Supreme Court Clarifies Use of Domestic Water for Non-Domestic Purposes in Kolkata: Trust Estate Khimji Keshawji vs. Kolkata Municipal Corporation (2023)

Date of the Judgment: July 05, 2023
Citation: 2023 INSC 609
Judges: B.R. Gavai, J., Vikram Nath, J.
Can a municipal corporation restrict the use of domestic water for non-domestic purposes when unfiltered water is unavailable? The Supreme Court of India addressed this critical question in a recent case involving the Kolkata Municipal Corporation (KMC). The court examined whether KMC could prohibit the use of domestic water for commercial purposes in a building where unfiltered water was not supplied, and whether a notice issued to the owner was valid. The judgment was delivered by a two-judge bench comprising Justice B.R. Gavai and Justice Vikram Nath, with Justice Vikram Nath authoring the opinion.

Case Background

The case revolves around a notice issued by the Kolkata Municipal Corporation (KMC) to Trust Estate Khimji Keshawji, the owner of a building at 30, C.R. Avenue, Kolkata. The notice, dated August 22, 2008, alleged that the owner was using water supplied for domestic purposes for non-domestic purposes, violating Sections 238 and 271 of the Kolkata Municipal Corporation Act, 1980. The building in question had a ground floor and six additional floors. The top and ground floors were used by the owner for residential purposes, while the other floors were rented out to various commercial establishments.

Timeline

Course of Proceedings

The appellant, Trust Estate Khimji Keshawji, challenged the notice issued by the KMC by filing a writ petition before the High Court of Calcutta. The Single Judge of the High Court upheld the validity of the notice, but allowed the appellant to seek permission for non-domestic use of water and to recover fees from the occupiers. The appellant then filed an intra-court appeal before the Division Bench of the High Court, which was also dismissed. Aggrieved by this, the appellant approached the Supreme Court of India.

Legal Framework

The Supreme Court examined several key provisions of the Kolkata Municipal Corporation Act, 1980:

• Section 2(29): Defines “domestic purposes” as purposes other than those specified in Section 238(2).
• Section 2(38): Defines “filtered water” as water intended for domestic use, tested for potability and purity.
• Section 2(60): Defines “occupier” to include those who pay rent or damages for occupation, including rent-free tenants, and owners living in their own property.
• Section 2(62): Defines “owner” as the person receiving rent for a property.
• Section 234: Mandates the KMC to ensure a sufficient supply of wholesome water. It also allows the KMC to levy annual fees on owners or occupiers for water supply.
  
  “234. Corporation’s duty to supply water :- (1) It shall be the duty of the Corporation to take steps from time to time — (a) for ascertaining the sufficiency and wholesomeness of water supplied within 1[Kolkata]; (b) for providing a supply of wholesome water in pipes to every part of 1[Kolkata] in which there are houses, for domestic purposes of the occupants thereof…”
• Section 234A: Allows the owner to recover water supply fees from the occupier.
  
  “234A. Recovery of fee for supply of water by owner from occupier: – The owner of a part or flat of a building for which fee for supply of water is charged may recover the entire amount of such fee from the occupier thereof who uses it for residential purpose or otherwise…”
• Section 235: Requires the KMC to provide a supply of unfiltered water. It also allows the KMC to discontinue the supply of unfiltered water where a sufficient supply of wholesome water is available.
  
  “235. Supply of unfiltered water. -The Corpora-tion shall provide a supply of unfiltered water — (a) in those parts of 1[Kolkata] in which such water is provided at the commencement of this Act, and (b) in such other parts of 1[Kolkata] as it may think fit: Provided that the Corporation may discontinue the supply of unfiltered water in any part of 1[Kolkata] where a supply, in sufficient quantity, of wholesome water becomes available.”
• Section 238: Restricts the use of wholesome water for domestic purposes only and lists the purposes for which it cannot be used.
  
  “238. Supply of water for domestic purposes not to include any supply for certain specified purposes. – (1) The use of wholesome water shall be for domes-tic purposes only. (2) The supply of water for domestic purposes un-der this Act shall not be deemed to include any supply — (a) for washing of animals kept for sale or hire, or (b) for such trade, manufacture or business as may be determined by the Mayor -in-Council…”
• Section 271: Prohibits the use of water supplied for domestic purposes for any other purpose without the written permission of the Municipal Commissioner.
  
