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Vadilal Somabhai and Co. and anr. Vs. the Municipal Corporation of the City of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 25 of 1966
Judge
Reported inAIR1972Guj274
ActsBombay Provincial Municipal Corporations Act, 1949 - Sections 127(2), 134 and 458
AppellantVadilal Somabhai and Co. and anr.
RespondentThe Municipal Corporation of the City of Ahmedabad
Appellant Advocate Suresh A. Shah, Adv. for; I.M. Nanavaty, Adv.
Respondent Advocate Mayur D. Pandya, Adv. for; G.N. Desai, Adv.
Cases ReferredHirabhai Ashabhai Patel v. State Bombay
Excerpt:
.....advocate for the appellants is that if the notice is deemed to have been issued under section 134 of the act, it is bad because the commissioner had not taken any general approval of the standing committee. 5. in the result, the appeals fail and are dismissed with costs......special water charges has been granted to the commissioner subject to the general approval of the standing committee and therefore, that power cannot be exercised by the corporation under the bye-laws; 2. bye-law no. 15 framed by the corporation takes away the powers conferred upon the commissioner and the standing committee under section 134 of the bombay provincial municipal corporation act (herein after referred to as the act), and hence. the said bye-law is ultra vires being inconsistent with the act; 3. on true interpretation of bye-law no. 15 special tax by measurement would be applicable only when an application was made for a new connection or continuing the old connection for the purpose of running restaurant, hotel, lodge etc. 4. the notice served on the plaintiffs is based.....
Judgment:

1. These appeals are directed against the common judgment of the learned Judge, City Civil Court. 7th Court, Ahmedabad, dismissing Civil Suits Nos. 1191 of 1963, 1220 of 1963, 1196 of 1963, 1195 of 1963 and 1194 of 1963 with costs.

2. The facts in all the appeals are identical. The plaintiff in each suit runs a restaurant in the city of Ahmedabad in the premises occupied by them as tenants. They brought the suits for a declaration that the notice issued by the defendant. Municipal Corporation was illegal, ultra vires, void and not enforceable and for an injunction restraining the Municipal Corporation from enforcing the said notice and from cutting off the water supply granted by the Municipal Corporation to them. By a notice on each plaintiff, given by the Municipal Corporation which was identical in terms the Municipal Corporation informed the plaintiffs that the existing water supply was given to them without installing any meter. Under bye-law 15 of the Bye-law framed by the Municipal Corporation and which were sanctioned by the Government by their resolution No. PCR-3256, dated 6.6.1958 and 24.7.1958, the water connection in premises used as hotels, lodges etc, could not be continued without installing a mater. The plaintiffs, therefore, were directed that they should not use the water in contravention of the said Bye-law No. 15 and that if they did so, they will be liable to prosecution under Rule 12 of Chapter 10 of the Schedule to the Bombay Provincial Municipal Corporation Act. According to the plaintiffs, the notice served by the Municipal Corporation was illegal and invalid; that the Municipal Corporation had no power to frame Bye-laws under Section 458(1) and (2) of the Act; that the Bye-law No. 15 framed under the said provision was inconsistent with other provisions contained in the act; that since the Municipal Corporation charged special water rates from the plaintiff in each suit and as no breach of any conditions prescribed by the Municipal Corporation had been committed by the plaintiffs, the Corporation was not entitled to cut off the water supply to the premises occupied by them; that the Corporation cannot doubly tax the plaintiffs; that the resolution referred in the impugned notice is without authority and that the notice was mala fide and bad in law. The Municipal Corporation by its written statement filed in each suit, denied various allegations made in the plaint. It contended that the notice issued was valid and legal; that the Municipal Corporation was entitled under law to issue such a notice. It, therefore, prayed that the plaintiff's suits be dismissed with costs. From the pleadings of the parties, the learned Judge framed the following three identical issues in each suit:-

'1. Is the notice dated April 1, 1963 given by the Municipal Corporation illegal, ultra vires and/or void as alleged?

2. Is the defendant - Corporation not entitled to enforce the said notice?

3. What order and decree?

On issue No. 1, the learned Judge held that the notice was legal and valid. On issue No.2, he held that the Municipal Corporation was entitled to enforce the notice. On these findings, all the suits were dismissed with costs. Against the said judgment and decree, all the plaintiffs have preferred the present appeal to this court. As these appeals involve a common question of fact and law, and as they arise out of a common judgment they were heard together and are disposed or by a common judgment.

