Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 429 (CAL)

Budge Budge Co. Ltd. v. Budge Budge Municipality

2002-07-04

Ashok Kumar Mathur, Jayanta Kumar Biswas

body2002
Judgment Jayanta Kumar Biswas, J. By the judgment dated 23rd April, 1999 a learned Judge of this Court was pleased to dismiss appellants Writ Petition Nos. 2948 (W) 1997 and 1367 (W) of 1999. That judgment is under challenge in the present appeal. 2. Appellant company has a jute mill at premises No. 64, Moulana Azad Road, Budge Budge, District South 24-Parganas in the State of West Bengal. The Budge Budge Municipality (in short 'the Municipality') provided water supplies to the said premises through two water lines for non-domestic uses. One line was with ferrule of 80 mm. for supply of water to labour lines, and another was with ferrule of 100 mm. for supply of water to the mill. In the year 1991-92 the Municipality imposed water tax for supplying water to the said premises. The amount of tax was Rs.2,000/- per month for the line with ferrule of 80 mm., and Rs.2,500/- per month for the line with ferrule of 100 mm. 3. The Commissioners of the Municipality in a special meeting held on 11th July, 1994 adopted a resolution for revising the rates of tax for supplying water for non-domestic uses. Consequent upon said revision the rate for the line having ferrule of 80 mm. was fixed at Rs.12,000/- per month, and the rate for the line having 100 mm. ferrule was fixed at Rs.15,000/- per month. 4. By a letter No. 904 dated 28th August, 1996 the Municipality informed the appellant company its decision that while admittedly the arrears of water tax for certain period was Rs.1,50,000/-, payment of Rs.45,000/- on ad hoc basis would not be accepted by the Municipality. With this, decision the bill for the arrears amounting to Rs.1,50,000/- was served on the appellant company together with notice that the supply lines would be disconnected. Challenging the said decision contained in said letter the first writ petition being W.P. No. 2948(W) of 1997 was filed. 5. During pendency of the first writ petition the appellant company filed another writ petition. It was registered as W.P. No. 1367(W) of 1999. This second writ petition was filed challenging demand of arrears amounting to Rs.12,46,000/- from 1st October, 1994 in terms of the revised rates; and the notice dated 22nd December, 1998 whereby the Municipality had informed the appellant company that on failure of payment of the arrears the supply lines would be disconnected. 6. This second writ petition was filed challenging demand of arrears amounting to Rs.12,46,000/- from 1st October, 1994 in terms of the revised rates; and the notice dated 22nd December, 1998 whereby the Municipality had informed the appellant company that on failure of payment of the arrears the supply lines would be disconnected. 6. Main contention in both the writ petitions were as follows: The West Bengal Municipal Act, 1993 (in short 'the Act of 1993') came into force from 13th July, 1994; and with effect from that date the Bengal Municipal Act, 1932 (in short 'the Act of 1932') stood repealed; and consequently the resolution dated 11th July, 1994 lost its force; and therefore, the demands raised by the Municipality on the strength thereof were illegal. 7. Thus the only question that fell for decision in both the writ petitions was; If the resolution dated 11th July, 1994 adopted by the Commissioners of the Municipality would be saved by the provisions of section 441 of the Act of 1993 ? 8. The learned Judge took up both the writ petitions for final hearing and by the impugned judgment dismissed both the writ petitions. The learned Judge held that the resolution dated 11th July, 1994 adopted by the Commissioners of the Municipality did not stand impliedly repealed by the Act of 1993 as contended by the appellants. 9. The said judgment has been assailed by contending that the Act of 1993 has specifically provided for levying charges for supply of water for non-domestic uses only at the rates prescribed in the rules as may be framed by the State Government, and the rules having not been framed, the Municipality was not entitled to levy any charge for supplying water from 13th July, 1994. It cannot do so because the disputed resolution dated 11th July, 1994 was not saved by section 441 of the Act of 1993, it has ultimately been contended by the appellants before us. It has been contended that the said resolution would not be saved by section 441 of the Act of 1993 because it was incompetent to fill in the gap occasioned by the absence of rules framed under the Act of 1993 for the purpose. The in-competency has been mooted on the ground that to the said resolution same force and weight cannot be attached as that of the rules. The in-competency has been mooted on the ground that to the said resolution same force and weight cannot be attached as that of the rules. The resolutions saved by section 441(2)(e) of the Act of 1993 will not include the disputed one, is that appellants' further contention. They so contend by saying that under the Act of 1993 on the strength of any resolution no charges can be levied for supply of water therefore, an interpretation given to save the disputed resolution will be inconsistent with the provisions contained in sections 2(47), 226 and 243(k) of the Act of 1993. 