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Tulsidas Kilachand and ors. Vs. the Bombay Buildings Repairs Reconstruction Board and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 1553 and 2736 of 1972
Judge
Reported inAIR1979Bom56; (1979)81BOMLR368; 1978MhLJ877
ActsBombay Building Repairs and Reconstruction Board Act, 1969 - Sections 2, 27, 27(1), 27(2), 27(4), 28, 28(1), 29(2), 35 and 38(2); Bombay Municipal Corporation Act - Sections 3; Bombay Rents Hotel and Lodging House Rates Control Act, 1947 - Sections 7 and 12;
AppellantTulsidas Kilachand and ors.
RespondentThe Bombay Buildings Repairs Reconstruction Board and ors.
Appellant AdvocateN.S. Shastri, Adv.
Respondent AdvocateD.P. Hegde, Asst. Govt. Pleader, ;F.N.P. D'Mello and ;S.D. Gavaskar, Advs. for M.V. Shetty, ;P.B. Karhadkar and ;N.V. Kamat, Advs.
DispositionPetitions quashed
Excerpt:
.....(mah. xlvi1 of 1969), sections 28 and 35 - exemption from payment of cess provided in section 28--building exclusively being used for 'non-residential purposes' under section 28(1)(i)--whether use of premises for carrying on a hotel or lodging house business is for residential or non-residential purposes.;judged in the context in which the expression 'non-residential purpose' occurring in section 28(1)(i) of mah. act xlvii of 1969 is used, the use of the premises for lodging business is for non-residental purposes.;vivian joseph v. municipal corporation (1971) 75 bom. l.r. 1 s.c., followed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of)..........from the payment of cess. clause (i) of sub-section (1) of section 28 exempts from payment of cess buildings exclusively used for non-residential purposes. clause (j) of sub-section (1) of section 28 exempts residential buildings exclusively occupied on leave and licence basis. clause (h) of section 28 (1) exempts buildings exclusively in occupation of the owner. the explanation to sub-section (1) of section 28 provides that in the said section, building means building as a whole, and not any part thereof or premises therein taken separately.4. the common question that arises for decision in both the petitions is whether the premises involved in the petitions are buildings exclusively used for non-residential purposes mentioned in clause (i) of sub-section (1) of section 28 of the.....
Judgment:

Naik, J.

1. As common questions offacts and law are involved in both these petitions, they shall be disposed of by a single judgment. The short point and the only point which arises for our decision in these petitions is as to whether the buildings involved in these two petitions are entitled to exemption from payment of cess provided for in Section 28 of the Bombay Buildings Repairs and Reconstruction Board Act, 1969 (hereinafter referred to as the Act). As the preamble shows the Act provides for a certain time for the repairs or reconstruction of dangerous buildings, to provide for rehousing of un-housed occupiers, and for these purposes to levy an additional cess on buildings and lands and matters connected therewith, A perusal of the provisions of the Act makes it clear that its objects are (1) to preserve the residential and tenanted buildings existing at the date of its enactment, (2) for that purpose, to set up a special agency the Bombay Buildings Repairs and Reconstruction Board, whose duties and functions would be, (a) to undertake and carry out structural repairs to buildings in respect of which the impugned tax is levied, (b) to provide temporary or alternative accommodation to occupiers of any such buildings where any such building collapses, (c) to undertake and carry out tenantable repairs to buildings placed at its disposal, (d) to move the Government to acquire old and dilapidated buildings in respect of which the cess is levied and which are beyond repairs or buildings in which structural repairs have once been carried out but further repairs are not possible, (e) to reconstruct new buildings, (f) to set up transit camps for those dishoused on account of collapses, fire, rain or tempest, and (g) to undertake demolition of dangerous buildings or portions thereof. Section 2 (c) of the Act defines a building as under:--

' 'Building' includes a tenement let or intended to be let or occupied separately and a house, out house, stable, shed, hut and every other such structure, but does not include any such building or structure which as a whole, is unauthorised or any building which is a temporary building as denned in Clause (sb) of Section 3 of the Bombay Municipal Corporation Act.'

