C. Mookerjee, C.J.
1. The appellants have preferred this appeal against the judgement and order of the learned single Judge dismissing their writ petition challenging, inter alia, bills presented by the Municipal Corporation of Greater Bombay for consumption of water in excess of the quota fixed under Bye-Law 34-A of the water Bye-Laws framed under section 461(b) of the Bombay Municipal Corporation Act. The appellants have also purported to impugn the supplementary bills for water charges on the ground that they were excessive. The learned single Judge in his judgement under appeal has rejected the appellants' writ petition in view of the decision of another learned Single Judge in Miscellaneous Petition No. 278 of 1974 disposed of on 13th August, 1975.
2. Before we set out the points on either side in this appeal, we may briefly indicate the relevant statutory provisions and also bye-laws and rules. The 1st respondent Corporation under section 140(1)(a) is empowered to levy on buildings and lands in Greater Bombay water tax of so many per centum of their rateable value as the Standing Committee may consider necessary for providing water supply. It may also levy additional water tax called 'the water benefit tax'. Section 169 of the Act contains provisions concerning the water taxes and charges. Under sub-section (1) of section 169, notwithstanding anything contained in section 128, the Standing Committee is empowered from time to time to 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 the matters set out in Clauses (i) to (iv). For our present purpose, it is not necessary to set out sub-section (2) of section 169. We may at this stage note that the previous section 169 of the Act has been substituted by the present section by Maharashtra Act XXXIV of 1973.
3. In exercise of its powers under section 169, the Standing Committee of the Bombay Municipal Corporation from time to time has framed Water Charges Rules. The present Water Charges Rules had become effective from 1st April, 1976. By Rule No. 1 the Standing Committee has directed that for the classes of premises specified in the said rule, the Commissioner may, instead of water tax being levied, charge for water supply to such premises by meter measurement. The said rule also mentions the rate to be charged per 10000 litres in case of different classes of premises. Rule No. II of the Water Charges Rules deals with, inter alia, compounding the charges for supply of water. Rule No III of the Water Charge Rules framed by the Standing Committee prescribes, inter alia, that charges for water by measurement may be levied.
4. Section 461 of the Bombay Municipal Corporation Act provides that the Corporation may from time to time make bye-laws not inconsistent with the Act with respect to matters set out in the different clauses. Under Clause (b) of section 461, the Corporation is empowered to make bye laws regulating all matters connected with the supply and use of water . In exercise of the said rule -making power under section 461(b) of the Act, the Municipal Corporation has framed bye-laws called 'Water Bye-Laws'. It is significant that the said rules until their amendment made in the year 1969 did not contain any provision relating to the charges for the supply of water and for any fittings. Fixtures and services rendered by the Corporation under Chapter X of the Act. By the amendment made effective from 1st April, 1969 the definition of the word 'meter' was inserted by Bye-Law No. 2 (hh)(a) 1 as follows:-
'Meter' means a measuring device for recording consumption of water fitted with strainer, sluice valve, wiper and meter chamber and of such size, material and description as Municipal Commissioner may approve.'
By the same amendment the definition of 'quota' was also inserted in the Water Bye-Laws as follows:-
'Quota' of water means the maximum quantity of water fixed by the Municipal Commissioner on the basis of the average of the 'monthly consumptions' for a period of successive 12 months less 10 per cent. The period of 12 months for this purpose will be decided by the Municipal Commissioner and shall be applied to the industries of a particular category.'
The Municipal Commissioner by Bye-Law 34-A has been empowered to fix quotas of water, i.e. the maximum quantity of water which any consumer or class of consumers shall be entitled to receive per day, per week or per month or per quarter or otherwise periodically provided that, having regard to the availability of water, the Municipal Commissioner may from time to time amend the order fixing the quota. The said Bye-Law 34 A further enjoins that no consumer to whom an order made under Bye-Law 34-A applies shall consume water in excess of the maximum quantity permissible under the said bye-law. Bye-Law 34-C which was also inserted with effect from 1st April, 1969 prescribes as follows:-
'If any person contravenes any of the provisions of this Bye-Law, Municipal Commissioner may, by order, take action under all or any of the following paragraphs, namely :-
(a) To charge such person penal water rates for water drawn in excess of the maximum quantity permissible under this Bye-Law, at such rates not exceeding 20 times the normal rate as he may deem fit.
(b) To reduce supply of water to such person by such quantity and for such period as he may determine.
(c) To discontinue supply of water to such person for such period as he may determine.'
