V.S. Kotwal, J.
1. Raising of colourful flower beds and maintenance of a garden and a lawn would no doubt enhance the beauty of the building and the healthy environment of living which may not necessarily be a luxury but a requirements in a place like the Metropolitan City where values of a normal life have deteriorated. However, this has landed the owner of the building in difficulties to some extent, costing him the amounts which are thoroughly disproportionate. This grievance is made against the Bombay Municipal Corporation as he received bills for water supply at enhanced rate.
2. The appellants are the owner of the property located at Ridge Road and known as Malbar Court and it falls in 'B' Ward of the Bombay Municipal Corporation. The water supplied to the said buildings is by meter measurement. The building consists of the basement, ground and four upper floors where several residential flats are located while 3rd and 4th floor are a single unit. This property was constructed about 40 years before. There was a common water connection through which water was supplied and used for household consumption by the residents as well as for the purpose of watering flower beds and maintaining small garden. Separate rates are chargeable by the Corporation for the supply of water for residential purpose and for garden rea, while for the latter rates are much higher. An uniform rate has been charged as a composite one for the water supply in both the categories, though the rate charged was applicable to the supply for the garden. In other words, the water supply for the residential purpose which normally should have ben o the basis of the charges leviable on that count have also been put on par with the water supply to the garden, with the result that excessive charges were sought to be levied by the corporation.
3. In view of this, the Assistant Engineer of the corporation, some time in January 1978 asked the appellants to have the connection for the garden separated from the one for the residential purpose. The appellants did apply for such a separate connection though request was not acceded nor any reply was sent till March 1978. It was on March 14, 1978 that to their utter surprise they received bill for a quarter for the period between July to September 1977 charging for the supply at the enhanced rate presumably one chargeable for the supply of water to the garden and the element of surprise was aggravated when it was noticed that apart from the excessive amount, the quantity of water alleged to have been consumed for both the purposes was equally excessive having regard to the normal consumption and utilisation in the past. Those are covered under Bill Nos. 11651 and 11652. It is on that count that the appellants preferred an appeal under section 217 of Bombay Municipal Corporation Act (hereinafter referred 'the Act') in the Small Causes Court Art Bombay being Municipal Appeal No. M/69 of 1978 challenging the validity of the said two bills. The principle contention raised was that the issuance of a composite bill that obviously entailed into injustice inasmuch as water consumed for residential purpose which would have been leviable at a lower rate has been made the subject of a higher rate applicable to the water supplied to the garden. It was also contended that even in respect of the garden, the rate was not proper inasmuch as it was in reality not a garden as such but the water was principally used for raising flower beds. The appellants, therefore, asked for a declaration to quash the said bill or to amend and refund the same by reducing the amount and to refund the excess amount.
4. The corporation contested the appeal primarily on the point of jurisdiction of the Court contending that the appeal was not maintainable under section 217 of the Act inasmuch as what was sought to be levied was not water taxes as such but were only water charges. The distinction was sought to be made in two terms such as 'Taxes' and 'Charges'. It, was, therefore, contended that appeal can lie under that provision only pertaining to a tax and since it was not a tax, section 217 of the Act was not applicable, and since there was is no other provision under the Act for filling an appeal or revision with reference to the charges, the appellants should have resorted to any other remedy including the normal remedy of a suit. The contention on merits denying the claim of the appellants was also raised.
5. The learned trial Judge negatived the corporation's contention about the non-maintainability of the appeal holding that section 217 of the Act is attracted, as in the opinion of the learned Judge, there was no distinction between tax and charges but both the terms were synonymous and what was sought to be lived was in reality water tax. On merits he held that excessive amounts have been reflected in the bills and directed the corporation to amend the bills by charging on the basis of the water being supplied for residential purpose and thus charging by lower rate. He further directed it to make the refund on calculations. The appeal was, thus allowed. It is this order dated December 2, 1980 that is being impugned in this appeal on behalf of the corporation.
