1. This suit is filed by the Municipality of Bombay to recover from the defendant, who is the owner of a certain property within the Bombay Municipal area, water-tax and halalkhor-tax for the periods mentioned in the plaint. The only defence urged on behalf of the defendant is that the Municipality having cut off the service pipe from January 7, 1932, he is not liable to pay the taxes. It is admitted by the defendant that the supply was so cut off by the Municipality because he failed to pay the water and halalkhor taxes as shown in the municipal bills served on him.
2. Under Section 140 of the City of Bombay Municipal Act, 1888, the plaintiffs are entitled to levy water-tax and halalkhor-tax. Under Section 141 it is provided:.water-tax shall be levied only in respect of premises-
(a) to which a private water-supply is furnished from, or which are connected by means of communication-pipes with, any municipal water-works; or
(b) which are situated in a portion of the city in which the Commissioner has given public notice that sufficient water is available from municipal water-works for furnishing a reasonable supply to all the premises in the said portion.
Similar provisions are contained in Section 142 in respect of halalkhor-tax. Uhder Section 197 it is provided:
Each of the property-taxes shall be payable in advance in half-yearly instalments on each first day of April and each first day of October.
As regards the assessment of taxes it is provided by Section 217:
(1) Subject to the provisions hereinafter contained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Cause Court.
Section 219 inter alia provides:.the amount of every sum claimed from any person under this Act on account of any tax, if no appeal is therefrom made as hereinbefore provided, and
the decision of the Chief Judge aforesaid upon any appeal against any such value or tax, shall be final.
Section 279 provides.-
(I) The Commissioner may cut off the connection between any municipal water-work and any premises to which a private water-supply is furnished by the corporation...
(a) in default of payment of any instalment of water-tax or of any sum due for water or expenses of any work done under or by virtue of the provisions of sections 272, 276 or 287-A within fifteen days after a notice of demand for such tax or sum has been duly presented.
This right is, however, subject to the sanction of the Standing Committee.
3. It is urged on behalf of the defendant that the Municipality having cut off the service pipe on January 7, 1932, they are not entitled to call upon him to pay the water-tax and halalkhor-tax thereafter. It is urged that unless they are ready and willing to supply the water they cannot be entitled to the tax.
4. The plaintiffs first contend that, having regard to the provisions of the City of Bombay Municipal Act, 1888, as in the present case the defendant has not made any appeal against the assessment of water-tax and halalkhor-tax, the assessment is final, and the defendant is not entitled to contend before the Court that he is not liable to pay the amount. This contention is based on the construction of Section 219, the material portion whereof I have mentioned above. It is pointed out, on behalf of the defendant, that the only finality given by Section 219 is to the amount mentioned in the bill and not to the liability of the assessee. I think there is considerable force in this argument and the words of the section lend support to that contention. The plaintiffs do not press to have this point finally decided, and the point not having been fully argued, I do not propose to pronounce any decision on the point.
5. In my opinion, however, the defence is not sustainable. Under Section 141(b) the owner of a property, within the municipal area, where water supply is available, is liable to pay water-tax, even if he does not take advantage of the municipal water supply. The position of the defendant in the present case appears to me to be quite similar to the owner of such a property. Under Section 197 the owner of a property is bound to pay the property-tax which would include water-tax and halalkhor-tax in advance for every half year. If, therefore, when the bill is presented to him he does not pay the amount, he intimates by his conduct that he does not want the water. The Municipality would, therefore, be entitled to cut off the water-supply under Section 279. That, however, does not relieve the property owner of his obligation to pay the water-tax and halalkhor-tax under Clauses (b) of Sections 141 and 142. By reason of Section 197, it becomes the duty of the property-owner, who wants a water-supply, to pay in advance the sixth-monthly instalments, and if in spite of such payment the Municipality refuses to supply him water, different considerations might arise. In the present case, however, as the defendant has admittedly failed to pay the bills in advance, on the true construction of the sections of the City of Bombay Municipal Act, the Municipality would be justified in refraining from supplying water in respect of his property and still not lose their right to recover water-tax and halalkhor-tax from the property owner. The issue must, therefore, be found in the affirmative.
6. There will be a preliminary mortgage decree in favour of the plaintiffs against the defendant for the amount mentioned in prayer (a) with six months' time for redemption, costs and interest as mentioned in prayer (a).