Supreme Court Clarifies Water Usage Rules in Kolkata Municipal Area: Trust Estate Khimji Keshavji vs. Kolkata Municipal Corporation (2023)

Introduction

Date of the Judgment: 05 July 2023

Citation: 2023 INSC 609

Judges: B.R. Gavai, J., Vikram Nath, J.

Can a municipal corporation restrict the use of domestic water for commercial purposes if the supply of unfiltered water is not available? The Supreme Court of India recently addressed this question in a case concerning the Kolkata Municipal Corporation Act, 1980. The court examined whether the Kolkata Municipal Corporation (KMC) could prohibit the use of domestic water for non-domestic purposes in a building where unfiltered water was not supplied, and whether a notice issued by the KMC to the building owner was valid. The judgment was delivered by a two-judge bench comprising Justice B.R. Gavai and Justice Vikram Nath, with the opinion authored by Justice Vikram Nath.

Case Background

The case revolves around a notice issued by the Kolkata Municipal Corporation (KMC) to Trust Estate Khimji Keshavji, the owner of a building at 30, C.R. Avenue, Kolkata. The KMC alleged that the building owner was using water supplied for domestic purposes for non-domestic purposes, violating Section 238 of the Kolkata Municipal Corporation Act, 1980 (the Act). The building in question has a ground floor and six upper floors. The owner occupied the ground floor and the top floor for residential purposes, while the remaining floors were let out to various commercial establishments.

The KMC issued two notices on August 22, 2008. One notice, under Sections 238 and 271 of the Act, stated that the owner was using domestic water for non-domestic purposes without permission, which is punishable under Section 610 of the Act. The second notice, under Section 258 read with Section 558 of the Act, concerned a fault in the supply line. The issue related to the second notice was resolved, leaving the notice under Sections 238 and 271 as the primary subject of dispute.

The building owner challenged the notice in a writ petition before the High Court of Judicature at Calcutta, arguing that they were using water only for domestic purposes in their residential area, and that the other occupants were using it for non-domestic purposes. The owner also contended that since unfiltered water was not available in their area, they were permitted to use wholesome water for non-domestic purposes under Section 272(4) of the Act. The High Court upheld the KMC’s notice, leading to the appeal before the Supreme Court.

Timeline:

Course of Proceedings

The appellant, Trust Estate Khimji Keshavji, initially filed a writ petition before the High Court of Judicature at Calcutta, challenging the notice issued by the KMC under Sections 238 and 271 of the Kolkata Municipal Corporation Act, 1980. The learned Single Judge of the High Court upheld the validity of the notice, granting the appellant liberty to seek permission for non-domestic water use under Section 239 of the Act. The Single Judge also allowed the appellant to recover any fees paid from the occupants of the building. The appellant then filed an appeal before the Division Bench of the High Court, which was also dismissed. The Division Bench affirmed the decision of the Single Judge, leading the appellant to approach the Supreme Court.

Legal Framework

The case primarily involves the interpretation of several sections of the Kolkata Municipal Corporation Act, 1980. Key provisions include:

• Section 2(21): Defines “Corporation” as the Kolkata Municipal Corporation.
• Section 2(29): Defines “domestic purposes” as purposes other than those in Section 238(2).
• Section 2(38): Defines “filtered water” as water intended for domestic use, tested for potability.
• Section 2(60): Defines “occupier” as someone paying rent to the owner or a rent-free tenant.
• Section 2(62): Defines “owner” as the person receiving rent for the land or building.
• Section 234: Mandates the Corporation to supply wholesome water to every part of Kolkata for domestic purposes. It also allows the Corporation to levy an annual fee for water supply.
• Section 234A: Allows the owner to recover water supply fees from the occupier of the premises.
• Section 235: Requires the Corporation to provide a supply of unfiltered water in certain areas, but allows discontinuation of the supply where wholesome water is available in sufficient quantity.
• Section 238: Restricts the use of wholesome water for domestic purposes only and specifies uses not included under domestic purposes, such as for commercial activities, industrial purposes, or in institutional buildings.

