TRUST ESTATE KHIMJI KESHAWJI & Anr. v. THE KOLKATA MUNICIPAL CORPORATION & Ors.

824 A B C D E F G H SUPREME COURT REPORTS [2023] 10 S.C.R. 824 : 2023 INSC 609 [2023] 10 S.C.R. TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA MUNICIPAL CORPORATION & ORS. (Civil Appeal No. 4230 of 2023) JULY 05, 2023 [B. R. GAVAI AND VIKRAM NATH, JJ.] Kolkata Municipal Corporation Act, 1980 – s. 238 and s.271 – Validity of notice under – A Notice was issued to the apellant- owner (occupying ground and sixth floor) of the building consisting ground plus six floors, which stated that appellant had contravened s. 238 of the Act by using water supplied for domestic purpose, for purpose other than domestic – It also stated that s. 271 prohibits use of water supply for domestic purpose for any other purpose – High Court held notice to be valid – On appeal, held: Impugned notice does not mention any reason or specific violation committed by the appellant – Law is settled that where notice is vague and non-speaking, the same deserve to be quashed – As per the scheme of the Act, Sub-section 4 to s.272 starts with a non-obstante clause and it states that wholesome water may be used in lieu of unfiltered water for non-domestic purposes where supply of unfiltered water is not available – In the instant case, it is admitted position that there was no supply of unfiltered water in the locality/area where building in question was situated – As such, the filtered water or the wholesome water could be used for purposes other than domestic by the owner/occupier of the building in question – Thus, it cannot be said that there was any violation of s.238 or 271 of the Act – Further, KMC had issued trade licenses to all the occupiers of the 1st to 5th Floor of the building – The statute primarily lays down the liability on the occupier of the building to pay water charges – It was therefore mandatory for the Corporation to first give notice to the occupiers and make an attempt to recover the charges from them – However, KMC having failed to initiate any proceedings against the occupiers committed serious error in initiating the proceedings only against the owner – Therefore, the impugned notices are quashed. 824 TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA MUNICIPAL CORPORATION & ORS. 825 Allowing the appeal, the Court Held :

Sub-Section 4 of Section 272 of the Kolkata Municipal Corporation Act, 1980 starts with a non-obstante clause and it states that wholesome water may be used in lieu of unfiltered water for non-domestic purposes where supply of unfiltered water is not available. In the present case, it is admitted position that there is no supply of unfiltered water in the locality/area where building in question is situated. As such, the filtered water or the wholesome water could be used for purposes other than domestic by the owner/occupier of the building in question. Thus, it cannot be said that there was any violation of Section 238 or 271 of the Act. [Paras 20, 21][839-D-E]

In the fact situation, it could not be alleged by the KMC that there was any violation of Section 271 or 238 of the Act where specific license has been issued for use of the premise for other than residential purpose and moreover where there was no supply of unfiltered water in the area/locality. The occupiers would, therefore, be well within their rights to use water supply for domestic purpose for any other purpose in view of Section 272(4) of the Act. [Para 24][840-C-D]

KMC was fully conscious and aware of the occupiers of all the seven floors of the building in question i.e. the ground floor plus six floors. They were also aware that the appellant, who is the owner of the building was occupying the ground floor and the 6th Floor. KMC had issued trade licenses to all the occupiers of the 1st to 5th Floor. The statute primarily lays down the liability on the occupier of the building to pay water charges. It was therefore mandatory for the Corporation to first give notice to the occupiers and make an attempt to recover the charges from them. It is only upon failure to recover dues, if any, from the occupiers that the demand could be raised against the owner. In the present case, KMC having failed to initiate any proceedings against the occupiers committed serious error in initiating the proceedings only against the owner. [Para 25][840-E-F]

The High Court committed error by not relying upon the non-obstante clause in sub-Section 4 of Section 272 of the A B C D E F G H 826 SUPREME COURT REPORTS [2023] 10 S.C.R. A B C D E Act as it would have overriding effect over anything contained in that chapter i.e. Chapter XVII. Section 272(4) of the Act, therefore, would have overriding effect over and above Sections 238 and 271 of the Act, once, it is admitted position that there was no supply of unfiltered water. The use of wholesome water for purposes other than domestic cannot be held to be violative of any of the provisions and all the more when the trade license permitted use of the same. [Para 28][841-C-D]

Section 271 of the Act prohibits any person from using water supply for domestic purposes for any other purpose without the written permission of the Commissioner. Here, this Court finds that the trade license which is issued by the KMC actually permitted use of water supply whether filtered or unfiltered. Further, in the absence of any supply of unfiltered water, the wholesome water could be used for non-domestic purposes. [Para 29][841-D-E]