THE MUNICIPAL CORPORATION, versus MODERN SCHOOL, FARIDABAD & ORS. on 8 February 2019

THE MUNICIPAL CORPORATION, FARIDABAD

v.

MODERN SCHOOL, FARIDABAD & ORS.

(Civil Appeal No. 1555 of 2019)

FEBRUARY 08, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Haryana Municipal Corporation Act, 1994:

ss.43, 87, 88, 177, 193, 194, 196 and 205 – Office Orderdated 14.6.1999 issued by Municipal Corporation for regularisationof tubewells causing unauthorised activities of discharging of wastewater into the main sewer of the Corporation – Corporation claimeduser charges from the schools for discharging the water drawn fromtubewell, into the sewer vested in the Corporation – The schoolschallenged the levy of user charges – High Court set aside thecharges on the ground that such fee falls within ambit of s.88 andhence in absence of prior approval of State Government, such levyis not sustainable – On appeal, held: The user charges were not atax or fee as contemplated u/ss. 87 or 88 – The water extracted bytubewells were discharged by the schools into the municipal drains– Therefore, Corporation was justified to levy user charges for theuse of municipal drains for discharge of waste water from thetubewells.

Allowing the appeals, the Court

HELD: 1. In terms of Section 43 of Haryana MunicipalCorporation Act, 1999, one of the obligatory functions ofCorporation is construction, maintenance and cleaning of drainsand drainage works and also scavenging, removal and disposalof filth, rubbish and other obnoxious or polluted mattes. It is inexercise of such function that the Municipal Corporation hasprovided for the disposal of the waste water from residential,commercial and industrial areas falling within the area of MunicipalCorporation into its sewer drain. [Para 14][711-A-B]

2. The water extracted by tubewells installed by the Schoolsis discharged into the Municipal drains, therefore, the

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ACorporation is justified to levy user charges whereby, the wastewater of the Schools is carried by the Municipal drains. Though,the Schools could not discharge waste water into Municipal drainswithout prior permission but instead of stopping thecommunication of private drain with the Municipal drain, theCorporation has demanded user charges which is not a tax or feeBas contemplated under Section 87 or 88 of the Act, but usercharges for using the Municipal services for discharge of wastewater extracted by the Schools from the tubewells installed bythem. [Paras 20 and 21][712-B-C]

3. The fact that the Municipal Corporation has claimed userCcharges is made out from the office order dated 14.06.1999. Inresponse to notice, the Schools have agreed to regularise thedischarge, but, disputed the levy subsequently on the groundthat such fee cannot be charged being in contravention of Sections87 and 88 of the Act. The documents on record leave no mannerDof doubt that the Corporation has not levied any tax or fee fallingwithin the scope of Section 87 or 88 of the Act. The Corporationhas claimed the user charges for permitting the Schools todischarge waste water into the Municipal drains which are relatedto the capacity to extract ground water. Such demand does notcontravene any of the provisions of the Act. Therefore, theECorporation was well within its right to claim user charges forthe use of Municipal drains for discharge of waste water from thetubewells installed by the Schools. [Paras 22, 23 and 24][712-D-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1555of 2019.FFrom the Judgment and Order dated 21.12.2015 of the High Courtof Punjab & Haryana at Chandigarh in LPA No. 1057 of 2015 (O&M).

WITH

Civil Appeal No. 1556 of 2019.

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B. K. Satija (for Sanjay Kumar Visen), Adv. for the Appellant.

H. L. Tiku, Sr. Adv., Ms. Yashmeet Kaur, Ashok K. Mahajan,Mohan Bhadana, Mrs. Priya Puri, Ranjay Dubey, Ms. VineetaMeghrajani, Ankush Dewan, Advs. for the Respondents.

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THE MUNICIPAL CORPORATION, FARIDABAD v. MODERNSCHOOL, FARIDABAD

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The present appeals are directed against an order passed bythe Division Bench of High Court of Punjab & Haryana on 21.12.2015whereby intra-court appeals against common order dated 19.02.2015passed by the learned Single Judge in the two writ petitions filed by therespondents were dismissed.

