Harish Lamba Vs Mun.Corpn.of Greater Mumbai and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 1206 OF 1999

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Harish Lamba of Bombay Indian ]
Inhabitant sole proprietor of ]
Volga Frozen Food & Ice-Cream ]
Co. residing at 36, CCI Chambers]
Dinshaw Wacchha Road, Mumbai ]
400020 ]..Petitioner
Vs.
1. Municipal Corporation of ]
Greater Mumbai having their ] office at Mahanagar Palika ]
Marg, Mumbai-400001 ] ]
2. Huseini A.Barodawala the ]
trustees of a trust known as ]
Shaikhali Family Trust a ] private trust having their ] address at Zenith Tin Works ]
Ltd. Opp.Race Course, ]
Mahalaxmi, K.K.Marg, Mumbai ] 400034 ] ]
3. Central Bank of India ]
a Banking Corporation having ]
its branch office at 1C ]
C.Khadye Marg, Mahalaxmi ]
Mumbai-400034 ]..Respondents

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Mr.Rajiv Narula i/b S.M.Khaire for Petitioner Mr.V.Mahadik for Respondent-B.M.C.

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CORAM : DR.S.RADHAKRISHNAN AND SMT.V.K.TAHILRAMANI, JJ.

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DATE : NOVEMBER 21, 2006

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ORAL JUDGMENT : [PER SMT.V.K.TAHILRAMANI,J.]

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1. In	this	petition	under	Article 226	of	the
Constitution	of	India,		the petitioner		has
impugned	bills/dem	ands	(Exhibit-E1	to E11	to	the
petition)	made		by	the	resp	ondent
no.1-corporation,	as	well	as	the Warr	ant	of
Attachment	dated	5th	August,	1998, wherein	it	is

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stated that if the amount of Rs.10,60,312/- was

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not paid, the premises would be attached.

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2.	The	petitioner i	s car	rying o	n business	as
sole	proprietor	in the	name	and	style of	Volga
Frozen	Foods	and Ice-cr	eam	Company.	The	said
firm	is	located at	Volga	House,	1-C,	K.K.Marg,
Mahalaxmi,	Bom	bay-400034.	A	s	the	Ice-cream
factory	required	huge	amount		of water,	the
petitioner	was	granted	fixed	water	quota of	10
lakh	gallons	of water	by	the	corporation.	The
Ice-cream		factory condu	cted	by	the petition	er in
the	said	premises came	to	be clos	ed down	from
31.3.1984	and	the	petitio	ner ce	ased to	utilise
the	fixed	water q	uota	allotted	by	respondent
no.1-corpor	ation.	By	letter	dated	2.2.1987	the

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petitioner	called		upon	respondent
no.1-corporation	to	charge	water on	actual
consumption ba	sis.	On 15.10.1987	a water	meter
was installed	by	the corpor	ation on	the
petitioner’s pre	mises.	By	letter	dated
27.1.1992,	respo	ndent no.1-corpor	ation	informed
the petitioner	that	since their	company is	closed
down since	long,	there is no	point in	retaining
the existing	connec	tion to the	factory of	fixed
water quota.		By the said	letter, the	petitioner
was informed	that	their connection	would be	cut
off. Howev	er,	the water con	nection and	supply
came to be	cut	off by	the corporati	on on
25.10.1993.		Thereafter, the	petitioner	obtained
water supply to the premis tankers.	es from pr	ivate water

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3.	Howev	er,	from	10.1	.1997 the
respondent	-corporation		raised		bills
retrospecti	vely	from	1.10.1993	onwards	for water
taxes	in	lieu of	water charges	as	according to
the	corporation,	the	bills for	the	period from
1.10.1993	onwar	ds wer	e not	paid	by the
petitioner.		Respo	ndent no.1-c	orporation	issued
Warrant	for	attachment	dated 5th	Aug	ust, 1998 of
the	building	premises	occupied	by	the petitioner.

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This	Warrant	of	At	tachment		was	issued	for
non-payment		of	Rs.10,	60,312/-.		By	letter	dated
18.11.1998,			respo	ndent		no.1-cor	poration	informed
the	petitioner	that	if	he	did	not	pay the	water
taxes,	they	would	pro	ceed	to	adv	ertise the	public
auction	relating		to	pre	mises	occup	ied by	the

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petitioner. Hence, the present petition has been

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preferred by the petitioner.

