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The Masulipatam Municipal Council Represented by the Commissioner, Having Its Office at Masulipatam Vs. the Brundavan Talkies Ltd., Masulipatam, Having Its Office at Masulipatam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 993 of 1949
Judge
Reported inAIR1953Mad864; (1953)1MLJ536
ActsMadras District Municipalities Act, 1920 - Sections 131
AppellantThe Masulipatam Municipal Council Represented by the Commissioner, Having Its Office at Masulipatam
RespondentThe Brundavan Talkies Ltd., Masulipatam, Having Its Office at Masulipatam
Appellant AdvocateK. Kuttikrishna Menon, Adv.
Respondent AdvocateD. Narasaraju and ;K.B. Krishnamurthy, Advs.
DispositionAppeal dismissed
Cases ReferredNanilal v. Satyendra Nath
Excerpt:
.....practitioner, who utilised the water of the premises forthe purpose of cleaning and disinfecting his surgical instruments and diluting medicines. thecorporation, which supplied the water, claimed acharge on the basis that it was not a domesticpurpose within the meaning of the kingston-uponhill corporation act, 1897, which also contained asimilar provision like section 25 of the metropolitanwater board (charges) act......vii of part iv of the madras district municipalities act contains provisions for the regulation of water supply by a municipality. under section 129, the municipal council, so far as funds permit, is entitled to provide sufficient supply of water fit for the domestic use of the inhabitants. section 131 empowers a municipality to supply water for domestic consumption and use in accordance with the bye-laws to an owner or occupier of any building on an application made by him. section 131(1) states that in municipalities in which there is a pipe supply of water, the executive authority may at his discretion, on application by the owner or occupier of any building, arrange in accordance with the bye-laws, to supply water thereto for domestic consumption and use, provided that the executive.....
Judgment:

Satyanarayana Rao, J.

1. The second appeal raises an interesting question of law under the Madras District Municipalities Act. The appeal is by the Masulipatam Municipal Council represented by the Commissioner. The respondent, the Brundavan Talkies Ltd., instituted the suit, out of which this second apoeal arises, in the District Munsif's Court for a declaration that it was entitled to the supply of water to its building bearing municipal No. 325/ 12 in ward No. 12 of the appellant Municipality from its water system on the basis of supply for a domestic use and for refund of an amount of Rs. 1093-7-8 with interest thereon which, it was claimed was unauthorisedly collected in excess by the appellant of the basis that the supply of water was for a non-domestic purpose. The respondent succeeded in both the Courts and it was held that he was liable to pay the tax only on the basis of supply for a domestic purpose and not on the basis of a non-domestic purpose.

2. There is no oral evidence adduced in the case but the facts were practically admitted. The Brundavan Talkies Ltd., the respondent, owns a building of its own in which a cinema show is usually run. Electricity is utilised for running the cinema and not water power. The cinema hall is occasionally let for dramatic performances also. In the premises, besides the cinema hall there are other buildings such as quarters for servants, waiting halls for visitors to cinema shows, quarters for the representatives of film distributors and structures like urinals and latrines for the use of persons attending the shows, as well as the servants and visitors. A coffee hotel is also run within the premises. There are several watertaps, which are used by the visitors, servants and representatives of film distributors when occasionally staying in the quarter provided for them. Water is also utilised for cleaning or flushing the urinals and latrines. The coffee hotel also consumes some water for its purposes.

There is also a fountain and a garden within the premises but it is common ground that Municipal water is not utilised for them. The respondent stated that the fountain is filled and the garden is watered with water from a well which is in the premises. For some years, the Municipality, which undertook to supply water levied water rate only on the basis of user for a domestic purpose but the trouble arose when the Assistant Examiner of Local Fund Accounts took an audit objection in September 1941 and asked the Municipality to charge the respondent for water on the basis of a non-domestic use. Thereupon, the Municipality required the respondent to pay the excess on the basis of supply for a non-domestic use. Notwithstanding the protest of the respondent the Municipality paid no heed to it and the appeal preferred by the respondent to the Municipal council was also unsuccessful. The present suit was thereafter instituted after giving due notice to the Municipality for the reliefs stated above.

3. The only question which, therefore, arises for consideration in this second appeal is whether the view taken by the Courts below that the supply of water for the aforesaid purposes was for domestic use and consumption and not for a non-domestic purpose is correct.

