TRUST ESTATE KHIMJI KESHAWJI & ANR versus THE KOLKATA MUNICIPAL CORPORATION & ORS.

Citation: [2023] 10 S.C.R. 824 · Decided: 05-07-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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824
SUPREME COURT REPORTS
[2023] 10 S.C.R.
TRUST ESTATE KHIMJI KESHAWJI & ANR.
v.
THE KOLKATA MUNICIPAL CORPORATION & ORS.
(Civil Appeal No. 4230 of 2023)
JULY 05, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Kolkata Municipal Corporation Act, 1980 – s. 238 and s.271
– Validity of notice under – A Notice was issued to the apellant-
owner (occupying ground and sixth floor) of the building consisting
ground plus six floors, which stated that appellant had contravened
s. 238 of the Act by using water supplied for domestic purpose, for
purpose other than domestic – It also stated that s. 271 prohibits
use of water supply for domestic purpose for any other purpose –
High Court held notice to be valid – On appeal, held: Impugned
notice does not mention any reason or specific violation committed
by the appellant – Law is settled that where notice is vague and
non-speaking, the same deserve to be quashed – As per the scheme
of the Act, Sub-section 4 to s.272 starts with a non-obstante clause
and it states that wholesome water may be used in lieu of unfiltered
water for non-domestic purposes where supply of unfiltered water
is not available – In the instant case, it is admitted position that
there was no supply of unfiltered water in the locality/area where
building in question was situated – As such, the filtered water or
the wholesome water could be used for purposes other than domestic
by the owner/occupier of the building in question – Thus, it cannot
be said that there was any violation of s.238 or 271 of the Act –
Further, KMC had issued trade licenses to all the occupiers of the
1st to 5th Floor of the building – The statute primarily lays down
the liability on the occupier of the building to pay water charges –
It was therefore mandatory for the Corporation to first give notice
to the occupiers and make an attempt to recover the charges from
them – However, KMC having failed to initiate any proceedings
against the occupiers committed serious error in initiating the
proceedings only against the owner – Therefore, the impugned
notices are quashed.
[2023] 10 S.C.R. 824 : 2023 INSC 609
824
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825
Allowing the appeal, the Court
Held : 1. Sub-Section 4 of Section 272 of the Kolkata
Municipal Corporation Act, 1980 starts with a non-obstante clause
and it states that wholesome water may be used in lieu of unfiltered
water for non-domestic purposes where supply of unfiltered water
is not available. In the present case, it is admitted position that
there is no supply of unfiltered water in the locality/area where
building in question is situated. As such, the filtered water or the
wholesome water could be used for purposes other than domestic
by the owner/occupier of the building in question. Thus, it cannot
be said that there was any violation of Section 238 or 271 of the
Act. [Paras 20, 21][839-D-E]
2. In the fact situation, it could not be alleged by the KMC
that there was any violation of Section 271 or 238 of the Act where
specific license has been issued for use of the premise for other
than residential purpose and moreover where there was no supply
of unfiltered water in the area/locality. The occupiers would,
therefore, be well within their rights to use water supply for
domestic purpose for any other purpose in view of Section 272(4)
of the Act. [Para 24][840-C-D]
3. KMC was fully conscious and aware of the occupiers of
all the seven floors of the building in question i.e. the ground
floor plus six floors. They were also aware that the appellant,
who is the owner of the building was occupying the ground floor
and the 6th Floor. KMC had issued trade licenses to all the
occupiers of the 1st to 5th Floor. The statute primarily lays down
the liability on the occupier of the building to pay water charges.
It was therefore mandatory for the Corporation to first give notice
to the occupiers and make an attempt to recover the charges
from them. It is only upon failure to recover dues, if any, from the
occupiers that the demand could be raised against the owner. In
the present case, KMC having failed to initiate any proceedings
against the occupiers committed serious error in initiating the
proceedings only against the owner. [Para 25][840-E-F]
4. The High Court committed error by not relying upon
the non-obstante clause in sub-Section 4 of Section 272 of the
TRUST ESTATE KHIMJI KESHAWJI & ANR. v. THE KOLKATA
MUNICIPAL CORPORATION & ORS.
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
Act as i

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