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4.	The learned counsel	for the	petitioner
submitted	that as water co	nnection and suppl	y of
water	to the petitioner’s pre	mises, was cut	off
on	25.10.1993, thereafter the	corporation	could
not	levy any water charges	on the petitione	r for
any	water supply after that	date. He	further
submitted	that the power to	collect any	water
charges	or taxes under Section	169 of the	Mumbai
Municipal	Corporation Act,	1888, is only	for
actual	supply of water or	services by	the
Municipal	Corporation. The	fact that	the
corporation	discontinued the	water connection	to
the	petitioner’s premises on	25.10.1993 has	not
been d	enied by the corporation.	Nothing has	been
pointed	out by the corporation	to show that	after
25.10.1993,	the corporation	has restarted	or
reconnected	water connection and	or supply to	the

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premises		of the	petitioner.	Thu	s, t	he	position
is	that	from	25.10.1993	the w	ater	connection	and
supply		of water	to the	petitio	ner’s	premises	was
cut	off	by the	corporation.	From	this	, it	is
clear	that	from	25.10.1993	onw	ards	no	water
supply		was contin	ued or	effected	or	any	services
were	ren	dered by	the	corporat	ion	to	the
petitioner’s		premises	in	relation	to	the	water
supply.		Thus,	from 25	.10.1993,	there	was	no
benefit	of	water	supply	or	any	corre	sponding

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services to the petitioner’s premises by the

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respondent no.1-corporation.

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5.	In Nagpal Printing	Mills and another	Vs.
Municipal	Corporation of Gre	ater Mumbai;	AIR
1988	Bom.91, this Court	observed that	"Section
169	of the B.M.C.Act	specifically empowers	the
Standing	Committee to make	rules to charge	for
the su	pply of water and	by such rules	to
determine	water charges based	on a measurement	or
estimated	measurement or	the quantity of	water
supplied".	This Court fur	ther held that	"Section
169	empowers the Corporation	to levy charge	only
in re	spect of water that	has in fact,	been
supplied	to and consumed by	consumer and it	is to

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be levied on the basis of measurement or

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estimated measurement."

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6.	Being aggrieved by the above decision	of the
High	Court, the Municipal Corporation	preferred
Special	Leave Petition against the said	judgment
before	the Supreme Court. The said decision	is
reported	in 1988 (2) Bom.C.R.325 -	Municipal
Corporation	of Greater Bombay Vs. M/s.	Nagpal
Printing	Mills and another. In the	said
decision,	the Supreme Court has observed that	"We
are	in agreement with the High Court’s vie	w that
it	empowers the Corporation to levy charge	only
in res	pect of water that has in fact	been
supplied	to and consumed by the consumer and	it
is to	be levied on the basis of measurement	or
estimated	measurement". It is further	observed
that	"the supply referred to in Section 169	of

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the Act, is a supply which is, in fact, supplied

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to the consumer and consumed by it".

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7.	In view o	f thes	e decisions,	it i	s clear	that
the	supply referred	to	in Section	169	of	the
B.M.C.	Act for	which	the cor	poration	can	charge,
is	the supply w	hich	has infact,	been	supplied	to
the	consumer and	consum	ed by the	consu	mer.	In
the	present case,	there	has been	no	supply	of

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water	to th	e	petitioner’s	pr	emises	from
23.10.1993,	hence,	there	is	no	questio	n of
consumption	of any	such	supply	by	the	petitioner.
Hence,	no bills	can	be raised	by	the	corporation
in res	pect of	supply	of water	after		25.10.1993.
In this	view	of	the	mat	ter,	impugned
bills/demands	for	water	charges	raised	by	the
respondent	no.1-corpora	tion	relating		to	the
period	from 25.1	0.1993	onwards,	are q	uashed	and

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set aside so also the Warrant of Attachment dated 5.8.1998, is set aside. 8. In the result, petition succeeds. Rule made

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absolute in terms of prayer clauses (a) and (b).

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No order as to costs.

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[ DR.S.RADHAKRISHNAN, J.]

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[ SMT.V.K.TAHILRAMANI,J.]

Harish Lamba v. Mun.Corpn.of Greater Mumbai and Ors.

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Harish Lamba v. Mun.Corpn.of Greater Mumbai and Ors.

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