6. Shri V.T. Walwalkar, the learned Counsel appearing on behalf of the appellant-corporation, predominantly submits that the learned trial judges has obviously mis-directed himself on the main question of law about the maintainability of the appeal and such on that short premises the trial Court's order is required to be set aside. According to him, these are the water charges and not the water taxes, which is apparent from the scheme of the Act and, therefore, section 217 of the Act is not applicable. According to him, the appellant have to thank themselves since they have not taken separate connections and as such it was not possible for the corporation to have the proper mode of measuring exactly quantity of water utilised for two different purpose in such even the corporation cannot be blamed for charging uniformly at the higher rate. Shri Suresh, the learned Counsel for the respondent-landlord, no doubt endeavoured to support the impunged order ton some other premises, but was conscious of the ratio of the decision of the Division Bench of this Court squarely embracing the point. His main grievance, however, is that it was unfair on that part of the corporation not o have split up the quantity consumed or utilised for different purpose and it was equally unfair to charge uniformly at a higher rate though the major quantity was consumed for residential purpose to which admittedly lower rate would have been applied. The learned Counsel also submits that in spite of his application no separate meter has been installed. He has also collected some data on the basis of the previous consumption and the charges levied and submitted that the bills in question are in glaring contrast vis-a-vis the quantity as well as the amount.
7. For obvious reasons, the appeal must succeed on the short premise based on the construction of the real nature of the amount charged which would further clearly indicates that provisions of section 217 of the Act would not be applicable and as such the landlords original appeal in the Small Causes Court itself was not maintainable. In view of this obvious positions it will not be necessary to go into the factual aspects on merits.
8. Only a few facts which are really not much in controversy be stated to appreciate the applicability or otherwise of the relevant provisions of the Act. For quite some time there has been a common water connection for the entire property to which water was being supplied to the flower beds. The two connections were fed to the suction tank for residential purpose as also fed to the garden to the lawn. The supply to the garden was not separate. Different rates are charged for these two kinds of water supply, the rate for the supply for garden is much higher. The bills in question pertained to a quarter between July and September 1977 and the rate charged is no par with the one on the higher side chargeable for supply for garden. Since no separate meters were installed, it may have been difficult to measure the separate quantity untilised for two purposes. At the suggestion of the Engineer separate connection was asked for and it is from May 2, 1978 that a new connection for feeding water to the garden has been installed. The disparity of the two rates is quite substantial, the lower for the residential purpose being roughly Rs. 2.50 ps. per 10,000 litres while for the garden is Rs. 10/- per 10,000 litres which was the rate then prevailing on the date of issuance of bills. This water supply is obviously by meters exclusively and essential dependant on the calculations arrived at on the basis of actual consumption and utilisation of the water and as such is not a fixed quantum which may be irrespective of the actual quantity of consumption.
9. As regards the trial Court is concerned, it was held that the water taxes and the water charges are synonymous and in reality it is nothing but a tax as defined in section 3(p) of the Act. The learned Judge held that the term 'taxation' is a genus while different types of taxes are species. It is essentially on that basis that maintainability of the appeal by the landlords was up-held.
10. Reference to some of the provisions of the Act will be essential to appreciate the controversy. Section 3(p) no doubt defines 'tax' as including any impost revisable under this Act. But this definition cannot be read in isolation but there should be harmonious reading of the various other relevant provisions under the Act pertaining to this feature. Short resume would leave no manner of doubt that the interpretation sought to be placed by the trial Court is manifestly unsustainable.
11. The topic and the provisions relating to taxation are incorporated in Chapter VIII of the Act commencing from the section 139. This section gives the variety of taxes that can be imposed which variety consists of about four items such as 'property taxes, tax on vehicles and animals, theatre tax and octroi tax'. Significantly the category pertaining to the supply of water where it is styled as water taxes or water charges is not included. Section 140 is placed under the head as 'property taxes' and the subsequent one prescribes the items which constitute the property taxes, the rate and the mode of levying those taxes. Sub-clause (1) sub-section (3) sub-clause (i) relates to the water tax and indicates the rate leviable by a particular per centum of the rateable value as decided by the committee for providing water supply and sub-clause (ii) relates to the additional water tax called as 'the water benefit tax' that would be necessary to meet the expenditure for making and improving the facilitates of water supply and for maintaining and operating such works. Section 141 prescribes the venue or premises on which the make tax can be levied indicating that it can be only in respect of premises to which private water supply is furnished from or connected with any municipal water works and sub-clause (b) refers to the premises situated in a particular portion where it is notified that sufficient water supply was available from age municipal water works. This provision is clarified as being subject to the provisional of section 169. Sub-clause (2) makes it further clear that the water benefit tax shall be levied in respect such premises subject to the provisions of section 165. The other provisions pertain to the general tax.
