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The Club, Mahabaleshwar Vs. the Municipality of Mahableshwar - Court Judgment

LegalCrystal Citation
SubjectOther taxes
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1420 of 1958
Judge
Reported in(1959)61BOMLR52
Appellant"The Club", Mahabaleshwar
RespondentThe Municipality of Mahableshwar
Excerpt:
.....seeking to recover such tax from private members' club-whether such club a hotel within meaning of rule-expression 'other places' whether means places where public or section thereof has access-club whether liable under rule to pay tax.;under a rule framed by a municipality under section 59(1)(xi) of the bombay district municipal act, 1901, the municipality provided for the levy of 'a tax in respect of all hotels, boarding houses, eating houses, restaurants, tea or coffee-houses and other places where food, meals, refreshments, tea, coffee or other non-intoxicating drinks are provided on payment of money.' the municipality under this rule claimed to levy the tax on an unincorporated private members' club, the property and funds of which belonged to the members for the time being jointly..........of the undertaking of a railway company; provided that no premises occupied as a dwelling house, hotel or place of public refreshment, or so let out as to be capable of separate assessment, shall be deemed to be, or to form part of a railway hereditament.dealing with the argument that the railway canteen constituted an hotel, lord thankerton in his speech observes at p. 238 as follows:-.an hotel, in my opinion, connotes a building in which an hotel business is carried on, to which the public are entitled to resort for accommodation and refreshment, and to which the edict 'nautes caupones' would apply.6. this decision shows that access to the public is an essential requirement in order to constitute a place an hotel.7. the other requirement which has to be satisfied before a place can.....
Judgment:

K.T. Desai, J.

1. The petitioner is a private Club at Mahabaleshwar. The premises of the Club are situate within the municipal limits of the Mahabaleshwar Municipality. Under the provisions of Section 59 of the Bombay District Municipal Act, 1901, the Mahabaleshwar Municipality has a right, subject to the sanction of the Commissioner, of levying taxes. Clause (xi) of Sub-section (1) of Section 59 provides that the municipality may levy

any other tax (not being a toll on motor vehicles and trailers, save as provided by Section 14 of the Bombay Motor Vehicles Tax Act, 1935):

In exercise of the powers conferred by the Bombay District Municipal Act, the Municipality has framed rules levying certain taxes. Rule 1 so framed runs as follows:-

The municipality shall levy a tax in respect of all hotels, boarding houses, eating houses, restaurants, tea or coffee houses and other places where food, meals, refreshments, tea, coffee or other non-intoxicating drinks are provided on payment of money.

2. The municipality of Mahabaleshwar, respondent No. 1 before us, contended that 'The Club' at Mahabaleshwar was an hotel or that, in any event, it was a place where food, meals, refreshments, tea, coffee or other non-intoxicating drinks were provided on payment of money within the meaning of the aforesaid rule, and claimed to levy the tax on 'The Club'. 'The Club' paid such tax for several years. For the years 1956-57 and 1957-58 'The Club' refused to pay such tax, contending that 'The Club' was neither an hotel nor a place where food, meals, refreshments, tea, coffee or other non-intoxicating drinks were provided on payment of money as required under the aforesaid Rule 1. The municipality has sought to recover the said tax by coercive process available to the municipality under the Bombay District Municipal Act. 'The Club' has thereupon filed the petition, which is now before us, for the issue of a writ of mandamus or a writ in the nature of mandamus or other appropriate writ, direction or order under Article 226 of the Constitution of India restraining the municipality of Mahabaleshwar and its President and the successor in office of the President, their servants and agents from levying and/or collecting and/or recovering from the petitioners any tax called or like the 'hotel tax'. The petitioner has also prayed that the respondents be directed to refund to the petitioner the tax for the year 1955-56 which, it was alleged, had been wrongly recovered by the respondents from the petitioner. The latter prayer, however, has not been pressed by the learned Government Pleader who appears for the petitioner.

3. The main question before us is the question relating to the true construction of rule No. 1 quoted above. That rule provides, inter alia, for a levy of tax in respect of all hotels. The expression 'hotel' has been defined in the rules and by-laws framed by the municipality. The definition, as it existed at the relevant time, was as follows:

Hotel means and includes a Boarding House and any place or eating house where strangers, travellers or other persons are provided with meals and drinks for a price.

It is urged by the learned advocate for the respondents that 'The Club' is an hotel within the meaning of this definition, as travellers or other persons are provided with meals and drinks for a price at the premises of '' The Club.' He says that every person who goes to Mahabaleshwar for a change is a traveller and that as such traveller he is provided with meals and drinks at 'The Club' for a price and that 'The Club' is an hotel. The expression 'traveller' is applicable to a person whilst he is travelling from one place to another. The moment he reaches his destination, he ceases to be a traveller. People from various places go to Mahabaleshwar for a change and they stay at Mahabaleshwar for a shorter or a longer period. Once they reach Mahabaleshwar and stay at Mahabaleshwar, it is difficult to apply the expression 'traveller' to them. The expression 'traveller' as used in the definition in connection with an hotel cannot possibly apply to such persons.