3. Mr. Suresh A. Shah learned Advocate appearing for Mr. L. M. Nanavaty for the appellants, in all the appeals, raised the following contentions:

1. Under the scheme of the Act, the power to levy special water charges has been granted to the Commissioner subject to the general approval of the standing committee and therefore, that power cannot be exercised by the Corporation under the bye-laws;

2. Bye-law No. 15 framed by the Corporation takes away the powers conferred upon the Commissioner and the standing committee under Section 134 of the Bombay Provincial Municipal Corporation act (herein after referred to as the Act), and hence. The said Bye-law is ultra vires being inconsistent with the Act;

3. On true interpretation of Bye-law No. 15 special tax by measurement would be applicable only when an application was made for a new connection or continuing the old connection for the purpose of running restaurant, hotel, lodge etc.

4. The notice served on the plaintiffs is based on the Bye-law which is ultra vires and hence of no legal effect.

In support of his submissions, Mr. Shah referred to the relevant provisions of the Act.

4. The main submission of the learned Advocate for the appellant is that under Section 134 of the Act, the Commissioner, with the general approval of the standing committee may, instead of levying the water tax in respect of any premises, liable thereto, charge for the water supplied to such premises by measurement at such rate as shall from time to time be prescribed by the Corporation. Mr. Shah relying on this provision, urged that the said water tax was already levied with respect to the premises occupied by them for use of water, by the Corporation under the terms and conditions agreed upon between them and the Corporation. Such terms and conditions cannot be changed by the Corporation by passing a Bye-law. Only the Commissioner with the general approval of the standing committee may, instead of levying the water tax in respect of such premises, direct that the water supply to such premises should be according to the measurement as per the meter at the rates determined by the standing committee. He submitted that the impugned notice served on the plaintiffs by the Corporation directing them not to use water from the connection which did not contain a meter was issued in pursuance of the Bye-law No. 15 which clearly was in conflict with the provisions of Section 134 (1) of the act under which the Commissioner alone was authorised to change the mode of payment of water tax. He submitted that it was within the discretion of the Commissioner to show as to which premises should be made liable to pay the charge for the water supplied to them, as per the measurement and it was not open to the Corporation to do so. He also challenged the said notice on the ground that the Municipal Commissioner before issuing the notice directing the plaintiffs to pay the water charge by mean surement, without obtaining prior general approval of the standing committee was invalid. In support of his say, he referred to the case of State of Gujarat v. M/s. Krishna Cinema : [1971]2SCR110 , wherein it was observed that--

The State Government under Rule 5 (2), Chapter II may have or may not have absolute discretion to grant permission for the issue of a no objection certificate' for the applicant. But the State Government cannot relying upon the Rules assume to itself the jurisdiction of the Licensing Authority to issue the licence. Power to control the Licensing Authority under Section 5 is not the power to supplant the Licensing Authority. Again the power to grant a licence under the Act is quasi-judicial, and by the use of the expression 'absolute discretion' it is not intended to invest the Licensing Authority with arbitrary power so as to destroy the limitations to which it is subject by its inherent nature. The Act does not purport to confer arbitrary authority upon the Licensing Authority or the State Government, and by the use in the rules of the expression 'absolute discretion' the legislative intent disclosed by the Act cannot be superseded.'

In my opinion, this case will not help the appellants. That case was under the Bombay Cinemas (Regulation) Act under which powers to issue a licence was delegated to the District Magistrate. The District Magistrate was the only authority under the Act to issue a licence. No doubt, the State Government while confirming the order of the District Magistrate issuing a licence, had to issue a 'no objection certificate' which in its discretion, Government may refuse. All the same, under the scheme of the act, the District Magistrate alone remains the Licensing Authority. Under these circumstances, the Supreme Court held that the Government cannot assume to itself the jurisdiction of the Licensing Authority to issue a licence. The discretion whether a licence should be issued or not solely rested with the District Magistrate under which no instruction or direction could be issued to him by the Government for the purpose. Under these circumstances, the observations referred to above were made. Similar observations were made by the Supreme Court in the case of Purtabpur Co. Ltd. v. Cane Commr. of Bihar, AIR 970 SC 1896 as under:-

'The executive officers entrusted with statutory discretions may in some cases by obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole, when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provisions has been made for them to be given binding instructions by a superior.'