10. We find that in terms of section 226 (2) of the Act of 1993 the Municipality may charge for supply of water for non-domestic uses at such scale of fees or price as may be prescribed. The word 'prescribed' has been defined by section 2(47) to mean: prescribed by rules made under the Act of 1993. Under section 243(k) power to make rules for the purpose has been given to the State Government. Admittedly, such rules are yet to be framed. In the Act of 1932 section 301 was the relevant provision. Under sub-section (2) of said section 301 the Commissioners of the Municipality were empowered to prescribe the rates of fees or price at which charges for all water supplied could be levied; and they could prescribe the rates at a meeting. This position of law has not been disputed by the appellants. It has also not been disputed that as on 11th July, 1994 the disputed resolution was a validly adopted one. 11. For convenience we reproduce herein-below the relevant provisions of both the Acts. Section 301 of the Act of 1932 reads as under: "301. Supply for business.-(1) The Commissioners at a meeting may supply and may at any time after giving reasonable notice cease to supply water for purposes other than domestic purposes. (2) For all water supplied under sub-section (1) payment shall be made at such rates and on such conditions as the Commissioners at a meeting may form time to time prescribe. (3) No person shall, without the written permissions of the Commissioners, use, for other than domestic purposes, water supplied under this chapter for domestic purpose." Section 226 of the Act of 1993 reads as under: "226. (3) No person shall, without the written permissions of the Commissioners, use, for other than domestic purposes, water supplied under this chapter for domestic purpose." Section 226 of the Act of 1993 reads as under: "226. The Municipality to provide water-supply.-(1) It shall be the duty of every Municipality to provide a supply of wholesome water for the domestic use of the inhabitants. (2) The water for domestic uses in excess of such standard as may be determined by the Board of Councillors and the supply of water for non-domestic uses may be charged for at such scale of fees or price as may be prescribed. (3) The Board of Councillors, for the purpose of measuring or recording the quantity or water consumed, may provide for devices of attachment of meter in the premises or adopt a system of calculation by the size or number of ferrules through which the supply is made or any other method of measurement or recording in such manner and in accordance with such procedure as may be prescribed." Relevant provisions of section 243 of the Act of 1993 read as under; "243. Power to make rules.-The State Government may make rules to provide for - x x x x x x x x x (k) the rates at which the charges for water supplied in excess of the prescribed quota for domestic purposes and for water supplied for various non-domestic purposes may be levied by the Board of Councillors and the use, maintenance and testing of meters and ferrules; 12. After giving our careful consideration to the contentions raised by the appellants we have found absolutely no merit in them. Section 441(2)(e) of the Act of 1993 in clear language has saved every resolution adopted by the Municipalities under the repealed Act of 1932. The relevant provisions of said section 441 of the Act of 1993 are quoted below: "441 Repeal and saving.-(1) With effect from the date of commencement of this Act, the Bengal Municipal Act, shall stand repealed. Section 441(2)(e) of the Act of 1993 in clear language has saved every resolution adopted by the Municipalities under the repealed Act of 1932. The relevant provisions of said section 441 of the Act of 1993 are quoted below: "441 Repeal and saving.-(1) With effect from the date of commencement of this Act, the Bengal Municipal Act, shall stand repealed. (2) Notwithstanding such repeal, every Municipality, and every notified areas authority, constituted under the Bengal Municipal Act, 1932, and in existence immediately before the commencement of this Act, shall, at the date of commencement of this Act, be deemed to have been constituted under this Act, and, in respect of such Municipality or notified area authority:- x x x x x x x x x x (e) every resolution adopted, order passed, loan taken, assessment made, building plan sanctioned, licence or permission or sanction granted or issued or any other similar action taken under the Bengal Municipal Act, 1932, and in force immediately before the commencement of this Act, shall be deemed to have been adopted, passed, taken, made, sanctioned, granted or issued under this Act and shall, unless altered, modified, cancelled, suspended, or withdrawn, as the case may be, under this Act, remain in force for the period, if any, for which it was so adopted, passed taken, made, sanctioned, granted or issued; x x x x x x x x x x." 13. The disputed resolution dated 11th July, 1994 adopted by the respondent Municipality under the Act of 1932 was admittedly in force immediately before the commencement of the Act of 1993. Therefore, there can be no doubt that said resolution was saved by section 441 of the Act of 1993. The contention that the resolution was of lesser force and weight is misconceived. It had been adopted in the manner provided by the statute. That being so, there is no scope to evaluate its weight by comparing it with the rules which are yet to be framed. The appellants' contentions if accepted will lead to an unworkable situation. The Municipality was not be able to levy any charge for supply of water so long rules are not framed by the State Government, although it will remain obliged to supply the water. For the reasons recorded hereinbefore we find no merit in this appeal. Accordingly, the same is hereby dismissed. The Municipality was not be able to levy any charge for supply of water so long rules are not framed by the State Government, although it will remain obliged to supply the water. For the reasons recorded hereinbefore we find no merit in this appeal. Accordingly, the same is hereby dismissed. There will be no order as to costs. Ashok Kumar Mathur, CJ.: I agree. Appeal dismissed.