Judgment :- 1. The petitioner is the owner of premises bearing Door No. 123, Adam Sahib Street, Royapuram, Madras 13. He is residing in that house while a small portion of it measuring 10 10? in the front has been let out for a shop selling old aluminium and brass vessels. This property has been assessed by the Corporation of Madras on an annual valuation of Rs. 2,402 and the petitioner is paying property tax. He is also assessed to water tax in a sum of Rs. 84.05. 2. At the request of the petitioner, the respondent-Board has provided facilities for supply of water through a pipe line for this house. The petitioner states that even though a meter was fixed on 21.11.1981 for recording the water consumption, the meter was not correctly recording and no meter readings were also taken. The petitioner was served with a bill dated 21.9.1982 by the respondent covering the period between November 1981 and September. 1982 and demanding a sum of Rs. 1,015 towards the water consumption charges. That notice contains columns for entry of meter reading. The entries are: (1) Previous meter reading; (2) Present meter reading; (3) Free allowance; and (4) Net consumption. 3. In the bill so issued to the petitioner which is impugned in this writ petition, among the 4 columns mentioned above, as against the column referable to Present reading it is mentioned as 5,05,160 litres and the net consumption is shown as 5,05,160 litres. It is not indicated in the bill as to when the meter reading was taken and what was the previous meter reading to find out whether this reading showing as 5.05,160 litres could be said to be with reference to the alleged consumption of water for the period from November, 1981 to September, 1982. 4. On receipt of this bill, the petitioner submitted a representation on 22.40.1982 to the respondent Board stating that the meter reading is not correct, that it is impossible to understand how 5 lakhs and odd litres of water could be consumed by a small premises like that of the petitioner for the period between November, 1981 and September, 1982 that practically no water is being supplied by the respondent-Board to the petitioners premises and that the petitioner is depending on a borewell which he has sunk for drawing water. There was no response to this representation. 5. There was no response to this representation. 5. In this writ petition where the prayer is for the issue of a writ of certiorarified mandamus to quash the demand No. 35/42/13 298 dated 21.9.1952 issued by the respondent-Board, it is stated (I) that the respondent cannot demand water consumption charge on commercial rates; (2) that the meter being defective, it does not reflect the actual consumption of water by the petitioner; (3) that in issuing the demand, the respondent has violated several provisions of the Regulations framed by the Board. 6. It is the case of the petitioner that the water supplied by the respondent is used exclusively for domestic purposes and no part of it is used for non-domestic purposes or commercial purpose. It is contended that even though a small area of 10 10? in the front portion of the premises is used as a shop, the water supplied by the Board is not utilised or used for that shop. It is contended that there is no provision of a water tap in the shop and the shopkeepers, if they need water, have to depend on other sources. It is, hence, contended that billing the petitioner on non-domestic or commercial rate is illegal. Secondly it is submitted that the bill shows only the entries ‘Present reading-5 05, 160 litres and Net codsumption-5, 05, 160 litres and it does not show that that was the reading at the beginning of the month of November, 1981 and what was the reading at the end of September, 1982 to show that so much quantity of water had been consumed by the petitioner during the petiod warranting billin g for the consumption charges. Thirdly it is submitted that the Regulations of the Board provide an claborate proceedure as to how the meter reading should be taken in the presence of the owner of a premises and how the reading should be entered in the bill. But, in the instans case, no such procedure was followed, is the complaint of the petitioner. 7. In answer to the above submissions, the learned counsel for the respondent would submit that water is supplied for domestic purposes, commercial purposes and industrial purposes and different rates are prescribed for different classes of consumrs. But, in the instans case, no such procedure was followed, is the complaint of the petitioner. 7. In answer to the above submissions, the learned counsel for the respondent would submit that water is supplied for domestic purposes, commercial purposes and industrial purposes and different rates are prescribed for different classes of consumrs. He would rely upon the definition of the term ‘Commercial pemises’ occurring in Regulation 2 (3) of the Madras Metropolitan Water Supply and Sewerage Boards Water Supply Charges (Levy and Collection) Regulations, 1982, which reads as follows: “‘Commercial premises’ means fully or partly used as places of business, trade, building purpose, private nursing homes and clinics, swimming baths or for keeping animals for sale or hire and premises fully used for gardens”. He would state that in the instant case as a small portion of the premises measuring 10 10? is used for commercial purposes, the entire premises is classifiable as “commercial premises? and water charges are to be paid at commercial rates. He would state that it is irrelevant whether the shop used the water supplied by the Board or not. It is contended that the respondent-Board is concerned only with the classification of the building and once it is seen that a portion of the building is used for a non-residential purposes, namely, for commercial purpose, then, the entire building is classified as ‘commercial premises’. 