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1954 (7) TMI 22

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..... hem that in default of payment a warrant of distress would be issued for the recovery of the amount. On receiving this notice, the petitioners approached this Court and contended by their petition that the threat held out by the Municipality to issue distress was without Justification in law. 3. Now it is necessary to look at the scheme of the Bombay Municipal Corporation Act in order to understand the contentions of the petitioners and also the grievance set out in their petition. Chapter VIII deals with municipal taxation and Section 139 describes the taxes which can be imposed Under the Act, and property taxes arc among the taxes which can be imposed under the Act. Section 140 describes what property taxes are leviable and they are a water-tax, a halalkhor-tax and a general tax. Section 141 deals with the water-tax and water-tax can be levied in respect of premises where there is a private water-supply which is connected with municipal waterworks by means of communication pipes and It also applies to premises where water is available from municipal water-works and in respect of which the Commissioner has given public notice. Now, Section 141, which deals With the water-tex .....

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..... he power to tax, which power it Itself does not possess. Therefore, the power to tax must be found in the list which would make the Legislature Itself competent to impose- the tax. If the Legislature is competent, it can, for the purposes of local self-government, instead of levying the tax Itself, confer that power upon the local authority. It is again not disputed that the State Legislature is competent to impose the water-tax. But what is argued is that It is not competent to the Legislature to empower the Municipality to levy a tax in respect of which no limit is indicated in the legislation Itself. Now It is difficult to appreciate this argument in the context of competence. If the State Legislature is competent to confer upon the local authority the power to tax, Its competency cannot be affected because the power that has been conferred is an unlimited power. The fact that no limitation has been Imposed may lead to the legislation being challenged on some other ground; but it cannot be challenged on the ground of competence. Indeed, this absence of limitation has been challenged on other grounds and we shall presently consider those arguments. 5. The second ground on w .....

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..... Bombay were merged into Greater Bombay and It was then discovered that, while in the suburbs the charge for supply of water was always made on measurement, in most parts of Greater Bombay It was done on a flat water-tax, and this Itself seemed to indicate that a part of Greater Bombay was differently treated from the other part. A survey was then taken to find out what was the consumption of water in various localities and It was found that the consumption of water was more than the average consumption per capita in certain localities including the Marine Drive, and It was, therefore, decided that, although the ultimate target was that this mode of recovering water-charges should be applied to the Whole of Bombay, certain residential localities should be taken in hand first. The Commissioner also points out that if meters were to be supplied to all the premises and this mode of recovering water-charges was to be put into force, It would involve a capital outlay of ₹ 1,89,00,000. Therefore, in effect and in substance, the affidavit of the Commissioner comes to this, that there is a decision that all property-owners will ultimately have to pay for water supplied to them by m .....

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..... the Legislature. In others words, if the Legislature, instead of legislating Itself, which in Its own function, permits legislation by some other authority, or, again, to put It in different language, if the Legislature, without laying down the policy, permits the carrying out of a particular activity or a particular function by some authority, then It might be said that the Legislature has abdicated Its own functions. Now it, may be pointed out, as was rightly indicated by the Solicitor General, that even with regard to the levying of a water-tax no limit has been placed by the Legislature. In the case of halalkhor-tax the limit is there : It cannot exceed 5 per cent. of the rateable value. In the case of general tax also there is both a floor and a ceiling: It cannot be less than 8 per cent. or more than 21 per cent. But curiously, with regard to the water-tax the Legislature has not indicated any limit to the tax which the Municipality can levy. Now there is a very good reason why the Legislature did not do so in the case of the water-tax. To supply water to a city like Bombay, -with its growing needs and its growing population, is a tremendous task, and the Legislature wh .....

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..... measurement inflicts a very serious hardship upon the petitioners as landlords. Now the position briefly is this. Under Section 173 a landlord can pass on a water-tax to his tenant. Now, our Court has held in -- 'Bomby Municipality v. Haji Eisa Haji Oosman', AIR 1936 Bom 48 (A), that a water-charge under Section 169 is not a tax and, therefore, it cannot be a charge on the property under Section 212. Although that Bench was not called upon to consider the question which we are considering, but by parity of reasoning it would follow that if it is not a tax the landlord cannot pass it on to his tenant under Section 173. Therefore, the grievance of the landlord is, as we said, a Justifiable grievance, that whereas he can recover the water-tax from his tenant as soon as the Municipality adopts the alternative mode of recovering water charges he has got to pay the water-charges himself and he cannot recover the water charges from his tenant, although the property may be in the occupation of the tenant, although he may not use the water at all and although all the water supplied may be used by the tenant-Now, a hardship caused by a particular piece of legislation or a hardship .....

