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Hari Govind Kalkundri Vs. the City Municipality of Belgaum - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 260 of 1928
Judge
Reported inAIR1930Bom68; (1929)31BOMLR1249
AppellantHari Govind Kalkundri
RespondentThe City Municipality of Belgaum
Excerpt:
.....water tax-'house,' interpretation of-house divided into separate tenements-each tenement is a house-suit by assessee-procedure.;the plaintiff owned a house which was sub-divided into seventeen different tenements occupied by seventeen different families. each tenement was numbered separately in the city survey and cess register of the municipality, and separate iron plate numbers were affixed to the tenements. each tenement had separate entrance leading through a gate into the highway. the tenements had separate drains which opened into eight drains oonnected with the municipal gutter direct. the whole house was described only by one number and was so entered in the municipal register.;the city municipality of belgaum framed rules for the sullage water cess under section 48(1) of..........belgaum municipality under section 46(1) of the bombay city municipalities act as meaning that the word 'house' in item 7 of rule 1 must be taken under the circumstances of this case as meaning seventeen different tenements. it is in evidence that there are eight drains from this house leading into the municipal gutter and that in some oases some of the drains from the tenements lead into one or other of these eight private drains. the learned subordinate judge, therefore, dismissed the suit. against that order the plaintiff-applicant has filed this revision application.2. item 7 of rule 1 reads as follows :-'every house that lets out sullage water into the municipal gutters or municipal limits shall pay rs. 5 per year.' the first question, therefore, for determination is the meaning of.....
Judgment:

Norman Kemp, Kt., A.C.J.

1. This is a re visional application to set aside the decree of the Second Glass Subordinate Judge of in Small Cause Civil Suit No. 613 of 1927. This was a suit by the applicant to recover the excess paid by him in respect of the cess known as 'Sullage Water Cess' levied on his house, The house in suit is divided into seventeen tenements occupied by seventeen families residing separately. A rough sketch of the premises-has been put in but we have been able to gather from the arguments before us that the space in which this building is erected has two outside walls in which there are three gates each of which opens into a small space and the seventeen tenements have seventeen doors opening into this space. Each tenement has, therefore, direct communication with this space and through the gate to the road. The learned Subordinate Judge construed the rule passed by the Belgaum Municipality under Section 46(1) of the Bombay City Municipalities Act as meaning that the word 'house' in item 7 of Rule 1 must be taken under the circumstances of this case as meaning seventeen different tenements. It is in evidence that there are eight drains from this house leading into the Municipal gutter and that in some oases some of the drains from the tenements lead into one or other of these eight private drains. The learned Subordinate Judge, therefore, dismissed the suit. Against that order the plaintiff-applicant has filed this revision application.

2. Item 7 of Rule 1 reads as follows :-'Every house that lets out sullage water into the Municipal gutters or Municipal limits shall pay Rs. 5 per year.' The first question, therefore, for determination is the meaning of the word 'house,' That is certainly a question of fact and it may be also partly a question of law. Section 25 of the Provincial Small Causes Courts Act gives us power to interfere in revision in any case where the decision is not according to law. Our powers, therefore, are wide and it is for us to see whether the present decision cornea within that definition. Now the learned Subordinate Judge has relied, so far as his finding of fact is concerned, on the following evidence to show that the word 'house' here meant seventeen tenements. Firstly, there are the separate numbers given to each house since 1921. Secondly, there are the eight drains which are connected with the Municipal gutter direct, Thirdly, there are separate iron plates fixed to the doors of the tenements to mark that they are different houses and separately numbered, The tenemets are separately numbered in the City Survey and Cess Register and the tenements are separately occupied each by a different family. Lastly, there is the fact, which I have referred to, that each tenement has a separate entrance leading through the gate into the highway. It is true that in Exhibit 28 the house is described only by one number and it is so entered in Ag. the Municipal Register. But in the face of the facts which have mentioned I am of opinion that so far as the question of fact is concerned this house must be considered as seventeen different tenements and item 7 of Rule 1 of Section 46(1) of the Bombay city Municipalities Act must be intended to apply to each one of these tenements.

3. The case of Rango Narayan Kirloskar v. Hughes (1881) P.J. 41 does not say dearly whether there was one building which was divided up into several tenements or whether there were separate buildings adjoining one another. But even in the latter case the learned Judges there held that 'in so far as the plaintiff has in a manner separated one building from the rest by letting it to a tenant at a rent, we think that the Municipality was justified in treating that building as a 'house' within Bombay Act YI of 1873 and Section 5, 01,1 of the Rules of the Municipality made under it.' I think there can be no doubt that if you divide up a house into separate tenements it is not unreasonable to say for the purposes of this particular cess which, it must be noted, as my brother Murphy has pointed out, is a service cess that the cess should be charged in respect of each tenement.

4. The next question for our consideration relates to the construction of the word 'house' and there is nothing inconsistent in construing that word as separate tenements. Under a particular Act in England it has been decided in Allohuroh v. Assessment Committee and Guardians of Bendon Union [1891] 2 Q.B. 436 that each occupier of a tenement was capable of being rated and should be rated separately. There is nothing, therefore, extraordinary or inconsistent in law in the construction which I take of the meaning of the word 'house,'

5. Then an objection has been taken that no revision application lies in the present case. The procedure laid down by the Act commences, as far as I can see, by the presentation of the bill under Section 104(1) of the Act and Sub-clause (3) of that section provides that if the amount of the bill is not paid within fifteen days from its presentation the Chief Officer may cause a notice of demand in the form of Schedule V or to the like effect to be served on the aeeesSection Section 110 then provides for an appeal to a Magistrate or Bench of Magistrates. The appeal against the notice of demand is subject to two conditions: (1) that it must be brought within fifteen days after service of the notice on demand, and (2) under sub Clause (5) of Clause 2 of that section it is required something further should have been done, viz., that the assessee must within fifteen days after the presentation of the bill submit an application in writing to the Standing Committee mentioning the grounds on which the claim of the Municipality is disputed. We have, therefore, two things which it is necessary the assessee should do. Why this singular procedure was adopted is not for us to inquire. Our business is to construe the Act as it stands. We are informed that a petition was presented to the Municipality and that it was disallowed. We have no information as to whether any appeal was made to the Magistrate and apparently none was. Therefore the procedure laid down under Section 110 of the Act has not been followed. An application in revision would lie under s. Ill (1) against the decision of a Magistrate or Bench of Magistrates to this Court.

6. Nevertheless the plaintiff-applicant apparently filed his suit purporting to do so under Section 206 of the Act and gave the statutory notice of two months required by that section. There is nothing that I can see to prevent a suit being filed under Section 206 even though the assesses may not have followed in its entirety the procedure for appealing to the Magistrate laid down in Section 110 of the Act. It is to be noted that Section 110 states that the assessee 'may' prefer an appeal. I am, therefore, inclined to hold that this suit may properly be brought under Section 206 provided the statutory requirements under that section have been complied with.

7. Under these circumstances I would discharge the rule with costs.


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