There can be no quarrel with the principle and with grates respect, I am in complete agreement. In the instant case, the notice which was issued by the Commissioner was not under Section 134 of the Act but it was issued pursuant to the Bye-law No. 15 framed by the Corporation under the authority vested in it under Section 458 (2) of the Act to frame Bye-laws. The whole scheme of the Act to which I will presently refer shows that the Corporation had not abdicated its powers in favour of the Municipal Commissioner. In other words, the Municipal Commissioner was not the only authority to take action under Section 134 of the Act as was canvassed by Mr. Shah before of the Supreme Court, therefore, will not govern the facts of this case. It is not disputed that the plaintiffs are running restaurants in the premises occupied by them in which the water connections have been taken without installing a meter. They are paying the tax at the fixed rate determined by the Municipal Corporation. Subsequently, the Corporation framed new Bye-laws and under Bye-law No. 15 installation of a meter was made compulsory for use of water supplied by the Corporation in respect of the premises used as hotels, lodges, etc. Bye-law No. 15 runs thus --

'No water connection without meter shall be allowed to continue whether existing or in future in the following cases of water:-

1. X X X X

2. When the connection is required for a hotel or boarding-house (Vishi in Gujarati) restaurant or cold-drink house'.

This sub-clause, therefore, in clear words states that no water connection whether existing or which may be taken in future shall be allowed to continue without a meter when the connection is required for a hotel or a boarding house etc. Relying on the words 'connection is required', the learned Advocate for the appellants very vehemently argued that these words clearly denote that this Bye-law assuming that it was valid, would apply to the supply, of water to such premises in future and that it did not apply to the existing connections which were governed under the terms and conditions entered into between the parties. I am unable to agree with him. One cannot read sub-clause (2) of bye-law 15 in isolation. Merely because the words 'connection is required' are used, it would not lead to a conclusion that operation of the Bye-law was only prospective and that it could not apply retrospectively to the existing connections. To interpret this clause in such a narrow manner would be contrary to the words used in the Bye-law and also contrary to the purpose for which this Bye-law was enacted. If the Bye-law was to operate only prospectively there was no necessity of using the word 'existing with reference to water connection. While interpreting the clause, it should be interpreted in such a manner so as to harmonise it as a whole so that all the words or pharases used therein may be given their appropriate meaning. If it was to be interpreted as operating only prospectively, the use of the word 'existing' would be meaningless and redundant. In my opinion, therefore, there is no force in the submission made by the learned Advocate for the appellants that this Bye-law was not retrospective in its operation. Mr. Shah however, urged that the bye-law itself was ultra vires inasmuch as it took away the powers conferred upon the Commissioner and the standing committee under Section 134 (1) of the Act. He submitted that under the scheme of the Act, the power to levy special water charges was granted to the Commissioner only subject to the general approval of the standing committee. He merly relied, in support of his submission, on the wording of Section 134 (1) of the Act. Section 134 (1) says --

'134 (1). The Commissioner may --

(a) In such cases as the standing committee shall generally approve, instead of levying the water tax in respect of any premises liable thereto, charge for the water supplied to such premises by measurement at such rate as shall from time to be prescribed by the said committee in this behalf or by the size of the water connection with the municipal main and the purpose for which the water is supplied at such rates as shall from time to time be prescribed by the Corporation.'

Thus under this section, the Municipal Commissioner, with the general approval of the standing committee has been authorised to direct that instead of levying the water tax in respect of any premises liable thereto, charge for the water supplied to such premises be made by measurement at such rate as shall from time to time be prescribed by the said committee in this behalf. This section does not in any way indicate that the Commissioner also was the authority to levy the tax in respect of premises or to determine the rate at which such tax was to be levied with respect to use of water for certain kinds of properties. In order to appreciate the scheme of the Act, it will be worthwhile to refer to several other sections which are clearly giving a clue to understand and interpret Section 134 in a proper perspective. Section 99 authorises the Corporation to fix rates of tax. Under it. The Corporation shall, on or before the twentieth day of February, after considering, the Standing Committee's proposal in this behalf determine, subject to the limitation and conditions prescribed in Chapter XI, the rates at which municipal taxes referred to in sub-section (1) of Section 127 shall be levied in the next ensuing official year and the rates at and the extent to which any of the taxes referred to in sub-section (2) of the said section which the Corporation decides to impose shall be levied in the next ensuing official year. This section, therefore, clearly says that it is the Corporation alone which can determine the rates of taxes which are to be levied in the next ensuing official year. Section 127 (10 enumerates different kinds of taxes of which property tax is one. Sub-Clause (2) thereof also in addition to the tax prescribed in sub-section (1), authorises the Corporation to impose tax on several items and clause (f) is general which authorises it to impose any other tax which the State Legislature has powers under the Constitution to impose in the State. Thus, the Corporation has been authorised to impose tax which is not specifically enumerated in the said section provided the State Government have powers to impose such a tax as stated in the Constitution. Section 129 (1) states--