Before us the learned Counsel for the Municipal Corporation produced administrative directions issued from time to time by the Municipal Commissioner purporting to prescribe penal rates to be paid for different kinds of premises.
5. The learned Counsel appearing on behalf of the appellants broadly made three submissions before us. His first submission was that power to prescribe quota given by Bye-Law 34-A gave uncanalised powers to the Commissioner without there being any guidelines either in the Bombay Municipal Corporation Act or in the rules and bye-laws framed thereunder. Therefore, the power to prescribe fixed quota was void and ultra vires. The second submission on behalf of the appellants was that section 461(b) did not authorise framing of bye-laws relating to fixation of water quota. The quantity of water to be consumed could not be restricted. The third and the last submission on behalf of the appellants was that Bye-law 34-C was invalid and by applying the said provision penalty could not be imposed for having drawn water in excess of the maximum quantity permissible. For the reasons presently indicated, we are inclined to uphold the third contention that the demand for payment of penal water charges impugned by the appellants was invalid and not authorised by law and, therefore, the said demand ought to be quashed. Accordingly, it is not necessary for us to consider the wider questions as to the power of the Municipal authorities to frame bye-laws restricting the maximum quantities of water which may be drawn and as to whether there is any power under the law to fix quotas of water. Our attention has been drawn to the decision of the Supreme Court in Greater Bombay Municipal Corporation v. Nagpal Printing Mills, : [1988]3SCR274 . By their said judgement the Supreme Court had dismissed a Special Leave Petition presented by the Municipal Corporation of Greater Bombay against a Division Bench decision of this Court in Nagpal Printing Mills v. Municipal Corporation of Greater Bombay, : AIR1988Bom91 . The said Division Bench of this Court had struck down Rule 3(d)(i) of the Water Charges Rules framed under section 169(1) of the Bombay Municipal Corporation Act but had preferred to express no opinion on other questions raised before the Division Bench including the one regarding power of the Corporation to fix quota. The Supreme Court, however, in the concluding part of paragraph 7 of the judgement in the case of Greater Bombay Municipal Corporation v. Nagpal Printing Mills, (supra) made the following observation:--
'The bye-laws made in 1968 here empower the Commissioner to fix a quota. But no guideline is indicated. That is bad and unwarranted.'
As already stated, for deciding the present case, it is unnecessary for us to pursue the question further.
6. Now we take up for consideration the question whether the Municipal Commissioner had power to charge penalties or penal rates in cases of water drawn in excess of the maximum quantity fixed under Bye-Law 34-A of the Water Bye-Laws. The opening words of Bye-Law 34 -C expressly provide that action may be taken under all or any of the paragraphs (a), (b) and (c) in case any person contravenes any of the provisions of the Bye-Laws. In other words, the action to be taken under Bye-Law 34-C are in the nature of punishments for breach of the bye-laws. Bye-Law 34-C purports to confer a discretion on the Municipal Commissioner to take action under all or any of the paragraphs, i.e. (a) to charge penal water rates, (b) to reduce supply of water and (c) to discontinue supply of water. These bye-laws do not contain any guideline for deciding whether penal action ought to be taken under all the three paragraphs or under any one of them. In one case penal charges might be levied, in another case instead of imposing penal charges action under paragraphs (b) or (c) might be taken. In the present case, the Municipal Authority purported to invoke its powers under paragraph (a) by charging penal water rates for water allegedly drawn in excess of the maximum quantity permissible. In our view, for several reasons the power was not plainly in the Municipal Authority to sustain such an action under paragraph (a).
7. Section 462 of the Bombay Municipal Corporation Act lays down that in making a bye-law under section 461 or 461-A, the Corporation may provide that a breach of it shall be punishable with fine which may extend to twenty rupees and, in the case of a continuing breach with fine which may extend to ten rupees for every day, after conviction for the first breach or after receipt of written notice from the Commissioner to discontinue the breach, during which the breach continues. In other words, section 462 itself prescribes a limit to the amount of fine which can be imposed for breach of the bye-laws made under sections 461 and 461-A. In the instant case, the penal water rates which could be charged under Bye-Law 34-C(a) were far in excess of the limit laid down by section 462 of the Bombay Municipal Corporation Act. Even if we accept the contention made on behalf of respondents that the penal charge to be levied under Bye-Law 34-C(a) does not amount to fine, and the same only contemplates payment at an enhanced or penal rates in the event of consuming water in excess of the quota, Bye-Law 34 -C(a) cannot pass the test of reasonableness. Plainly Bye-Law 34 -C provides for punishment for breach of the bye-laws without prescribing any procedure fulfilling the requirements of audi alteram partem. We have already observed that while conferring discretion upon the Municipal Commissioner to choose whether he would act under all or any of the paragraphs (a), (b) and (c) , no guidelines or principles have been indicated for exercise of such discretion. Secondly no provision for issue of a show cause notice upon the person against whom penal action may be taken has been made. A person upon whom penal action may be taken has been made. A person upon whom penal action under the different paragraphs of Bye-Law 34-C may be taken has no opportunity to make representations against penal action. While it was open to the Commissioner of the Corporation to prescribe guidelines in the matter of fixation of the actual penal rate of water charges to be levied in the cases of consumption of water in excess of the quota, the said administrative guidelines cannot cure the fatal infirmities in Bye-Law 34-C as indicated herein. Further, the Commissioner has no power to frame rules under section 461 and by issuing administrative directions cannot prescribe the penal water rates.
