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Nagendra Lal Das and ors. and Vs. the Chairman of the Municipal Commissioners of Chittagong - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.340
AppellantNagendra Lal Das and ors. and ;surendra Lal Kastagir
RespondentThe Chairman of the Municipal Commissioners of Chittagong
Excerpt:
bengal municipal act (iii b.c. of 1884), sections 290 and 295 - local government, power of, to make rules imposing conditions for water connections--high court, interference by. - .....of chittagong, the defendants are commissioners of the municipality. the plaintiffs wished to have house connection with the main water service pipe. the municipality were willing to allow the connection only on the condition that a water meter to measure the amount of water consumed was put in by the plaintiffs at their own expense in accordance with certain rules framed by the local government under section 290 of act iii of 1884 (the bengal municipal act) as amended by act iv of 1894.3. the plaintiffs contended that these rules were ultra vires and that they were entitled to have the house connection they asked for without paying for the meter and they asked for an injunction to restrain the defendant municipality from cutting off the water connection which the municipality threatened.....
Judgment:

1. The facts of the suit out of which Appeal No. 879 of 1918 has arisen are simple.

2. The plaintiffs are certain rate-payers of the Municipality of Chittagong, the defendants are Commissioners of the Municipality. The plaintiffs wished to have house connection with the main water service pipe. The Municipality were willing to allow the connection only on the condition that a water meter to measure the amount of water consumed was put in by the plaintiffs at their own expense in accordance with certain rules framed by the Local Government under Section 290 of Act III of 1884 (The Bengal Municipal Act) as amended by Act IV of 1894.

3. The plaintiffs contended that these rules were ultra vires and that they were entitled to have the house connection they asked for without paying for the meter and they asked for an injunction to restrain the defendant Municipality from cutting off the water connection which the Municipality threatened to do if the price of the meter was not paid, the plaintiffs having been allowed the desired house connection on the understanding that they would pay for the meter if it was found that they were liable to pay for it. The Court of first instance decreed the suit holding that the rules framed under Section 290 were ultra vires. On appeal the learned District Judge decreed the appeal and dismissed the suit. He held that the rules framed under Section 290 were not ultra vires and they did not conflict with Section 295 of the same Act.

3. Against this decree the plaintiffs have appealed to this Court. The question in controversy between the parties, though very simple, is a question of considerable importance and has been argued at some length.

4. Section 290 of the Bengal Municipal Act is as follow: 'Whenever the Commissioners, deem it practicable and consistent with the maintenance of an efficient water-supply, they may at a meeting, and subject to such rules and conditions as the Local Government may make and impose, allow the owners and occupiers paying the water-rate hereinbefore mentioned to lay down communication pipes from the service-pipes of the Commissioners, for the purpose of leading water to their premises for domestic purposes.'

5. It is quite clear that this section by itself gives the Local Government power to make and impose rules and conditions under which the Municipal Commissioners may allow house connections with the service water pipes. Section 291, Section 292 and Section 293, which have been referred to by Counsel for the appellant?, give the Commissioners the necessary powers to ensure the connection being properly made and kept in proper order and to prevent the water being wasted. Under the powers conferred on them by Section 290, the Local Government did make certain rules which were made final on the 24th October 1916.

6. The two particular rules with which we have to deal are Rule 4 and Rule 9, which run as follows:

4(1). The owner or occupier of the holding in respect of which the connection is required must bear the entire cost thereof including the cost of the supply and fixing of the fittings referred to in Rule 9(2). The applicant for the connection will also be liable for the cost of such alterations in, or repairs to, roads, drains, sewers, gas or water-mains, or pipes, and the cost of such other works as may be necessitated by, or result from the work of making such connection, and also all charges for which the Commissioners may become liable in repeat of any of the matters referred to in this Sub-rule....

9. A holding connection shall comprise the following parts or fittings: (a) brass or gun metal ferrule inserted in the main supply-pipe; (b) a galvanised-iron communication pipe from the ferrule to the meter; (c) a stop cock and its surface box; (d) a meter; (e) service pipes from the stop-cock to the taps; and (f) taps.

7. Thus Rule 4 provides that the owner or occupier must pay the entire cost of fixing of the fittings as defined its Rule 9.

8. Rule 9(d) provides that a meter is one of the fittings necessary for a household connection. It has been argued that Section 290 gives the Local Government no power to define what are fittings and, there-fore, the Local Government are not empowered to make a rule under that section defining what are the fittings required for a house connection.

