Sri G C Muniramaiah vs Commissioner Bangalore Water Supply and Sewerage Board Cauvery Bhavan Bangalore 9

Hon''ble Mr Justice Huluvadi G. Ramesh

Appeal is by the plaintiff challenging the judgment and decree passed by the XVI Addl. City Civil & Sessions Judge, Bangalore in OS 157/1999 on 15.10.2005. Suit was filed by the plaintiff for permanent injunction restraining the defendant Board from interfering and disconnecting the water supply to the schedule property and to award costs.

According to the plaintiff, he is the absolute owner of the property bearing No. 203 situate at Cubbonpet, Bangalore having obtained water connection long back and a meter was installed bearing RR No. 49151/C2/120. It is his case, he is using the water facility for domestic purpose and also paid up to date water charges. He was paying charges at Rs. 1.50 to 2.00 per month and even after revision of the tariff, the bill did not exceed Rs. 10/- per month. However, a Bill was received for Rs. 80/-and he gave a representation to the concerned authority for replacement of the meter during April 1995. After taking reading on 17.8.1995, amount was paid in a sum of Rs. 650/- as charges due from February 1993 to August, 1995.

The grievance of the plaintiff is, the meter was defective and abnormal bills were issued and accordingly, he made a representation during August, 1995 to set it right and issue revised bill. Ultimately, the bill came to be issued and also a notice dated 17.12 1998 as per S. 53 of the Act was issued to pay Rs. 13,176/- or else the water supply would be disconnected It appears, there is correspondence by issuing notice, between the parties. Taking the contention that in a mechanical manner the bill was issued by the defendant, plaintiff filed a suit. The matter was contested holding that the suit itself is not maintainable and the plaintiff has to pay pro-rata charges for the 3rd and 4th floor built by him and treating the usage of water for this purpose as ''non-domestic'' the charges were indicated. It was also stated, plaintiff has not paid the amount as per the bill and also the arrears till the date of filing of the suit which amounted to Rs. 17,525/- and the plaintiff is not entitled for water supply unless the arrears is cleared and a revised bill in this regard is also issued.

Based on the pleadings, the following issues were framed by the trial court.

Whether the plaintiff proves that the defendant has no legal right to interfere with or disconnect the water supply to the suit schedule property as on the date of the suit;

Whether the plaintiff proves the alleged illegal interferences and obstructions by the defendants;

Whether the plaintiff is entitled to the suit relief sought against the defendant;

What order/decree

A preliminary issue regarding maintainability of the suit was also raised. After inquiry, the trial court observed, plaintiff ought to have approached the Board under the provisions of S. 120 of the BWSSB Act. Referring to S. 41(1)(h) of the Specific Relief Act, the trial court has discussed that when efficacious relief is available under S. 120 of the BWSSB Act, injunction cannot be granted and accordingly, dismissed the suit as not maintainable. Against the said order, this appeal is preferred.

Heard the counsel representing the parties.

The points that arise for consideration are - whether the trial court is justified in dismissing the suit for permanent injunction holding that plaintiff has got alternative efficacious remedy under S. 120 of the BWSSB Act and, what order.

The grievance expressed by the plaintiff/appellant''s counsel is, without holding an inquiry, in a mechanical manner bills have been prepared and without notice, bills were drafted for abnormal amount and sent to the plaintiff even after several years treating the construction activity as a perennial one. According to him, if there is any non-domestic activity like construct, it would end up within six months or one year. But, even today bill is raised treating it as for non-domestic purpose though the construction activity is completed long back. The finding of the trial court that the plaintiff ought to have approached the Board under S. 120 of the BWSSB Act is without any basis and without taking into consideration no such notice was issued to the plaintiff and accordingly, prayed for allowing the appeal and to grant permanent injunction.

Per contra counsel representing the respondent submitted, the grievance of the plaintiff, if any ought to have been represented either by way of filing an appeal as provided under S. 120 of the BWSSB Act or by way of issuing a statutory notice at least before he filed a suit and accordingly contended that neither the suit is maintainable when there is a specific provision provided under the Act and also when no such statutory notice was issued. In this regard, counsel has relied upon the case of Ajay Enterprises Ltd Vs Municipal Corporation of Delhi decided on 3.4.1998 to contend that the suit is not maintainable

As it transpires, plaintiff is shown to have not issued statutory notice except some correspondence regarding drawing of excess bill. So far as maintainability of the suit is concerned, although it is maintainable but it is only subject to compliance under S. 126 of the BWSSB Act i.e., issuance of statutory notice. That has not been done in the case on hand. Apart from that, when S. 120 of the BWSSB Act provides for an appeal against the demand raised, there may not be any separate notice issued by the defendant and the very Bill issued is sufficient to challenge the activity by filing an appeal under the Statute. That has also not been done. In the circumstances, there is no scope for interference with the order passed by the trial court dismissing the suit holding that there is alternative efficacious remedy by way of filing an appeal under S. 120 of the BWSSB Act and also holding that there is no statutory notice

Further, in the case on hand, it is made clear that there was some construction activity and the dispute arose way back in the year 1993. If the plaintiff has put up construction, necessarily he has to pay charges for that period - at least one year or so, for utilizing water for non-domestic purpose. It was the duty on the part of the plaintiff to intimate the corporation authorities regarding completion of the construction activity. Whether he has intimated or nor is another aspect. If he has intimated the construction activity to the Corporation that would be taken into consideration for the purpose of determining that water has not been used thereafter after completion of the construction activity for non-domestic purpose. It is for the respondent/defendant to take note of the observation made above and after inspection if it is noticed that the construction activity is completed and plaintiff is not utilizing water for non-domestic purpose, a fresh bill be issued, after inquiry, for the period after completion of the construction activity. Of course, this is an aspect which has to be dealt in appeal by the plaintiff, if so advised. Appeal is dismissed. Parties to bear their own costs.