'For the purposes of sub-section (1) of Section 127 property taxes shall comprise the following taxes which shall, subject to the exceptions, limitations, and conditions hereinafter provided, be levied on buildings and lands in the city :-

(a) a water tax at such percentage of their rateable value as the Corporation shall deem reasonable for providing a water supply for the city.'

We are not concerned with the other clause of this section. Under Section 130 of the Act, water tax could be levied in respect of premises to which private water supply is furnished from or which are connected by means of communication pipes with, any municipal water works. Water tax could also be levied in respect of premises which are situated in a portion of the city in which the Commissioner has given public notice that the Corporation has arranged to supply water from municipal water works. Thus, the Corporation can levy water tax in respect of premises to which water connections have already been supplied or even with regard to the premises which are situated in the portion of the city where the Corporation has arranged to supply water to such premises. There is no dispute that all the suit premises were supplied with water connections by the Municipal Corporation. There is no dispute that prior to the notice, Ex. 18 served upon them, the plaintiffs were paying water tax at a fixed rate determined by the Corporation from time to time. Under Section 458 of the Act, the Corporation has been authorised to make Bye-law from time to time not inconsistent with the Act and rules with respect to matters enumerated therein. Matters mentioned at serial No. 2 pertain to regulation of matters and things connected with the supply and use of water. Under this section, therefore, the Corporation can make a Bye-law regulating all matters and things connected with the supply and use of water. Thus, if in the past the Corporation used to levy tax for the use of water supplied to the premises having regard to the size of the pipe used in the connection, if the Corporation subsequently thought that those mode of levying tax for the use of water should be changed with regard to the supply of water to the premises which were used as restaurants, hotels, etc., it would be competent to do so by suitably making a new by-law as provided in Section 485 of the Act. Pursuant to the authority vested in the Corporation under Section 458 of the Act. Bye-law were framed of which Bye-law No. 15 is material for the purpose of this appeal. It is difficult to agree with Mr. Shah, in the light of the provisions of Section 458 of the Act, that this Bye-law is inconsistent with Section 134 of the act. Section 134 gave discretion to the Commissioner to change the mode of imposing water tax in respect of premises liable thereto by directing that water supplied to such premises be charged by measurement at such rate as may be prescribed by the Standing Committee. The only restriction on the Commissioner is that before directing to do so, he must obtain general approval of the standing committee. Mr. Shah submitted that in the instant case, the Commissioner while issuing the notice, Ex. 18 had not obtained general approval of the Standing Committee and therefore, the said notice was illegal and ultra vires. In support of his say, Mr. Shah referred to the case of Hirabhai Ashabhai Patel v. State Bombay, reported in : AIR1955Bom185 wherein while interpreting S. 169 of the Bombay Municipal Corporation Act, 1888, it was observed that--

'But Section 169 lays down a limitation upon the exercise of his discretion and the limitation is that he can only exercise his discretion with regard to charging for water according to measurement, with regard only to those premises with regard to which the Standing Committee has passed an order or given a direction. In other words, the Standing Committee must first determine either generally the class of premises or specially the property or properties. It is only when such a determination is arrived at that the Commissioner's discretion - if one may put it that way - can attach to those premises. Therefore, it is not open to the Commissioner to exercise his discretion under Section 169 with regard to any premises in the city of Bombay. He can only exercise his discretion with regard to those premises with regard to which the Standing Committee has giver a general or special direction'.

In order to appreciate this decision, it will be worthwhile to refer to the material portion of Section 169:-

'The Commissioner may,

(a) in such cases as the Standing Committee shall either generally or specially direct, instead of levying the water tax in respect of any premises liable thereto under Section 141, charge for the water supplied to such premises by measurement at such rate as shall from time to time be prescribed by the said committee in this behalf'.

In spite of these wordings, the Bombay High Court while interpreting that the Commissioner could exercise the discretion with respect to those premises with regard to which the Standing Committee has given general or special direction further observed that--

'It is open to the Commissioner not to exercise his discretion with regard to a particular class of premises selected by the Standing Committee because the Commissioner is not bound to carry directions of the Standing Committee.'

