Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1555 OF 2019
( Arising out of S.L.P (C) No. 20191 of 2016 )
The Municipal Corporation, Faridabad ........Appellant
Versus
Modern School, Faridabad & Ors. ........Respondents
With
CIVIL APPEAL NO. 1556 OF 2019
( Arising out of S.L.P (C) No. 20193 of 2016 )
J U D G M E N T
Hemant Gupta, J.
Leave granted.
2. The present appeals are directed against an order passed by the
Division Bench of High Court of Punjab & Haryana on 21.12.2015
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.02.08
15:18:11 IST
Reason:
whereby intra-court appeals against common order dated 19.02.2015
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passed by the learned Single Judge in the two writ petitions filed by the
respondents were dismissed.
3. The respondents were allotted the land for the purpose of the
School by the Haryana Urban Development Authority, Faridabad on
leasehold basis. The allotment letter issued to DAV College Managing
Committee dated 02.05.1986 has been filed as an additional document
before this court.
4. The Municipal Corporation issued an office order on 14.06.1999
for regularisation of tubewells causing unauthorized activities of
discharging of the waste water into the main sewer of the Corporation.
It was decided that all private tubewell owners who have installed
tubewells within the area of Municipal Corporation shall use water for
domestic or industrial purposes and that water shall not be sold or
used for commercial purposes. The charges were decided to be levied
as per the diameter of tubewells and that such tubewells have to be
registered with the Central Ground Water Board Authority.
5. In terms of such office order, notice was served upon the
Schools - writ petitioners before the High Court on 05.05.2000 to the
effect that tubewell has been installed without prior approval of the
Municipal Corporation, therefore, information was sought in the
prescribed format failing which tubewell connection was to be
disconnected. In response to such notice, M/s Modern School
communicated as under:-
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“1. That this educational institution has installed
”
tubewell of 2 dia for the school and hostel students
and agriculture purpose which is a subject of +2
stage education, in the year 1999.
2. That this tubewell is installed to fulfil the
required demand of the school as the supply of the
corporation is irregular and insufficient to meet out
the requirement of the school. However, we have
already registered this connection with the Central
Ground Water Board (copy enclosed).
3. In the year 1999 we got a water and sewer
connection sanctioned in the name of the school by
your department after completion of the building.”
6. Another notice was served upon the Schools on 23.10.2000
communicating that the Schools are discharging water into property
vested in the Municipal Corporation, therefore, the Schools have to pay
user charges for the operation of the tubewell installed privately. The
notice is as under:-
“You have installed a tubewell of 2” dia within your
premises. You are using the water and discharging
it into property vested in the Municipal
Corporation. The House of this corporation has
approved the levy of user charges/composition
fees for the operation of the tubewell installed
privately at the rate of Rs.3016/- per month.
You are therefore, directed to deposit a sum of Rs.
66352/- as user charges for the period from
January, 1999 to 10/2000 within 15 days from the
date of issue of this notice, failing which necessary
action as per law would be taken.
You are also directed to produce the copy of
registration certificate duly attested, issued by
the officer appointed by the Central Ground Water
Board for the installation and operation of the
private tubewell within the limit of Municipal
Corporation, Faridabad.”
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7. In the writ petitions filed, the challenge is to an office order
issued by the Municipal Corporation on 14.6.1999, inter-alia, on the
ground that the Schools have been granted the sewerage and water
connections but the water facility is provided through a pipeline of the
diameter of half an inch. With the growing number of school activities
and for the purpose of proper maintenance of greenery and lawns, and
on account of failure of the Municipal Corporation to provide more
water, it has installed tubewells after obtaining registration from the
Central Ground Water Authority under Section 3(3) of the Environment
(Protection) Act, 1986. Such tubewells provide water for the purpose of
drinking and toilet purposes, besides maintenance of lawns and
greenery in the schools.
8. The Schools have challenged the claim of user charges on the
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ground that Section 87 of the Act provides for levy of taxes whereas,
Corporation is empowered to levy fee including development fee for
providing and maintaining civic amenities in certain areas in terms of
Section 88 of the Act but after the prior approval of the State
Government. Since no approval has been sought from the State
Government, therefore, the levy of the user charges is not tenable.
9. The Corporation in its written statement in the writ petition
explained that the water charges are in respect of the water supplied
through pipeline maintained by the Corporation whereas the user
charges have been levied on the tubewell installed by the Schools as
waste water is discharged into the sewer of the Municipal Corporation.
1 The Haryana Municipal Corporation Act, 1994
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Thus, Corporation is competent to levy user charges for the use of
Municipal drain for the flow of waste water.
10. The High Court has set aside the charges solely on the ground
that such fee is falling within the ambit of Section 88 of the Act,
therefore, in the absence of prior approval of the State Government,
such levy is not sustainable.
