REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1555  OF 2019          (Arising out of S.L.P (C) No. 20191 of 2016)

The Municipal Corporation, Faridabad            ........Appellant

          Versus

Modern School, Faridabad & Ors.                   ........Respondents

With  

CIVIL APPEAL NO. 1556  OF 2019 (Arising out of S.L.P (C) No. 20193 of 2016)

J U D G M E N T

Hemant Gupta, J.

Leave granted.

2. The present appeals are directed against an order passed by the

Division  Bench  of  High  Court  of  Punjab  &  Haryana  on  21.12.2015

whereby intra-court appeals against common order dated 19.02.2015

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passed by the learned Single Judge in the two writ petitions filed by the

respondents were dismissed.

3. The respondents were allotted the land for the purpose of the

School  by  the  Haryana  Urban  Development  Authority,  Faridabad on

leasehold basis. The allotment letter issued to DAV College Managing

Committee dated 02.05.1986 has been filed as an additional document

before this court.  

4. The Municipal Corporation issued an office order on 14.06.1999

for  regularisation  of  tubewells  causing  unauthorized  activities  of

discharging of the waste water into the main sewer of the Corporation.

It  was  decided  that  all  private  tubewell  owners  who have  installed

tubewells within the area of Municipal Corporation shall use water for

domestic or industrial  purposes and that water shall  not  be sold or

used for commercial purposes. The charges were decided to be levied

as per the diameter of tubewells and that such tubewells have to be

registered with the Central Ground Water Board Authority.  

5.  In  terms  of  such  office  order,  notice  was  served  upon  the

Schools - writ petitioners before the High Court on 05.05.2000 to the

effect that tubewell  has been installed without prior approval of the

Municipal  Corporation,  therefore,  information  was  sought  in  the

prescribed  format  failing  which  tubewell  connection  was  to  be

disconnected.  In  response  to  such  notice,  M/s  Modern  School

communicated as under:-

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“1.   That this educational institution has installed tubewell of 2” dia for the school and hostel students and agriculture purpose which is a subject of  +2 stage education, in the year 1999.

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

3. In the year 1999 we got a water and sewer connection sanctioned in the name of the school by your department after completion of the building.”

6. Another  notice  was  served  upon  the  Schools  on  23.10.2000

communicating that the Schools are discharging water into property

vested in the Municipal Corporation, therefore, the Schools have to pay

user charges for the operation of the tubewell installed privately. The

notice 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  in  the  Municipal Corporation.  The  House  of  this  corporation  has approved  the  levy  of  user  charges/composition fees  for  the  operation  of  the  tubewell  installed privately at the rate of Rs.3016/- per month. You are therefore, directed to deposit a sum of Rs. 66352/-  as  user  charges  for  the  period  from January, 1999 to 10/2000 within 15 days from the date of issue of this notice, failing which necessary action as per law would be taken. You  are  also  directed  to  produce  the  copy  of registration  certificate  duly  attested,  issued  by the officer appointed by the Central Ground Water Board  for  the  installation  and  operation  of  the private  tubewell  within  the  limit  of  Municipal Corporation, Faridabad.”  

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7. In  the  writ  petitions  filed,  the  challenge  is  to  an  office  order

issued by the Municipal  Corporation on 14.6.1999,  inter-alia,  on the

ground that the Schools have been granted the sewerage and water

connections but the water facility is provided through a pipeline of the

diameter of half an inch. With the growing number of school activities

and for the purpose of proper maintenance of greenery and lawns, and

on  account  of  failure  of  the  Municipal  Corporation  to  provide  more

water, it has installed tubewells after obtaining registration from the

Central Ground Water Authority under Section 3(3) of the Environment

(Protection) Act, 1986. Such tubewells provide water for the purpose of

drinking  and  toilet  purposes,  besides  maintenance  of  lawns  and

greenery in the schools.

8. The Schools have challenged the claim of user charges on the

ground that Section 87 of the Act1 provides for levy of taxes whereas,

Corporation is empowered to levy fee including development fee for

providing and maintaining civic amenities in certain areas in terms of

Section  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  petition

explained that the water charges are in respect of the water supplied

through  pipeline  maintained  by  the  Corporation  whereas  the  user

charges have been levied on the tubewell installed by the Schools as

waste water is discharged into the sewer of the Municipal Corporation. 1 The Haryana Municipal Corporation Act, 1994

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Thus,  Corporation is  competent  to levy user charges for  the use of

Municipal drain for the flow of waste water.

10. The High Court has set aside the charges solely on the ground

that  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 is not sustainable.

