Berg Ice Factory vs Corporation of Cochin and Another

George Vadakkel, J.—By Ext. P-1 resolution of the Standing Committee constituted under the provisions of the Kerala Municipal Corporations Act, 1961 by the Corporation of Cochin the rates till then in force for water supplied for purposes other than domestic use was raised from Rs. 3 per 1000 gallons to Rs. 1.75 per 1000 litres (this would work out to Rs. 7.91 per 1000 gallons). This resolution is impugned herein by the Petitioner, who is the proprietor of an ice factory situated within the limits of the Corporation of Cochin. The Petitioner, in fact, challenges the constitutional validity of Section 171(2) of the Kerala Municipal Corporations Act, 1961, which enables the Standing Committee to insist upon payment for all water supplied under Sub-section (1) of Section 171 at such rates and on such conditions as may be laid down by it, by general or special order.

The attack is two-fold, namely, (1) that there is discrimination as between consumers of water for domestic use on the one hand and consumers of water for non-domestic use on the other; (2) that the provision contained in Section 171(2) clothes the Standing Committee with arbitrary and naked power without any guidance as regards the exercise of that power by the Committee.

It is necessary to understand the scheme of the provisions concerning water supply contained in Chapter VII in Part IV of the Kerala Municipal Corporations Act, 1961. u/s 166 of the Act it is obligatory on the Corporation to provide a supply of wholesome drinking water within the city and to erect sufficient stand-pipes, fountains, or other conveniences for the gratuitous supply of such water. The said provision also says that the Corporation shall, as far as possible, make adequate provision that such supply is continuous throughout the year. The earlier section, Section 165, prohibits all persons from using of water supplied for domestic purposes for any purposes other than domestic purposes, without permission of the Commissioner. It is also obligatory thereunder that '' the person who gets water for domestic purposes shall not allow the same to be used by another for any purpose other than domestic purpose without the written permission of the Commissioner. After providing for public-water-supply as aforesaid, the Act by Section 170 thereof provides that the Commissioner may on application by the owner or occupier of any building arrange in accordance with the bye-laws to supply water thereto for domestic consumption and use. The scheme reflected in the several Sub-sections of that provision is that it is the duty of the Commissioner to supply water for domestic consumption and use as applied for by the owner or occupier of any building subject to the proviso to Sub-section (1) of Section 170. Under the proviso referred to above, the Commissioner shall not without the sanction of the Standing Committee agree to supply water to any building assessed at an annual value of less than one hundred and, twenty rupees. Sub-section (2) of Section 170 provides that the Commissioner may by notice require the owner of a dwelling house assessed at an annual value of not less than one hundred and twenty rupees to obtain water supply and to execute all such works as may be necessary for that purpose in accordance with the bye-laws, if it appears to him that there is no proper supply of water for domestic consumption and use and that such supply can be furnished from a main not more than one hundred feet distant from any part of such building. Under Sub-section (3) of Section 170 it is not lawful for the owner of any dwelling house assessed at an annual value of not less than one hundred and twenty rupees with may be constructed or reconstructed after the commencement of the Act to occupy it or cause or permit it to be occupied until he has obtained a certificate from the Commissioner that there is provided within or within a reasonable distance of the house such a supply of wholesome water as appears to the Commissioner to be sufficient for domestic consumption and use of the inmates of the house. Sub-section (4) deals with buildings of the kind where there are two or more superstructures and the provision therein is also analogous and similar to the provision in Sub-section (3) referred to above. Under Sub-section (5) the Corporation is entitled to payment for water supplied in excess of the maximum determined by regulations of the Standing Committee. These provisions would indicate that the consumers of water for domestic purposes stand on an entirely different footing than others who use water for the non-domestic purposes. This is as it ought to be because the domestic user of water is granted mainly for the primary need of human consumption and other like needs.

Having made provisions for gratuitous supply of drinking water upto the maximum determined by the regulations of the Standing Committee, and For supply of water for domestic user on payment for the excess, the statute by Section 171 of the Act enables the Commissioner to supply water for non-domestic purposes at rates fixed by the Standing Committee. Section 171(1) provides that the Commissioner may, with the sanction of the Standing Committee, supply water for any purpose other than domestic consumption and use on receiving a written application specifying the purpose for which such supply is required and the quantity likely to be consumed. Sub-section (2) of Section 171 provides that for all water supplied under Sub-section (1) payment shall be made at such rates and such conditions shall be imposed as may be laid down by the Standing Committee by general or special order and the amount shall be recoverable in the same manner as the property tax.

As already indicated herein before there is obvious difference between use water for domestic purposes and use water for non-domestic purposes. As is seen from the discussion above, while it is obligatory on the part of the Corporation to see that there is proper supply of water for domestic purposes and it is obligatory on the part of the owners and occupiers of buildings of the annual value of more than Rs. 120 to get water supply for domestic purposes, there is no such obligation on. the part of the Corporation to supply water to anyone for non-domestic purposes and no one can be compelled to get supply of water for non-domestic purposes. The statute proceeds on the basis that the supply of water for non-domestic purposes is not a primary obligation on the part of the Corporation and getting supply of water for that purpose is not a primary need of the consumer.

