Municipal Commissioner Ernakulam v. Lakshmi — 1965 DIGILAW 244 (KER)

JUDGMENT S. Vellu Pillai, J. 1. The suit that has given rise to this second appeal was by the respondent, to restrain the appellant the Municipal Commissioner, Ernakulam, from realising from her by way of water tax, the sum of Rs. 161.09 and from cutting off the water supply to her Building. The respondent owns a two-storeyed building, the rooms on the ground floor of which, as admitted by the appellant, were numbered 6699 and 6700, and the room on the first floor of which was numbered 6701. Her application Ex. D-2, dated the 4th March, 1953, for water service connection was allowed by the appellant on the 29th November, 1953, and on the same date, pipes for water supply were installed in all the rooms. On the 16th December, 1954; the respondent applied to the appellant by Ex. D-4, for free allowance of water being granted in respect of the three rooms, and not merely of room 6700 only to which in terms Ex. D-2 related. After processing, Ex. D-4 was granted with effect from the 16th December, 1954, but not retrospectively from the 29th November, 1953. Free allowance for the anterior period as claimed, amounted to 405 gallons per day. Not having allowed such free allowance, the appellant called on the respondent to pay Rs. 161.09 more towards water tax than had been paid. Therefore the suit was necessitated. The appellant contended, that service connection having been granted to room 6700 only, free allowance could not be granted in respect of the other rooms and so the amount demanded was payable. The Munsiff accepted the contention of the appellant and dismissed the suit, and in appeal the District Judge decreed the suit as prayed for. 2. In second appeal, learned counsel for the appellant contended, that because Ex. D- 2 related to room No. 6700 only and because no application for service connection to the other rooms was ever made, the respondent was entitled to free allowance computed on the rental value of room No. 6700 only. The rule governing free allowance is rule 1 (g), of the rules regarding the supply of water dated the 12th November, 1937, framed under section 195 (2) of the Cochin Municipal Act, XI of 1096. The rule governing free allowance is rule 1 (g), of the rules regarding the supply of water dated the 12th November, 1937, framed under section 195 (2) of the Cochin Municipal Act, XI of 1096. The relevant part of that rule reads : " (For) Houses which have a water service connection and on which water tax is levied on rental value an allowance as. per the following schedule 'B' will be given free and the excess over the free allowance will alone be charged for." 3. In schedule B the free allowances of so many gallons per day are graduated according to the rental value. Learned counsel relying on the words " water service connection'' occurring in the rule argued, that only the rental value of the house or room with respect to which the connection was applied for and granted, can be Ernakulam taken into consideration for fixing the free allowance. As it happened, on the date Ex. D-2 was ordered, the supply pipes had been laid in all the rooms, as alleged in the plaint and not denied in the written statement. The water, supply to all the rooms is through the same meter and the appellant suffered no loss on that account, except on account of free allowance. The contention of the appellant is that the respondent's claim for free allowance is not in accordance with rules. As I understand the relevant rule, there is nothing in it to limit the free allowance to the room in respect of which water service connection is applied for because it is related to the rental value of the house which is supplied with water from the Municipality. There is also the fact, that as seen from the pleadings, the building is one and entire, though three numbers on the Municipal register were necessitated because the three portions were to be separately let. I am therefore led to hold, that rule 1 (g) must be interpreted to mean that free allowance is to be granted, based upon the rental value of the building served by the water service connection. 4. In this view, the fact that no application was made quoting the numbers of the other rooms, is not material. Nothing precluded the respondent from extending the supply to the other rooms, simply because the number 6700' was alone mentioned in the application. 4. In this view, the fact that no application was made quoting the numbers of the other rooms, is not material. Nothing precluded the respondent from extending the supply to the other rooms, simply because the number 6700' was alone mentioned in the application. As stated earlier, on the day the service connection was given, the supply pipes had been installed in all the rooms ; D.W. 1 the clerk examined on behalf of the appellant deposed, that "(Malayalam)" this is what transpired on Ex. D-4. Upon that free allowance was computed on the rental Value of the three rooms and was sanctioned though prospectively; there is no reason, why she should not have been allowed the relief retrospectively. 5. It was then contended, that section 358 of the Cochin Municipal Act operates to bar the suit. The material part of that section is, that " no assessment or demand made, and no charge imposed, under the authority of this Act shall be impeached (c) in respect of the amount assessed, demanded or charged" but this is subject to the proviso, " that the provisions of this Act have been in substance and effect, complied with". The rule extracted earlier has been framed under this Act and has statutory force, and the demand made by the appellant is contrary to the intendment of rule 1 (g). If so, the case is fully covered by the provisio to section 358 and the suit is not barred. .Section 329 of the Act, which provides for the right of appeal from any notice or order issued or other action taken or proposed to be taken by the chairman or the executive authority under the provisions of the Act shall in the first instance lie to the Municipal Council, also is not attracted, for as held by a Full Bench of the Lahore High Court in Administrator, Lahore v. Abdul Majid A.I.R. 1945 Lahore 81 it is a remedy afforded where the Municipal body acts within the four corners of the statute and has not violated or acted in excess of its provisions. It cannot be said, that in denying free allowance to the respondent for the two rooms Nos. 6999 and 6701 the appellant had acted within the four corners of the Act and the rules. The District Judge was therefore right in holding, that section 329 did not bar the present suit. It cannot be said, that in denying free allowance to the respondent for the two rooms Nos. 6999 and 6701 the appellant had acted within the four corners of the Act and the rules. The District Judge was therefore right in holding, that section 329 did not bar the present suit. This second appeal is without merit and is dismissed with costs.