  “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 domestic purposes only. (2) The supply of water for domestic purposes under 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, or (c) for fountains or swimming baths, or (d) for watering gardens or streets, or (e) for any ornamental or mechanical purpose, or (f) for building purposes , or (g) for flushing purpose other than the purpose of flushing privies in bustees, or (h) for washing cars, carriages and [other vehicles, or (i) to any institutional building, assembly building, business building, mercantile building, industrial building, storage building or hazardous building, referred to in sub-clause (c), sub-clause (d), sub-clause (e), sub-clause (t), sub-clause (g); sub-clause (h), or sub-clause (1), as the case may be, of clause (2) of Section 390, or to any part of any such building, other than that used as a residential building or educational building within the meaning of sub-clause (a) or sub-clause (b), as the case may be, of clause (2) of Section 390: Provided that in. case of emergency, wholesome water may be used for extinguishing fire.”

• 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, and allows the use of wholesome water in lieu of unfiltered 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. (2) Unfiltered water may also be used, free of charge, (a) for flushing privies and urinals in private premises connected with sewers; (b) for flushing of drains in private premises; (3) Unfiltered water shall not be used for domestic purposes or, without the written permission of the Municipal Commissioner, for any purposes 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.”

• Section 275(1)(c): Empowers the Municipal Commissioner to cut off or turn off water supply 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 issued by KMC was vague and non-specific, failing to detail the exact violations of Section 238 of the Kolkata Municipal Corporation Act, 1980.
• KMC was aware of the various occupants of the building, as it had issued trade licenses to them, yet the notice was only addressed to the owner and not to the individual occupants.
• The owner was using the water supply only for domestic purposes in their residential area.
• Since unfiltered water was not available in the area, the use of wholesome water for non-domestic purposes was permitted under Section 272(4) of the Act.
• Trade licenses issued to the occupants of the building indicated that the KMC was charging for non-domestic use of water, which effectively permitted the use of wholesome water for other than domestic purposes.

Respondent’s Arguments (Kolkata Municipal Corporation):

• The notice issued under Sections 238 and 271 of the Act was valid because the occupants of the building were using water for commercial purposes, which is not considered domestic use.
• The High Court had correctly granted liberty to the appellant to seek permission for non-domestic use, and therefore, there was no need for the Supreme Court to interfere.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the notice issued by the Kolkata Municipal Corporation (KMC) under Sections 238 and 271 of the Kolkata Municipal Corporation Act, 1980, was valid.
2. Whether the use of wholesome water for non-domestic purposes was permissible under Section 272(4) of the Act when the supply of unfiltered water was not available.
3. Whether the KMC was required to issue notice to the occupiers of the building before taking action against the owner.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• 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:

• Section 2(21), Kolkata Municipal Corporation Act, 1980: Definition of “Corporation.”
• Section 2(29), Kolkata Municipal Corporation Act, 1980: Definition of “domestic purposes.”
• Section 2(38), Kolkata Municipal Corporation Act, 1980: Definition of “filtered water.”
• Section 2(60), Kolkata Municipal Corporation Act, 1980: Definition of “occupier.”
• Section 2(62), Kolkata Municipal Corporation Act, 1980: Definition of “owner.”
• Section 234, Kolkata Municipal Corporation Act, 1980: Duty of the Corporation to supply water.
• Section 234A, Kolkata Municipal Corporation Act, 1980: Recovery of water fee by owner from occupier.
• Section 235, Kolkata Municipal Corporation Act, 1980: Supply of unfiltered water.
• Section 238, Kolkata Municipal Corporation Act, 1980: Restriction on use of wholesome water for domestic purposes.
• Section 271, Kolkata Municipal Corporation Act, 1980: Restriction on use of domestic water for non-domestic purposes.
• Section 272, Kolkata Municipal Corporation Act, 1980: Use of unfiltered water and use of wholesome water in lieu of unfiltered water.
• Section 275(1)(c), Kolkata Municipal Corporation Act, 1980: Power of the Municipal Commissioner to cut off water supply.