2. Chapter II deals with the establishment, proceedings and organisation of the Board to be named 'The Bombay Building Repairs and Reconstruction Board.' Chapter III deals with the powers, duties and functions of the Board. Chapter IV which deals with the Bombay Building Repairs and Reconstruction Cess and Fund provides in Section 27 for the levy and collection of Bombay Building Repairs and Reconstruction Cess. Sub-section (1) of Section 27 provides that there shall be levied and paid to the State Government, a tax on buildings and lands called the Bombay Building Repairs and Reconstruction Cess, at the rate of so many per centum of the rateable value of the concerned property or part thereof as is prescribed therefor under First Schedule to the Act. Sub-section (2) of Section 27 provides that 'subject to the provisions of this Act, the cess shall be collected by the Corporation in the same manner in which the property tax is collected under the Bombay Municipal Corporation Act.' Sub-section (4) of Section 27 provides that 'where an owner is required to pay to the Corporation in respect of any property the cess determined and levied under this section, the share of the owner shall be 10 per cent of the rateable value of the property, and he shall be entitled to recover the remaining amount of the cess levied, by making a proportionate increase in the rent of the various premises in the building, in the same manner as if there was an increase in the general tax; and such increase in rent shall not be deemed to be an increase for the purpose of Section 7 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 or for the purposes of the Bombay Municipal Corporation Act.' There is a further provision in the said sub-section wherein it is provided that 'where the rent of any premises is payable by the month, if such rent or increases are In arrears for a period of six months or more, the owner shall be entitled to the recovery of possession of the premises under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.'

3. Section 28 deals with the exemption of certain buildings and lands from payment of cess. Clauses (a) to (m) of sub-section (1) of Section 28 mention the buildings and lands which shall be exempted from the payment of cess. It may be mentioned that buildings in clauses (a) to (f) of Sub-section (1) of Section 28 are buildings to which the Rent Act does not apply. So also, buildings used for non-residential purposes do not fall within the purview of the Act and they are therefore excluded from the levy of cess. Buildings vesting in or leased to the Co-operative Housing Societies are also exempted from the payment of cess. Clause (i) of Sub-section (1) of Section 28 exempts from payment of cess buildings exclusively used for non-residential purposes. Clause (j) of sub-section (1) of Section 28 exempts residential buildings exclusively occupied on leave and licence basis. Clause (h) of Section 28 (1) exempts buildings exclusively in occupation of the owner. The Explanation to Sub-section (1) of Section 28 provides that in the said section, building means building as a whole, and not any part thereof or premises therein taken separately.

4. The common question that arises for decision in both the petitions is whether the premises involved in the petitions are buildings exclusively used for non-residential purposes mentioned in Clause (i) of Sub-section (1) of Section 28 of the Act. The undisputed facts are that in Special Civil Application No. 1553 of 1972, in the building in question there is a ground floor plus five floors above that floor. There are shop premises on the entire ground floor. From the first to the fifth floors both inclusive the petitioners have leased that entire portion to one Arya Niwas Lodge. The business of boarding and lodging is being admittedly carried on in all these five floors by the said tenant-proprietor of the lodge. In Special Civil Application No. 2736 of 1972, the building involved is the ground floor plus three floors. In all these floors including the ground floor, there are admittedly commercial tenements and in a portion of the third floor a lodging business is being carried on by the tenant. It may be mentioned that in respect of both these buildings in 1970 a demand notice under Section 29 (2) of the Act levying cess under the Act was served on the respective owners -- the petitioners before us and both of them having challenged the levy oil cess by contending that the buildings in question were exempted under Clause (i) of Sub-section (1) of Section 28, their con-tensions were in fact upheld and the notices were withdrawn by passing an order that the buildings were exempted from cess. Subsequently however in respect of both these buildings, a notice was issued in March 1972 under Section 29 (2) of the Act demanding cess under the Act for the period from 1-4-1971 to 31-3-1972. In both the cases the petitioners once again challenged before the Corporation authorities the right of the Corporation to levy the cess and after having drawn attention to the provisions of the exemption of the said buildings under Section 28 of the Act, they also drew the attention of the Corporation to the fact that in fact on a similar contention being made by them in 1970 the Corporation had exempted the said buildings from payment of cess. But in both these cases that submission was rejected on the technical ground that a complaint not being received within a fortnight of the receipt of the demand notice, the cess had become leviable.