9. No doubt, the section does not provide that the Local Government shall define what are the fittings required for a house connection but it does empower the Local Government to make rules and conditions under which occupiers or owners may have a house connection and the provision of a meter at the occupier's or owner's expense is one of the conditions they impose.

10. It is quite immaterial whether a meter is called a fittings or not.

11. Neither can it be successfully contend-ed that the rules in question are unreasonable.

12. It is the manifest duty of the Municipality to see that the public in general have their due supply of water. The capacity of any given installation is obviously limited, and unless the Municipality can prevent waste, the general public distributed over a large area are bound to suffer. The installation of a meter is one of the most obvious means of preventing waste and as a house contention must be regarded more or less in the light of a luxury, it is only reasonable that the person who has the benefit of it should pay all the necessary expenses. It would obviously be inequitable that the cost of a luxury should fall on the general body of rate-payers and not on the person who really gets the benefit of it.

13. It has also been contended that these rules, as framed by the Local Government, under Section 290 contravene the express provisions of the Act as set forth in Section 295.

14. Section 295, provides:

The Commissioners at a meeting may determine what quantity of water shall be supplied to the occupier of every house, free of further charge, for every rupee paid to the Commissioners as water-rate on account of such house.

If the Commissioners have reason to believe that the occupier of any house consumes more water than he is entitled to as aforesaid, it shall be lawful for them to provide a water-meter at their own expense, and to attach, the same to the water-pipes of the said house and any water which may be used over and above the quantity to which the occupier is entitled as aforesaid shall be paid for by him at such rate as the Commissioners at a meeting may determine.

15. It is argued that Section 295 sets forth the circumstances under which the Commissioners may provide a meter, and this section states that they may do so at their own expense. It is said as this section provides that the Commissioners may have meters fixed at their expense, it is unlawful for the rules to order that a meter should be fixed at the consumer's expenses. There is, however, nothing inconsistent between the rules, as framed by the Local Government, and Section 295. Section 295 makes it lawful, in certain circumstances, to have a meter fixed at the expense of the Municipality and to expend the Municipal funds for the purpose. That certainly does not preclude the Local Government from making its one of the conditions of a house connection that the occupier or owner shall provide a meter at his expense.

16. A further argument has been put forward that by insisting that the owner or occupier should provide the meter, the Commissioners are imposing a charge or tax on the ratepayer and that no charge or tax can be imposed which are not expressly and in very clear terms authorised by the Act itself. This argument has no substance. No one is obliged to have a house connection. Therefore, whether a person pays or does not pay, the charge is entirely within his own discretion. It is not a tax on the public. If the Municipality had to provide at their expense meters free of cost to the user, that would mean taxing the public. It is to prevent this that the rules seem to have been framed. It is also to be noted that the Local Government has control over the expenditure of Municipal funds under Section 69(1). We are, therefore, of opinion that the rules, as framed by the Local Government, under Section 290 are intra vires, and the occupier or owner who wants house connection must pay for the cost of the meter. It hat, lastly, bean contended that the Municipal Commissioners cannot cut off the water supply in default of the plaintiff's paying the cost of the meter. The argument put forward to support the contention is that Section 297 is the only section which authorises the Commissioners to out off the water supply and that the section provides that the water can only be cut off on account of the non-payment of the water-rate. There is some force in this contention; but the point is not a fair one to raise, as these persons have been allowed to have the connection on the understanding that they would abide by the rules made under Section 290 if it were found these rules were intra vires.

17. The same argument, however, applies as has already been applied to the proper construction of Section 295. Section 295 applies to things in statu quo and Section 290 with future necessity.

18. The water has, we understand, not been out off although notice may have been given to out it off under Rule 24(e) made under Section 290. It cannot be said that this rule conflicts or is inconsistent with Section 297.

19. Rule 24(e) is, we consider, intra and not ultra vires. It seems to us to be a reasonable provision.

20. In the view we have taken, it is needless to discuss the cases which were cited before us, the general principles enunciated in which were not disputed. The Court has received the assistance of having both points of view thoroughly argued. We think it only right to add that we ought not to interfere with rules and conditions authority for which has been expressly provided for as in this case, unless they are clearly in conflict with some legal principle.

21. The result is, that the decree of the lower Appellate Court cannot be successfully assailed and the present appeal must be dismissed with costs.

22. Our judgment also governs Second Appeal No. 1168 of 1918 (Chittagong) which is also dismissed with costs.


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