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..... he is being taxed more because the Municipality is exercising its power under Section 169 and not under Section 140(a) There was a suggestion that the Municipality should not make profit by resorting to its powers under Section 169 when it could more naturally and more justly impose a tax under Section 140(a). It is difficult to understand how the word profit is appropriate to a local authority like the Bombay Municipality. As we have already pointed out, the object of levying a water-tax is to provide a water supply for Bombay, and if Bombay has now grown into Greater Bombay, if its population has multiplied, if the Municipality feels that the needs of the citizen should be properly met with regard to the supply of water, and if the water supply to-day would cost hundreds of times more than what it cost in years gone by, and with that object the Municipality wants to obtain a larger revenue by resorting to Section 169 in place of Section 140(a), it is hardly appropriate to suggest that the Municipality is trying to make profits by devious methods and by circumventing the clear provision of levying a water-tax under Section 140(a). It may also be pointed out that, apart from t .....

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..... s, he having taken the water from the Municipality he has got to pay according to measurement under Section 169. The other answer is that it is. Impossible for the Court to say what various factors the Corporation or the Standing Committee or the Commissioner has taken into consideration in fixing the water-tax at a certain rate or the water-charge at a certain rate and the halalkhor-tax - at a certain rate. It may well be that in fixing the halalkhor-tax at a particular rate the Municipality might take into consideration the fact that it no longer has to supply sweepers to every house for removal of excrementitious matter and that that purpose is now being served by the flush, The Municipality might also well take into consideration, in fixing the water-tax or the water-charge, that part of the water which the owner of the premises uses is for a purpose which helps the Municipality in carrying out its duties under the Act and in rendering halalkhor services to the owner. But we find it impossible to accept Mr. Purshottam's contention that a separate specific credit must be given by the Municipality when it acts under Section 169 for the quantity of water which is used for f .....

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..... issioner the power to decide from time to time whether any particular premises shall be charged the water-lax or there should be a charge for water supplied according to measurement. In other words, Mr. Purshottam's contention is that this resolution permits the Commissioner, not merely to select such premises as he thinks proper from the class indicated by the Standing Committee for the application of the alternative mode, but having so selected he can subsequently again decide that, instead of these premises paying the water charges according to measurement, they shall pay a water-tax; and Mr. Purshottam says that such a resolution the . Standing Committee cannot pass under Section 169 and the resolution is bad. He further contends that, if the resolution is bad, the power exercised by the Commissioner pursuant to this resolution is equally invalid. Now, in order to understand the implications of this resolution, we must once again look at Section 169 and consider what really the effect of the Section is. In the first place Section 169 confers the discretion upon the Commissioner to charge for the water supplied by measurement instead of levying a water-tax. It is to .....

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..... n applying the alternative mode he may take his time, he may do it by stages, he may think that financial considerations make it impossible for him to exhaust the whole class at once. But Mr. Purshottam's grievance is that the resolution of the Standing Committee does not merely permit the Commissioner to select premises from time to time from the class, but it goes further and empowers the Commissioner, not only to select premises from the class for the purpose of applying the alternative mode, but to revert with regard to those premises to the method of levying a water-tax if in his opinion he thinks that having applied the alternative mode it is more profitable or more desirable to go back to the old system. Now, the resolution of the Standing Committee must be read in the light of Section 169. Not only does the resolution set out the Section, but we must assume that the standing Committee knew what it a powers were under Section 169, it is also equally clear that we must give to the resolution of the Standing Committee a fair and reasonable meaning. It is equally obvious that we must lean in favour of validating the resolution rather than Invalidating it. Now it is c .....

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..... e Standing Committee says are his powers. In our opinion, therefore, on a fair and reason-able reading of the resolution of the Standing Committee, the Commissioner has not been given the power suggested by Mr. Purshottam; and we hold further that, even assuming that the resolution of the Standing Committee is capable of that construction, the power of the Commissioner must be determined by the provisions of Section 169, and we have already pointed out what his power is under that Section. . 11. A grievance is also made of the fact that this rather drastic change in the mode of recovering the water charges was brought about without any notice to the petitioners and without the petitioners being heard and being allowed to show cause. We were rather surprised when it was mentioned that a responsible officer like the Municipal Commissioner should have suddenly decided to instal a meter and to charge the petitioners under Section 169 without any intimation whatsoever to them. It is true that the Section does not require the Commissioner to give any notice. But a responsible officer is not merely guided by what he is commanded to do by the statute. He does many things which are not o .....

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