Sinha, J. - (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: JUDGEMENT_291_AIR(CAL)_1956Html1.htm 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 X X 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 X X X X X The 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.;