1

ORDER SHEET

W.P.No. 1414 of 2008

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

ORIGINAL SIDE

TRUST ESTATE KHIMJI KESHAWJI & ANR. .. Petitioners Versus

THE KOLKATA MUNICIPAL CORPORATION & ORS .. Respondents BEFORE:

The Hon'ble JUSTICE JOYMALYA BAGCHI

Date : 7th May, 2012.

Mr. Sakya Sen, Advocate with Mr. Suvadeep Sen, Advocate for the Petitioners Mr. Pranab Kumar Dutta, Advocate with Mr.Amar Mitra, Advocate for KMC The Court : This writ petition has been taken out by the petitioners, inter alia, challenging two notices, namely, notice under section 258 read with section 558 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the 'Act of 1980'), inter alia, calling upon the writ petitioner No.1 to rectify the defects in the water supply pipes/water fittings in the premises in question and notice under section 238 read with section 271 of the Act of 1980 wherein the writ petitioner No.1 has been directed to desist from using or allowing to be used water supply at the said premises for any purpose other than domestic purpose, failing which the water connection of the said premises has been threatened to be disconnected. The Corporation authorities have filed affidavits to the writ petition and controverted the allegations leveled therein.

At the time of hearing of the writ petition, it appears that the first notice with regard to removing of defects in the water supply pipes/water 2

fittings have been taken care of by the writ petitioners by effecting necessary rectifications thereto. Hence, the challenge to the first notice being Annexure P/2 to the writ petition does not survive.

Challenging the second notice being Annexure P/3 to the writ petition which was issued on the premise that the writ petitioners have used or caused to be used water supply to the premises for purposes other than domestic one, Mr. Sen, learned Advocate for the writ petitioners submits that the writ petitioners are not the occupiers of the premises in question, save and except, a very small portion thereof. It is the contention of the writ petitioners that the water supplied to the portion, which is in their occupation, has not been used for any purpose other than domestic purposes. It is the further contention of the writ petitioners that the alleged violations are committed by the multiple occupants who are the tenants in the premises, but they have not been notified by the respondent Corporation authorities. Mr. Sen submits that the tenancies have been created in the premises admittedly for commercial purposes way back in 1955 and the statute was amended only on 11th May, 1994 to necessitate the requisite permission from the Municipal Commissioner for non domestic use of water. By referring to sub-section (4) of section 272 of the Act of 1980 it has been further contended that in the event unfiltered water is not supplied to a premises, wholesome water may be used for non domestic pu8rpose. Relying on such provision, Mr. Sen argued that use of wholesome water for non domestic purpose would not attract the penal provision of Section 275(1)(c) of the Act of 1980. Mr. Sen further contended that the notice to desist from supplying water to tenants run counter to his client's continuing duty to supply water to his tenants under the West Bengal Premises Tenancy Act, 1997 On behalf of the respondent Corporation, Mr. Dutta, learned Advocate refutes the contentions of Mr. Sen. Referring to Section 276 of the Act of 1980, 3

Mr. Dutta points out that the responsibility of the owner is co-extensive to that of the occupier in the matter of lawful user of water in the premises. He further submits that the expression "desist from using or allowing to be used ... ..." in the notice under challenge clearly shows that it is relatable not only to the occupier who uses such water for non domestic purpose, but also upon the owner who allows such user thereof. Mr. Dutta took pains to point out that admittedly the building is a commercial establishment as the owner had created tenancies therein for commercial purposes. Hence, it does not stand in the mouth of the owner to state that that the writ petitioners have not allowed the user of water supply to the premises for non domestic purposes. Mr. Dutta also refers to non-obstante clause in Section 275 of the Act of 1980, wherein it is provided that the said provision will operate "notwithstanding anything contained in this Act", and submits that the said provision should, therefore, prevail over the non-obstante clause in sub-section (4) of section 272 wherein it is provided that "Notwithstanding anything contained hereinbefore in this Chapter ... ...". Mr. Dutta had referred the decisions reported in 2005(4) CHN 134 and 2000(2) CHN 304 to buttress his submissions. Mr. Sen submits that the said decisions are clearly distinguishable in the facts of the case. I have considered the submissions of the respective parties and also gone through the materials on record. I am of the opinion that the impugned notice which has been issued upon the owner of the premises to desist him from using or allowing to be used water supply at the premises for any purpose other than domestic purpose is a lawful and valid one. Chapter XVII of Part-V of the Act of 1980 contain provisions for supply of water by the Corporation authorities to the premises within its area. Section 234 of the Act of 1980 provides the statutory duty of the Corporation to effect such supply. Section 234A of the Act of 1980 provides for recovery of fee for supply of such water by owner from the 4