4. It is then urged that the expression 'other persons' would equally cover them. Now, the words 'other persons' are preceded by the words 'strangers, travellers'. If the expression 'other persons' was intended to cover any and every person other than a stranger or a traveller, there would have been nothing simpler for those framing the rules than to say that an hotel would mean and include any place where any person is provided with meals and drinks for a price. If the expression 'other persons' had such a wide meaning, the use of the words 'strangers, travellers' preceding them would have been superfluous. In the context in which the expression 'other persons' has been used, it cannot include members of a private Club or the guests of such members who are entitled to be served with food or drink under the rules provided for by the Club. That expression is intended to refer to the public or any section thereof which has access to the places referred to in the rule.

5. In connection with this question, it may not be out of place to refer to a decision of the House of Lords in Railway Assessment Authority v. Great 'Western Railway Co. [1948] A.C. 234. The question that arose for consideration in that case was whether a railway canteen constituted a 'railway hereditament' within the meaning of Section 1, Sub-section (3) of the Railways (Valuation for Rating) Act, 1930. That section provided as under:-

For the purposes of this Act...Railway hereditament means, subject as hereinafter provided, any hereditament occupied for the purposes of the undertaking of a railway company; Provided that no premises occupied as a dwelling house, hotel or place of public refreshment, or so let out as to be capable of separate assessment, shall be deemed to be, or to form part of a railway hereditament.

Dealing with the argument that the railway canteen constituted an hotel, Lord Thankerton in his speech observes at p. 238 as follows:-.An hotel, in my opinion, connotes a building in which an hotel business is carried on, to which the public are entitled to resort for accommodation and refreshment, and to which the edict 'nautes caupones' would apply.

6. This decision shows that access to the public is an essential requirement in order to constitute a place an hotel.

7. The other requirement which has to be satisfied before a place can fall under the definition of the word 'hotel' is that meals and drinks are provided for a price thereat. When a Club supplies meals and drinks to a member, the question arises whether that is a supply made for a price. The transactions that take place when a Club supplies food or drink to its members came up for consideration before an English Court in the case of Graff v. Evans (1882) 8 Q.B.D. 373. In that case the Court had to consider the question whether a members' private club did not 'sell by retail' intoxicating liquors within the meaning of Section 3 of the Licensing Act, 1872, when it supplied to its members such liquors for consumption on and off the premises of the club at fixed prices, the same being 33 per cent, above the cost price. Field J. at p. 378 of that case observes as follows:-.I think the true construction of the rules is that the members were the joint owners of the general property in all the goods of the club, and that the trustees were their agents with respect to the general property in the goods, although they had other agents with respect to special properties in some of the goods.... It appears to me immaterial whether the sum a member pays for the liquor is equal to or more or less than the cost price. The transaction does not become the more or the less a sale on that account. It cannot be the true view that if the member pays a sum exactly equal to the cost price there is no sale within the section, but that if he pays more than the cost price there is.... A sale involves the element of a bargain. There was no bargain here, nor any contract with Graff (the Manager of the club) with respect to the goods. Foster was acting upon his rights as a member of the club, not by reason of any new contract, but under his old contract of association by which he subscribed a sum to the funds of the club, and became entitled to have ale and whisky supplied to him as a member at a certain price. I cannot conceive it possible that Graff could have sued him for the price as the price of goods sold and delivered. There was no contract between two persons, because Foster was vendor as well as buyer. Taking the transaction to be a purchase by Foster of all the other members' shares in the goods, Foster was as much a co-owner as the vendor. I think it was a transfer of a special property in the goods to Foster, which was not a sale within the meaning of the section.

8. The Club at Mahabaleshwar is an unincorporated members' club. In dealing with such clubs, it has been stated in Halsbury's Laws of England, Third edn., Vol. No. V, p. 254, para. 590 as follows:-

The rights and duties of the members of such a club as between themselves, and the internal arrangements for carrying it on, depend upon the rules. Subject to any rule to the contrary, the property and funds of the club belong to the members for the time being jointly in equal shares; and if provisions are supplied to a member, at a given price, this does not constitute a sale; it is in effect a release by the other members of their interest in the goods supplied.

The principles enunciated above in Halsbury's Laws of England are equally applicable in India.

9. So far as the rules of the petitioner Club are concerned, they do not contain any provision to the contrary, and the property and funds of 'The Club' would belong to the members for the time being jointly in equal shares. A member has an interest in the meals and drinks supplied to him by the club and has an interest in the monies which he pays to the club for the supply of such meals and drinks. It is clear from what is stated above that so far as 'The Club' at Mahabaleshwar is concerned, it cannot be said that meals and drinks are supplied by the Club to its members for a price within the meaning of the definition of the expression 'hotel' as given in the rules and by-laws framed by the Mahabaleshwar Municipality.