Judgment

How each authority was viewed by the Court:

• The Supreme Court relied on 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* to emphasize that a vague and non-speaking notice is invalid and should be quashed.
• The Court interpreted Section 238 of the Kolkata Municipal Corporation Act, 1980 to understand the restrictions on the use of wholesome water for domestic purposes.
• The Court interpreted Section 271 of the Kolkata Municipal Corporation Act, 1980 to understand the restrictions on using domestic water for non-domestic purposes without permission.
• The Court relied on the non-obstante clause in Section 272(4) of the Kolkata Municipal Corporation Act, 1980, stating that it allows the use of wholesome water for non-domestic purposes when unfiltered water is not available, overriding the restrictions in other sections.
• The Court interpreted Section 275(1)(c) of the Kolkata Municipal Corporation Act, 1980 to highlight that the notice should have been addressed to the occupiers first, who are primarily responsible for contravening Section 238.

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. This was a significant factor in the Court’s decision to quash the notice.
• Availability of Unfiltered Water: The admitted fact that unfiltered water was not supplied in the area was crucial. Section 272(4) of the Act allows the use of wholesome water for non-domestic purposes when unfiltered water is unavailable, which the KMC failed to consider.
• Trade Licenses and Charges: The KMC had issued trade licenses to the occupants for non-residential use and was charging fees under various sections, including water charges. This implied that the KMC had implicitly permitted the use of wholesome water for non-domestic purposes.
• Liability of Occupiers: The Court emphasized that the primary liability for water charges and any violations lies with the occupiers, not the owner. The KMC should have first issued notices to the occupiers.
• Overriding Effect of Section 272(4): The Court highlighted the non-obstante clause in Section 272(4), which gives it overriding effect over other provisions of the chapter, including Sections 238 and 271.

Fact:Law Ratio:

The Court’s reasoning was a mix of both factual considerations (such as the absence of unfiltered water and the issuance of trade licenses) and legal interpretations (such as the overriding effect of Section 272(4) and the liability of occupiers). The legal aspects, however, slightly outweighed the factual aspects in the Court’s decision-making process.

Logical Reasoning

Key Takeaways

• Clarity in Notices: Municipal authorities must issue clear, specific notices detailing the exact violations of the law. Vague notices will not be upheld.
• Unfiltered Water Availability: When unfiltered water is not available, the use of wholesome water for non-domestic purposes is permitted under Section 272(4) of the Kolkata Municipal Corporation Act, 1980.
• Liability of Occupiers: The primary liability for water charges and violations lies with the occupiers of the premises, not necessarily the owner.
• Overriding Effect of Section 272(4): The non-obstante clause in Section 272(4) gives it overriding effect over other provisions in Chapter XVII of Part-V of the Act.
• Trade Licenses: If a municipal corporation issues trade licenses for non-domestic use and charges fees for it, it cannot then claim a violation for using water for non-domestic purposes.

Potential Future Impact:

• This judgment sets a precedent for how municipal corporations should interpret and enforce water usage regulations.
• It clarifies the rights of building owners and occupiers regarding water usage when unfiltered water is not available.
• It emphasizes the need for municipalities to issue specific and clear notices, rather than vague and general ones.
• It may lead to a review of water supply policies and regulations in other municipalities.

Directions

The Supreme Court set aside the judgments of the Division Bench and the learned Single Judge of the High Court and quashed the impugned notices. The Court granted liberty to the Kolkata Municipal Corporation to initiate fresh proceedings as may be permitted by law.

Development of Law

The ratio decidendi of this case is that when a municipal corporation does not provide unfiltered water, the use of wholesome water for non-domestic purposes is permissible under Section 272(4) of the Kolkata Municipal Corporation Act, 1980. This interpretation clarifies the interplay between Sections 238, 271, and 272 of the Act. Further, the Court held that a notice issued by the corporation must be specific and not vague, and must be addressed to the occupier first, who is primarily liable for the contravention of Section 238 of the Act. This judgment reinforces theimportance of clarity and specificity in legal notices and the need for municipal corporations to consider all relevant provisions of law before taking action.