12. This takes us to the most relevant provisions contained is section 169 so that one can skip over the intervening provisions. This section is arranged under the head 'Special provisions connecting the water and Sewerage taxes and charges' which was substituted by section 20 of the Maharashtra Act 34 of 1973. It would be proper to reproduced the said provisions verbatim:
(1) Notwithstanding anything contained in section 128, the Standing Committee shall, from the to time, make such rules as shall be necessary for supply of water and for charging for the supply of water and for any fittings, fixtures or services rendered by the corporation under Chapter X and shall by such rules determine-
(i) the charges for the supply of water by a water tax and a water benefit tax levied under section 140 of a percentage of the rateable value of any property provided with a supply of water; or
(ii) a water charge in lieu of a water tax, based on a measurement or estimated measurement of the quantity of water supplied; or
(iii) combined charges under Clauses (i) and (ii); or
(iv) a compounded charge in lieu of charges under Clauses (i) and (ii).
(2) A person who is charged for supply of water under Clauses (ii) or (iv) of sub-section (1) shall not be liable for payment of the water tax but any sum payable by him and not paid when it becomes shall be recoverable by the Commissioner as if it were an arrear of property tax due.
13. These are the relevant provision which are germane to this proceedings to effectively adjudicate upon the controversy. Section 217 prescribes the channel for preferring appeals against valuation and taxes and sub-clauses (1) lays down that appeals against rateable value or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Causes Court. It would, therefore, be manifest that if the item under discussion amount to water charges, it would not be embraced by this provision in which case the appeal would not be maintainable, whereas if it is styled as water tax then only this provision would be attached. As stated, the learned trial Judge has put the item in the second category on which basis he has entertained the appeal on merits. The question, therefore, that remains in the field would be whether in view of these relevant provisions and the scheme of the Act the item in this proceedings can get the label of water charges or water taxes.
14. I have already indicated the scheme of the Act reflected in the relevant provisions arranged herein above. Though section 140 sub-clause (a) (1) and (2) refer to water tax, it has to be read in the context of the preamble or the qualifying clause of main section which in terms indicates that those taxes shall be levied on buildings and lands and would be called as 'property taxes' and it is under that description that these two sub-clauses referring to water taxes are included. Section 141 though refers to water tax as such makes it further clear that the entire provision is subject to the one contained in section 169. These two provisions would indicate that a different type of tax which runs along with the property is contemplated and is brought under the heading as 'property tax' and significantly the tax leviable depends on the rateable value of the property, while the water benefit tax is a special one to meet the additional expenses as prescribed thereunder. Thus the description is different and the mode of fixing the rates is different and the mode of levying is also different. This would, therefore, indicate that this is a fixed tax which is annexed to the property being the measure in terms of rateable value of the property having no connection whatsoever about the quantity of the water supplied to the consumer and thereby there being no reference to the meter to be installed for the purpose of measurement of water supply. The amount levied is fixed exclusively dependant on the rateable value of the premises which has obviously a different concept vis-a-vis the supply of water dependent on the measure of supply and the quantity of consumption. This rate thus obviously pertains to a different kind of water supply and is leviable in respect of each and every building, the rate being fixed strictly to the rateable value of the property. Therefore, the nomenclature used as water tax in that context has a restrictive meaning and cannot be expanded beyond that. Section 141 is obviously controlled by section 169. Therefore, the most relevant provision would be one under section 169. It becomes apparent that from the various items in section 139 where logically this should have been included, it was perhaps life placed in a separate and self-contained provision with a special heading unmistakably indicating that these are the special provisions concerning the water taxes and charges. Sub-clause (ii) contemplates a water charge in lieu of water tax based on a measurement or estimated measurement of the quantity of water supplied, while sub-clause (iii) pertains to the combined charges of fixed water taxes and water charges on the basis of quantity consumed. Sub-Clause (2) prescribes the mode of levying the charges and the consequence of the person being said charges if those are on the measurement basis as if those were arrears of property tax. On a combined reading of all the clauses in contrast with the reading of the other provisions already referred to, it would be clear that a special class is contemplated when water is supplied and consumed by measure in which event the amount leviable would be styled as water charges and not water taxes. Merely because the arrears can be made recoverable on par with or as if those are water taxes does not even inferentially indicate that the concept of the real nature of the charges is changed or that by reason of sub-clause (2) water charges are converted into water taxes. In effect, the character as water charges remains intact while only the mode or recovering the arrears is on par with property taxes.
