LAKSHMI STARCH LTD Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) In this writ petition, the petitioner is challenging the validity of Ordinance No. 16 of 1988 dated May, 4 1988 and issued by the Governor of Andhra Pradesh. That ordinance is called "The Hyderabad Metropolitan Water Supply (Validation of Water Rates and Service Charges) Ordinance, 1988. Section 1 (2) of the Ordinance declares that the Ordinance "shall be deemed to have come into force on the 18th November, 1986". Section 3 of the Ordinance constitutes the Minister for Municipal Administration Department to be the Hyderabad Metro Water Works Authority. Section 4 enumerates the powers of said Hyderabad Metro Water Works Authority. The Authority is empowered to direct the consumers to fix at their own cost meters for all water pipe connections either new or existing, direct the disconnection of water supply on the ground that a consumer failed to comply with such order, and direct the fixing of meters departmentally at the cost of the consumers Section 5 empowers the authority to collect the rates from every consumer either according to the size of the pipe connection or upon fixing of meters on the quantity of water consumed as measured by meters. Section 6 empowers the Authority to alter the rates. Section 7 empowers the Authority to collect from every consumer for the pipeline service charges for giving new connection. Section 8 which is in three parts, deals with the question of validation and declares that notwithstanding anything in any judgment, decree or order of any court or Tribunal or other Authority to the contrary, no levy and collection of water charges as specified in G.O. Ms. No. 645 Housing, Municipal'Administration and Urban Development Department dated the 29th November, 1986 and in G.O. Ms. No. 953 Housing, Municipal Administration and Urban Development Department dated 27th November, 1987 and no collection of pipeline sendee charges as specified in G.O. Ms. No. 635 Housing, Municipal Administration and Urban Development Department dated the 18th November, 1986 from the consumer whether for domestic, commercial, industrial or any other purposes as the case may be shall be deemed to be invalid or ever to have become invalid by reason only of the fact that such levy and collection was made when no provision for such levy and collection was made and accordingly and levy and collection of the water rates and pipeline service chaiges as specified in the aforesaid Government Orders shall be deemed to have been levied and collected under the said orders as if this Ordinance was in force cm the day on which the charges were so levied and collected and accordingly no suit or other proceedings shall be maintained or continued in any Court against the State Government or any person or authority whatsoever for the refund of any water rate or pipeline service charges, and no Court shall enforce any decree or order directing the refund of such charges.

(2.) This Ordinance has been promulgated clearly for the reason that this Court in W.P. No. 812 of 1987 held that no service charges could be collected by the Government for levying water pipe connections under G.O. Ms. No. 635 Housing, Municipal Administration and Urban Development Department, dated the 18th November. 1986, because that G.O. issued as an executive order was made without any legislative sanction. The learned single Judge who heard the matter earlier clearly observed :

(3.) The supply of water to Hyderabad City was under no statutory regulation. The matter was left to be governed by the executive instructions issued from the year 1983 when the A.P. Ordinance No. 13 of 1983 had repeated Act 6 of 1982. Prior to the A.P. Ordinance No.13 of 1983, Act 6 of 1982, which was in force, authorised the Hyderabad Metropolitan Water Supply and Sewerage Board to levy and collect charges for the supply of water to the consumers. The Act 6 of 1982 repealed by Section 129 the then pre-existing law made by the Legislature in the form of the Hyderabad City Water Supply Act, 1954, which was in force from 1954 to 1982 and which empowered the creation of a water authority with powers to impose and collect these water charges. Now, after the A.P. Ordinance No. 13 of 1983 had repealed the last Act 6 of 1982, there was no statutory authority which had the power to impose these water charges. The Government, therefore, thought it fit issue the various G.Os imposing the charges for supply of water, for laying of pipes etc. Clearly that was done by the Government in the Department of Municipal Administration in its executive capacity. At that point of time the Government, as the owner of water and supplier of water, was entitled in its executive capacity to collect these charges from the consumers. In my humble opinion, G.O. Ms. No. 635 no more required the sanction of any law than the Government's decision to sell its used motor vehicles or worn out furniture. The Government is perfectly competent acting in its executive capacity to supply water and charge the consumers for the supply. In Ram Jawaya vs. State of Punjab, the Supreme Court held that the executive power extends to all those matters enumerated in the legislative power of the 7th schedule. Clearly it is no part of our constitutional law that the Government cannot deal with its own property except under authority of statute enacted by the Legislature. Dicey's Rule of Law requires legislative sanction only when the citizens' rights are sought to be affected by the executive. The famous Steel. Seizure case (96 L. Ed. 1153) well illustrates this point. The assumption of the judgment of the learned single judge that the Government in collecting pipeline charges under the above-mentioned G,O. Ms. No. 635 was acting without the authority of law because it was acting without the sanction of the statutory law cannot, therefore, be accepted to be correct. It is one thing to say that the Government is bound by the law made by the Legislature and it is another thing to say that even for selling its goods the Government requires sanction of law made by a competent legislature. Unfortunately, however, I do not find this aspect of the matter being presented to the learned single judge. The Government, argued before the learned Judge that there was some legislative sanction behind the G.Os and failed and panicked under the judgment of the single judge and brought upon itself the present situation which made the issuance of ordinance unavoidable. The present Ordinance issued with retrospective effect is challenged in this writ petition The Government obviously wanted to validate the imposition of bipeline charges which the Court found earlier to be incompetent although in law it had ample power to do so acting in its executive capacity.