  “271. Water supplied for domestic purposes not to be used for non -domestic purposes. – No person shall, without the written permission of the Municipal Commissioner, use or allow to be used water, supplied for domestic purposes, for any other purposes.”
• Section 272: Specifies the purposes for which unfiltered water can be used. Crucially, sub-section (4) allows the use of wholesome water for non-domestic purposes when unfiltered water is not available.
  
  “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. (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.”
• Section 275(1)(c): Empowers the Municipal Commissioner to cut off or turn off the water supply to premises if the occupier contravenes Section 238 of the Act.
  
  “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: (c) if the occupier of the premises contravenes section 238;”

Arguments

Appellant’s Arguments:

• The notice was vague and did not specify the exact violations of Section 238 of the Act.
• The notice was addressed only to the owner and not to the occupiers, despite KMC knowing about the other occupiers through trade licenses.
• The owner was using water only for domestic purposes, and therefore, there was no violation.
• Section 272(4) of the Act permits the use of wholesome water for non-domestic purposes when unfiltered water is not available, which was the case here.
• The KMC had issued trade licenses to the occupiers of the 1st to 5th floors, charging them for non-domestic use of water, which implies that such usage was permitted.

Respondent’s (KMC) Arguments:

• The notice was valid as the occupiers of the 1st to 5th floors were using water for commercial purposes, which is not considered domestic.
• The High Court had given liberty to the appellant to rectify the lapses, and therefore, the Supreme Court should not interfere.

Innovativeness of the argument: The appellant’s argument regarding Section 272(4) and the non-obstante clause was innovative as it highlighted the overriding effect of this provision, which was not adequately considered by the High Court.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issues addressed were:

1. Whether the notice issued by KMC was valid given it did not specify the exact violation of Section 238 of the Kolkata Municipal Corporation Act, 1980.
2. Whether the notice should have been issued to the occupiers as well as the owner.
3. Whether the use of wholesome water for non-domestic purposes is permissible under Section 272(4) when unfiltered water is not available.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

Cases Relied Upon by the Court:

• Biecco Lawrie Ltd. Vs. State of West Bengal; (2009) 10 SCC 32: Cited for the principle that a vague and non-speaking notice deserves to be quashed. [Supreme Court of India]
• K.Vinu Vs. State of Tamil Nadu; 2019 SCC Online Mad 123: Cited for the principle that a vague and non-speaking notice deserves to be quashed. [High Court of Judicature at Madras]
• Woolcombers of India Ltd. Vs. Workers Union; (1974) 3 SCC 318: Cited for the principle that a vague and non-speaking notice deserves to be quashed. [Supreme Court of India]
• Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40: Cited for the principle that a vague and non-speaking notice deserves to be quashed. [Supreme Court of India]

Legal Provisions Considered by the Court:

• Section 2(29) of the Kolkata Municipal Corporation Act, 1980: Definition of “domestic purposes”.
• Section 2(38) of the Kolkata Municipal Corporation Act, 1980: Definition of “filtered water”.
• Section 2(60) of the Kolkata Municipal Corporation Act, 1980: Definition of “occupier”.
• Section 2(62) of the Kolkata Municipal Corporation Act, 1980: Definition of “owner”.
• Section 234 of the Kolkata Municipal Corporation Act, 1980: Corporation’s duty to supply water.
• Section 234A of the Kolkata Municipal Corporation Act, 1980: Recovery of fee for supply of water by owner from occupier.
• Section 235 of the Kolkata Municipal Corporation Act, 1980: Supply of unfiltered water.
• Section 238 of the Kolkata Municipal Corporation Act, 1980: Restriction on use of wholesome water for domestic purposes.
• Section 271 of the Kolkata Municipal Corporation Act, 1980: Restriction on use of water supplied for domestic purposes for non-domestic purposes.
• Section 272 of the Kolkata Municipal Corporation Act, 1980: Use of unfiltered water, including sub-section (4) which allows the use of wholesome water in lieu of unfiltered water when the latter is not available.
• Section 275(1)(c) of the Kolkata Municipal Corporation Act, 1980: Power of Municipal Commissioner to cut off or turn off supply of water to premises.

Judgment

How each authority was viewed by the Court?

