Municipal Corporation vs Whirlpool of India Limited

Paramjeet Singh, J.—This regular second appeal by defendant is directed against the judgment and decree dated 20.11.2010 passed by learned Additional District Judge, Faridabad, whereby the appeal preferred by respondent/plaintiff against the judgment and decree dated 31.08.2009 passed by learned Additional civil Judge (Senior Division), Faridabad, has been allowed, judgment, and decree of the Court of first instance has been set aside and suit of the plaintiff for permanent injunction has been decreed. For convenience sake, reference to parties is being made as per their status in the civil suit.

The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff - company, engaged in the manufacture of refrigerators, was given water and sewer connections by the defendant and the plaintiff has been regularly making payment towards water and sewer charges from time to time and nothing remains to be paid by the plaintiff to the defendant. Due to scarcity of water supply, plaintiff has been extracting underground water from its own premises and captive generation of water is in use to the knowledge of the defendant. On 30.09.2004 defendant served plaintiff with three notices bearing No. MCF/EE-1/04/82 for a sum of Rs. 2,85,912/-, No. MCF/EE-1/04/83 for a sum of Rs. 2,85,912/-and No. MCF/EE-1/04/84 for a sum of. Rs. 1,26,720/-. The said demands were made from 01.04.1999 on the allegation that tubewells were not regularized by the defendant. Plaintiff filed reply to the said notices vide letter dated 25.10.2004. After receipt of the reply, officials of the defendant kept mum for sometime but later on some officials of the defendant Corporation visited the factory of the plaintiff on 03.11.2004 and threatened to disconnect the water and sewer connections if the plaintiff failed to pay the charges demanded in the impugned notices. Hence the suit was filed.

Defendant contested the suit and filed written statement taking various preliminary objections. It was averred that plaintiff has been sanctioned water and sewer connections, however, some water charges were due against the plaintiff and plaintiff has no right to install any tubewell in the premises without prior permission of the defendant Corporation. User charges for discharging waste water in the sewerage have to be paid by the plaintiff to the defendant as per office order No. MCF/COMM/99/296 dated 14.06.1999. At the time of inspection, eleven tubewells were found installed at the premises out of which three were in working condition. Defendant raised a total demand of Rs. 6,98,544/- towards waste water charges. It is averred that plaintiff is legally bound to make the payment to the defendant and defendant has every right to disconnect the water and sewer connection on failure of payment.

Court of first instance, on the basis of pleadings of the parties, framed following issues:--

"1. Whether plaintiff is entitled to permanent injunction against the defendants on the ground as alleged? OPP

Whether the suit filed by plaintiff is not maintainable in the present form? OPD

Whether plaintiff has not sent notice under Section 389 of Haryana Municipal Corporation Act, 1994 which is mandatory? OPD

Whether this Court has no jurisdiction to entertain and try the suit? OPD

Whether plaintiff has no cause of action to file the present suit? OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the plaintiff has no valued the suit and has not affixed the proper court fee? OPD

Relief,"

The Court of first instance, after appreciating evidence on record dismissed the suit of the plaintiff. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has been allowed and the judgment and decree of the Court of first instance has been set aside by lower appellate Court. Hence, this second appeal.

I have heard learned counsel for the parties and perused the record.

Learned Counsel for the appellant referred to substantial questions of law formulated in the grounds of appeal, which read as under:--

"1. Whether the judgment and decree passed by learned First Appellate Court is sustainable in the light of the facts and circumstances of the case?

Whether the First Appellate Authority while passing the said judgment/decree can ignore the documents/evidence produced by the appellant?

Whether the judgment/decree passed by the learned First Appellate Authority, Faridabad is based upon surmises and conjectures?"

Lower appellate Court has recorded a categorical finding that only authority whose permission and sanction is necessary is Central Ground Water Board Authority and the well was dug by the respondent/plaintiff after obtaining permission from the said Authority. No document was brought on record by the appellant to show that for installing tubewell for captive generation of water permission of Municipal Corporation, Faridabad (for short ''MCF'') was required. So far as payment of necessary sewage charges is concerned, it is recorded by the lower appellate Court that appellant/defendant has failed to show any rule or bye-law in this regard. There is no assessment of MCF as to how many kilo liters of sewerage water is discharged by plaintiff company into sewerage system installed by MCF.

In the absence of the support of law, the alleged fee could not have been charged by the defendant from the plaintiff and as such, there is no error in the judgment and decree of the lower appellate Court but at the same time liberty has been given to raise demand regarding waste sewage water after framing the bye-laws and getting the same approved from the Department and after publishing the same in the official gazette.

In view of the aforesaid discussion, I do no find any error in the judgment and decree of the lower appellate Court. In view of above, no question of law, muchless substantial question of law, as claimed, arises in the present appeal.

Dismissed.