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2010 DIGILAW 192 (CAL)

Taj Guest House v. Kolkata Municipal Corporation

2010-02-23

I.P.MUKERJI

body2010
JUDGMENT I.P. Mukerji 1. THE writ petitioner, Taj Mohammed runs a guest house called Taj Guest House at 7/2A, Gobind Dhar Lane, P.S. Burrabazar, Kolkata - 1. This guest house is situated on the ground floor of this premises. The writ petitioner claims to be a tenant of this ground floor under the respondent No.6, Kamal Hamid. He says he pays a monthly rent of Rs. 300/- to Kamal has not appeared. 2. HIS claim is that commercial water connection to the portion of the premises he occupies (for short 'Taj Guest House') be granted. The respondent, Kolkata Municipal Corporation refuses to grant such connection. Rival Contentions Mr. Alok Ghosh, learned Counsel for the petitioner makes the following submissions: (a) The premises always had a domestic connection. Extra charge on account of excess water supply for Taj Guest House had been raised by the said Corporation and paid. (b) He has shown me amongst other sections, section 239 of the Kolkata Municipal Corporation Act, 1980 and submits that a separate water supply for non-domestic purposes can be granted. (c) As a tenant he has the right to receive such supply. (d) The landlord only has domestic water supply which is not sufficient to meet his requirement. 3. ON the other hand, Mr. Ashok Dasadhikari, learned Senior Advocate appearing for the Corporation has made the following submissions: (a) The alleged landlord of the premises/respondent No.6 was a defaulter in the payment of property tax. (b) In exercise of powers under section 275(aa) the Corporation exercise its rights to cutoff water connection to the premises, (c) This alleged landlord/respondent No.6 filed another writ application in this Court, (the details of which could not be produced) where he has obtained an order of reconnection of his water supply upon paying of a part of the outstanding property tax. The rest remain unpaid. (d) The writ petitioner is a front of this alleged landlord/respondent No.6 and he has been set up to obtain a non-domestic or commercial supply because the alleged landlord/ respondent No.6 apprehend that the existing water supply can be disconnected for non-payment of the outstanding property tax. (e) No separate meter for a commercial water supply can be provided in a premises where there is an existing domestic water supply. (e) No separate meter for a commercial water supply can be provided in a premises where there is an existing domestic water supply. Both the learned Counsel have taken me extensively to the relevant sections of the above Act being sections 193, 238, 239, 254, 255, 265B, 267 and 275(aa). I have considered the rival contentions of the parties. Discussion and Conclusion 4. THE real point in this matter is a consideration of section 275(l)(aa) which was inserted in the said Act by amendment with effect from 23rd March, 2001. It reads thus: "275. Power of Municipal Commissioner to cut off or turn-off supply of water to premises.-(1) Notwithstanding anything contained in this Act, the Municipal Commissioner may cut off the connection between any water works of the Corporation and any premises to which water is supplied from such works, or may turn off such supply, in any of the following cases, namely:(a)........................................................ (aa) if, in respect of the premises, any taxes or rates or fees or charges are in arrear for payment for more than one year;". Under this section water supply may be cut off if any tax or rates or fees or charges are not paid for more than one year. The sub-section does not specify any portion of the premises or any share of the taxes or rates, like, owner's part of the premises only or owners share of rates or taxes. Therefore, if property tax is outstanding for a premises, no matter whose share, the water supply to the entire premises is to be disconnected. 5. THE vires of this amendment has been challenged in the writ application but not pressed at all at the time of hearing. 6. IN that context the submission of Mr. Ashok Dasadhikari regarding the status of the writ petitioner and the bona fides of this application become very relevant. No date has been mentioned when the writ petitioner came into the premises. Although, the writ petitioner is said to run a guest house he pays only a rent of Rs.300/- per month for the entire ground floor as mentioned in the writ petition. One rent receipt has been annexed dated P2.01.06 which does not show with any clarity the status of the writ petitioner. Hence, his status as a tenant as claimed is not established at all, on the available evidence. One rent receipt has been annexed dated P2.01.06 which does not show with any clarity the status of the writ petitioner. Hence, his status as a tenant as claimed is not established at all, on the available evidence. On 29th November, 2005, the respondent Corporation cut off water supply to the premises. Of 4th January, 2006 this writ application was filed. 7. THIS points to two things: One is that although the writ petitioner claims to be carrying on business of running the guest house for a long time, there was no need for any separate non-domestic water supply. The need arose after the supply to the premises was disconnected. Thus, the water supply in the premises before its disconnection was adequate for the needs, of the writ petitioner. Secondly, this conduct of filing a writ application for 3 separate connection immediately after the water supply to the premises had been cut off for non-payment of property tax, raises some suspicion that this writ petitioner has been set up by the owner/the respondent No.6 to bypass the effects of section 275(aa). 