JUDGMENT
Bharucha, J.
1. These four appeals may be disposed of by a common judgment because they raise the identical questions.
2. We narrate the facts of only the first appeal. The appellants therein are doing the business of dyeing and printing at Industrial Estate, Kandivli, Bombay. They had originally an 1/2 inch water connection. In 1971 they applied to the Municipal Corporation of Greater Bombay (the first respondent) for a larger connection. In June 1975 they were given an 1/2 inch connection. It is the case of the Corporation that, on 24th September 1975, it fixed a water quota for the appellants in the figure of 27,18,000 litres per month. This is disputed by the appellants, but we shall proceed upon the basis that this quota was fixed.
3. Water Charges Rules effective from 1st April 1976 came into force and we are concerned with the vires of Rule 3(d)(i) thereof. This rule provides, “In case of industries for which a quota of water has been fixed, if the recorded or computed consumption falls short of 9/10th of the quota of water for any month a consumption equal to 9/10th of the quota of water shall be charged.”
4. Up to June 1977 water charge bills were sent to the appellants on the basis of their actual consumption. In July 1977 the appellants received supplementary bills for the difference between the charge on the quota basis under the said Rule and the actual consumption basis. The appellants protested that though they had kept their taps open for the full 24 hours of the day water was not available to make up anywhere near the quantity of the quota. It is the appellants’ case that the Corporation agreed to verify this. At the same time, the Corporation threatened to cut off the appellants’ water supply so that the appellants were constrained to file the writ petition to restrain the Corporation from so doing.
5. The writ petition was heard and disposed of the learned single Judge on 10th September 1981. He found no substance in the petition and discharged the rule. This was also the fate of the other three writ petitions. The appeals impugne the orders of dismissal.
6. Mr. Nain, learned counsel for the appellants in the first appeal, made the following submissions. The counsel appearing for the appellants in the other three appeals adopted his submissions. Mr. Nainsubmitted (1) that the said Rule was ultra vires the rule-making power of the Standing Committee of the Corporation being inconsistent with the provisions of Section 169 of the Bombay Municipal Corporation Act, 1888; (2) that the Corporation was, in any event, not justified, in charging on the basis of a quota because it was in no position to supply the quantity of water fixed thereby; (3) that the said Rule did not provide any guideline in respect of the industries to which it was to be applied and as to how the quota was to be fixed. We do not propose to consider any submission other than the first because we are with the appellants thereon.
7. It is necessary to note the provisions of Section 169 of the Act. The relevant portion reads thus : —
“169. (1) Notwithstanding anything contained in Section 128, the Standing Committee shall, from time to time, make such rules as shall be necessary for supply of water and for charging for the supply of water and for any fittings, fixtures or services rendered by the Corporation under Chapter X and shall by such rules determine-
(i)xx
(ii) a water charge in lieu of a water tax, based on a measurement or estimated measurement of the quantity of water supplied; …”
8. Section 276 of the Act provides that where water is supplied by measurement, the Commissioner may either provide a meter and charge the consumer rent therefor or permit the consumer to provide a meter of his own which should be of the approved specifications. Section 277 states, “Where water is supplied by measurement, the register of the meter or other instrument for measuring water shall be prima facie evidence of the quantity consumed.” Section 461 empowers the Corporation to make bye-laws, not inconsistent with the Act, inter alia, “regulating all matters and things connected with the supply and use of water.”
9. The Water Charges Rules, of which the said Rule is a part, are stated to be framed by the Standing Committeeof the Corporation in exercise of the powers given by Sections 169 and 276. Rule 3 refers to Section 169. Sub-rule (a) thereof sets out the basis on which the supply of water shall be computed “while the meter is out of order or under repair or under test”. Sub-rule (b) states the circumstances in which the meter shall be deemed to be out of order. Sub-rule (c) sets out how water charges are to be computed when a meter is found to be tampered with or is inaccessible, etc. The said Rule has been set out.
10. Mr. Dalai, learned counsel for the Corporation drew our attention to Water Bye-laws framed under Section 461(a) and(b) for regulating all matters and things connected with the supply and use of water. By an amendment thereto, made in 1968, “quota” of water is defined to mean the maximum quantity of water any consumer or class of consumers is entitled to receive. It is to be fixed by the Municipal Commissioner by order on the basis of an assessment of the requirement. No consumer in respect of whom an order has been made may consume water in excess of such maximum quantity.
11. The said Rule is framed, in terms, in, exercise of the powers given by Sections 169; and 276. Section 169 empowers the Standing: Committee to make rules to charge for the supply of water and by such rules to determine the water charges “based on a measurement or estimated measurement of the quantity of water supplies”. The tense of the word “supplied” is important; it refers to something executed. This phraseology leaves us in.no doubt that the Corporation can levy a water charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement or estimated measurement. If confirmation of this interpretation is required, it is provided by the terms of Section 277. Mr. Dalai submitted that when the Corporation reserved a quota of water for a consumer it made (sic) that quantity was not in fact utilised by the consumer the Corporation was entitled to charge on the basis of estimated measurement, being 9/10th of the quantity made available. In our view, Section 169 does not provide for such manner of computation- The supply that is there referred to is the supply which is in fact supplied to the consumer and consumed by him. It is only that supply which can be measured. Where the measuring device has failed to record the correct consumption it may be estimated The circumstances in which the measuring device would be said to have failed and the modes of estimation in such circumstances are provided for by Rule 3(a), (b) and (c) of the Water Charges Rules. There is no warrant for the submission that the Corporation can estimate and charge on the basis of water it makes available for use by a consumer.
12. The Water Bye-laws to which Mr. Dalai made reference are not framed in regard to charges. There is no provision therein which assists the Court in regard to water charges. The amendment to the Water Bye-laws made in 1968 empowers the Commissioner to fix a quota In these appeals the right of the Commissioner to fix a quota is not’ under challenge.
13. Mr. Dalai drew our attention to the judgment of the Court of Appeal in South Deyon Water Board v. Gibson, (1955) 2 All ER 813. This was a case in which villagers had been entitled to fetch water in buckets free of charge from three public standpipes. Many villagers had thereafter connected their houses by pipes to the three-inch main which had been laid by the village council to carry the water to the standpipes. The water board, which was the successor to the council, sought to charge a water rate on the villagers whose houses were connected with the main. The Court of Appeal held that when, instead of carrying the water away, the water was delivered to the villagers in their houses through pipes it was impossible to say that it was not a case of “supplying” of water by the board. We can derive no assistance from this authority. It does not suggest that the villagers were to pay water- charges on any basis other than their actual consumption of the water.
14. In the result, the appeals must be allowed. The provisions of Rule 3(d)(i) of the Water Charges Rules effective from 1st April 1976 are struck down. The Corporation is directed to forbear from cutting off the water supply of any of the appellants on the basis that the appellants have failed to make payment of water charges computed on the basis of the said Rule.
15. The bank guarantees given by each of the appellants pursuant to interim orders in the appeals shall stand discharged. On Mr. Dalal’s application, the bank guarantees shall not be discharged until after the expiry of 8 weeks from today.
16. No order as to costs.