15. In the instant case it is an accepted position, as agreed upon by both the sides, that amounts sought to be leviable pertained to the water supply on the basis of the quantum of supply and consumption since a metre was installed and thus admittedly those do not pertain to the fixed water tax as contemplated by section 140. Apart from the concession, it is equally clear from the evidence that the only defect was that no separate meter was installed for the water that was supplied for the household purpose and the water supplied to the garden and in fact the Municipal Officer suggested to the appellants to get the said metres separated and the appellants had actually applied for the same though it was not implemented at that time. Once this premise is accepted and practically conceded by both sides, then there is a hardly and scope for controversy whatsoever. The item obviously would fall under section 169 and in particular sub-clause (ii) and it must get the label as water charges. If that be so, the necessary consequence must ensue is that the provisions of section 217 are not attracted with the further consequence that the appeal as contemplated there under is not maintainable. Shri Suresh the learned Counsel for the respondents, found it much difficult to support the impugned order to suggest that the appeal was maintainable and as stated earlier he has substantially and predominately submitted on the other plank that the amount charged was excessive inasmuch as an uniform rate has been charged for the water supplied for the residential use as well as for the garden, since admittedly there is a disparity between the rates for these two sources as the rate for garden water is much higher than what is charged to the household supply. Furthermore, it is also not seriously disputed about the rates chargeable for the two deferent supplies. The only controversy that, therefore, survives is whether an uniform rate could be justifiably charged for the different water supplies though individually both carry different rates. This controversy, however, need not be resolved in this proceeding since it falls out side it scope as, the main question was whether the appeal before the learned Chief Judge of Small Causes Court is maintainable or not. Once it is held that it is not maintainable then no finding can be recorded on facts and on merits and the respondent-landlord will have to resort to any other suitable remedy that is available to him.
16. It is also rightly submitted by Shri Walavalkar, the learned Counsel for the appellants, that there are certain items which can be called as incidence of taxes such as it is a compulsory payment even though no benefit be receivable. Then it is collected for general revenue purpose. Further their is no element of relationship of any be benefit received the quantum of tax also be paid to some capacity to him.
17. If at all any doubt still lingers it is completely wiped out from the very nature of the bill issued to the respondents clearly suggesting that it was not a fixed charge a such and thus is different from the regular water tax as contemplated under other provisions, but it is exclusively on the basis of water supplied and supplied and consumed. This is practically conceded and accepted by both the sides.
18. Reliance is then rightly placed on the ratio in The Municipal Corporation of the City of Bombay v. Haji Eisa Haji Oosman 37 BoM LR1017. This ratio squarely deals with this aspect and equally squarely answers the same which reinforces the conclusions which are arrived herein above. It also considers the same provisions. It is not necessary to re-state all the features, but a few observations can be quoted as-
'........The arrears can be recovered by distress under section 203 and the following sections, or under section 209 from the occupier if the person primarily liable fails to pay, or by a suit under section 211. Section 212 in terms imposes a charge in respect of property taxes due, which taxes include water tax, but do not include the charge by meter under section 160.........'
After reproducing the contents in section 169 of the Act it was further observed as-
'Section 169 makes a distinction between water tax and the charge for water supplied to premises by measurement. Section 140 makes a water tax as therein defined a property tax. There is nothing in section 140 to suggest that a charge for water supplied by measurement is a property tax,........... Section 212 imposes a charge, and unless you have got a charge, you cannot take steps to enforce that charge. This being a charging Act, I think it must be construed strictly. It would have been quite easy to provide in the Act that the charge for water supplied by measurement should be a property tax, or should be upon the same footing as a water tax, with which section 140 deals. There is no such provision in the Act. We would, therefore, not be justified in treating the charge for water supplied by measurement as a water tax, when the Act merely states that sums payable an account of such water shall be recoverable as if it were an arrear of water tax.'
19. It is true that the facts related to a property where the Municipality used to supply water by two meters, while the said property was then sold when corporation presented bills and on account of non-payment the suit was filed to recover the said amount and to obtain a declaration that it should be treated as the first charge on the property. However, the question about the nature of the water supplied by measurement was very much under consideration and the question was directly involved and answered that it was water charge and not water tax and the mode of recovery under section 212 in that context was considered. The learned trial Judge has missed the thrust of that decision when he observed that the facts in the said case were different. In my opinion, this ratio squarely covers the issue involved in this proceeding.
