubaneswar Notified Area Council a set of rules titled "Bhubaneswar Water Works Rules, 1972" were made to regulate supply of drinking water. The 1980 Rules were meant to apply uniformly in all ULBs and since they were charging different rates of water tariff.

8. It was pointed out by the H&UD Department that the Orissa Water Supply Sewerage