11. Learned counsel for the appellant argued that user charges so
claimed are neither a tax nor fee as contemplated by Section 87 or 88
of the Act but are charges for discharge of waste water into the
Municipal sewer line which falls within the scope of Section 205 of the
Act. It is contended that the basis of the judgment of the High Court is
patently not sustainable.
12. On the other hand, Mr. H.L. Tiku, learned senior counsel for the
Schools argued that the amount claimed is on extraction of the water
as the charge is as per the diameter of the tubewell, therefore, it is a
fee falling within the ambit of Section 88 of the Act. Therefore, same
could not be imposed without prior approval of the State Government.
13. Before we discuss the respective contentions of the parties, the
following provisions of the Act would be relevant to appreciate the
arguments of the learned counsel for the parties:-
“43. Obligatory functions of Corporation. -- It
shall be incumbent on the Corporation to make
adequate provisions, by any means or measures which
it may lawfully use or take, for each of the following
matters, namely:-
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(a) the construction, maintenance and cleaning of
drains and drainage works and of public latrines, urinals
and similar conveniences;
(b) the construction and maintenance of works and
means for providing supply of water for public and
private purposes;
(c) the scavenging, removal and disposal of filth,
rubbish and other obnoxious or polluted matters;
……….……
xxx xxx xxx
177. Supply of water to connected premises. --
(1) The Commissioner may, on application by the owner
of any building, arrange for supplying water from the
nearest main to such building for domestic purposes in
such quantities as he deems reasonable, and may at
any time limit the amount of water to be supplied
whenever he considers necessary.
(2) Apart from the charges for the domestic supply
at rates as may be fixed by the Government, additional
charges will be payable for the following supplies of
water:-
(a) for animals or for washing vehicles where such
animals or vehicles are kept for sale or hire;
(b) for any trade, manufacture or business;
(c) for fountains, swimming baths, or for any
ornamental or mechanical purposes;
(d) for gardens or for purposes of irrigation;
(e) for watering roads and paths;
(f) for building purposes.
xxx xxx xxx
193. Public drains etc. to vest in Corporation.--
(1) All public drains, all drains in, along side or under
any public street, and all sewage disposal works
whether constructed out of the Corporation Fund or
otherwise, and all works, materials and things
pertaining thereto which are situated in the Municipal
area shall vest in the Corporation.
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(2) All public and other drains which are vested in
the Corporation are hereafter in this Act referred to as
Corporation drains.
(3) For the proposes of enlarging, deepening or
otherwise repairing or maintaining any such drain or
sewage disposal work so much of the sub-soil pertaining
thereto as may be necessary for the said purposes shall
also be deemed to vest in the Corporation.
(4) All drains and ventilation shafts, pipes and all
appliances and fittings connected with the drains works
constructed, erected or set up out of the Corporation
Fund in or upon premises not belonging to the
Corporation, whether –
(a) before or after the commencement of this Act;
and
(b) for the use of the owner or occupier of such
premises or not, shall unless the Corporation has
otherwise determined, or does at any time otherwise
determine, vest and be deemed always to have vested
in the Corporation.
194. Control of drain and sewage disposal works.
–- (1) All Corporation drains, all sewage disposal works
and works materials and things appertaining thereto
shall be under the control of the Commissioner.
(2) The Commissioner shall maintain and keep in
repair all municipal drains and sewage disposal works
and when authorised by the Corporation in this behalf,
shall construct as many new drains and sewage
disposal works as may from time to time be necessary
for effectual drainage and sewage disposal.
195. Certain matters not to be passed into
municipal drains. -- No person shall throw, empty or
turn into any Corporation drain or into any drain
communicating with a Corporation drain –
(a) any matter likely to injure the drain or to interfere
with the free flow of its contents, or to affect
prejudicially the treatment and disposal of its contents;
or
(b) any chemical, refuse or waste steam, or any
liquid of a temperature higher than forty-five degrees
Celsius being refuse or steam which, or a liquid which
when so heated, is, either alone or in combination with
the contents of the drain, dangerous or the cause of
nuisance, or prejudicial to health; or
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(c) any dangerous petroleum.
Explanation. – In this section the expression “dangerous
petroleum” has the same meaning as is assigned in the
Petroleum Act, 1934 (Central Act 30 of 1934).
