Skip to content


The Municipal Corporation of the City Vs. the Province of Bombay - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 182 of 1941
Judge
Reported inAIR1944Bom8; (1943)45BOMLR914
AppellantThe Municipal Corporation of the City
RespondentThe Province of Bombay
Excerpt:
.....144-municipality-general tax-exemption from payment of tax-lands and buildings used for charitable purposes-lands and buildings vested in crown-question of ownership immaterial-scope of sections explained.;lands and buildings in the city of bombay used exclusively for charitable purposes, e.g. medical, educational, public health or agriculture, though vested in his majesty, are exempt from payment of the general tax of the bombay municipality, under section 143(1)(a) of the city of bombay municipal act, 1888.;the distinction between section 143(1)(a) and section 143(1)(b) is the purpose for which the building or land is occupied, and the question of ownership is not the first important factor. once the property is held to be exclusively occupied for charitable purposes, it is immaterial..........sub-section (2).3. the argument on behalf of the plaintiffs is that section 143(1) divides the lands and buildings into two parts and they are mutually exclusive. it is argued that if a building or land is vested in his majesty, the only question to be considered by the court is whether that building or land is covered by section 143(1)(b). if it is not, section 143(1)(a) has not to be looked at, and in respect of that building or land the defendants are liable to pay the general tax. in support of that contention the history of the section was relied upon, the history starts with bombay act ii of 1865, section 47 of that act imposed a tax on houses, buildings and lands. under section 49 of that act the buildings exclusively devoted to public worship or charitable purposes and.....
Judgment:

Kania, J.

1. This is a special case stated for the Court's opinion in respect of the assessment of certain Government properties by the plaintiffs. The statement of facts agreed between the parties contains the following relevant and material admissions : (1) That the buildings and lands set out in the schedule to the case are vested in His Majesty and are used solely for public purposes and are not used or intended to be used for the purposes of profit. (2) That in respect of the said buildings and lands if the general tax is levied the same would be primarily leviable from the Crown. (3) That the said buildings and lands are in the possession and control of the Government of Bombay. (4) That the said buildings and lands are exclusively occupied for charitable purposes. The question before the Court is whether on a true construction of Sections 143 and 144 of the City of Bombay Municipal Act, (Bombay Act III of 1888), the buildings and lands set out in the schedule to the case are liable to pay the general tax. It is common ground that the rest of the taxes which the plaintiffs are permitted to levy under chap. VIII of the Act are not the subject matter of discussion before the Court and are not governed by this special case.

2. Sections 143(1) and 144 are relevant to be considered. They run as follows :

143. (1) The general tax shall be levied in respect of all buildings and lands in the city except-

(a) buildings and lands or portions thereof exclusively occupied for public worship or for charitable purposes;

(b) buildings and lands vesting in Her Majesty used solely for public purpose and not used or intended to be used for purposes of profit or in the corporation, in respect of which the said tax, if levied, would under the provisions hereinafter contained be primarily leviable from the Secretary of State for India in Council or, the corporation, respectively.

144. (1) The Central Government or the Crown Representative or the Provincial Government, as the case may be, shall pay to the corporation annually, in lieu of the general tax from which buildings and lands vesting in Her Majesty are exempted by Clause (b) of Section 143, a sum ascertained in the manner provided in Sub-sections (2) and (5).

(2) The rateable value of the buildings and lands in the city vesting in Her Majesty and beneficially occupied, in respect of which but for the said exemption, general tax would be leviable from the Central Government or the Crown representative or the Provincial Government, as the case may be, shall be fixed by a person from time to time appointed in this behalf by the Provincial Government with the concurrence of the corporation. The said value shall be fixed by the said person, with a general regard to the provisions hereinafter contained concerning the valuation of the property assessable to property taxes, at such amount as he shall deem to be fair and reasonable. The decision of the person so appointed shall hold good for a term of five years, subject only to the proportionate variation, if in the meantime the number or extent of the buildings and lands vesting in Her Majesty in the city materially increases or decreases.

(3) The sum to be paid annually to the corporation by the Central Government or the Crown Representative or the Provincial Government, as the case may be, shall be eigth-tenths of the amount which would be payable by an ordinary owner of buildings or lands in the city, on account of the general tax, on a rateable value of the same amount as that fixed under Sub-section (2).