3. The respondents were allotted the land for the purpose of theSchool by the Haryana Urban Development Authority, Faridabad onleasehold basis. The allotment letter issued to DAV College ManagingCommittee dated 02.05.1986 has been filed as an additional documentbefore this court.

4. The Municipal Corporation issued an office order on 14.06.1999for regularisation of tubewells causing unauthorized activities ofdischarging of the waste water into the main sewer of the Corporation.It was decided that all private tubewell owners who have installedtubewells within the area of Municipal Corporation shall use water fordomestic or industrial purposes and that water shall not be sold or usedfor commercial purposes. The charges were decided to be levied as perthe diameter of tubewells and that such tubewells have to be registeredwith the Central Ground Water Board Authority.

5. In terms of such office order, notice was served upon theSchools - writ petitioners before the High Court on 05.05.2000 to theeffect that tubewell has been installed without prior approval of theMunicipal Corporation, therefore, information was sought in the prescribedformat failing which tubewell connection was to be disconnected. Inresponse to such notice, M/s Modern School communicated as under:- “1. That this educational institution has installed tubewell of 2[”]dia for the school and hostel students and agriculture purposewhich is a subject of +2 stage education, in the year 1999.

2. That this tubewell is installed to fulfil the required demand ofthe school as the supply of the corporation is irregular andinsufficient to meet out the requirement of the school. However,we have already registered this connection with the CentralGround Water Board (copy enclosed).

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3. In the year 1999 we got a water and sewer connectionsanctioned in the name of the school by your department aftercompletion of the building.”

6. Another notice was served upon the Schools on 23.10.2000communicating that the Schools are discharging water into propertyBvested in the Municipal Corporation, therefore, the Schools have to payuser charges for the operation of the tubewell installed privately. Thenotice 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 inthe Municipal Corporation. The House of this corporation hasapproved the levy of user charges/composition fees for theoperation of the tubewell installed privately at the rate of Rs.3016/- per month.

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You are therefore, directed to deposit a sum of Rs. 66352/- asDuser charges for the period from January, 1999 to 10/2000 within15 days from the date of issue of this notice, failing whichnecessary action as per law would be taken.

You are also directed to produce the copy of registration certificateduly attested, issued by the officer appointed by the Central GroundEWater Board for the installation and operation of the privatetubewell within the limit of Municipal Corporation, Faridabad.”

7. In the writ petitions filed, the challenge is to an office orderissued by the Municipal Corporation on 14.6.1999, inter-alia, on the groundthat the Schools have been granted the sewerage and water connectionsbut the water facility is provided through a pipeline of the diameter ofFhalf an inch. With the growing number of school activities and for thepurpose of proper maintenance of greenery and lawns, and on accountof failure of the Municipal Corporation to provide more water, it hasinstalled tubewells after obtaining registration from the Central GroundWater Authority under Section 3(3) of the Environment (Protection) Act,G1986. Such tubewells provide water for the purpose of drinking andtoilet purposes, besides maintenance of lawns and greenery in the schools.

8. The Schools have challenged the claim of user charges on theground that Section 87 of the Act[1] provides for levy of taxes whereas,Corporation isempowered to levy fee including development fee forH 1 The Haryana Municipal Corporation Act, 1994

providing and maintaining civic amenities in certain areas in terms ofSection 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 petitionexplained that the water charges are in respect of the water suppliedthrough pipeline maintained by the Corporation whereas the user chargeshave been levied on the tubewell installed by the Schools as waste wateris discharged into the sewer of the Municipal Corporation. Thus,Corporation is competent to levy user charges for the use of Municipaldrain for the flow of waste water.

10. The High Court has set aside the charges solely on the groundthat 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 isnot sustainable.

11. Learned counsel for the appellant argued that user charges soclaimed are neither a tax nor fee as contemplated by Section 87 or 88 ofthe Act but are charges for discharge of waste water into the Municipalsewer line which falls within the scope of Section 205 of the Act. It iscontended that the basis of the judgment of the High Court is patentlynot sustainable.

