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2016 DIGILAW 363 (KER)

Asst. Engineer v. Induchoodan S/o. Raman Namboothirippad

2016-03-31

A.M.SHAFFIQUE, ASHOK BHUSHAN

body2016
JUDGMENT : A.M. Shaffique, J. 1. This writ appeal is filed against the judgment dated 17/12/2015 in W.P.C. No. 36993/2015. The writ petition has been filed by the 1st respondent herein for a direction to quash Ext.P4 and also for a direction to the respondent to immediately effect the supply of drinking water to the petitioners' premises on the basis of Ext.P2 application. 2. By Ext.P4, Assistant Engineer, Kerala Water Authority informed the petitioners that, in addition to the various requirements, they will have to produce necessary consent letter since they have submitted an application by which Common Street Main Extension (CSME) connection is required. The learned Single Judge, however, having taken note of the contention urged by the petitioners that they have only nine dwelling units, and they have converted one dwelling unit into a commercial unit, directed them to file an affidavit and necessary proof before the respondent to show that the actual dwelling units are only 9 and the respondent was directed to consider the application and issue necessary orders, if the documents are genuine and have not exceeded 10 units and less than 10,000 sq.metre plinth area. 3. Impugning the aforesaid judgment, the learned counsel for the appellant placed reliance on certain provisions of the Kerala Water Supply and Sewerage Act 1986 (hereinafter referred to as 'the Act') and the Regulations framed thereunder. According to him, as per Section 38A of the Act, water supply to flats and multi-storied building has to be granted in terms with the said provision. Reference has been made to Regulations 7(d) and 7(g) of the Kerala Water Authority (Water Supply) Regulations, 1991 , which reads as under: "7(d): Separate house connections may be provided to buildings situated in the same premises but bearing separate house numbers. 7(g): House connections using connection pipes of size exceeding 25 mm diameter shall ordinarily be allowed only in respect of premises where water demand is estimated to be high such as in residential complexes, flat type of residential buildings or premises where bulk consumption of water is expected and where the service pipe is proposed to be connected directly to a storage tank facilitating a free discharge of water to it. In such cases where connections are to be given directly to storage reservoirs the provisions contained in Appendix 'C' to these Regulations shall apply." 4. In such cases where connections are to be given directly to storage reservoirs the provisions contained in Appendix 'C' to these Regulations shall apply." 4. It is argued that, in respect of house connection, the provision applicable is Regulation 7(d) whereas when it comes to flats and other apartments, Regulation 7(g) applies. Reference is also made to definition of flat as provided under Section 2(xa) of the Act, which reads as under: "flat" means building/independent villas having ten or more dwelling units or buildings having a total plinth area of one thousand square metres or more in a premise." On a bare reading of the definition of flat, it indicates that if there are 10 or more dwelling units, it will be considered as a flat. Apparently, the petitioner has 10 dwelling units and it is a 'flat' as defined under Section 2(xa) of the Act. 5. Petitioner has a case that he has only 9 dwelling units and one dwelling unit will be used for commercial purpose and tax is also paid on that basis. A perusal of Ext.P1 occupancy certificate clearly indicates that the plan has been sanctioned for residential purpose. Merely for the reason that there has been change in occupancy, does not take it out of the definition of 'flat' as far as the Act is concerned. One cannot, on his own, wriggle out from the statutory provisions by changing the nature of occupancy. Such instances will defeat the very object of the Act. 6. It is submitted by the learned counsel for the appellant that if water supply is given from a common line and not from CSME line, it will affect the pressure of water to the households who are given independent connection. As far as apartment or flat is concerned, the line requires sufficient pressure and by any stretch of imagination, there cannot be any dilution of the statutory provisions. 7. Having regard to the fact that appropriate provision has been made for providing water connection to different types of buildings in the Regulation, we do not think that such Regulations can be diluted on the whims and fancies of the builder or the owner, as the case may be. 7. Having regard to the fact that appropriate provision has been made for providing water connection to different types of buildings in the Regulation, we do not think that such Regulations can be diluted on the whims and fancies of the builder or the owner, as the case may be. Under such circumstances, we are of the view that the learned Single Judge was not justified in making a concession as far as the petitioners are concerned and directing the respondent authority to consider the application on the basis of the directions issued thereunder. In the result, the writ appeal is allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed, however, reserving right of the petitioners to apply for water connection, in terms of Ext.P4.