The distinction as aforesaid is real and substantial. It cannot be said that charges for water, be it for water supplied for domestic purposes in excess of the maximum determined by regulations of the Standing Committee or that supplied for non-domestic purposes u/s 171(1), is either tax or fee. So far as the supply for domestic uses is concerned, charges can only be treated as charges realised for the proper maintenance and upkeep of the water supply scheme. So far as the charges for water supplied u/s 171(1) is concerned, it can only be treated as price paid by the consumer for the water supplied by the Corporation. In that view it cannot be said that the classification of persons who use water into those who use water for domestic purposes and those who consume water for non-domestic purposes cannot be sustained. As stated in A.R. Sethumadhavan, Proprietor, Central Cafe, Visakhapatnam and Others Vs. Visakhapatnam Municipality and Another, "these incidents reflect only contractual obligations, the persons receiving supply having applied for and agreed to receive supply agreeing to pay the charges therefore and paying them". In that view I do not think that the Petitioner cannot successfully impugn the provision contained in Section 171(2) on the basis that there is no reasonable classification of persons with reference to the user of the water, domestic user and non-domestic user.

It is by now well-settled that "the classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like" and "what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration" See Budhan Choudhry and Others Vs. The State of Bihar, , relied on in A.R. Sethumadhavan, Proprietor, Central Cafe, Visakhapatnam and Others Vs. Visakhapatnam Municipality and Another, . The explanation to Section 170 says as to what use shall not be deemed to include domestic consumption and they are: (a) for any trade, manufacture or business; (b) for gardens or for purposes of irrigation; (c) for building purpose; (d) for fountains, swimming baths, public baths, or tanks or for any ornamental or mechanical purposes; (e) for animals, where they are kept for sale or hire or for the sale of their produce or any preparation therefrom; and (f) for washing vehicles where they are kept for sale or hire, where the supply is for any of the aforesaid purposes such supply is not for domestic consumption. That the rates fixed for such supply are different from the rates for the supply of water for domestic consumption which is a primary need of the populace of the city cannot in any manner be stated to be unreasonable. The supply water in one case is for the primary needs of man and is obligatory on the part of the Corporation while such supply in the other case is for business or commercial needs of the consumer and is not obligatory on the part of the Corporation. I am not prepared to say that the classification as aforesaid has no nexus with the object of statutory provisions discussed above, as regards the obligation of the Corporation to supply water for the primary needs of the populace of the city.

It is then contended on behalf of the Petitioner that Section 171(2) confers on the Standing Committee arbitrary power to fix such rates without any guidance in that behalf. In view of what is stated hereinbefore that supply of water for non-domestic purposes is a matter of agreement between the Corporation and the consumer for purchase and supply of water for a price, I do not think that the contention as aforesaid merits any detailed consideration. Suffice to point out that the only obligation on the part of the Corporation in this regard is, as that it being a public body, it shall treat all those to whom water is supplied for non-domestic purposes alike. There is no case that this rule is not being observed by the 1st Respondent-Corporation.

In view of what is stated in the preceding paragraph it is not necessary to examine the further contention advanced on behalf of the Petitioner, namely, that no sufficient safeguards are available so far as the fixation of the rates for supply of water for non-domestic purposes is concerned as in the case of fixing rates for the supply of water in excess of the maximum determined by the regulations of the Standing Committee for domestic consumption. The contention is that u/s 170 the Commissioner is to deal with an application for supply of water for domestic consumption in accordance with the bye-laws and that the bye-laws provide the rates for supply of water in excess of the maximum mentioned in Sub-section (5) of Section 170. It is pointed out that u/s 171(2) the rate is fixed not by any bye-law but by a resolution passed by the Standing Committee. In that connection the learned Counsel for the Petitioner has a case that bye-laws are prepared by the council as is seen from Section 369(5)(e). The submission is that while the council by framing bye-laws determines the rate for supply of water for domestic purposes, the Standing Committee determines the charge at which water is to be supplied for non-domestic purposes. The learned Counsel further submits that the bye-laws and any resolution passed by the council framing a bye-law are subject to scrutiny by the Government u/s 372 of the Act. According to the learned Counsel for the Petitioner there is no such safeguard so far as the determination of the charges u/s 171(2) by the Standing Committee is concerned.

In this connection the learned Counsel for the Respondents has a case that Section 171(2) does not stand by itself and the whole section has to be read together. The submission is that Sub-section (1) of Section 171 enables the Commissioner to supply water for any purpose other than domestic consumption only with the sanction of the Standing Committee and Sub-section (2) thereof enables the Standing Committee to determine the charges therefor. On that premise it is argued that if Sub-section (2) of Section 171 is bad for any reason the same vice vitiates Sub-section (1) also. The further submission in that connection is that in so far as Section 171 is one integral whole, and Sub-section (2) cannot be separated from Sub-section (1), the Petitioner cannot have the relief confined to Sub-section (2) and the whole section will have to be struck down.

It is not necessary to go into the different arguments advanced as aforesaid on both sides in view of what is stated hereinbefore as regards the nature of the power u/s 171(1) and the character of the charges the Petitioner has to pay u/s 171(2) of the Act.

The result is this writ petition fails and it is dismissed. In the circumstances of the case there will be no order as regards costs.