3. The argument on behalf of the plaintiffs is that Section 143(1) divides the lands and buildings into two parts and they are mutually exclusive. It is argued that if a building or land is vested in His Majesty, the only question to be considered by the Court is whether that building or land is covered by Section 143(1)(b). If it is not, Section 143(1)(a) has not to be looked at, and in respect of that building or land the defendants are liable to pay the general tax. In support of that contention the history of the section was relied upon, The history starts with Bombay Act II of 1865, Section 47 of that Act imposed a tax on houses, buildings and lands. Under Section 49 of that Act the buildings exclusively devoted to public worship or charitable purposes and buildings owned by Government or by the corporation of the justices of the peace of the city of Bombay were exempt from the tax, It was emphasised that all those buildings were lumped together and treated alike by the wording of the section. Then followed Bombay Act III of 1872. Section 69 of that act provided the rate at which tax on houses and lands was to be levied, and under Section 77 (which corresponded to Section 49 of Act II of 1865) the exemption was given in respect of all buildings exclusively occupied for public worship or charitable purposes and buildings and lands owned by Government or corporation. In the Act of 1878 the provisions were similar and all the buildings mentioned above were treated alike for the purposes of exemption from general tax. The Municipal Taxation Act XI of 1881 was next relied upon. That is an Act of the Government of India and therefore has effect throughout British India. The provisions of that Act empower the Governor-General-in-Council to prevent a municipality from arbitrarily imposing a tax on Government buildings and provide that in such a case the Governor-General could appoint an officer to make a fair assessment as provided in that Act. Thereafter the present City of Bombay Municipal Act (Bombay Act III of 1888) was passed. In that Act by Section 143 certain buildings and lands were exempted from the payment of general tax. Because in that section the buildings and lands are divided in two groups in Sub-section (1)(a) and (1)(b), it was contended that Act XI of 1881 was relevant to be considered in construing the effect of Sections 143 and 144 of the City of Bombay Municipal Act. In my opinion Act XI of 1881 has no bearing on the City of Bombay Municipal Act. That Act was passed to prevent a municipality acting waywardly or arbitrarily in respect of Crown properties within the limits of the particular municipality. While the City of Bombay Municpal Act contains a provision exempting the Crown properties from general tax under certain circumstances, that Act does not govern other municipalities, and in my opinion this power contained in Act XI of 1881 was assumed to prevent mischief by a wayward municipality. Section 143(1)(b) of the present Act III of 1888 as originally framed did not contain the words 'used solely for public purposes and not used or intended to be used for purposes of profit.' It appears that those words were inserted by Bombay Act X of 1928, because when the Great Indian Peninsular Railway Company was acquired by the Government it was claimed that the lands and buildings of the railway company became vested in His Majesty and therefore were exempt from payment of the general tax under the Municipal Act, To defeat that contention the words quoted above were included in that section.

4. The proper way to approach the question is to look at the section itself, and if there is any doubt about construction, to refer to other legislation of the same type. In my opinion Sections 143 and 144 are clear in their meaning. The scheme is first to exclude the buildings and lands exclusively occupied for, what is understood in law, charitable purposes. Having regard to the exemption in favour of Crown lands given in the previous Municipal Acts, the liability of the Crown lands was next considered and the exemption was limited to what is contained in Sub-section (1)(b). That however would not mean that if a building in fact was exclusively occupied for charitable purposes, if it was owned by His Majesty, it fell under Sub-section (b). The question whether a building exclusively occupied for charitable purposes was owned by the Crown or by a private individual is immaterial, because the words of Section 143(1)(a) are general and irrespective of ownership. Section 143(1)(b) deals moreover with only a small portion of the lands and buildings which are vested in His Majesty. Clause (b) in terms deals with two things : (1) Vesting of the property in His Majesty; and (2) the particular uses of the buildings or lands. The exemption under Section 143 is granted only when firstly the property is vested in His Majesty, secondly, it is used solely for a public purpose, and, thirdly, it is not used or intended to be used for the purposes of profit. Unless all the three qualifications meet the case, it is not covered by Clause (b), and such land or building would be liable to general tax as land or building owned by any other individual. However, all this must be considered only after Sub-section (1)(a) is considered and held inapplicable. If the case falls under Sub-section (1)(a), no further question of exemption or the extent thereof arises.

5. In my opinion, this construction is strongly supported by the words of Section 144(1). It is there provided that the Central Government shall pay to the corporation, in lieu of the general tax from which the buildings and lands vested in His Majesty are exempted under Clause (b) of Section 143, a sum ascertained in the manner provided in Sub-sections (2) and (5) of Section 194, Those words clearly show that Sub-sections (2) and (3) of Section 144 are only the machinery provided for ascertaining the sum which the Central Government or the Provincial Government would have to pay in respect of the buildings or lands for which it had obtained exemption under Section 143(1)(6). I am unable to accept the argument of the plaintiffs that Section 144(2) defines the buildings and lands which are liable to be exempted Section 144 does not deal with exemptions. That subject is fully disposed of by Section 143. Mr. Coltman relied on the words 'beneficially occupied' in Section 144(2) and on the meaning given to those words in several English cases. I do not think those cases help in the construction of Section 143 or to decide whether the exemption granted under Section 143 in respect of properties exclusively occupied for charitable purposes is limited to buildings and lands not owned by the Crown. In England all Crown lands are exempt from rates. It is also admitted that there is no exemption from rates on the ground that the property is exclusively used for charitable purposes. Section 143(1)(a) is therefore a totally new provision in the law of India and distinguishes all English cases. As this vital provision does not exist in the law in England, the only utility of the English cases would be to construe the words 'beneficially occupied' used in Section 144(2). I do not therefore propose to deal with the English cases except by briefly noticing the individual features emphasised therein. I shall consider them in their chronological order.