I fail to understand how this ruling would help the appellants. This ruling would not apply for two reason. First of all, the Commissioner was not acting under Section 134 of the Act when he served the plaintiffs with a notice, Ex. 18. The notice clearly shows that it was issued pursuant to the Bye-law No. 15 framed by the Corporation. With regard to the second ground taken by the learned Advocate for the appellants is that if the notice is deemed to have been issued under Section 134 of the Act, it is bad because the Commissioner had not taken any general approval of the Standing Committee. In this connection it may be noted that it was not the case of the plaintiffs as averred in the plaint that no such general approval was taken by the Commissioner. In the absence of any specific averment, there was no opportunity for the defendant to lead evidence to show that such an approval was in fact obtained. In the absence of an averment, therefore a legal presumption could be raised that all the official acts were property done. The third objection raised by Mr. Shah was that by issuing the Bye-law, the Corporation had curtailed the rights of the Municipal Commissioner given to him under Section 134 of the Act. The whole scheme of the Act is that ultimately the Corporation as a whole is responsible for all the acts under the Act. The Corporation has been authorised to frame Bye-law for the purposes mentioned in Section 458 referred to earlier. I have already shown that one of the purposes to make the Bye-law is to regulate supply and use of water. If the Corporation is authorised to make Bye-law by the Statute itself, one fails to understand how a Bye-law made pursuant to it, could be said to be inconsistent with Section 134 of the act. Assuming that the Commissioner was the authority to charge for the use of water to certain premises by measurement, instead of levying the water tax as was done earlier, this right is not taken away by the Corporation while it framed Bye-law No. 15. Under Bye-law No. 15, the Corporation merely directed that no water connection would be allowed in respect of premises which were used for restaurant, hotel etc., unless a meter was installed therein for measuring the water used. In other words, the owners of the premises will be required to pay for the use of the water according to the meter at the rate determined by the Standing Committee. The Bye-law gets force of law when confirmed by the State Government, as provided in Section 462 of the Act which says that--

'When any Bye-law has been confirmed by the State Government it shall be published in the official gazette and thereupon shall have the force of law'.

It cannot therefore be said that when the Ahmedabad Municipal Corporation made a Bye-law under the authority vested in it by Section 458 of the Act for the Purpose mentioned therein and when this bye-law was confirmed by the State Government Bye-law No. 15 in any way could be said to have been inconsistent with the provisions of Section 134 or could be said to have curtailed the powers of the Commissioner 459 of the Act, it is the duty of the Commissioner, from time to time, to lay before the Corporation for its consideration, a draft of any Bye-law which he thinks necessary or desirable for the furtherance of any purpose of this Act. In order that the water supply by the Corporation may be put to proper use, the Corporation was required to enact Bye-law No. 15 which, after having obtained sanction of the Government, had the force of law. It could not, therefore, be said to be inconsistent with Section 134 of the act in any manner. At the most, it could be said that the Municipal Commissioner had also power to direct with the general approval of the Standing Committee, to charge for the water supplied to certain premises by measurement instead of by levying water tax and thus, he may be said to possess concurrent authority along with the Corporation. But merely because he has been given a power to charge for the water supplied to such premises by measurement instead of levying water tax, it cannot be said that the Corporation would be incompetent to do it. As already stated earlier, under Section 99 of this Act, the Corporation had power to fix rates for water tax and other taxes for the current financial year. Under Section 127, sub-clause (2) (f), it had power to impose any new tax which the State Government was competent to do. Under Section 458, it could made by-laws for regulating the use and supply of water. Reading all these sections together, it would be very clear that the Corporation had power to prescribe the rate at which tax would be levied on the premises and demarcate the premises from which water charge would be taken by measurement instead of levying water tax at the flat rate. In may opinion, therefore, bye-law No. 15 cannot be said to be ultra vires as submitted by the learned Advocate for the appellants. In my opinion, it is not in any way inconsistent with Section 134 (1) of the Act nor does it in any way curtail the powers of the Commissioner to charge for the supply of water to certain premises by measurement instead of levying water tax. The plaintiffs, therefore would not be entitled to get the reliefs prayed for. The learned Judge, therefore, was right in dismissing their suits.

5. In the result, the appeals fail and are dismissed with costs.

6. Appeals dismissed.


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