20. The learned trial Judge, as stated at the outset, has very much relied on the definition of tax under the Act and observed that the term taxation is a genus while the subsequent part of section 140 contemplates the different types of taxes as species of taxation and on that aspect if in respect of a property, water charge was leviable and not water tax then the water charge must be construed as impost leviable on the property under the Act. It is in that context the learned Judge observed that the water charge shall have to be taken as synonymous with the water tax for the purpose of section 217. With respect, the learned trial Judge has obviously misconstrued the impact of the relevant provisions under the scheme of the Act and really his reasoning moves in a circle. The position is so clear that any further comments are really not necessary.
21. In this view of the matter the appeal deserves to be allowed on the ground that the appeal that was filed by the respondent herein in the Small Causes Court is not maintainable under section 217 of the Act. In view of this it is not necessary to express any opinion on the merits, since the respondents would be entitled to resort to any other suitable remedy that may be available to them.
22. Before parting, a few words on an equally relevant aspect would not be out of place. Shri Suresh, the learned Counsel for the respondents has substantially submitted that the corporation should reconsider the amounts that are sought to be lived under those two bills for the said quarter inasmuch as it is impossible to conceive that the entire quantity that was supplied was utilised for the garden and raising of the flower plants. On the contrary, according to the learned Counsel, it was only a small slice of that quantity that was used for the garden whereas the bulk was used only for the household purposes. If that be so then the amounts that could be calculated would be much less inasmuch as there is a substantial disparity between the two rates, the one for the garden water being nearly Rs. 10/- per 10,000 litres while for the domestic purposes it is only Rs. 2.50 ps. per 10,000 litres. He has also placed for perusal the figures indicating the quantity of water consumed for both the purposes and the bills charged right from July 1978 to June 1982 and the submission based thereon is to the effect that apart from the harsh consequence of imposing an uniform rate, even the quantity there is alleged to have been consumed for both the purposes is absolutely not only disproportionate but is far away from reality and so also the charges levied earlier are equally in contrast to the ones that are being charged. In substance the contention is that an obvious confusion or mistake summed for either of the two purposes and quantity of water supplied and consumed for either of the two purposes and equal mistake has been committed in calculating the amounts leviable. It is suggested that during all these years there was never such a heavy bill much less such a heavy consumption of water and it is impossible to conceive that during these years only for that quarter the picture was in contrast with reference to the quantity of water as also with reference to the amounts charged. The details provided in the tabular form prima facie at least do support this contention and if this is really correct then the suggested argument would be thoroughly valid. Shri Walavalkar, the learned Counsel for the Corporation, also accepts this position but clarifies by submitting that he will have to verify the record of the Corporation and till then no statement could be made. This is quite legitimate. The learned Counsel, however, assures the Court that he would certainly direct the officers of the Corporation to look into the matter and if any mistake had really occurred then he would instruct to rectify the mistake even with reference to the bills which are the subject matter of this proceeding so that no amounts would be levied from the respondents which are really not due. The Corporation no doubt enjoys the right or privilege to recover taxes, charges and other amounts from the citizens which are in turn being utilised by the corporation for the welfare of the society itself and, therefore, every citizen is enjoined to discharge his obligation faithfully. However, along with that there is also a corresponding obligation on the part of the corporation to take meticulous care not to saddle undue and unjustified burden on the shoulder of any citizen and if a mistake is discovered then it should not feel shy rectify the mistake. The mutuality of co-operation and benefit between the corporation and citizens is the under current and even the corporation cannot flourish if the confidence of the citizens is cracked. The assurance given by Shri Walavalkar, the learned Counsel for the corporation, should be enough protection for the apprehensions echoed on behalf of the respondents. I part with this judgment with a confident note that the matter would be looked into properly by the corporation.
23. In the result, the appeal is allowed. The impugned order recorded by the learned Additional Chief Judge, Small Causes Court, Bombay, in Municipal Appeal No. M/69 of 1978 on December 2, 1980 is set and the said appeal filed by the respondents herein is dismissed as being not maintainable on that forum.
24. There would, however, be no order as to costs of this appeal.