4. Chapter VII of Part IV of the Madras District Municipalities Act contains provisions for the regulation of water supply by a Municipality. Under Section 129, the Municipal Council, so far as funds permit, is entitled to provide sufficient supply of water fit for the domestic use of the inhabitants. Section 131 empowers a Municipality to supply water for domestic consumption and use in accordance with the bye-laws to an owner or occupier of any building on an application made by him. Section 131(1) states that in Municipalities in which there is a pipe supply of water, the executive authority may at his discretion, on application by the owner or occupier of any building, arrange in accordance with the bye-laws, to supply water thereto for domestic consumption and use, provided that the executive authority shall not, without the sanction of the council, agree to supply water to any building assessed at an annual value of less than Rs. 120. Sub-clauses (2) and (3) of this section may be omitted as they are not relevant. There is an explanation at the end of the section, which states what shall not be deemed to be a supply of water lor domestic consumption and use and what shall be deemed to include such a supply.

'Explanation': Supply of water for domestic consumption and use shall not be deemed to include a supply

(a) for any trade, manufacture or business,

(b) for gardens or for purposes of irrigation,

(c) for building purposes,

(d) for fountains, swimming baths, public baths within the Municipality or for any ornamental or mechanical purpose;

(e) for animals, or for washing vehicles, where such animals or vehicles are kept for sale or hire;

but shall be deemed to include a supply

(a) for flushing latrines;

(b) for all baths other than swimming baths or public baths;

(e) for the consumption and use of Inmates of hotels, boarding houses and the like and for baths used, by such inmates.

5. Under Section 132, the executive authority is vested with discretion to supply water also for purposes other than domestic consumption and use. Of course, the rate levied in such a case is higher than the rate charged for domestic consumption and use.

6. The short question for consideration is whether on the facts above stated the consumption and user of water by the respondent can aptly be described as domestic consumption and use. There are not many Indian decisions throwing light on the question. But the point arose for consideration in England under the Metropolitan Water Board (Charges) Act, 1907, and the Kingston-upon-Hull Corporation Act, 1897, which incorporates the Water 'Works Clauses Act, 1847. The Acts are in 'pari materia' except that the expression used is 'domestic purpose' in those Acts, whereas in the Madras Act. it is 'domestic consumption and use.' The difference in language is of no consequence. Section 25 of the Metropolitan Water-Board Charges Act, 1907 is more or less the same as Section 131 of the District Municipalities Act.

It also enumerates the purposes included in domestic purposes' and also purposes excluded from them. 'Trade, manufacture or business' is excluded from domestic purpose. Water closets and baths constructed or fitted so as not to becapable of containing when filled or filled up tothe overflow or waste pipe (if any) more than 80gallons are included. It may not be necessary todeal with all the cases that arose under the twoActs in England as the principles have been settledby two decisions of the House of Lords, -- 'Colley'sPatents Ltd. v. Metropolitan Water Board', (1912) AC 24 (A), and -- 'Metropolitan Water Board v.Avery', (1914) AC 118 (B). These principles wererecently examined by the Court of Appeal in --'Kingston Upon Hull Corporation v. Yuille', (1939) 2 K B 759 (C).

Under Section 131 of the District Municipalities Act, the owner or occupier 'of any building' is entitled to supply of water for domestic consumption and use which indicate that the character of the premises, where the water is used or consumed, is not very material and does not even regard the personal convenience of the people employed and remaining on the premises as a material consideration for the purpose of deciding the basis of the charge for water, i.e., whether ft was domestic consumption and use or not. The language of the section indicates that the essential test is the user and the nature of the consumption of the water to determine whether or not it is a domestic consumption and use. The nature of the user and consumption, is the deciding factor. In order to make the user a non-domestic use for purposes of trade or business, the water must be used as a , raw material for the purpose of trade or business as in the case of persons carrying on dyeing business or running a laundry and so on.