10. The two elements necessary to constitute an hotel viz. (i) access thereto by the public or a section thereof and (ii) supply of articles constituting meals and drinks for a price are absent in the present case. The municipality itself has not treated this Club as an hotel for the purposes of Section 48(2)(b)(iia) of the Bombay District Municipal Act, 1901. The definition of the expression 'hotel' referred to above is made applicable in connection with the by-laws framed under Section 48 of the Bombay District Municipal Act, 1901. Under Section 48 it is provided as follows:-

48. (1) Every municipality may from time to time with the previous sanction, in the case of City Municipalities, of the State Government or in other cases of the Commissioner, make, alter or rescind by-laws, but not so as to render them inconsistent with this Act,...

(b) prescribing the conditions on or subject to which, and the circumstances, in which, and the areas or localities in respect of which, licences may be granted, refused, suspended or withdrawn for the use of any place not belonging to the municipality;....

(iia) as a hotel, eating house, tea or coffee shop, restaurant, dining saloon, refreshment room or for a like purpose.

In the exercise of the powers conferred under the said section, the municipality has with the sanction of the Commissioner framed by-laws. By-law No. 1 lays down that no premises within the municipal limits shall be used as art hotel or restaurant without a licence from the President. No such licence has ever been required from 'The Club', even though the definition of the expression 'hotel' within the meaning of the said by-law is the same as the one applicable in the case of rule No. 1 referred to by me earlier. In our view, 'The Club' is not an hotel within the meaning of Rule 1.

11. It is next urged that even if 'The Club' is not an hotel, it would be covered by the expression 'and other places where food, meals, refreshments, tea, coffee or other non-intoxicating drinks are provided on payment of money' appearing in Rule 1. It is urged that the expression 'other places' was intended to cover each and every place where food, meals, refreshments, tea, coffee or other non-intoxicating drinks were provided on payment of money. On behalf of the petitioner the learned Government Pleader contended that the expression 'other places' appearing in that rule should be construed ejusdem generis having regard to the words 'hotels, boarding houses, eating houses, restaurants, tea or coffee houses' which precede it. Reliance was placed on Maxwell on the Interpretation of Statutes, 10th edn., p. 337. It is there stated as under:-

But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words. In other words, it is to be read as comprehending only things of the same kind as those designated by them, unless, of course, there be something to show that a wider sense was intended, as, for instance, a proviso specifically excepting certain classes clearly not within the suggested genus.

12. The words which precede viz. 'all hotels, boarding houses, eating houses, restaurants, tea or coffee houses' belong to one genus viz. a place where the public or a section thereof has access. When the expression 'other places' follows upon these words, these words must be interpreted as words describing a place falling within the same genus viz. a place where the public or a section thereof has access. If the words are so interpreted, 'The Club' clearly falls outside the ambit of the rule. The rules framed by the municipality throw some light on what was intended. Rule 2 which immediately follows Rule 1 provides as follows:-

The tax shall be assessed at rates given in Rule 3 on the annual rental actually paid or where no rent is paid on the annual rental value of the place used as a hotel.

This rule indicates that all the places referred to in Rule 1 are regarded as covered by the expression 'hotel'. It cannot be disputed that an hotel is a place where the public or a section thereof has access. The rule relating to assessment, which is Rule No. 3, provides as under:-

Assessment shall be made according to the following scale:

(a) For an annual rental actual or estimated of Rs. 50 to 100 .. Rs. 7(b) For every additional Rs. 100 of the rental .. Rs. 8Provided that if after applying Clause (b) above, the remainder of the rental value is below Rs. 50 it shall be neglected and if it is Rs. 50 or above, it shall be taken as Rs. 100 and tax levied.

These rules show that the intention of the Mahabaleshwar Municipality in framing these rules was to tax hotels, and tax them at a rate of assessment dependent upon the annual rental of the place. The municipality has itself referred to this tax as 'Hotel tax' in the municipal bill, which is annexed as exh. No. 1 to the affidavit of S.S. Dighe, Secretary of 'The Club'. That bill shows the name of the tax as 'Hotel Tax' and the amount sought to be recovered under that head is Rs. 639 being the amount claimed in respect whereof the petitioner has come before us. Even in the letter of demand, dated April 11, 1958, addressed by the President of the Mahabaleshwar Municipality which is annexed as exh. No. 2 to the said affidavit, the tax is referred to as 'Hotel Tax'. Much value cannot be attached to the use of the expression 'Hotel Tax' by the municipality, if the tax was in reality a tax not merely on hotels but on other places like the Club at Mahabaleshwar. The intendment of the rule appears to be that only places where the public or a section thereof has access were sought to be taxed, and recognition to that idea has been given by the municipality itself by dubbing the tax as 'Hotel Tax' in the printed bills and in the letter of demand. In para. 9 of the petition, it has been stated as follows:-

A mere cursory reading of the rules and by-laws of the petitioner club will show that the public generally have no right of access to the club. The club is conducted not with a view or desire to do business but merely with the object of satisfying the social needs of its members. In fact, the petitioner club does not do or carry on any business. The petitioner submits that as the entry to the club is not open to the public generally and as the club does not carry on business, it is not a 'Hotel' and is therefore not liable to pay the 'hotel tax'.

