1. This application raises a point of public importance namely the right of a rate payer in a municipality to get a sufficient amount of filtered water for his domestic purposes. The facts are shortly as follows. The petitioners, who are ten in number, are all residents of Baranagar, in the district of 24-Parganas.
They are all rate payers of the Baranagar Municipality (hereinafter referred to as the 'Municipality') and are owners of residential houses, premises and holdings within the precincts of the said Municipality. The Commissioners of the Municipality have imposed a water-rate and the petitioners pay water-rates at the rate of 7 per cent. of the annual valuations of their holdings.
The petitioners allege that in spite of the statutory duty on the part of the Municipality to provide them with an adequate supply of filtered water for domestic purposes, the supply is miserably insufficient, and is dwindling down progressively, until they cannot get even a few gallons of filtered water per day.
It is apprehended that such shortage would lead to the breaking out of epidemic diseases in the locality. On the 8th and 20th April, 1953 and 25th May, 1953, the petitioner Manindra Nath Pal wrote letters to the Municipality complaining of shortage in the supply of filtered water and claiming compensation. On 5-6-1953, the respondent 2 replied, expressing the regret of the Commissioners for the inconvenience caused, due to shortage of supply and hoping that the position had since improved.
The claim for compensation was however repudiated. On 30-7-1954, a pleader's letter was served upon the Municipality by the petitioners, complaining of the insufficiency of the supply of filtered wafer and threatening legal proceedings if the supply was not improved. On 22-12-1954 a notice was issued by the Chairman to the effect that an officer of the Municipality will visit the different premises on 25-12-1954 for measuring the position of water supply.
It was requested that the necessary facilities should be accorded to the inspector. Petitioners 1, 8 and 10, refused to accept notice. Petitioner 5 refused inspection of the water installation. Petitioner 1 in his affidavit-in-reply says that neither he, nor the petitioners 8 and 10 refused to accept notice but that they objected to the date of inspection. This is not supported by the petitioners 8 and 10 and I regret I cannot accept it.
There is no objection on record so far as they are concerned. On the other hand, petitioner 3 objected to the date, saying that 26th December would suit him. Accordingly, inspection in his premises was held on the 26th. The result is that the petitioners 1, 5, 8 and 10, have not produced sufficient evidence before me to establish that they are not being supplied with sufficient amount of filtered water.
It is stated in the affidavit in reply that on 4-2-1954, one Pratap Chandra Ray, a licensed plumber, went to the houses of the petitioners and measured the flow of filtered water. This- was however not done upon notice to the Municipality and I am unable to accept the correctness of the measurement. So far as the remaining petitioners are concerned, the following chart gives the position:
Petitioner No.Quantityof water to which the petitioner isentitledQuantityflowing as per inspection by officer of MunicipalityQuantityas found by P. C. Ray.
229028423031604201204320630270618011821607150Nosupply during normal supply hours, supply available in extra supply hours.Nosupply9170840150.
It will be observed that only petitioners Nos. 2 and 7 are getting less than the admitted amount to which they are entitled to. On the other hand, the petitioners Nos. 6 and 9, are getting vastly more than they are entitled to. The case of petitioner No. 7 however stands on a special footing. When she applied for connection of water to her house, it was found that there was No. G. 1 main in front of her house. She did not choose to pay for the 50 ft. of G. 1. pipe that would have been required to join with the main.
Instead, the Municipality joined her to a 3/4' G. 1 main which passed near her house to convey water to a street tap. This was allowed upon the condition that the petitioner would not complain of 'insufficiency of pressure. All these facts have been omitted to be mentioned in the petition. Upon these facts being brought out in the counter affidavit, she has not come forward with any affidavit in reply.
2. These being the facts, let us see the position in law. According to the petitioners, the Municipality is under a statutory liability to supply sufficient filtered water, required for domestic purposes. According to the respondents, right is a contractual right and cannot be the subject of an application under Article 226 of the Constitution. In any event, the rules exonerate the liability of the Commissioners, if the shortage in supply is due to reasons beyond their control, and it is averred that any shortage that exists is due to reasons beyond the control of the Municipality.
3. Firstly we come to the provisions of the Bengal Municipal Act 15 of 1932 (hereinafter referred to as 'the Act'). The relevant part of Section 278 runs as follows:
278 (1). It shall be lawful for the Commissioners of every Municipality--
(a) to provide a sufficient supply of water for the domestic use of the inhabitants;
X X X XX X X X(2) When it has been determined that a water rate ..... shall be imposed within a Municipality the Commissioners shall--
(a) provide a sufficient supply of water for the domestic use of the inhabitants.
X X X XX X X XThe next relevant provision is Section 302 (1) which runs as follows:
302 (1) The occupier to every premises to which water is supplied by the Commissioners under this Chapter shall be entitled to have, for each rupee paid quarterly as the water rate on account of such premises & free of further charge such quantity of water per quarter for domestic purposes as the Commissioners at a meeting may from time to time prescribe.