7. The learned Advocate for the appellant fastens himself on the dictionary meaning of the adjective 'domestic' and contends that the user must pertain to a home or a house in which a person is residing with his family and any user outside it must be treated as a non-domestic user. In the alternative, it was contended in the lower Courts that it was utilised for the purpose of running the business of the cinema and therefore it is a non-domestic user. None of these contentions however can be accepted. The dictionary meaning of the adjective 'domestic' was not adopted by the legislature and it does not purport to give in Section 131 of the Act an exhaustive definition of what is domestic consumption and use and what is not. The criticism levelled against the corresponding section in the Metropolitan Water Board (Charges) Act in England, that it was drafted most slovenly and is an example of an illdrafted provisions would equally apply to Section 131 ot the District Municipalities Act. A definition of 'domestic purpose' was given by Lord Atkinson in -- 1914 AC 118 126 (B)' in these terms:

'According to the ordinary meaning of language. T take it that water supplied for domestic purpose would mean water supplied to satisfy or help to satisfy the needs or perform or help in performing the services, which according to the ordinary habits of civilised life are commonly satisfied and performed in people's homes as distinguished from those needs and services which are satisfied or performed outside those homes and are not connected with, nor incident to, the occupation of them.'

8. In -- 1912 AC 24 (A)', the defendants were the occupiers of a factory In which they manufactured railwav tickets and paper. The Metropolitan Water Board supplied water to the factory and it was utilised for drinking and washing purposes by the work people and for cleaning utensils and water closets. No one resided in the premises. The Metropolitan Water Board claimed that they were entitled to charge for the water on the basis that it was supplied for trade purposes. Affirming the decision of the Court of Appeal in -- 'Metropolitan Water Board v. Colley's Patents Ltd.'. (1911) 2 K B 38 (D), the House of Lords held that the Board was entitled to charge for the water supplied only as for water supplied for 'domestic purposes'. Earl Loreburn pointed out that the , 'definition of 'domestic purposes' was not exhaustive and that it was couched in slovenly and inaccurate language. The supply of water in such a case could not be treated as supply for the use in trade within the meaning to be attached to the language of the section. Water used for personal convenience of men employed in a factory cannot be said to be water used for the purpose of trade carried on in the factory.

In -- 'Avery's case (B)', there is a more elaborate discussion in the judgment of the Court of Appeal in -- 'Metropolitsm Water Board v. Avery', (1914) 1 K B 221 (E). The defendant in the action was the occupier and licensee of a public house. It was supplied with water by the Metropolitan Water Board in the ordinary way by supply pipes for which the defendant was charged as a supply for domestic purposes upon the rateable value of the house. la addition to the ordinary business of a public house, the defendant also carried on a catering business for persons who came there to lunch but who did not reside there. This involved an increased use of water for such purposes as cooking and washing of plates and dishes.

The Water Board claimed that they were entitled to an extra charge for the water so utilised upon the ground that the water was used for other than 'domestic purposes'. The Court of Appeal held that the character of the business that necessitated an increased supply for domestic purposes did not make it a supply for the purposes of the business and that, therefore, the Water Board was not entitled to make the extra charge and this was affirmed by the House of Lords in -- 1914 AC 118 (B)'. Lord Dunedin considered the two possible alternative uses at page 124 where he observed:

'Either the criterion is to see whether the purpose in connection with the trade is domestic or non-domestic in itself, the criterion adopted by the Courts below and very clearly expressed in the Judgments of Bray J. and Buckley L. J. or to say, as the appellants contend, that every use of water, however, domestic in its nature that appears as a step, however insignificant, in a trade operation is use of water for a trade and therefore non domestic.

The great objection to this latter view is that It goes so far and leads to such astounding results as to make it flagrantly in conflict with what I venture to call the common sense view of the Act. The appellants themselves seem to have felt this, inasmuch as they admit that they are not in use to exact from public houses, anything more than a domestic rate. Yet unless all liquors are consumed neat and the glasses and mugs never washed, it is clear that the water used in public houses is, according to their method of definition, a trade use. Nor does the matter stop here. Not only does all water in hotels and boarding houses for the cooking of provisions (a severe narrowing down of -- 'Pidgeon v. Great Yarmouth Water Works Co.', (1902) 1 KB 310 (F)), follow the same fate, but no retail shop keeper could use a damp sponge to clean dusty goods without becoming liable to a trade rate for the water so used.

On the other hand, the test of the quality of the use in itself -- so tersely put by Buckley L. J. 'The test is not whether the water Is consumed or used in the course of the trade, but whether the user of the water is in its nature domestic,' -- is not only easy for application but is automatic in checking abuse. For, purposes truly domestic cannot be amplified, and when the consumption on such heads is large, it is invariably attended by an increase in the rating value of the premises which brings with it an Increased water rate.'