5. It is against this background that both the petitions have been filed and in both the petitions the petitioners have challenged the order of the Corporation serving them with the demand notices and also the subsequent order maintaining that the payment has become absolute and final. The main contention of the petitioners in both the petitions is that their buildings are exempt from cess under. Clause (i) of Sub-section (1) of Section 28 of the Act. Mr. Shastri, the learned Counsel for the petitioners submits that in both the cases, the buildings on the admitted facts of the case being buildings exclusively used for non-residential purposes are exempt from cess under Clause (i) of Sub-section (1) of Section 28 of the Act. While Mr. Hegde, the learned Counsel for the Board has fairly conceded that he cannot take exception to the submission of Mr. Shastri, Mr. D'Mello for the Corporation however submits that while it is no doubt true that lodging and boarding house is a business, since that business is to accommodate lodgers and lodgers reside there for howsoever short a duration, the building should be treated as used for residential purposes. We find no force in the submission of Mr. D'Mello. As it is on a plain and literal construction of the expression 'non-residential purposes' occurring in Clause (i) of Sub-section (1) of Section 28, we have no manner of doubt that the premises which is being used for carrying on the business of a hotel or lodging house, could not by any stretch of imaginationbe said to be a house for residential purposes as is submitted by Mr. D'Mello. On a plain and grammatical construction it would follow that the business of lodging could not be said to be a residential purpose. It is essentially non-residential purpose. After all, words take their meaning and colour from the context in which they are used, Judged in that light also in the context in which the expression 'non -residential purpose' occurring in Clause (i) of Sub-section (1) of Section 28 is used, it must be held that use of the premises for lodging business is for non-residential and not residential purposes, Clause (h) which precedes Clause (i) exempts buildings exclusively in occupation of the owner. Clause (i) of course as pointed out exempts buildings exclusively used for non-residential purposes. Clause (j) exempts residential buildings exclusively occupied on leave and licence basis. Then we have Clause (ja) which exempts buildings occupied or used partly for one and partly for any other purpose or purposes specified in Clauses (h), (i) and (j); provided that no part or parts thereof are occupied or used for any purpose not specified in the said clauses. It would thus appear that the Legislature never intended to recover cess on the buildings exclusively in occupation of the owner and much less to give such owner the benefit of the Act. So also the Legislature never intended to levy the cess on buildings exclusively used for non-residential purposes or to confer the benefit of the Act on such buildings. What is more under Clause (j) of Sub-section (1) of Section 28, residential buildings exclusively occupied on leave and licence basis are also exempted from the levy of cess under the Act and consequently they are not entitled to the benefit under the Act. When the Legislature made it clear that residential buildings exclusively occupied on leave and licence basis are to be exempted from the cess and therefore also of the benefit under the Act, it would be absurd to hold that the Legislature intended to exempt the buildings which are being used for the purpose of carrying on the business of boarding or lodging or a hotel. That being the position in the context in which the expression 'non-residential purposes' is used in Clause (i) of Sub-section (1) of Section 28, the business of using the premises for boarding and lodging could not be said to be using the building for residential purposes.