196. Application by owners and occupiers to
drain into municipal drain - (1) Subject to such
conditions as may be prescribed by bye-laws made in
this behalf, the owner or occupier of any premises
having a private drain, or the owner of any private drain
within the Municipal area may apply to the
Commissioner to have his drain made to communicate
with the drains and thereby to discharge foul water and
surface water from those premises or that private drain:
Provided that nothing in this sub-section shall entitle
any person –
(a) to discharge directly or indirectly into any
Corporation drain-
(i) any trade effluent from any trade premises,
except in accordance with bye-laws made in this behalf;
or
(ii) any liquid or other matter the discharge of which
into Corporation drains is prohibited by or under this Act
or any other law; or
(b) where separate Corporation drains are provided
for foul water and for surface water to discharge directly
or indirectly: -
(i) foul water into a drain provided for surface water;
or
(ii) except with the permission of the Commissioner,
surface water into drain provided for foul water; or
(c) to have his drains made to communicate directly
with a storm water overflow drain.
….……….
xxx xxx xxx
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205. Connection with water works and drains not
to be made without permission.-- Without the
written permission of Commissioner, no person shall for
any purpose whatsoever, at any time make or cause to
be made any connection or communication with any
drain referred to in section 194 or any water-works,
constructed or maintained by, or vested in the
Corporation.”
14. In terms of Section 43, one of the obligatory functions of
Corporation is- construction, maintenance and cleaning of drains and
drainage works and also scavenging, removal and disposal of filth,
rubbish and other obnoxious or polluted mattes. It is in exercise of
such function that the Municipal Corporation has provided for the
disposal of the waste water from residential, commercial and industrial
areas falling within the area of Municipal Corporation into its sewer
drain.
15. Chapter XII of the Act relates to Water Supply, Draining and
Sewage disposal. Section 177 provides for water supply to the
premises. Admittedly, such water supply is being provided by the
Corporation to the Schools in question. The grievance of the Schools is
that such supply is not adequate to meet the demand, inter alia, on
account of increase of the functions of the Schools and to maintain the
lawns etc. Such water connection provided to the premises of the
Schools is within the scope of Section 177 of the Act as reproduced
above. In terms of Section 177(2) the Corporation can claim additional
charges at the rates fixed by the Government.
16. In terms of Section 193, all public drains, all drains in, alongside
or under any public street, and all sewage disposal works whether
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constructed out of the Corporation Fund or otherwise, and all works,
materials vest in the Corporation. As per Section 194, all sewage
disposal works and works materials are under the control of the
Commissioner who is required to maintain and repair all Municipal
drains and sewage disposal works. The Commissioner is also obliged to
construct as many new drains and sewage disposal works as may be
necessary from time to time for effectual drainage and sewage
disposal.
17. Section 196 enjoins the duty on the owners and occupiers having
a private drain within the Municipal area to communicate with the
drains of the Municipal Corporation for the purpose of discharge of foul
water and surface water from their premises or that private drain. For
such discharge, sub-section (2) of Section 196 creates an obligation to
give a notice of proposal to connect the private drain with the
Municipal drain.
18. Section 205 of the Act creates a bar on any person to make or
cause to be made any connection or communication with any drain
referred to in Section 194 or any water works constructed or
maintained by, or vested in the Corporation.
19. We find that the High Court has misdirected itself when it held
that the user charges claimed by the Corporation for discharge of
waste water into the sewer lines of the Municipal Corporation is a fee
within the meaning of Section 88 of the Act.
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20. The water extracted by tubewells installed by the Schools is
discharged into the Municipal drains, therefore, the Corporation is
justified to levy user charges whereby, the waste water of the Schools
is carried by the Municipal drains.
21. Though, the Schools could not discharge waste water into
Municipal drains without prior permission but instead of stopping the
communication of private drain with the Municipal drain, the
Corporation has demanded user charges which is not a tax or fee as
contemplated under Section 87 or 88 of the Act but user charges for
using the Municipal services for discharge of waste water extracted by
the Schools from the tubewells installed by them.
22. The fact that the Municipal Corporation has claimed user charges
is made out from the office order dated 14.06.1999. In response to
notice, the Schools have agreed to regularise the discharge, but,
disputed the levy subsequently on the ground that such fee cannot be
charged being in contravention of Sections 87 and 88 of the Act.
23. The documents on record leave no manner of doubt that the
Corporation has not levied any tax or fee falling within the scope of
Section 87 or 88 of the Act. The Corporation has claimed the user
charges for permitting the Schools to discharge waste water into the
Municipal drains which are related to the capacity to extract ground
water.
24. We do not find that such demand contravenes any of the
provisions of the Act. Therefore, the Corporation was well within its
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right to claim user charges for the use of Municipal drains for discharge
of waste water from the tubewells installed by the Schools.
25. Consequently, the appeals are allowed. The Order passed by the
Division Bench of the High Court dated 21.12.2015 and the Order
dated 19.02.2015 of learned Single Judge are set aside and the Writ
Petitions are dismissed.
………...…………..........................J.
(Dr. Dhananjaya Y. Chandrachud)
………….….................................J.
(Hemant Gupta)
New Delhi,
February 8, 2019.
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