Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 PETITIONERS: 1 THE EXECUTIVE ENGINEER KERALA WATER AUTHORITY, ATINGAL, THIRUVANANTHAPURAM. 2 ASSISTANT EXECUTIVE ENGINEER KERALA WATER AUTHORITY, WATER SUPPLY SUB DIVISION OFFICE, ATTINGAL, THIRUVANANTHAPURAM. 3 MANAGING DIRECTOR, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. BY ADVS.GEORGIE JOHNY, SC, KERALA WATER AUTHORITY SHRI.P.M.JOHNY, SC, KERALA WATER AUTHORITY SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
RESPONDENTS: 1 S.M.BASHA, S/O LATE M. SHAHUL HAMEED, KUDAPPANAKUNNU VILLAGE, THIRUVANANTHAPURAM. 2 KERALA LOK AYUKTA REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. BY ADV SRI.JOBI JOSE KONDODY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :: 2 ::
JUDGMENT
S.MANIKUMAR, C.J. This writ petition is filed by the Kerala Water Authority and its officials challenging Ext.P6 order passed by the Kerala Lok Ayukta on 4th November 2009 in Complaint No.1087/2007. Petitioners herein sought for a direction to call for the records leading to Exts.P6, P8, P8(a) and a similar order issued to the 1st petitioner and quash them by the issuance of a writ of certiorari, any other appropriate writ, order or direction.
2. Short facts leading to the filing of the writ petition
are as follows: First respondent herein is the complainant in Complaint No.1087/2007 before the Lok Ayukta - second respondent. Said complaint is filed alleging that domestic water connection given in the house of the father of the complainant is now converted as non domestic connection and demand is made to the complainant for payment of an amount of Rs.1,05,836/-. It is also alleged in the complaint that no notice was given in the name of M.Shahul Hameed, :: 3 :: father of the complainant, or any opportunity of being heard was afforded while effecting the change of category. Further allegation in the complaint was that no reason was assigned by the first and second petitioners herein for the conversion of water connection of the residential house of the complainant’s father from domestic category to non domestic category. Being aggrieved, complainant - second respondent herein preferred complaint No.1087/2007 before the Lok Ayukta - second respondent seeking the following reliefs:
“(1) to make an investigation on the action taken by the respondents 1 and 2 in changing the category of water connection from domestic to non domestic without notice or opportunity of being heard to the complainant being the legal heir of late Shahul Hameed.
(2) to direct the respondents to change the
category of water connection to domestic category and to receive the due amount available by the complainant under domestic category from 10.1.99 till date and further by cancelling the bill dated 4.5.2006 issued in the name of complainant’s late father.”
3. Adverting to the averments and the prayers sought for in the complaint, the Kerala Lok Ayukta has :: 4 :: passed the following order dated 4 th November 2009 in Complaint No.1087/2007:
“This complaint is filed alleging that domestic water connection given in the house of the father of the complainant is now converted as non-domestic connection and demand is made to the complainant for payment of the amount of Rs.1,05,836/-. Respondents would say that a decision for converting the connection as non- domestic connection was taken for the reason that complainant was using water for washing motors and running workshop in the property. There is statement made by the respondents 2 and 3 that on inspection conducted it was noticed that water from the connection was being used for washing motor vehicles and running motor workshop. Since there were no details regarding the inspection conducted by the officers of the respondents available in the statement direction was given by this forum on 14th August, 2009 to place before this forum the materials the details and materials on the basis of which decision was taken by the respondents to treat the water connection as one for non- domestic purpose. In pursuance of that direction copy of a report Is filed in this forum.
2. The statement in the report is that meter
reader made a submission to the Assistant Engineer stating that water was being used for washing vehicles. The statement by the meter reader is that workshop is being run in the property and that buses were kept in the property during night. It is true that there is a statement in the report given by the meter reader that water was being used for washing buses. But there was no statement on what basis the meter reader said in the report that water was being used for washing vehicles. :: 5 ::
3. Direction was given by this forum for making
available the details regarding the materials on the basis of which decision was taken because the statement filed by the respondents 2 and 3 had not given such details. Even after giving direction to the respondents to make available details what they could produce before this forum was a sheet of paper in which a submission was made to the Assistant Engineer. This is not at all sufficient for taking a decision that the water connection has to be treated as non-domestic connection. There is nothing to show on what basis the meter reader gave a report for taking decision for treating the connection as non-domestic connection. Decision was taken without giving an opportunity to the complainant of being heard. So the decision taken for treating the water connection as non- domestic connection cannot be sustained.
4. Direction is given to respondents to treat water connection as domestic connection and to levy water charges on that basis. For action taken report adjourned to 9.12.09.”
4. Aggrieved by the above, instant writ petition is filed by the Executive Engineer and others on the grounds inter alia that Lok Ayukta has no jurisdiction to entertain the complaint of this nature.
5. Learned Standing Counsel for the writ
petitioners submitted that the Assistant Executive Engineer, Water Supply Authority, Water Supply Sub Division Office, had submitted Ext.P2(a) dated :: 6 :: 15.3.2003 wherein it was stated that “on verification, the consumer is using water for non domestic purpose and he has requested him to convert the category from domestic to non domestic”.
6. According to him, misuse of water is also
reported by the meter reader that the first respondent/complainant was using water for the workshop in the premises. He further submitted that as per Section 39 of the Kerala Water Supply and Sewerage Act, 1986, water supply for domestic purposes not to be used for non-domestic purpose. No person shall, except in such circumstances or subject to such conditions as may be provided by the regulations, use or allow to be used water supplied for domestic purposes for any other purpose.