8. S. 44 of the Madras Metropolitan Water Supply and Sewarage Act, 1978, (hereinafter referred to as the ‘Act’) reads as follows: “Payments for water supplied under the Act and non-liability of the Board—(I) Except as otherwise provided in S 43, payment for water supply under this Act shall be made at such rates, which may be different:— (1) for different areas, (2) for different types of consumers, (3) for different purposes, as may be prescribed. 2. The Board shall not be liable to any penalty or damages for cutting off the supply water, or for not supplying water, in the case of unusual drought, or other unavoidable cause or accident, replace ments, extensions or the necessity for relaying or repairing pipes.” A reading of the above section will clearly indicate that payment is to be made only for supply of water. The sine quo non for levy of charges is supply of water. The sine quo non for levy of charges is supply of water. If water is supplied to a premises and that water is used for residential purposes, then, domestic rates can be charged. If the water supplied is used for commercial purposes, then commercial rates can be charged. It the water supplied is used for industrial purposes, then, industrial rates could be levied. Therefore the test to determine the rate at which water charges could be levied is to see how the water that is supplied is utilised. The petitioner is emphatic in his case that the water that is supplied by the respondent-Board is used exclusively for residential purposes and, therefore, only domestic rate could be charged. 9. The paragraph 2 of the affidavit the petitioner states as follows: “It is submitted that the respondent has no right to levy water charges based on the classification of the building, when water is not at all used for non-residential purposes. I have never used the water supplied by the respondent for any non-residential use.” 10. In the counter affidavit filed by the respondent-Board, there is no denial of this allegation. On the contrary, the respondent would take the stand that because in a portion of the building a shop is run the building is classifiable as a commercial premises and therefore, automatically there is a liability on the part of the petitioner to pay water charges at commercial rates. 11. It is one thing to say that the building can be classified as ‘commercial premises’. But it is altogether a different thing to levy water charges at commercial rates and as if the water is being supplied or used for commercial purposes As stated earlier, the Board itself has failed to say how the water is utilised. The allegation of the petitioner that water is used exclusively for domestic purpose is not denied in the counter affidavit. Therefore it has to be held that the levy of water charges at com mercial rates is unsustainable, without jurisdiction and is in excess of power. 12. The allegation of the petitioner that water is used exclusively for domestic purpose is not denied in the counter affidavit. Therefore it has to be held that the levy of water charges at com mercial rates is unsustainable, without jurisdiction and is in excess of power. 12. The learned counsel for the respon dent would rely on the decision of a single Judge of this Court rendered on 21.8.1990 in J.N. Kalyanam v. The Controller of Finance, Madras Metropolitan water supply and Sewerage Board Madras and 6 others 1 In the it case, a portion of the building for which water was supplied was used for an industrial purpose. When water charges were demanded at the rates applicable to industrial purposes, that writ petition was filed challenging such levy. The learned Judge upheld that levy holding that inasmuch as water that is supplied by the Board is admittedly being used for industrial purpose also, levy of water charges at industrial rates is correct. The relevant portion of the order of the learned single Judge is as follows: “The argument advanced on behalf of the petitioner is based only on the fact that in the case of the petitioner-premises, the printing press consumes very little water, I cannot take judicial notice of his allegation. On the basis of such a singular instance, I cannot invalidate the entire classification.” Therefore, on the facts of that case it was found that for the printing press the water supplied by the respondent-Board was being used Hence the levy of water charges at industrial rates was upheld. 