9. Lord Shaw pointed out that residence in the premises supplied was not the test as to whether water was supplied for a domestic purpose or not. The circumstance that, the persons who use the premises go there for the purpose of trade does not make the user a trade use and -- (1902) 1 KB 310 (F)', is authority for this view and has been approved by the House of Lords.

10. An examination of the two decisions leads one to the conclusion that the mere fact that for purposes of trade 'or business people go there or reside in the premises and utilise the water would not make the user a user for trade or business. It may be user incidental to the business or trade and might even Increase the trade profits indirectly but to make the user a trade use or a business use, the water must be directly utilised for its purpose as a raw material, as in the case of a mineral water manufacturer who actually sells the water after treating it and converting it into soda water or other mineral water or the water must be stock-in-trade of the business as in the case of a bath proprietor or it must be an implement or instrument used in the business as water for a steam engine or for hydraulic machinery or probably for a laundry or for a dyer's and cleaner's business. See the judgment of Channell J. in -- 'Avery's ease (B)'. before the Division Bench, -- 'Metropolitan Water Board v. Aveny', (1913) 2 KB 257 (G). The test, therefore, is to see whether the user is a domestic user or not without reference to the premises, to which the water is supplied and without reference to the persons who use it.

11. An interesting case arose in -- (1933) 2. KB 769 (C)', which related to a medical practitioner, who utilised the water of the premises forthe purpose of cleaning and disinfecting his surgical instruments and diluting medicines. TheCorporation, which supplied the water, claimed acharge on the basis that it was not a domesticpurpose within the meaning of the Kingston-uponHill Corporation Act, 1897, which also contained asimilar provision like Section 25 of the MetropolitanWater Board (Charges) Act. The Court of appealconsidered the two decisions of the House ofLords. Scott L. J. at p. 777 after referring to --'Colley's case (D)', treats it as an authority forthe view that the fact that the user'takes place in the course of business or tradeoperations does not prevent that use from beingdomestic. So here the mere fact that the doctorwas using the water in his surgery and in thegeneral course of his professional work doesnot of Itself dispose of the question we haveto decide, inasmuch as the actual use of thewater itself, which is the criterion, may havebeen in spite of its professional aspect, eitherdomestic or non-domestic.'He then refers to -- 'Avery's case (B)', and concludes at page 779:

'In my view where water is added to medicine as a diluent for the purpose of drinking the medicine diluted with water, the purpose is necessarily a domestic purpose. I can imagine no more domestic purpose to which water can be applied than that of internal administration. If one drinks a glass of water in a house, he drinks it for domestic purposes and if there is some medicines in it, he no less drinks it for domestic purposes within the meaning of the sections of these Acts. In some case it may be relevant to consider whether the purpose is immediate or ultimate, but where the water is used for drinking, whether pure or with something else in it, be it medicine or be it whisky. it seems to me quite plainly to come within the category of water used for domestic purposes. That conclusion in my view involves the dismissal of the appeal so far as the water was used by the doctor for his dispensary. I may add that to my mind no question of degree can enter in here, since the amount of water used by a doctor in a dispensary cannot in any case be very large.

The other purpose for which the water was used here by the doctor was merely for washing his surgical instruments. Washing or cleaning anything is 'prima facie' a domestic purpose. To keep things clean is one of the most important objects in domestic life. I can see no ground for saying that, because some of the things, which the doctor kept clean, happened to be surgical instruments when he kept them clean he ceased to be using the water for a domestic purpose. The use of the water in cleaning the instruments was still domestic, even though the instruments were going to be used ultimately in the course of the doctor's professional practice.'

12. In the light of these decisions, the answer to the question raised in this second appeal does not admit of any serious doubt. The water is used and consumed by the servants, by the visitors and utilised also for the coffee hotel and latrines and flush outs. All these uses are undoubtedly domestic uses and water was not utilised as part of the stock-in-trade of the business of running the cinema. In -- 're Nanilal v. Satyendra Nath', 54 Cal WN 42 (H), the Calcutta High Court followed the two decisions of the House of Lords though the observations in that case were 'obiter' as the petition was ultimately dismissed.

13. For the foregoing reasons, I have no doubt in affirming the decisions of the Courts below, which have taken the view that the charge levied by the Municipality was illegal. The second appeal is dismissed with costs.

14. No leave.


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