Delhi

StateCommission

A/120/2017

PRADEEP KUMAR DUBEY - Complainant(s)

Versus

DELHI JAL BOARD - Opp.Party(s)

MOHAN SHYAM ARYA

24 Jul 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 24.07.2019

Date of Decision : 01.08.2019

First Appeal No.120/2017

In the matter of:

 

            PRADEEP KUMAR DUBEY

            R/O E-107, JAWAHAR PARK

            DEVLI ROAD, KHANPUR EXTN.

            NEW DELHI-110062

                                                                                                            ………Appellant

 

 

Versus

 

 

DELHI JAL BOARD

THROUGH ITS ZONAL REVENUE OFFICER (S)-1

SAKET, NEW DLEHI……..Respondent

 

 

 

 

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

 

JUDGEMENT

1. The complainant has filed present appeal against order dated 21.12.2016 passed by the District Forum in CC-258/2011 vide which complaint was dismissed. The facts which can be gathered from the impugned order are that complainant challenged charging of his water connection no. 65902 installed in premises no. E-107 Jawahar Park, Khanpur Extn., New Delhi-110080 from the residential to commercial. The OP was proceeded ex-parte vide order dated 26.12.2011, complaint was allowed vide order dated 3.12.2012. OP filed appeal which was registered as FA-243/2013. The same was dismissed as being barred by limitation vide dated 26.03.2014. The OP filed RP-2148/2014 in National Commission which was allowed vide order dated 19.08.2015. The complainant carried the matter to Hon’ble Supreme Court where the SLP was dismissed. This is how the present appeal is again before this Commission.
2.  The defence of the OP is that complainant was charging some amount as tuition fee. Irrespective of the facts whether or not school is charitable, school is chargeable as institution under Delhi Water Board Act, 1988 read with Delhi Water and sewer (Tariff and Metering) regulation 2012, water connection has to be under category-B, read with clause-C of the regulation.
3. The appellant filed a document downloaded by him from website of the OP. the same recites that institute/society which has been exempted from the Income Tax as per Section 12 A (a) Income Tax Act, 1961 would fall in the said category.
4. After going through the material on record, the District Forum found that as per case of complainant, in one portion of house, society named Brijendra, Deepti, Geeta education society registered under registration Act, 1860 has been providing education to poor and weaker section of the society for more than 09 years. It had got a certificate for exemption from the Income Tax Department. The society had been educating General Public pertaining to issues like Consumer awareness, environment protection, Women empowerment, Health education, drug abuse, Disaster Management, employment generation, universal brotherhood and peace. It has received commendations from various authorities. He was not running any industry or commercial activity. He deposited water bill of Rs. 5500/- on 30.03.2011, under protest. The society used water for drinking purpose. Hence he filed complaint for directing OP to change wrongly mentioned category C-2 (Commercial).
5. The defence of the OP was that as per circular dated 9.08.2007 charitable institution which has been exempted from Income Tax as per Section 12 A (a) of Income Tax Act have to pay the water charges at non-domestic category-2 (annexure A). Thus complainant was being charged for category B that is mixed user, category A relates to property used purely for residential purpose. Category-B regarding mixed user relates to water supplied to residential building where commercial activity having non intensive use of water exist, such as private clinic consulting charges, shops, atta chakki, property dealer’s office etc. catergory-C pertains to property where intensive use of water is envisaged such as institutes, hospitals, schools, offices, office complex, railway stations, police station, air ports, bust stand petrol pumps, hotel restaurants , club, marriage halls, industry, cooling plants, factories, ice cream factory, amusement park, dhobi ghat etc. The OP stated that vide circular dated 09/13.08.2007 had withdrawal earlier decision of treating institution under domestic category on the strength of certificate from the IT Department under  Section 12 A (a) of the Income Tax Act.
6. The complainant stated that circular dated 09.08.2007 withdrawing treatment of charitable institutions exempted from the Income Tax is unconstitutional and illegal because reasons cited in the proposal are illogical, untrue and without any legal basis. As per Delhi Jal Board Act any regulation as to be passed by Delhi legislative Assembly which has not been done in this Case.
7. The District Forum found that complainant has not charged veracity of para 08 of the affidavit filed by ZRO to the effect that school had been charging fee from the student studying in classes including play section and second section. As per receipt mark BB in January and February, 2013 the fee charged from students was Rs. 1200/-. The receipt mark CC for 2014 shows that the amount was Rs. 800/- for student in play section. The same shows that complainant was not running school for charitable purpose. In fact it was running for non-charitable purpose. The District Forum was not competent to go into the virus of circular dated 09.08.2017 withdrawing exemption to charitable institutions.
8. Decision of Hon’ble High Court of Delhi in Delhi Jal Board Vs. Smt. Sulochna 149 (2008 DLT 270) was distinguished on the ground that in the said case no show cause notice had been served before changing the category.
9. Notice of the appeal was sent to respondent. Despite service none appeared for the respondent on 03.05.2018 and it was proceeded ex-parte. However, on 30.04.2019 Ms. Latika Choudhary appeared as counsel for respondent and part arguments were heard. The parties were directed to file copy of regulation of 2015 in which category B regarding mixed user was withdrawn. The matter was adjourned to 24.07.2019. None appeared for respondent on 24.07.2019 and the circular of 2015 has not been filed. I have gone through the material on record and heard arguments advanced by counsel for appellant. The circular dated 09.08.2007 which has been reproduced by respondent in his written statement does not show anything about withdrawing the exemption granted to charitable institution having certificate from Income Tax.
10. The counsel for the appellant stated that he has filed the circular dated 06.11.2015 issued by respondent which is annexed -6 to the appeal and which is at page no. 42 and 43 of the appal file. It still describe category C-1 (domestic as including chargeable institutions/societies which have been exempted from Income Tax as per section 12 A (a) of the Income Tax Act. He further submitted that the circular granted by Income Tax authority is annexure-5 at page 41 of the appeal file. The same is dated 10.12.2009 and is valid for the period assessment year 2010-11 to 2012-13. He further submitted that vide circular  no. 7/2010 dated 27.10.2010 Central Board of Direct Taxes has clarified that after taxation laws (amendment) Act 2006, certificates granted once continue to the valid in perpetuity unless withdrawn by Income Tax Authority. Thus circular filed by the appellant is valid till date.
11. The counsel for appellant also submitted that in the decision in Delhi Jal Board Vs. Smt. Sulochana supra Hon’ble High Court also held that it is the pre-dominant use of water which is to be seen. That was a case of confectionary shop and it was also held that the products were not being manufactured in the premises in question. It was only being sold and no water was required for sale. That part of the judgement has been omitted by District Forum.
12. Arguments advanced by Counsel for appellant appear to be sound. Once the appellant has got exemption from Income Tax Department, he is liable to pay under domestic charges only. Moreover, the water used by student, studying in part of the premises is for drinking purpose only and not for any trading or manufacturing.
13. Still further the entire premise is not being used for school. Pre-dominant use is still residential.
14. The appeal is accepted, impugned order is set aside and respondent is directed to raise bill at domestic rates.   
15. Copy of the order be sent to both the parties free of cost.
16. One copy of the order sent to District Forum for information.
17. File be consigned to record room.

 

 

 

                                (O.P. GUPTA)                                                        MEMBER (JUDICIAL)