Section 289 gives power to the Commissioners to permit connection from any main or distribution pipe for leading water to a house or land paying water-rate. Section 293 confers the power of entry and inspection by an officer authorised by the Commissioners of any water installation.
4. Section 311 (e) confers power upon the State Government to make rules to regulate all matters and things connected with the supply and use of water. Such rules have been framed and are known as the 'House Connection Rules'.
According to the rules, so long as the Commissioners deem it practicable and consistent with the maintenance of an efficient water supply, they may grant to any owner or occupier of a holding paying a water-rate imposed under the provisions of Chap. VIII, Bengal Municipal Act, 1932, on the annual value of such holding, when such annual value is not less than Rs. 75, a connection pipe from the service-pipes of the Commissioners for the purpose of leading water to such holding for domestic purposes only. Rule 10 lays down the amount of water that may be enjoyed. It says:
'Every owner or occupier of any holding in respect of which a connection has been made under these rules, shall be entitled to supply of water corresponding to the annual valuation of such holding according to the following table:'
Then follows the table, showing the quantity of water to be supplied to premises having a certain annual valuation.
5. All the holdings in the present case have an annual valuation above Rs. 75/-, and the amount of water to which the owners are entitled to, is not disputed, except the case of petitioner 2, who has erroneously calculated his amount on the footing that he has a water-closet, while in fact there is a service privy.
6. Under Rule 1, the owner or occupier of any holding requiring water to be laid on to such holding for domestic purposes, has to apply for the same in a prescribed form, and the conditions subject to which the house-connection will be given are set out in the form. In fact, it is a printed form, wherein the 'House Connection Rules' have been set down in print. These are the 'conditions', subject to which the connection is given. Finally, reference must be made to Rule 19 which runs as follows:
'19. The Commissioners will not be responsible for any interruption, or diminution of water-supply due to occurrences beyond their control.' It is this provision for making a written application in the prescribed form for house-connection, that has given rise to the erroneous impression that the right to get a supply of water for domestic use is a contractual right. The Commissioners of a Municipality are not bound to supply any water for domestic use, but it is lawful for them to do so. So far, it is purely discretionary. But once they decide to levy a water-rate on the ratepayer, Section 278 of the Act imposes a statutory liability upon the Municipality to provide a sufficient supply of water for the domestic use of the inhabitants. What is 'sufficient' has not been laid down. In the present case, the Government, under powers conferred by Section 311, has framed rules, and fixed the quantity of water to which a rate-payer is entitled to. The quantity varies according to the annual valuation.
In the absence of other indications, it must be presumed that the quantity specified under the rules is the measure of sufficiency. The provisions of Section 302 are somewhat misleading, upon a first reading it seems that, it was for the Commissioners at a meeting to decide, how much water should be supplied. It appears however that the section merely provides for a certain amount of water to be supplied free. In this application I have not heard of any free supply of water.
The result is that a Municipality governed by the Act and rules framed thereunder, is bound to supply the quantity of water that is mentioned in Rule 10, if it has levied a water-rate and is realising the same from the rate-payers. Bo far as the respondents are concerned, apart from characterising the liability as a contractual one, it is admitted that the petitioners have a right to supply of the quantity of water, as specified in Rule 10
Judged by this test, only two of the petitioners have not been supplied sufficient water, namely Nos. 2 & 7. As regards No. 7, he took his connection expressly stipulating that he will not complain about the lack of pressure and I do not think that any relief should be granted to him in an application under Article 226. There remains the question of petitioner 2.
7. Mr. Pal, appearing on behalf of the respondents has taken a general defence, namely Rule 19, set out above. In para 14 of the counter-affidavit it has been stated that there were reasons beyond the control of the Municipal Commissioners, whereby the supply of filtered water has been depleted These reasons have been set out as follows:
1. Huge influx of refugees as a result of partition.
2. Growing salinity of the water of the Ganges,
3. Rapid silting up of the river bed.
4. Scarcity of rains,
5. Filling up and dereliction of wells and tanks,
6. Surreptitious drawing of excess quantity of water by some unscrupulous rate-payers,
7. Deliberate and negligent misuse and wastage of water by a large section of rate-payers.
I may say here at the outset that items (5), if such wells and tanks belong to the Municipality, as also (6) and (7) are not matters which are beyond the control of the Municipality. On the other hand, it is a sad instance of neglect and inefficiency. In this very case, a rate-payer who is entitled to 180 gallons is allowed to draw 1182 gallons, while others cannot get their bare quota.
It is the duty of the Municipality to see that rate-payers do not draw surreptitiously, quantities of water, beyond their quota or misuse and waste the same. Who has not seen street taps running the whole day long and wasting valuable water while people requiring drinking water, have not enough to meet their barest necessities? One might deplore the lack of civic sense in the ratepayer, taut it does not excuse the lack of supervision on the part of the Municipal authorities.