occupier thereof. Section 238 provides for supply of wholesome water for domestic purposes. Sub-section (2) of the said section enumerates various categories and/or purposes of supply which are not to be construed as domestic purposes. One of such category provided in clause (i) of the said sub-section is supply to a mercantile/business building or to a building a part of which is not used for residential or educational purposes. Section 239 provides for procedure for supply of water for non domestic purposes. Section 271 of the Act of 1980 provides that no person shall, without prior permission of the Municipal Commissioner, use or allow to be used water, supplied for domestic purposes, for any other purpose. Section 275(1)(c) of the Act of 1980 provides for penalty of disconnection of supply in the event the occupiers of the premises violates Section 238 as aforesaid. The entire scheme of the aforesaid provisions, inter alia, provide for supply of water to the premises in question for specified purposes. Ordinarily, water is to be supplied for domestic purpose and in the event it is used for non domestic purposes, necessary permission is to be obtained from the Municipal Commissioner in terms of section 271 read with section 239 of the Act of 1980. Failure to do so results in penal consequence of disconnection of supply as envisaged in section 275 of the Act of 1980, and such penal liability is co-extensive to the owner as well as to the occupier of the premises as envisaged in section 276 thereof. However, owner is entitled to recover fees paid for such purpose from the occupier in terms of section 237A, as aforesaid.

In this backdrop, let me examine the various submissions of Mr. Sen. Firstly, it has been submitted by Mr. Sen that the non-obstante clause in sub- section (4) of Section 272 of Act of 1980 overrides section 275 of Act of 1980 and protects his client from the penal consequences thereof.Section 272 of the Act of 1980 reads as follows:

5

"272. Use of unfiltered water.- (1) Unfiltered water shall be used for the following purposes:

a) Extinguishing of fire;

b) Street watering;

c) Flushing of drains of the Corporation, gully-pits, public privies and urinals;

(2) Unfiltered water may also be used, free of charge, - a) for flushing of privies and urinals in private premises connected with sewers;

b) for flushing of drains in private premises;

(3) Unfiltered water shall not used for domestic purposes or, without the written permission of the Municipal Commissioner for any purpose other than those specified in sub-sections (1) and (2); (4) Notwithstanding anything contained hereinbefore in this Chapter, wholesome water may be used in lieu of unfiltered water for non domestic purposes where the supply of unfiltered water is not available for the time being."

Sub-section (4) of the said provision permits use of wholesome water in lieu of unfiltered water for non domestic purposes when unfiltered water is not available.

Mr. Sen strenuously has pointed out that since unfiltered water is not available to the premises, use of wholesome water for non domestic purpose cannot fall foul of the penal consequences as envisaged in section 275(1)(c) of the Act of 1980.

I find that such a reading of Section 272 of the Act of 1980 is not permissible in law. Sub-section (4) of Section 272 of the Act of 1980 must be 6

read in the light of sub-section (1) thereof. Unfiltered water in terms of sub- section (1) of Section 272 of the Act of 1980 can be used for the purposes enumerated therein, namely, extinguishing of fire; street watering; flushing of drains of the Corporation. None of such user, admittedly, can be said to be domestic user. Hence, if non unfiltered water is not available for such non domestic use, sub-section (4) permits the user of wholesome water for domestic use for such non domestic user as envisaged in sub-section (1) of Section 272 of the Act of 1980 and not for any other purpose. The provisions of the said section cannot be passed into service to satisfy the use of water for non- domestic purposes as envisaged in sub-section (2) of section 238 of Act of 1980 without necessary permission.

That apart, the non-obstante clause in sub-section (4) of Section 272 relates to 'provision contained hereinbefore in the Chapter'. Section 275 of the Act of 1980 is not a provision which is contained 'hereinbefore', but is a provision which follows section 272 of the Act of 1980, and therefore, cannot be said to be eclipsed by the said non-obstante clause. On the other hand, the non- obstante clause in Section 275 is much wider and provides that the said provision shall override anything contained in the Act including section 272, as aforesaid. I am, therefore, of the opinion that section 275 of the Act of 1980 prevails over sub-section (4) of section 272 of the said Act, and therefore, an user of wholesome water which is supplied for domestic use cannot be used for non domestic purposes in a commercial establishment without necessary permission under section 271 of the Act of 1980. In the event, such wrongful user is made, then not only the occupiers, but also the owners, who have allowed such user, by admittedly creating commercial tenancies in the premises, are liable under the Act of 1980.