11. Learned counsel for the appellant argued that user charges so

claimed are neither a tax nor fee as contemplated by Section 87 or 88

of  the  Act  but  are  charges  for  discharge  of  waste  water  into  the

Municipal sewer line which falls within the scope of Section 205 of the

Act. It is contended that the basis of the judgment of the High Court is

patently not sustainable.

12.  On the other hand, Mr. H.L. Tiku, learned senior counsel for the

Schools argued that the amount claimed is on extraction of the water

as the charge is as per the diameter of the tubewell, therefore, it is a

fee falling within the ambit of Section 88 of the Act. Therefore, same

could not 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  the

arguments of the learned counsel for the parties:-  

“43. Obligatory  functions  of  Corporation. --  It shall  be  incumbent  on  the  Corporation  to  make adequate provisions, by any means or measures which it  may lawfully use or take,  for  each of  the following matters, namely:-

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(a) the  construction,  maintenance  and  cleaning  of drains and drainage works and of public latrines, urinals and similar conveniences; (b) the construction and maintenance of works and means  for  providing  supply  of  water  for  public  and private purposes; (c) the  scavenging,  removal  and  disposal  of  filth, rubbish and other obnoxious or polluted matters;

……….……

xxx xxx xxx

177. Supply of water to connected premises. -- (1) The Commissioner may, on application by the owner of any building, arrange for supplying water from the nearest main to such building for domestic purposes in such quantities as he deems reasonable,  and may at any  time  limit  the  amount  of  water  to  be  supplied whenever he considers necessary. (2) Apart from the charges for the domestic supply at rates as may be fixed by the Government, additional charges  will  be  payable  for  the  following  supplies  of water:- (a) for animals or for washing vehicles where such animals or vehicles are kept for sale or hire; (b) for any trade, manufacture or business; (c) for  fountains,  swimming  baths,  or  for  any ornamental or mechanical purposes; (d) for gardens or for purposes of irrigation; (e) for watering roads and paths; (f) for building purposes.

xxx xxx xxx

193. Public drains etc. to vest in Corporation.-- (1) All  public drains, all drains in, along side or under any  public  street,  and  all  sewage  disposal  works whether  constructed  out  of  the  Corporation  Fund  or otherwise,  and  all  works,  materials  and  things pertaining thereto which are situated in the Municipal area shall vest in the Corporation.

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(2) All  public and other drains which are vested in the Corporation are hereafter in this Act referred to as Corporation drains. (3) For  the  proposes  of  enlarging,  deepening  or otherwise  repairing  or  maintaining  any  such  drain  or sewage disposal work so much of the sub-soil pertaining thereto as may be necessary for the said purposes shall also be deemed to vest in the Corporation. (4) All  drains  and  ventilation  shafts,  pipes  and  all appliances and fittings connected with the drains works constructed,  erected or set up out of  the Corporation Fund  in  or  upon  premises  not  belonging  to  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 at  any time otherwise determine, vest and be deemed always to have vested in the Corporation.

194. Control of drain and sewage disposal works. –- (1) All Corporation drains, all sewage disposal works and  works  materials  and  things  appertaining  thereto shall be under the control of the Commissioner. (2) The  Commissioner  shall  maintain  and  keep  in repair all  municipal drains and sewage disposal works and when authorised by the Corporation in this behalf, shall  construct  as  many  new  drains  and  sewage disposal works as may from time to time be necessary 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  Corporation  drain  or  into  any  drain communicating with a Corporation drain – (a) any matter likely to injure the drain or to interfere with  the  free  flow  of  its  contents,  or  to  affect prejudicially the treatment and disposal of its contents; or (b) any  chemical,  refuse  or  waste  steam,  or  any liquid of  a temperature higher than forty-five degrees Celsius being refuse or steam which, or a liquid which when so heated, is, either alone or in combination with the contents  of  the drain,  dangerous or  the cause of nuisance, or prejudicial to health; or

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(c) any dangerous petroleum.

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

196. Application  by  owners  and  occupiers  to drain  into  municipal  drain  -   (1)  Subject  to  such conditions as may be prescribed by bye-laws made in this  behalf,  the  owner  or  occupier  of  any  premises having a private drain, or the owner of any private drain within  the  Municipal  area  may  apply  to  the Commissioner to have his drain made to communicate with the drains and thereby to discharge foul water and surface water from those premises or 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 in accordance with bye-laws made in this behalf; or (ii) any liquid or other matter the discharge of which into Corporation drains is prohibited by or under this Act or any other law; or

(b) where separate Corporation drains are provided for foul water and 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 water into drain provided for foul water; or

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

….……….

xxx xxx xxx

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205. Connection with water works and drains not to  be  made  without  permission.--  Without  the written permission of Commissioner, no person shall for any purpose whatsoever, at any time make or cause to be  made  any  connection  or  communication  with  any drain  referred  to  in  section  194  or  any  water-works, constructed  or  maintained  by,  or  vested  in  the Corporation.”