8. There are other serious infirmities in Bye-Law 34 -C(a) of the Water Bye-Laws. In case the penal water rates mentioned in the said paragraph (a) of Bye-Law 34 -C are to be considered as a provision for payment of penal charge for water consumed in a premises, the same would amount to making a bye-law in exercise of powers under section 461(b) of the Act in a field covered by section 169 of the Act. We have already referred to the provisions of section 169 of the Act which vest the Standing Committee with the power to frame rules for water taxes and charges. While a statute may undoubtedly delegate power of framing rules and bye-laws upon more than one authority, on occasions the Legislature may make special provision for framing of rules relating to a particular matter by one specified authority and no other. In the instant case, the scheme of section 169 of the Bombay Municipal Corporation Act appears to be that rules for water taxes and charges are to be prescribed only by the Standing Committee. In other words, special provisions concerning the water taxes and charges etc. are covered by section 169. To give a harmonious construction to the expression 'regulating all matters and things....' Appearing in Clause (b) of section 461, it ought to be read as meaning 'except as otherwise provided elsewhere in the Act itself.' We are fortified in our view by the opening words of section 464 which read as follows :---
'The corporation may from time to time make bye-laws, not inconsistent with this Act, with respect to the following matters namely :---. .... ... ... .... ... .... .... .....'
To give a consistent meaning to section 169 under which exclusive rule-making power in the matter of water rates and charges is vested in the Standing Committee, we ought to hold that the Corporation's power to frame bye- laws regulating all matters does not include prescribing rates or charges for consumption of water. For prescribing the said charges and rates, special provisions have been made under section 169. We cannot give any countenance to the submission made on behalf of the respondents that section 169 does not cover charges which may be levied in cases of water consumed in excess of the quota. The scope of the expression 'for charging for the supply of water' used in section 169 cannot be curtailed in this manner. We are unable to put such a limitation upon the rule-making power of the Standing Committee under section 169 by holding that it is confined to charges to be levied for water consumption below the maximum quantity which may be fixed and the Standing Committee cannot prescribe charges for consumption in excess of quota. Equally unsubstantial is the submission made on behalf of the respondents that so long as the Standing Committee does not prescribe charges for consumption of water in excess of the quota, the Corporation in exercise of its powers under section 461(b) is authorised to prescribe penal rates. We have already observed that in the matter of fixing water rates and charges the intendment of section 169 is that the Standing Committee only shall have the power to prescribe. In the event we accede to the contention that rates for consumption of water may be prescribed by making rules under section 169 and also by bye-laws under section 461(b), it would result in incongruities and inconsistencies. Incidentally, both the corporation and the Standing Committee are separate authorities under section 4 of the Bombay Municipal Corporation Act and are charged with carrying out the provisions of the Act. Visualizing serious difficulties which may arise in the event there be any inconsistencies between the rates prescribed respectively by the rules framed under section 169 and the bye-laws framed under section 461(b), it would be reasonable to hold that the provisions of section 169 and the provisions of section 461(b) do not deal with the same subject or operate in the same field but are mutually exclusive.
9. For the foregoing reasons, the Appeal succeeds in so far as the demand had been made for payment of the penal charges on account of alleged consumption of water in excess of the quota prescribed for the premises in question. we have left open the question as to whether or not the bills including supplementary bills presented upon the appellants were excessive or not. The same cannot be subject-matter of a writ petition. We accordingly allow the appeal as aforesaid and direct that the bills and demands for payment of penal charges be quashed and/or set aside. No order as to costs. Appellants would be at liberty to withdraw the amounts deposited by them in Court pursuant to the order in Appeal dated 27th November, 1979 with accrued interest.
10. On Mr. Dalal's application, the operation of the order is stayed for eight weeks from today.