7

The other submission raised by Mr. Sen is that since the law was amended only on 1.11.94 to include supply of water to mercantile/business buildings or buildings whose part user is other than residential or educational within the ambit of non-domestic user under sub-section (2) of section 238 of the Act of 1980 while the premises was utilised commercially since 1955, there was no liability on the owner to apply for necessary permission. Section 271 of the Act of 1980 provides that no person shall, use or allow to be used, water supplied for domestic purpose for any other purpose. Section 276 of the said act provides for joint liability in respect of offences arising out of such wrongful user of water. A conjoint reading of the aforesaid provisions clearly lays down a continuing mandatory duty in the owner of the premises not to allow water supplied to the premises for domestic purposes for any other purposes without necessary permission. It is immaterial whether the premises was commercially utilised prior to the enactment of the amendment of sub-section (2) of Section 238 of the Act of 1980 bringing user of water in all commercial buildings within the ambit of non-domestic user. The duty to seek necessary permission arose from the date such amendment came into force and continues day to day upon user of water for such non-domestic purposes by the occupiers thereof. The inaction of the owner to apply for necessary permission has resulted in allowing the occupiers to use water for non-domestic purposes in contravention of section 238 of the Act of 1980 necessitating penal action under section 275 of the said Act.

The provisions of law make it amply clear that the remedy for such a situation where the tenancy has been created prior to the amendment of the aforesaid provisions in the Act of 1980 is for the owner to make appropriate application to the Municipal Commissioner immediately after such amendment for permitting user of water supply for non domestic purpose. The procedure for considering such application is laid down under section 239 of the Act of 1980. 8

Further submission of Mr. Sen that the notice has not been issued upon the occupiers is of little substance. The scheme of the Act, particularly section 271 read with section 276 thereof, provides that the liability of the owner is co-extensive with that of the occupier and hence the notice issued upon the owner to desist from allowing such water supply to be used for non domestic purpose cannot be said to be illegal merely on the ground that similar notice has not been issued upon the occupier. It is apposite to point out that none of the occupiers have come up this Court to challenge the alleged action of the Corporation authorities.

I hold that the owner cannot fight a proxy battle on behalf of the occupiersSo far as the occupiers are concerned, they have not approached this Court seeking remedy against the alleged action on the part of the respondent Corporation authorities. As I have held earlier, the liability of the owner towards the respondent Corporation is co-extensive with the occupiers of the premises. In view of such fact, the contention of the writ petitioners that no notice has been served upon the occupiers of the premises cannot give rise to a cause of action to the owners to agitate the same as none of their legal rights are thereby affected. Reliance is made to the ratio of the decision reported in 2000(2) CHN 304 in this regard.

Finally, the submission of Mr. Sen that the direction in the impugned notice calling upon his client to desist the occupiers of the premises, that is, the tenants therein from using water for non-domestic purpose is violation of Section 31 of the West Bengal Premises Tenancy Act, 1997 is extremely far fetched. What the notice calls upon the petitioners to do so is not to stop supply of water altogether to his tenants but to refrain from allowing the said tenants from using water unlawfully for non-domestic purpose without obtaining 9

necessary permission from the Municipal Commissioner. Such requirement of law by no stretch of imagination cannot run counter the said provisions of the tenancy law. Moreover, the said provision clearly provides that the same operates subject to any municipal requisition, as is the present case. In view of the aforesaid discussion I hold that the impugned notice upon the writ petitioner No.1 is lawful and valid. In similar circumstances, another learned Single Judge of this Court in the case of Ashwin Properties Ltd. & Anr. Vs. Calcutta Municipal Corporation & Ors. Reported in 2005(4) CHN 134 upheld similar notice upon the owners of the premises. However, in view of the fact that the writ petitioners are entitled to seek necessary permission for user of water in their premises for non domestic purposes from the Municipal Commissioner, I grant liberty to the writ petitioners to make an application in terms of Section 239 of the Act of 1980 before the Municipal Commissioner for seeking permission for user of water in the premises for non domestic purpose. In the event, such application is made within seven days from date, the Municipal Commissioner shall deal with the same in accordance with law and pass a reasoned order thereon. The Municipal Commissioner shall pass such an order within four weeks from the date of making such application for permission. In the event, an application is made within the period as stated hereinbefore, the impugned notice dated 22nd August, 2008 under section 238 read with section 271 of the Act of 1980 shall remain in abeyance till an order is passed thereon by the Municipal Commissioner, as aforesaid.

I make it clear that any application for necessary permission for use of water for non domestic purposes and payment of any fees therefor by the petitioners as the owner of the premises would not stand in their way of availing of any remedy available in law to recover the same from the occupiers of the premises and the Corporation authorities shall render all necessary assistance in that regard in accordance with law.

10

With the aforesaid directions, the writ petition is disposed of. All interim orders stand vacated. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (JOYMALYA BAGCHI, J.)

km