The first four items are however matters which are obviously beyond the control of the Municipal authorities, and would fall within the ambit of Rule 19. The existence of these factors is not disputed in the affidavit in reply. It is said that they are vague, remote and irrelevant. I do not think so. The sudden influx of a large population, obviously renders the supply of water precarious and proves a strain upon it.
Every body must have drinking water & water which is sufficient for a locality, ceases to be so when the population becomes multiplied many times the original number. It follows that the Municipality at the moment is unable to supply the scheduled quantity of water for reasons beyond its control. This brings me also to the general question as to whether a writ in the nature of Mandamus should be issued to compel a Municipality to give a particular quantity of water to a rate-payer. The position may briefly be stated to be as follows:
1. The petitioner No. 2 is admittedly a rate payer paying the water rate.
2. It is admitted that he is entitled to a supply of 290 gallons per day for which he is paying rates.
3. This amount has been fixed by rules, made by Government.
4. The Municipality is under a statutory obligation to supply this quantity, unless it can show that it is unable to do so for a reason beyond its control.
If the Municipality is unable to supply the scheduled quantity, one course would be to get Government to amend the rules, and make the scheduled quantity less than what it is at present. Where therefore it can be clearly shown that the Municipality has got the means of supplying the full scheduled quantity and still is not doing so, I do not see why a mandamus should not issue to compel the Municipality to carry out its statutory liability.
On the other hand, where the Municipality cannot do so because of sudden emergencies like influx of refugees or drying up of the river bed --then it would be futile to issue a writ to compel the Municipality to supply enough water to everybody. The Court has not the machinery to enforce such an order. On the materials before me, I am satisfied that there is a general shortage due to an emergent situation and that the Municipality is doing its best to remedy the situation.
In paragraph 15 of the counter-affidavit has been set out a long list of steps that have been taken to remedy the shortage. In the reply, it is not denied that such, steps have been taken, although it is said that the steps taken have been inadequate to remedy the shortage.
8. Mr. Pal, appearing on behalf of the respondents has pointed out that the petitioners have not stated all the necessary facts in the petition and are guilty of suppression. This is true to a very great extent. For example, it has been said that the Municipality had taken no steps after the petitioners made a demand. The fact that the Municipality caused an inspection to be made to measure the water in the presence of the parties, has been completely suppressed in the petition.
Some of the petitioners have appended their signatures to the original record of measurement and cannot plead ignorance thereof. I have directed that a certified copy thereof be made an exhibit herein. In the petition it is stated that none of the petitioners can get 'Even a few gallons of filtered water through his water tap', whereas upon inspection it is found that each one is getting over a hundred gallons and one of the petitioners has exceeded the thousand gallon mark.
The fact that petitioner No. 7 got his connection subject to a condition has been completely suppressed from Court. Finally, Mr. Pal argues that the petitioners have different causes of action and should not be allowed to join in one application. He also takes the point that even if a joint application is maintainable, there are certain drawbacks in such an application.
In such an application, you either give relief to all or to none. If it is found that even one of the applicants, is disentitled to relief, the whole application must fail. Reference has been made to American Jurisprudence Vol. 35, page 81 para 333. In my opinion, such highly technical rules of procedure should not be incorporated in our law. This is a poor country and litigation expenses are high. Multiplication of legal proceedings should be avoided at all costs.
It would be sufficient to follow analogously the provisions of Order 1, Civil P. C. However, this is a point upon which it is unnecessary to say more because it finally appears that only one petitioner has any possible ground to put forward in this application.
9. Coming back to the case of petitioner No. 2, I have already pointed out that his supply is admittedly below the scheduled quantity. Now, it may be possible for the Municipality to restore this particular shortfall. But should I make an order compelling the Municipality to do so? The Municipality has satisfied me that there is a general shortage and that it is due to causes beyond its control, and that all possible steps are being taken to remedy it.
If I order that the quantity of petitioner No.2 be restored, it will give rise to a spate of applications, and I would be compelled to order that the Municipality should increase the supply to every such applicant, in whose case the supply falls short of the scheduled quantity. Such orders would be impossible of enforcement.
10. I must however make it clear that I say nothing upon the point as to whether the Municipality can continue to charge the full water-rate while supplying less water, than the scheduled quantity. That is a point which is not the subject-matter of this application. Finally I must record that Mr. Pal on behalf of the Commissioners of the Municipality has assured the Court-that every effort will be made to see that the petitioner No. 2 gets his scheduled quantity of water, as early as circumstances in their control will permit. I have no doubt that the Commissioners of the Municipality will live up to this assurance.
11. The result is that this application as a whole has failed and the rule must be discharged. There will be no order as to costs.