6. Even the preamble to the Act would show that the object of the Act was toprovide for rehousing of dishoused occupiers. It could hardly be said that flying visitors to the lodgers are persons who require to be rehoused. The provisions of Section 35 of the Act provide for temporary accommodation pending structural repairs without payment of compensation and are also in respect of persons who are entitled to occupy the premises and who have a right to occupy the premises. Sub-section (6) of that section shows that after the reconstruction, a notice would issue to the occupiers concerned informing them that the building is likely to be or is ready for reoccupation from a specified date and that on their failure to occupy the premises within a period of one month from that date, the occupier forfeits his tenancy or other rights in respect of the said premises notwithstanding anything contained in the contract or in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, or any other law for the time being in force and the said rights being deemed to have been terminated, the owner shall be entitled to possession thereof. Section 38 (2) of the Act which deals with the submission of proposals for acquisition, provides that as far as practicable, in the reconstructed building occupiers should be given accommodation with a floor area equivalent to their floor area in the old building, but in no case exceeding 68 square meters for any occupier of residential tenement. It would thus appear that it was never the intention of the Legislature to levy cess on the buildings exclusively in the occupation of the owner or on the residential buildings exclusively occupied on leave and licence basis or on buildings exclusively used for non-residential purposes. Reading these three provisions together and the preamble and the provisions of Sections 35 and 38 of the Act, it would appear that it was never the intention of the Legislature to treat the business of carrying on a lodging house as using the building for residential purposes. In this connection, we might observe that in Vivian Joseph Ferreira v. Municipal Corporation of Greater Bombay, : [1972]2SCR257 , where the vires of the Act was challenged, the Supreme Court has made observations at page 10 to the effect that though Section 27 imposes a tax on buildings and lands, the exemptions given to buildings exclusively occupied by the owners, to buildings exclusively used for non-residential purpose, to residential buildings exclusively occupied on leave and licence, have the effectof confining the tax to residential houses occupied by tenants existing at the date of the commencement of the Act. The Supreme Court has further observed: 'The Act thus makes three kinds of classification (1) by confining the tax to the residential tenanted buildings, it classifies buildings which are used for residential purpose and are tenanted, from the rest .....' Again at page 13,the Supreme Court has observed a 'Likewise, the relations between the owners and persons occupying their buildings under leave and licence cannot be equated with relations between landlords and tenants. The circumstances which led to the imposition of the cess do not apply to premises in the occupation of licensees, because such licensees have no rights such as the tenants have, namely, irremovability and the freezing of rents, and the consequential reluctance or inability of the landlords to maintain their premises in tenantable repairs. There is not such statutory control over compensation paid by them as there is in the case of standard rent. Considerations applicable to them are, therefore, quite different. The two classes of occupiers, therefore, cannot be equated. The premises occupied by licensees thus form a distinct class by themselves and could not have been lumped together with tenanted premises without the danger of a challenge under Art. 14.'

7. It would be thus clear that having regard to the preamble of the Act and the various other provisions discussed by us, the intention of the Legislature was to take care of the tenants of residential premises and not the licensees. We are therefore of the view that both on a plain and grammatical interpretation of Clause (i) of Sub-section (1) of Section 28 and the context in which it is used and the preamble and the other provisions of the Act as interpreted by the Supreme Court in Vivian's case, the use of a part of the building for lodging purposes cannot be said to be use for residential purposes. In the result, in respect of both the buildings in both the petitions, it must be held that they are entitled to be exempted from cess on the ground that the buildings are exclusively used for non-residential purposes.

8. Having realised that there is no force in the submission made by him on the interpretation of Clause (i) of Sub-section (1) of Section 28, Mr. D'Mello made a technical submission that the application is incompetent inasmuch as the State of Maharashtra is not made a party. We find that there is no substance in that submission. The Board is made a party and the Corporation which levied the cess also is made a party and the reliefs sought by the petitioners could be adequately granted as against the parties arraigned in these petitions,

9. In the result, the notices which are impugned in both the petitions are quashed and the rule is made absolute in terms of prayer (c) in both the petitions. There shall however be no order as to costs.

10. Order accordingly.


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