12. On the other hand, Mr. H.L. Tiku, learned senior counsel forthe Schools argued that the amount claimed is on extraction of the wateras the charge is as per the diameter of the tubewell, therefore, it is a feefalling within the ambit of Section 88 of the Act. Therefore, same couldnot 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 thearguments of the learned counsel for the parties:- “43. Obligatory functions of Corporation. — It shall beincumbent on the Corporation to make adequate provisions, byany means or measures which it may lawfully use or take, foreach of the following matters, namely:- (a) the construction, maintenance and cleaning of drains anddrainage works and of public latrines, urinals and similarconveniences; A

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(b) the construction and maintenance of works and means forproviding supply of water for public and private purposes;

(c) the scavenging, removal and disposal of filth, rubbish andother obnoxious or polluted matters;

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177. Supply of water to connected premises. — (1) TheCommissioner may, on application by the owner of any building,arrange for supplying water from the nearest main to such buildingfor domestic purposes in such quantities as he deems reasonable,and may at any time limit the amount of water to be suppliedwhenever he considers necessary.

(2) Apart from the charges for the domestic supply at rates asmay be fixed by the Government, additional charges will be payablefor the following supplies of water:- (a) for animals or for washing vehicles where such animals orvehicles are kept for sale or hire; (b) for any trade, manufacture or business;

(c) for fountains, swimming baths, or for any ornamental ormechanical purposes; (d) for gardens or for purposes of irrigation; (e) for watering roads and paths; (f) for building purposes.

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193. Public drains etc. to vest in Corporation.— (1) All publicdrains, all drains in, along side or under any public street, and allsewage disposal works whether constructed out of the CorporationFund or otherwise, and all works, materials and things pertainingthereto which are situated in the Municipal area shall vest in theCorporation.

(2) All public and other drains which are vested in the Corporationare hereafter in this Act referred to as Corporation drains.

THE MUNICIPAL CORPORATION, FARIDABAD v. MODERNSCHOOL, FARIDABAD [HEMANT GUPTA, J.]

(3) For the proposes of enlarging, deepening or otherwise repairingor maintaining any such drain or sewage disposal work so muchof the sub-soil pertaining thereto as may be necessary for the saidpurposes shall also be deemed to vest in the Corporation.

(4) All drains and ventilation shafts, pipes and all appliances andfittings connected with the drains works constructed, erected orset up out of the Corporation Fund in or upon premises not belongingto 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 atany time otherwise determine, vest and be deemed always tohave vested in the Corporation.

194. Control of drain and sewage disposal works. –- (1) AllCorporation drains, all sewage disposal works and works materialsand things appertaining thereto shall be under the control of theCommissioner.

(2) The Commissioner shall maintain and keep in repair allmunicipal drains and sewage disposal works and when authorisedby the Corporation in this behalf, shall construct as many newdrains and sewage disposal works as may from time to time benecessary 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 Corporationdrain or into any drain communicating with a Corporation drain –

(a) any matter likely to injure the drain or to interfere with thefree flow of its contents, or to affect prejudicially the treatmentand disposal of its contents; or (b) any chemical, refuse or waste steam, or any liquid of atemperature higher than forty-five degrees Celsius being refuseor steam which, or a liquid which when so heated, is, either aloneor in combination with the contents of the drain, dangerous or thecause of nuisance, or prejudicial to health; or

(c) any dangerous petroleum.

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Explanation. – In this section the expression “dangerouspetroleum” has the same meaning as is assigned in the PetroleumAct, 1934 (Central Act 30 of 1934).

196. Application by owners and occupiers to drain intomunicipal drain - (1) Subject to such conditions as may beprescribed by bye-laws made in this behalf, the owner or occupierof any premises having a private drain, or the owner of any privatedrain within the Municipal area may apply to the Commissioner tohave his drain made to communicate with the drains and therebyto discharge foul water and surface water from those premisesor 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 inaccordance with bye-laws made in this behalf; or

(ii) any liquid or other matter the discharge of which into Corporationdrains is prohibited by or under this Act or any other law; or (b) where separate Corporation drains are provided for foul waterand 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 waterinto drain provided for foul water; or

(c) to have his drains made to communicate directly with a stormwater overflow drain.