7. Learned Standing Counsel for the writ
petitioners also relied on the Regulation 16(b) of the Kerala Water Authority (Water Supply) Regulations, 1991 wherein it is stated that the Assistant Executive Engineer shall convert a domestic to a non-domestic connection from such date as he may deem fit for the :: 7 :: purpose of collecting water charges when the nature of occupancy of a premise is reported, by an officer duly authorized by him or the Authority, to have changed or the water supplied to the premises used for building purpose or other industrial, commercial or trade activities necessitating revision of tariff.”
8. He further submitted that the conversion took
place as early as in the year 2003 but the complaint was filed only in the year 2007. Therefore, learned Standing Counsel appearing for the petitioners prays for a direction to set aside Ext.P6 order passed by the Kerala Lok Ayukta on 4th November 2009 in Complaint No.1087/2007.
9. There is no representation for respondent No.1/complainant.
10. Reading of the complaint filed before the Lok
Ayukta shows that the complainant received a bill on 4.5.2006 issued in name of Shahul Hameed claiming a total bill amount of Rs.1,05,836/- for the period upto amount was calculated under non domestic category :: 8 :: for the period upto 11/05 and for the period 12/05 to Assistant Executive Engineer, Kerala Water Authority, Water Supply Sub Division Office (respondent No.2 therein). After conducting an enquiry, the Executive Engineer, Kerala Water Authority; the Assistant Executive Engineer and the Managing Director - respondent Nos.1 to 3 therein found that domestic water connection given to the complainant was misused for non domestic purposes. However, main grievance of the complainant therein was that no opportunity of being heard was afforded to him.
11. Giving due consideration to the submissions
made by the learned counsel for the petitioners in this writ petition, we are of the view that violation of principles of natural justice is per se apparent. Violation of principles of natural justice would fall within the ambit of mal administration. Section 2(k) of the Kerala Lok Ayukta Act, 1999 defines ‘maladministration’ as follows: :: 9 ::
“(k) “maladministration” means action taken or purporting to have been taken in the exercise of administrative functions in any case where,-
(i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) there has been willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay.”
12. Giving due consideration to the totality of the
facts and circumstances of the case and the material on
record, we find that the reasons assigned in the impugned order are justifiable. Hence, we are not inclined to interfere with the impugned order. Accordingly, writ petition is dismissed. sd/- S.MANIKUMAR CHIEF JUSTICE sd/- MURALI PURUSHOTHAMAN JUDGE jes :: 10 :: APPENDIX PETITIONER’S EXHIBITS: EXT.P1: TRUE COPY OF THE CONSUMER PERSONAL LEDGER IN RESPECT OF D 47 IN THE NAME OF SHAHUL HAMEED. EXT.P2: TRUE COPY OF THE REPORT DATED 11.3.2003 OF THE METER READER TO THE ASSISTANT ENGINEER.
EXT.P2(a): TRUE COPY OF THE ENDORSEMENT THUS MADE ON EXT.P2 BY THE ASSISTANT ENGINEER DATED 15.3.2003. EXT.P2(b): TRUE COPY OF THE ENDORESEMENT DATED 15.3.03 i.e., A DIRECTION GIVEN TO THE HEAD CLERK. EXT.P3: TRUE COPY OF BILL NO.1214 DATED 23.2.05 FOR THE PERIOD FROM 1/98 TO 2/05 FOR RS.75,124/-. EXT.P3(a): TRUE COPY OF BILL NO.1214 DATED 23.6.05 FOR THE PERIOD FROM 1/98 TO 2/05 FOR RS.82,918.
EXT.P3(b): TRUE COPY OF BILL NO.1214 DATED 4.5.2006 FOR THE PERIOD FROM 1/98 TO 2/05 FOR RS.1,05,836. EXT.P4: TRUE COPY OF BILL NO.2869 DATED 30.3.2007 FOR RS.1,35,582/- FROM 3/05 TO 6/05 ALONG WITH BALANCE UPTO 2/05. EXT.P5: TRUE COPY OF COMPLAINT NO.1087/07 DATED 30.4.2007 FILED BY THE 1ST RESPONDENT BEFORE THE HON’BLE LOK AYUKTA, THE SECOND RESPONDENT.
EXT.P6: TRUE COPY OF ORDER PASSED BY THE HON’BLE LOK AYUKTA DATED 4TH DAY OF NOVEMBER, 2009. EXT.P7: TRUE COPY OF ACTION TAKEN REPORT OF THE 2ND PETITIONER FILED BEFORE THE 2ND RESPONDENT. EXT.P7(a): TRUE COPY OF LETTER NO.KWA/WSS/KKTM/ GEN/01/09 DATED 7.12.2009 OF THE ASSISTANT ENGINEER. EXT.P7(b): TRUE COPY OF THE REPORT OF THE ASSISTANT ENGINEER ALONG WITH THE METER READER DATED 4.11.2009. EXT.P8: TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE 2ND PETITIONER (2ND RESPONDENT IN THE COMPLAINT) DATED 17.12.2009 BY THE DEPUTY REGISTRAR, LOK AYUKTA. EXT.P8(a): TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE 3RD PETITIONER (3RD RESPONDENT IN THE COMPLAINT) DATED 17.12.2009 BY THE DEPUTY REGISTRAR, LOK AYUKTA. // TRUE COPY // P.S. TO JUDGE