13. On the contrary, in the instant case, it is an undeniable fact that the water supplied to the petitioners premises is used exclusively for domestic purpose and no part of it is used or is capable of being used for commercial or non-residential purposes. Hence it is held that the levy of water charges at nonresidential or commercial rates is illegal. S 47 of the Act states that for calculating the amount payable by the owner for consumption of water supplied by the Board, the Board may determine the quantity consumed on the basis of reading recorded by a meter installed in the premises. Regulation 10 of the Madras Metropolitan Water Supply and Charges (Levy and Collection) Regulations, reads as follows: “The meter shall normally be read every month or as periodically as possible on identical dates. Regulation 10 of the Madras Metropolitan Water Supply and Charges (Levy and Collection) Regulations, reads as follows: “The meter shall normally be read every month or as periodically as possible on identical dates. The meter readers of the Board shall be visiting between 7 a.m. and 5 p.m. for meter reading purpose. The meter reader or authorised authority shall read the meter as far as is possible in the presence of the consumer. If the consumer is not available, the bill with readings shall be handed over to any person on the premises. In respect of flats the bill shall normally be made out in the name of the Secretary of the Associations of residents and if specifically required individual bills shall be served. Non-receipt of the billshall not however be accepted as a valid reason for non-payment of dues.” 14. In the instant case it is seen that a consolidated bill was sent to the petitioner covering the period between November. 1981 and September, 1982 without even indicating the initial reading at the commencement of the month of November. 1981 and the read ing at the end September, 1982. Under Regulation 10, it is the duty of the respon dent-Board to make arrangements for taking the readings in the meter every month or at least periodically but on identical dates. In the counter affidavit it is not stated that such readings were taken either every month or periodically. It is also not stated whether at the time of taking the reading of the meter it was done in the presence of he consumer so that it could be verified whether the reading was correctly taken. It looks as if in a cavalier manner a bill had been prepared indicating a huge figure of consumption of over 5 lakhs litres of water for the period between November, 1981 and September, 1982. The Regulations also contemplate free allowance in cases where the consumer has paid water taxes. Whether the petitioner is entitled to free allowance and if so in what quantity is not indicated in the bill and no credit therefor has been given. 15. Obviously, this is a case where the water meter fitted to the premises of the peti tioner was not functioning and was not re cording the consumption correctly. In such cases, Regulation 13 states as follows: “13. 15. Obviously, this is a case where the water meter fitted to the premises of the peti tioner was not functioning and was not re cording the consumption correctly. In such cases, Regulation 13 states as follows: “13. (1) In the event that a meter reading cannot be made due to the fact that the meter has been out of order on account of no fault of the consumer or the meter has been taken or removed by the Board on the order of the competent authority for the purpose of testing or rectifying the defects, the Board shall bill the consumer for the period on anyone of the following basis namely:— (a) based on the actual reading of the meter for the corresponding period in the previous year if available, or (b) an average of the meter reading for the previous 6 months or 12 months when the meter was functioning. 2. In the event that a meter reading cannot be made due to the fact that the meter has been tampered or wilfully removed by the consumer so as to avoid billing on actual consumption, the Board shall bill the consumer for that period on fiat rate on the following basts, namely: (a) Individual House Rs. 20 per month (b) Per flat in case of common service connections. Rs. 15 per month (c) Hostel—per room Rs. 15 per month (d) Domestic—non-residential public authority commercial and Industries. Rs. 200 per month Provided that no charge shall be levied under this clause unless the consumer is given a reasonable opportunity of being heard of the charges of tampering or wilful removal of the meter. (G.O.Ms. No. 998 RD & LA Dept. dated 11-7-83.) 3. In the event that a meter fixed having either failed or removed before the first meter reading or before the readings for three consecutive months are taken, water charges shall, ia such cases, be levied on the basis of the subsequent readings for 3 months after the meter is restored or replaced. (Amended G.O.Ms. No. 500 M.A & WS Dept. dated 22-5.87).” 16. The above procedure contemplated under Regulation 13 also does not appear to have been followed. Hence the bill sent to the petitioner under the impugned demand dated 21.9.1982 is liable to be quashed for violation of the aforesaid provisions of the regulations. (Amended G.O.Ms. No. 500 M.A & WS Dept. dated 22-5.87).” 16. The above procedure contemplated under Regulation 13 also does not appear to have been followed. Hence the bill sent to the petitioner under the impugned demand dated 21.9.1982 is liable to be quashed for violation of the aforesaid provisions of the regulations. Hence all the contentions urged by the learned counsel for the petitioner have to be sustained. Accordingly the impugned Demand No. B5/42/13/298 dated 21.9.1982 is quashed and the writ petition is allowed. No costs.