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205. Connection with water works and drains not to be madewithout permission.— Without the written permission ofCommissioner, no person shall for any purpose whatsoever, atany time make or cause to be made any connection orcommunication with any drain referred to in section 194 or anywater-works, constructed or maintained by, or vested in theCorporation.”

14. In terms of Section 43, one of the obligatory functions ofCorporation is- construction, maintenance and cleaning of drains anddrainage works and also scavenging, removal and disposal of filth, rubbishand other obnoxious or polluted mattes. It is in exercise of such functionthat the Municipal Corporation has provided for the disposal of the wastewater from residential, commercial and industrial areas falling within thearea of Municipal Corporation into its sewer drain.

15. Chapter XII of the Act relates to Water Supply, Draining andSewage disposal. Section 177 provides for water supply to the premises.Admittedly, such water supply is being provided by the Corporation tothe Schools in question. The grievance of the Schools is that such supplyis not adequate to meet the demand, inter alia, on account of increase ofthe functions of the Schools and to maintain the lawns etc. Such waterconnection provided to the premises of the Schools is within the scopeof Section 177 of the Act as reproduced above. In terms of Section177(2) the Corporation can claim additional charges at the rates fixed bythe Government.

16. In terms of Section 193, all public drains, all drains in, alongsideor under any public street, and all sewage disposal works whetherconstructed out of the Corporation Fund or otherwise, and all works,materials vest in the Corporation. As per Section 194, all sewage disposalworks and works materials are under the control of the Commissionerwho is required to maintain and repair all Municipal drains and sewagedisposal works. The Commissioner is also obliged to construct as manynew drains and sewage disposal works as may be necessary from timeto time for effectual drainage and sewage disposal.

17. Section 196 enjoins the duty on the owners and occupiershaving a private drain within the Municipal area to communicate withthe drains of the Municipal Corporation for the purpose of discharge offoul water and surface water from their premises or that private drain.For such discharge, sub-section (2) of Section 196 creates an obligationto give a notice of proposal to connect the private drain with the Municipaldrain.

18. Section 205 of the Act creates a bar on any person to make orcause to be made any connection or communication with any drainreferred to in Section 194 or any water works constructed or maintainedby, or vested in the Corporation.

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A19. We find that the High Court has misdirected itself when itheld that the user charges claimed by the Corporation for discharge ofwaste water into the sewer lines of the Municipal Corporation is a feewithin the meaning of Section 88 of the Act.

20. The water extracted by tubewells installed by the Schools isBdischarged into the Municipal drains, therefore, the Corporation is justifiedto levy user charges whereby, the waste water of the Schools is carriedby the Municipal drains.

21. Though, the Schools could not discharge waste water intoMunicipal drains without prior permission but instead of stopping theCcommunication of private drain with the Municipal drain, the Corporationhas demanded user charges which is not a tax or fee as contemplatedunder Section 87 or 88 of the Act but user charges for using the Municipalservices for discharge of waste water extracted by the Schools fromthe tubewells installed by them.

D22. The fact that the Municipal Corporation has claimed usercharges is made out from the office order dated 14.06.1999. In responseto notice, the Schools have agreed to regularise the discharge, but,disputed the levy subsequently on the ground that such fee cannot becharged being in contravention of Sections 87 and 88 of the Act.

23. The documents on record leave no manner of doubt that theECorporation has not levied any tax or fee falling within the scope ofSection 87 or 88 of the Act. The Corporation has claimed the usercharges for permitting the Schools to discharge waste water into theMunicipal drains which are related to the capacity to extract groundwater.F

24. We do not find that such demand contravenes any of theprovisions of the Act. Therefore, the Corporation was well within itsright to claim user charges for the use of Municipal drains for dischargeof waste water from the tubewells installed by the Schools.

25. Consequently, the appeals are allowed. The Order passed byGthe Division Bench of the High Court dated 21.12.2015 and the Orderdated 19.02.2015 of learned Single Judge are set aside and the WritPetitions are dismissed.

Kalpana K. TripathyH