Municipal Corpn. Of Greater Bombay & Ors. Vs. M/s. Polychem Limited & Anr.
EmailAppeal: Civil Appeal No. 6301 of 1997
Petitioner: Municipal Corpn. Of Greater Bombay & Ors.
Respondent: M/s. Polychem Limited & Anr.
Apeal: Civil Appeal No. 6301 of 1997
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Aug 23, 2001
Head Note:
MUNICIPALITIES / PRACTICE AND PROCEDURE
Mumbai Municipal Corporation Act, 1888
Sections 170, 231 with rule 4.1 – Liability of sewerage charges – Respondent alleged to be discharging its effluents in municipal storm water drain – Fact denied – Parties agreeing that respond-ents discharging effluents to municipal water drain and its prem-ises connected with municipal infrastructure, being questions of facts, matter be remitted to High Court. Held that orders of High Court in allowing writ are set aside and matter remitted for decision. (Para 3)
JUDGEMENT:
O R D E R
1. Appellant no.1 herein, is constituted and established under the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as ‘the Act’). There is a large tract of hilly land in the locality of Chembur which is within the corporation limits of appellant no.1. Respondent no.1 has a factory located in that area. As a result of manufacturing activities, respondent no.1 has been discharging its effluents. Their case is that they do not discharge effluents either in the municipal underground sewer or municipal open storm water drain. However, the appellant herein served notice on respondent demanding sewerage charges as they have been discharging effluents in municipal storm water drain. It is at this stage, the respondents filed a petition under Article 226 of the Constitution of India before the Bombay High Court. The case of the respondents, who were writ petitioners was that since the company is not discharging its effluents either in municipal underground sewer or municipal open storm drain, they are not liable to pay sewerage charges either under section 170 read with rule 4.1 or under section 231 of the Act. In the said writ petition, the appellant filed counter affidavit and in paragraph 10, it was stated as thus :
“With reference to paragraph 11 of the petition, I say that it is true that the petitioners’ factory is at Chembur, and is not connected with the municipal underground sewer. I respectfully submit that the petitioners’ factory is connected with the storm water drain, which is the municipal infrastructure for carrying the trade effluents. Hereto annexed and marked exhibit ‘I’ is the sketch plan showing the municipal infrastructure. The sketch plan showing the municipal infrastructure is not only within the 100 distance from the petitioners’ property but also passing through and touching the petitioners’ property. Bombay Municipal Corporation is regularly maintaining the said storm water drain and also carrying out repair, training, reconstruction and clean-ing work of the said infrastructure. I rely upon the relevant documentary evidence showing the expenditure incurred by Bombay Municipal Corporation for carrying out repairs, training, recon-struction, maintenance and de-silting work etc. at the hearing of the petitioner. I say that, the rates were increased by the standing committee by the resolution, which came into effect from 05-04-1987.”
2. Curiously, the High Court held that since the respondents and the corporation are discharging their effluents in the same nala it is , therefore, not sufficient to hold that the respondent is discharging its effluents in municipal open storm drain or its premises is connected to any municipal infrastructure. In that view of the matter, the writ petition was allowed.
3. We have heard learned counsel for the parties and we are of the view that the reasoning given by the High Court is not sus-tainable. We have already referred to paragraph 10 of the counter affidavit and we have also looked into the map filed by the corporation before the High Court. A perusal of map shows that the reasoning of the High Court in allowing the writ petition is not correct. Learned counsel for the parties are agreed that the question as to whether the respondent-company is discharging its effluents in the municipal open storm drain or its premises is connected to any municipal infrastructure is a question of fact and as such the same may be remitted to the High Court for deci-sion. In view of the statement made by learned counsel for the parties, we set aside the judgement under challenge and remit the case to the High Court to find out as to whether the respondent herein is discharging its effluents in the municipal open storm drain or its premises, is connected to any municipal infrastruc-ture.
4. The appeal is allowed. There shall be no order as to costs. Parties may file further affidavits in the High Court, if any, within six weeks from the date of furnishing of the certified copies of this order before the High Court and, thereafter, the High Court shall decide the matter in the light of the observa-tion made herein before.
1. Appellant no.1 herein, is constituted and established under the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as ‘the Act’). There is a large tract of hilly land in the locality of Chembur which is within the corporation limits of appellant no.1. Respondent no.1 has a factory located in that area. As a result of manufacturing activities, respondent no.1 has been discharging its effluents. Their case is that they do not discharge effluents either in the municipal underground sewer or municipal open storm water drain. However, the appellant herein served notice on respondent demanding sewerage charges as they have been discharging effluents in municipal storm water drain. It is at this stage, the respondents filed a petition under Article 226 of the Constitution of India before the Bombay High Court. The case of the respondents, who were writ petitioners was that since the company is not discharging its effluents either in municipal underground sewer or municipal open storm drain, they are not liable to pay sewerage charges either under section 170 read with rule 4.1 or under section 231 of the Act. In the said writ petition, the appellant filed counter affidavit and in paragraph 10, it was stated as thus :
“With reference to paragraph 11 of the petition, I say that it is true that the petitioners’ factory is at Chembur, and is not connected with the municipal underground sewer. I respectfully submit that the petitioners’ factory is connected with the storm water drain, which is the municipal infrastructure for carrying the trade effluents. Hereto annexed and marked exhibit ‘I’ is the sketch plan showing the municipal infrastructure. The sketch plan showing the municipal infrastructure is not only within the 100 distance from the petitioners’ property but also passing through and touching the petitioners’ property. Bombay Municipal Corporation is regularly maintaining the said storm water drain and also carrying out repair, training, reconstruction and clean-ing work of the said infrastructure. I rely upon the relevant documentary evidence showing the expenditure incurred by Bombay Municipal Corporation for carrying out repairs, training, recon-struction, maintenance and de-silting work etc. at the hearing of the petitioner. I say that, the rates were increased by the standing committee by the resolution, which came into effect from 05-04-1987.”
2. Curiously, the High Court held that since the respondents and the corporation are discharging their effluents in the same nala it is , therefore, not sufficient to hold that the respondent is discharging its effluents in municipal open storm drain or its premises is connected to any municipal infrastructure. In that view of the matter, the writ petition was allowed.
3. We have heard learned counsel for the parties and we are of the view that the reasoning given by the High Court is not sus-tainable. We have already referred to paragraph 10 of the counter affidavit and we have also looked into the map filed by the corporation before the High Court. A perusal of map shows that the reasoning of the High Court in allowing the writ petition is not correct. Learned counsel for the parties are agreed that the question as to whether the respondent-company is discharging its effluents in the municipal open storm drain or its premises is connected to any municipal infrastructure is a question of fact and as such the same may be remitted to the High Court for deci-sion. In view of the statement made by learned counsel for the parties, we set aside the judgement under challenge and remit the case to the High Court to find out as to whether the respondent herein is discharging its effluents in the municipal open storm drain or its premises, is connected to any municipal infrastruc-ture.
4. The appeal is allowed. There shall be no order as to costs. Parties may file further affidavits in the High Court, if any, within six weeks from the date of furnishing of the certified copies of this order before the High Court and, thereafter, the High Court shall decide the matter in the light of the observa-tion made herein before.