14. In  terms  of  Section  43,  one  of  the  obligatory  functions  of

Corporation is- construction, maintenance and cleaning of drains and

drainage  works  and  also  scavenging,  removal  and  disposal  of  filth,

rubbish and other obnoxious or polluted mattes.  It  is in exercise of

such  function  that  the  Municipal  Corporation  has  provided  for  the

disposal of the waste water from residential, commercial and industrial

areas falling within the area of  Municipal  Corporation into its  sewer

drain.  

15. Chapter  XII  of  the  Act  relates  to  Water  Supply,  Draining  and

Sewage  disposal.   Section  177  provides  for  water  supply  to  the

premises.  Admittedly,  such  water  supply  is  being  provided  by  the

Corporation to the Schools in question.  The grievance of the Schools is

that such supply is not adequate to meet the demand, inter alia, on

account of increase of the functions of the Schools and to maintain the

lawns etc.   Such water  connection  provided to the premises of  the

Schools is within the scope of Section 177 of the Act as reproduced

above.  In terms of Section 177(2) the Corporation can claim additional

charges at the rates fixed by the Government.  

16. In terms of Section 193, all public drains, all drains in, alongside

or  under  any public  street,  and all  sewage  disposal  works  whether

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constructed out of the Corporation Fund or otherwise, and all works,

materials  vest  in  the  Corporation.   As  per  Section  194,  all  sewage

disposal  works  and  works  materials  are  under  the  control  of  the

Commissioner  who  is  required  to  maintain  and  repair  all  Municipal

drains and sewage disposal works. The Commissioner is also obliged to

construct as many new drains and sewage disposal works as may be

necessary  from  time  to  time  for  effectual  drainage  and  sewage

disposal.  

17. Section 196 enjoins the duty on the owners and occupiers having

a private  drain  within  the  Municipal  area  to  communicate  with  the

drains of the Municipal Corporation for the purpose of discharge of foul

water and surface water from their premises or that private drain.  For

such discharge, sub-section (2) of Section 196 creates an obligation to

give  a  notice  of  proposal  to  connect  the  private  drain  with  the

Municipal drain.     

18. Section 205 of the Act creates a bar on any person to make or

cause to be made any connection or communication with any drain

referred  to  in  Section  194  or  any  water  works  constructed  or

maintained by, or vested in the Corporation.  

19. We find that the High Court has misdirected itself when it held

that  the  user  charges  claimed  by  the  Corporation  for  discharge  of

waste water into the sewer lines of the Municipal Corporation is a fee

within the meaning of Section 88 of the Act.  

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20. The  water  extracted  by  tubewells  installed  by  the  Schools  is

discharged  into  the  Municipal  drains,  therefore,  the  Corporation  is

justified to levy user charges whereby, the waste water of the Schools

is carried by the Municipal drains.  

21. Though,  the  Schools  could  not  discharge  waste  water  into

Municipal drains without prior permission but instead of stopping the

communication  of  private  drain  with  the  Municipal  drain,  the

Corporation has demanded user charges which is not a tax or fee as

contemplated under Section 87 or 88 of the Act but user charges for

using the Municipal services for discharge of waste water extracted by

the Schools from the tubewells installed by them.  

22. The fact that the Municipal Corporation has claimed user charges

is made out from the office order dated 14.06.1999.  In response to

notice,  the  Schools  have  agreed  to  regularise  the  discharge,  but,

disputed the levy subsequently on the ground that such fee cannot be

charged being in contravention of Sections 87 and 88 of the Act.  

23. The documents  on record leave no manner  of  doubt  that  the

Corporation has not levied any tax or fee falling within the scope of

Section 87 or 88 of the Act.   The Corporation has claimed the user

charges for permitting the Schools to discharge waste water into the

Municipal drains which are related to the capacity to extract ground

water.  

24. We  do  not  find  that  such  demand  contravenes  any  of  the

provisions of the Act.  Therefore, the Corporation was well within its

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right to claim user charges for the use of Municipal drains for discharge

of waste water from the tubewells installed by the Schools.  

25. Consequently, the appeals are allowed. The Order passed by the

Division  Bench  of  the  High  Court  dated  21.12.2015  and  the  Order

dated 19.02.2015 of learned Single Judge are set aside and the Writ

Petitions are dismissed.  

………...…………..........................J.       (Dr. Dhananjaya Y. Chandrachud)

………….….................................J.       (Hemant Gupta)

New Delhi, February 8, 2019.

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