8. I have considered all the provisions of the Kolkata Municipal Corporation Act, 1980 shown to me. I consider section 239 to be very relevant for the purposes of this case along with section 267. Under section 239, the Corporation has the power to grant a separate supply for non-domestic purposes. I have not found any prohibition any where in the Act in granting a non-domestic supply to a premises where a domestic supply exists. For example, the ground and first floors of a particular premises may have been used for residence availing of domestic supply. At some point of time, the owner of the premises may decide to convert the first floor into a business establishment and apply for non-domestic supply. In such circumstances there is nothing in the Act to prevent him from retaining the domestic supply for the ground floor, may be with a reduced quantity of water and applying for a non-domestic or commercial connection for the first floor- He cannot be asked to use the domestic supply for commercial purposes be pause the water supply may well be insufficient and such use may be unlawful. Or he cannot be compelled to take a commercial supply for the whole premises where the water supply would be excessive and far more expensive. Or he cannot be compelled to take a commercial supply for the whole premises where the water supply would be excessive and far more expensive. Therefore, the contention of Mr. Ashok Dasadhikari that there could only be one supply to a particular premises is not borne out by any provision of the Act. In fact, the Act indicates to the contrary. But in some cases, and this case falls within that case, the Municipal Commissioner has discretion in compelling the owner to avail of more water supply for the requirements of the premises in question. Section 267 of the Act may be reproduced below: "267, Power to require water supply to be taken.- If it appears to the Municipal Commissioner that any premises in Kolkata are without supply of wholesome water for domestic purposes or that the existing supply of water for domestic purposes available for the persons usually occupying or employed in such premises is inadequate or on any sanitary grounds objectionable, the Municipal Commissioner may be notice in writing require the owner of the premises or the persons primarily liable for the payment of the [property tax] in respect of the same- (a) to take a connection from the supply mains of the Corporation adequate for the requirements of the person occupying or employed in the premises or to take such additional or enlarged connection or connections from the supply mains; and (b) to provide supply pipes and water-fittings and install and work a pump and do all such works and take all such measures as may, in the opinion of the Municipal Commissioner, be necessary for the above purposes." 9. IT inter alia says that if it appears to the Commissioner that the existing supply for domestic purposes available for the persons is inadequate then the Commissioner may require the owner to take excess supply from the mains of the Corporation. IT takes into account a situation where an existing supply of water for domestic purposes is inadequate for persons "employed in such premises." IT contemplates the situation where a domestic supply becomes inadequate due to some employment or business activity being carried out in the premises. In that case the owner can be compelled to take the additional supply. 10. IT takes into account a situation where an existing supply of water for domestic purposes is inadequate for persons "employed in such premises." IT contemplates the situation where a domestic supply becomes inadequate due to some employment or business activity being carried out in the premises. In that case the owner can be compelled to take the additional supply. 10. FROM the discussion above, it is thus clear that if a person like the writ petitioner applies, the Municipal Corporation has two options, either to grant him a separate supply under section 239 or to compel the owner to obtain additional supply under section 267. In a case like this where there is some suspicion that the writ petitioner has been set up by the defaulting owner the Commissioner would well be within his rights to refuse him a separate connection as that would enable the owner to escape the consequence of non payment of property tax. But nevertheless since the right to supply of water is recognised now to be a right under Article 21 of the Constitution of India, in a situation like the above, the Municipal Commissioner should under section 267 consider the case of compelling the owner to take additional supply in accordance with the provisions of this section. 11. THEREFORE, this particular writ can be disposed of by declaring that the Municipal Corporation is perfectly justified in refusing a separate non- domestic connection to the writ petitioner. Nevertheless, it would be open to the writ petitioner to apply to the Commissioner under section 267 of the Kolkata Municipal Corporation Act, 1980. If he does so, the Municipal Corporation will consider his application in accordance with the observations made above and dispose of the same within a period of 4 weeks from the date of making of the application. 12. URGENT certified photocopy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.