6. In Greig v. University of Edinburgh (1868) L.R. 1 H.L. 348 the question arose in respect of the liability of the Edinburgh University to rates. It was pointed out that the University was a very useful institution but the lands and buildings were not Crown property and the same were independent of the Crown property. On that fact being found, it was clear that the exemption from rates could not be claimed by the University. In Governors of St. Thomas' Hospital v. Stratton (1875) L.R. 7 H.L. 477 the question arose in respect of a hospital and the case was similarly decided on the same grounds. In Hare v. Overseers of Putney (1881) 7 Q.B.D. 223 the question arose in respect of a public bridge at Putney. It was pointed out that the bridge could not be stated to be occupied by any person and therefore it was improper to contend that there was any beneficial occupation of the bridge by any person. On that ground the liability to pay the rate was negatived. In London County Council v. Churchwardens &c.; of Parish of, Erith land Assessment Committee of Dartford Union [1893] A.C.J. 562, Lord Herschell considered in detail the various cases decided on the question of beneficial occupation. At p. 591 the Lord Chancellor, after quoting with approval the statement of Fry L.J, in The Queen v. School Board for London (1886) 17 Q.B.D. 738, viz. 'The term 'sterility' has been introduced in the case because as a general rule profit is produced; but it does not by any means follow that because there is no profit there is no value.'-observed that the learned Judge pointed to the true test whether the occupation was such as to be of value. That is the language used by Lord Blackburn, and as already stated the possibility of making a big profit is not the test for deciding whether the occupation is of value.

7. In Lambeth Overseers v. London County Council [1897] A.C. 625 the question of beneficial occupation was considered by Lord Halsbury L.C. With his characteristic brevity the learned Lord Chancellor pointed out the different considerations which prevail in England in respect of liability to pay rates. In that case the question was in respect of a particular park owned by the county council. It was pointed out that the park was vested in the county council, but that did not make them occupiers, and it would be absurd to contend that wherever the legal estate was there was occupation. A road may be vested in someone, hut being a public road there was no occupation of it any more than of a milestone or a direction post. The learned Lord Chancellor approved the decision in The Putney Bridge case and observed as follows (p. 630) :-

Once it has been found, as in this case, that the occupation cannot as a matter of law be a, beneficial occupation, there is an end of the question. I say as matter of law, because that it does not give a beneficial occupation as matter of fact is nothing to the purpose. Here there is no possibility of beneficial occupation to the county council; they are incapable by law of using it for any profitable purpose; they must allow the public the free and unrestricted use of it.

8. It was urged that while an amendment was made in Section 143(1)(b) by Bombay Act X of 1928, no amendment was made in Section 144. I fail to appreciate the force of this argument. I am unable to accept the contention that the words added in Section 143(1)(b) by the Act of 1928 gave that clause the same meaning as the words 'beneficially occupied.' The expression 'beneficially occupied' would include cases where the building or land was used for the purpose of profit also. On reading Section 143(1)(b), it is clear that if such property is used or intended to be used for the purpose of profit, it is not exempted from liability to pay the general tax, and the machinery for assessment provided by Section 144 will be equally inapplicable to such case. It is therefore wrong to hold that merely because a property is vested in His Majesty and is beneficially occupied it is exempt under Section 143(1)(b). In Section 144(2), this position is made further clear. The section does not stop at the words 'rateable value of the buildings and lands in the city vested in Her Majesty and beneficially occupied', but further states 'in respect of which but for the said exemption general tax would be leviable from the Secretary of State for India.' In the exempting Section 143 the expression beneficial occupation is not used.

9. In my opinion the correct distinction between Sections 143(1)(a) and 143(1)(b) is the purpose for which the building or land is occupied, and the question of ownership is not the first important factor. Once the building or land is held to be exclusively occupied for charitable purposes, it is immaterial who is the owner. If it is not so occupied, the next question is whether the building or land is vested in His Majesty. If so, the next question to be considered is whether the same is used solely for public purposes. Every public purpose is not a charitable purpose. No authority is required to emphasise this distinction. If it is shown that the building or land vested in His Majesty was solely occupied for a public purpose, the last question will be whether it was not used or intended to be used for the purpose of profit. If it is so used, it is not covered by the exemption. If all these three features exist, the assessment will be as provided in Section 144 and the amount will be ascertained by the machinery provided in Section 144(2) and (3). In the present case, therefore, in my opinion, on the admitted facts the contention of the plaintiffs cannot be accepted and the question must be answered in the negative.

10. As mentioned in the statement of case the parties have agreed that the plaintiffs will bear their own costs and pay the costs of the defendant. I make the order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //