- (1.) This writ petition has been taken out by the petitioners, inter alia, challenging two notices, namely, notice under section 258 read with section 558 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the 'Act of 1980'), inter alia, calling upon the writ petitioner No. 1 to rectify the defects in the water supply pipes/water fittings in the premises in question and notice under section 238 read with section 271 of the Act of 1980 wherein the writ petitioner No. 1 has been directed to desist from using or allowing to be used water supply at the said premises for any purpose other than domestic purpose, failing which the water connection of the said premises has been threatened to be disconnected. The Corporation authorities have filed affidavits to the writ petition and controverted the allegations leveled therein. At the time of hearing of the writ petition, it appears that the first notice with regard to removing of defects in the water supply pipes/water fittings have been taken care of by the writ petitioners by effecting necessary rectifications thereto. Hence, the challenge to the first notice being Annexure P/2 to the writ petition does not survive.
(2.) Challenging the second notice being Annexure P/3 to the writ petition which was issued on the premise that the writ petitioners have used or caused to be used water supply to the premises for purposes other than domestic one, Mr. Sen, learned Advocate for the writ petitioners submits that the writ petitioners are not the occupiers of the premises in question, save and except, a very small portion thereof. It is the contention of the writ petitioners that the water supplied to the portion, which is in their occupation, has not been used for any purpose other than domestic purposes. It is the further contention of the writ petitioners that the alleged violations are committed by the multiple occupants who are the tenants in the premises, but they have not been notified by the respondent Corporation authorities. Mr. Sen submits that the tenancies have been created in the premises admittedly for commercial purposes way back in 1955 and the statute was amended only on 11th May, 1994 to necessitate the requisite permission from the Municipal Commissioner for non domestic use of water. By referring to sub-section (4) of section 272 of the Act of 1980 it has been further contended that in the event unfiltered water is not supplied to a premises, wholesome water may be used for non domestic purpose. Relying on such provision, Mr. Sen argued that use of wholesome water for non domestic purpose would not attract the penal provision of section 275(1)(c) of the Act of 1980. Mr. Sen further contended that the notice to desist from supplying water to tenants run counter to his client's continuing duty to supply water to his tenants under the West Bengal Premises Tenancy Act, 1997.
(3.) On behalf of the respondent Corporation, Mr. Dutta, learned Advocate refutes the contentions of Mr. Sen. Referring to section 276 of the Act of 1980, Mr. Dutta points out that the responsibility of the owner is co-extensive to that of the occupier in the matter of lawful user of water in the premises. He further submits that the expression "desist from using or allowing to be used........."in the notice under challenge clearly shows that it is relatable not only to the occupier who uses such water for non domestic purpose, but also upon the owner who allows such user thereof. Mr. Dutta took pains to point out that admittedly the building is a commercial establishment as the owner had created tenancies therein for commercial purposes. Hence, it does not stand in the mouth of the owner to state that the writ petitioners have not allowed the user of water supply to the premises for non-domestic purposes. Mr. Dutta also refers to non-obstante clause in section 275 of the Act of 1980, wherein it is provided that the said provision will operate "notwithstanding anything contained in this Act", and submits that the said provision should, therefore, prevail over the non-obstante clause in sub-section (4) of section 272 wherein it is provided that "Notwithstanding anything contained hereinbefore in this Chapter.......".;