The statement that the public do not have any right of access to the Club has not been controverted in the affidavit in reply. The only thing stated in para. 4 of the affidavit in reply is as follows:-.the petitioner provides its members and their guests food, meals, refreshments, tea, coffee and other non-intoxicating drinks for a price. The petitioner therefore is covered by the rules and bye-laws and is liable to pay the tax.

13. Strong reliance has been placed by the learned advocate for the respondents on some of the by-laws of the petitioner Club. By-law 38 provides as follows:-

38. All meals shall be served in the dining or breakfast room only, provided that a member may have chota hazri and tea served in his room likewise a member who is ill may also have his meals served in his room.

By-laws 40, 41 and 42 are as follows:-

40. The messing charges inclusive of chota hazri, breakfast, lunch, tea and dinner shall be as fixed by the Committee season by season and notified in separate 'Scale of charges'....

41. The charge for single meals shall be:

Rs. a. p.Chhota hazri .. .. .. .. .. 0 12 0Breakfast .. .. .. .. .. 2 8 0Lunch .. .. .. .. .. 4 0 0Afternoon tea .. .. .. .. .. 1 0 0Dinner .. .. .. .. .. 5 0 0Special dinner, from Rs. 6-8-0 upwards according to the menu ordered.42. A member entertaining a guest to a meal will pay in addition to above rates, a table fee of four annas per head for reserving a private table. An extra charge of Re. 1-0-0 per head will also be made unless 12 hours notice in writing is given to the Secretary.

By-law 45, which deals with guests, runs as follows:-

45. A member may entertain guests at breakfast, lunch or dinner, and he shall give notice in writing of his intention to do so at least twelve hours before the entertainment....

These by-laws, it is urged, show that refreshments, tea, coffee and meals can be had on payment of money and that as these could be had on payment of money, the place where these things are obtainable is one covered by rule No. 1. Reliance was also placed on by-laws Nos. 61 and 62. By-law No. 61 runs as follows:-

61. A member is permitted to purchase stores, wines, spirits or tobacco to be consumed on or off the premises, provided that the Committee may at any time, without assigning any reason, stop the supply to any member or to all members.

By-law No. 62 runs as follows:-

62. The Honorary Secretary is authorised on behalf of the Club, to undertake outside contracts for catering at At Homes, weddings, parties or other entertainments, at charges to be fixed from time to time by the Committee....

It is urged that by-laws No. 61 and 62 show that the Club carries on the business of sale of stores and that it carries on the business of catering. We have been informed by the learned Government Pleader on behalf of 'The Club' that in fact during the course of its existence, the Club has never undertaken any catering contract for any person other than a member. The rules, no doubt, provide that the members would be supplied with food and drink at the charges therein set out. The question still remains whether such a supply on payment of charges is a supply 'on payment of money' within the meaning of Rule No. 1. It is not necessary for the purpose of the present petition to determine that point in view of the fact that we hold that the supply that is being made is only to the members of the club and to their guests and not to the public or any section thereof. Even when any supply is made to the guests, a member has to pay for it, and a guest is not permitted under the rules to make any payment in connection therewith.

14. Rule No. 1 is a rule which imposes a tax. It is well-established that statutes which impose pecuniary burdens are subject to the rule of strict construction. In Maxwell on the Interpretation of Statutes, 10th edn., it is stated at p. 288 as follows;-

It is a well-settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties. The subject is not to be taxed unless the language of the statute clearly imposes the obligation. In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.

On a fair reading of the rule, it is clear that it was not intended to apply to a place where the public or a section thereof has no access.

15. As the element of access to the public or any section thereof is absent in the case of the petitioner, the petitioner is not liable to pay any tax under Rule No. 1 of the rules under which the municipality claims to levy and recover the tax from the petitioner.

16. In view of our judgment, the petitioner is entitled to the issue of a writ of mandamus requiring the respondents and the successor in office of respondent No. 2, their servants and agents to forbear from levying and/or collecting and/or recovering from the petitioner any tax under rule No. 1 of the rules framed by respondent No. 1 municipality under Section 59 of the Bombay District Municipal Act, 1901, and we order accordingly. Respondents to pay to the petitioner the costs of the petition.


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