• The cases Biecco Lawrie Ltd. Vs. State of West Bengal; (2009) 10 SCC 32, K.Vinu Vs. State of Tamil Nadu; 2019 SCC Online Mad 123, Woolcombers of India Ltd. Vs. Workers Union; (1974) 3 SCC 318, and Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40 were cited to support the principle that a vague and non-speaking notice is invalid.
• The Court relied on Section 272(4) of the Kolkata Municipal Corporation Act, 1980, emphasizing its non-obstante clause, which gives it an overriding effect over other provisions in the chapter, including Sections 238 and 271.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Vagueness of the Notice: The Court found the notice issued by KMC to be vague and non-specific, lacking details of the alleged violations, which made it difficult for the appellant to respond appropriately.
• Non-obstante Clause of Section 272(4): The Court emphasized the overriding effect of Section 272(4), which permits the use of wholesome water for non-domestic purposes when unfiltered water is not available. This clause, according to the Court, supersedes the restrictions imposed by Sections 238 and 271.
• KMC’s Awareness of Non-Domestic Use: The Court noted that KMC was aware of the non-domestic use of water by the occupiers, as evidenced by the trade licenses issued and the charges levied for such use.
• Primary Liability of Occupiers: The Court pointed out that the primary liability for paying water charges rests with the occupiers, not the owner, and that KMC should have first issued notice to the occupiers.

The court’s reasoning was heavily influenced by the legal interpretation of Section 272(4) and the procedural lapses on the part of the KMC.

The Court’s reasoning was primarily based on the interpretation of the statutory provisions and the procedural lapses by the KMC.

The Supreme Court’s decision was clear and unequivocal. The Court stated:

“The impugned notice does not mention any reason or specific violation committed by the appellant. It is a general and a vague notice to which apparently no answer/explanation could be given.”

“The non -obstante clause in Section 272(4) of the Act clearly mentions that notwithstanding anything contained in hereinbefore in this chapter which covers Section 271 as also Section 238 of the Act…Section 272(4) of the Act would thus have overriding effect with respect to all the provisions of that chapter namely Chapter XVII of Part V of the Act.”

“Here, we find that the trade license which is issued by the KMC actually permitted use of water supply whether filtered or unfiltered. Further in the absence of any supply of unfiltered water, the wholesome water could be used for non -domestic purposes.”

There were no dissenting opinions in this case. The judgment was delivered by a two-judge bench, with Justice Vikram Nath authoring the opinion.

Key Takeaways

• A notice issued by a municipal corporation must clearly specify the violation and the reasons for it.
• When unfiltered water is not available, Section 272(4) of the Kolkata Municipal Corporation Act, 1980, allows the use of wholesome water for non-domestic purposes.
• The primary liability for paying water charges lies with the occupier, not the owner.
• Municipal corporations must consider trade licenses and other permissions issued when enforcing water usage regulations.

Potential Future Impact: This judgment clarifies the interpretation of Section 272(4) of the Kolkata Municipal Corporation Act, 1980, and sets a precedent for similar cases where municipal corporations attempt to restrict the use of domestic water for non-domestic purposes in the absence of unfiltered water supply. It also emphasizes the importance of clear and specific notices and the need to address the correct parties in such proceedings.

Directions

The Supreme Court set aside the judgments of the Division Bench and the Single Judge of the High Court. The writ petition was allowed, and the impugned notices were quashed. The Court granted liberty to the KMC to initiate fresh proceedings as permitted by law.

Development of Law

The ratio decidendi of this case is that when unfiltered water is not available, Section 272(4) of the Kolkata Municipal Corporation Act, 1980, allows the use of wholesome water for non-domestic purposes. This judgment clarifies the overriding effect of Section 272(4) and sets aside the previous position taken by the High Court, which had upheld the validity of the notice issued by KMC.

Conclusion

The Supreme Court’s judgment in Trust Estate Khimji Keshawji vs. Kolkata Municipal Corporation provides crucial clarity on the use of domestic water for non-domestic purposes when unfiltered water is not available. The court emphasized the importance of clear and specific notices, the overriding effect of Section 272(4), and the primary liability of occupiers for water charges. This ruling protects property owners from arbitrary actions by municipal corporations and ensures that the law is applied fairly and consistently.