Mr.Vactavarmal v. The Chairman, Chennai Metropolitan Water Supply and Sewerage Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.12.2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANWrit Petition No.12172 of 2003Mr.Vactavarmal ... PetitionerVs.1.The Chairman, Chennai Metropolitan Water Supply and Sewerage Board (CMWSSB), No.1,Pumping Station Road, Chintadripet, Chennai-600 002.2.Senior Account Officer, Chennai Metropolitan Water Supply and Sewerage Board, No.1,Pumping Station Road, Chintadripet, Chennai-600 002.3.Area Officer, Area-II, Chennai Metropolitan Water Supply and Sewerage Board, Anna Poonga, M.C.Road, Chennai-600 021.4.The Tahsildar, (Land and Estate), Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai-600 002. ... RespondentsThis petition has been filed under Article 226 ofthe Constitution of India praying for issuance of Writ ofCertiorarified Mandamus to call for the records and quash theimpugned notice No.8806 dated 28.2.2003 issued by the fourthrespondent in respect of premises bearing Door No.28/10, StrottenMuthia Mudali Street, Chennai-600 079 and direct the respondentsnot to collect water charges from the petitioner and consequentialsurcharge thereon in respect of the premises bearing Door https://hcservices.ecourts.gov.in/hcservices/ No.28/10, Strotten Muthia Mudali Street, Chennai-600 079.For petitioner : Mr.Vikram JainFor respondents : Mr.B.Mani for RR 1 to 4 O R D E RThe petitioner has challenged the impugned noticeissued by the fourth respondent in respect of the petitionpremises. 2.The case of the petitioner is that he is theabsolute owner of a shop portion bearing door No.28/10, StrottenMuthia Mudali Street, Chennai-600 079 and he has been in absolutepossession of the property and carrying on business in sellingelectrical goods. According to him there is no water and sewerageconnection to his shop portion. Inspite of the fact that he is nothaving water and sewerage connection, the respondents aredemanding water charges from 1996 onwards. Hence the petitionersent a representation to the third respondent stating that he isnot liable to pay any water charges. However the fourth respondentissued the impugned notice demanding arrears of water charges ofRs.15,150/- from 1/1996-97 to 2/2002-03 + surcharge ofRs.10,570/-. 3.Learned counsel for the petitioner initiallysubmitted that the impugned order is being attacked on the groundthat he is not a consumer. He further submitted that even if he isa consumer he cannot be classified as commercial consumer, in viewof the dictum laid down by this court. In the earlier proceedingsthe learned counsel submitted that he is a consumer. However hestrenuously argued that he would not come under the category ofcommercial consumer. He relied upon Section 44 of CMWSS Act, whichspeaks about different types of consumers, areas and purpose.Section 45 gives the details about the water connection fordomestic consumption and use. In explanation to Section 45,various types of purposes are included in the category of supplyof water for domestic consumption. Relying upon the explanation tothe Section, learned counsel submitted that trade/manufacturer orbusiness, are included in the domestic consumer. By virtue of Asfar as explanation to Section 45 of the Act, the premises wouldnot come under the commercial category. He relied upon a judgementof this court in K.M.Abdullah Sahib vs. the Madras MetropolitanWater Supply and Sewerage Board, Madras reported in 1991 WLR,wherein this court held that if water is supplied to the premisesand that water is used for residence, then domestic rate can be https://hcservices.ecourts.gov.in/hcservices/ charged and if water is used for commercial purpose thencommercial charges can be charged. Relying upon the judgementlearned counsel submitted that if at all the petitioner shop is tobe charged only under the domestic category and not otherwise. 3A.The levy and collection of water and seweragecharges and tax are governed by Chennai Metropolitan Water Supplyand sewerage Board (levy and collection) Regulation Act 1998.Regulation 6 defines who is a consumer. Regulation 7 defines whatis meant " Domestic Residential Premises" and they are extractedas follows ":"6. "Consumer" means any person drawingwater supply from the Board and or having sewerageconnections provided by the Board or owner or occupierof any premises provided with a service connection bythe Board; 7. "Domestic Residential Premises" meansDwelling units, Flats, Line of Houses, ResidentialGovernment Quarters, Raj Bhavan, Residences ofMinisters, Judges and High Dignitaries, LegislatorsHostel, Hostel of Colleges nd Schools recognised byState or Central Government and includes premises usedexclusively for religious purposes and old age homes". 4.The premises like petitioner's shop, does notcome under the definition of 'regulation 7' and it comes under'regulation 4' which defines commercial premises and the same isextracted as follows:"4. "Commercial Premises" means--(i) Irrespective of consumption ofwater, premises used fully for business, Commercialcomplexes, Trade, Commerce, building purposes fall underthis category.(ii) Premises used fully or partlyas Theatres, Hotels, Boarding Houses, Lodges, Clubs,Private Hospitals, Private Hostels, Kalyanamandapams,Clinics with inpatient facility, Swimming Baths, Placesfor keeping animals, vehicles Service Stations,Nurseries, etc. (iii) Industries, Railways, Port Trustand all other Business/Commercial and IndustrialEstablishments not covered in sub-clauses (i) & (ii) ofthis clause above, Central and State Public Sectorundertakings, Commercial Boards and Authorities." 5.For commercial purpose, for charging water andsewerage services, there are two types of consumers; one ismetered consumer and another is non-metered consumer. In non- https://hcservices.ecourts.gov.in/hcservices/ metered consumer there are five types of consumer namely domestic,commercial, partly commercial, institutional. The second item iscommercial. Even the second category, has been divided into two;one is water non intensive and other is water intensive. For non-water intensive half yearly charges is 200/- and for intensivewater charges is Rs.400/.6.The Board resisted contention by thepetitioner and stated that the petitioner comes under un-meteredconsumer, which comes under commercial water intensive. When therespondent specifically went by the Chennai Metropolitan WaterSupply and sewerage service charges (levy and collection)Regulations 1998, the same cannot be found fault with. Theregulation is very categorical and gives various types ofbuildings and various types of consumers. Petitioner is onlypaying a sum of Rs.200/- as half yearly water charges. When thatis the position, no motive could be attributed against therespondents and the classification cannot be found fault with andin view of that the writ petition is liable to be dismissed.Accordingly dismissed. Moreover a Division Bench of this court inW.P.No.498 of 2001 by its judgement dated 20.4.2007 set aside theorder of the single judge, who quashed the demand for payment ofwater charges on the ground that the petitioner was not having anysewerage water connection. The Division Bench while setting asidethe single judge's order held that it is immaterial whether theoccupants has availed the supply of water or not. In thecircumstances, for existing water connection, the board isentitled to raise the demand. In view of that also the writpetition fails and is dismissed. However there will be no order asto costs. Consequently the connected WPMP.No.15288 of 2003 is alsodismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vkTo1.The Chairman, Chennai Metropolitan Water Supply and Sewerage Board (CMWSSB), No.1,Pumping Station Road, Chintadripet, Chennai-600 002.2.Senior Account Officer, https://hcservices.ecourts.gov.in/hcservices/ Chennai Metropolitan Water Supply and Sewerage Board, No.1,Pumping Station Road, Chintadripet, Chennai-600 002.3.Area Officer, Area-II, Chennai Metropolitan Water Supply and Sewerage Board, Anna Poonga, M.C.Road, Chennai-600 021.4.The Tahsildar, (Land and Estate), Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai-600 002.1 cc to Nitin Mardia, Advocate, Sr. 694512 ccs to Mr.B. Mani, Advocate, SR. 66517, 69742W.P.No.12172 of 2003RS (CO)kk 3/3